Judge Stephen I. Goorvitch, Case Number: 23STCP03720, Date: 2024-04-12 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP03720, Date: 2024-04-12 Tentative Ruling

California School Finance Authority, et al. v. Los Angeles Unified School District, et al.

The California School Financial Authority, a California state agency (the “CSFA”), and the State Allocation Board, a California state board (collectively, “Petitioners”) filed this petition for writ of mandate and complaint for injunctive and declaratory relief against the Los Angeles Unified School District (the “LAUSD” or the “District”), as well as the Board of Education and Superintendent (collectively, “Respondents”). Petitioners move for a preliminary injunction to prevent the LAUSD from using a school facility, constructed with Charter School Finance Program (“CSFP”) funds, for anything other than a qualified charter school, per the Charter School Facilities Program. Respondents oppose the motion, which is granted.

In 2002, the California Legislature established the Charter School Facilities Program to provide funding to qualifying entities to establish school facilities for charter school pupils. (Ed. Code, § 17078.52; Stats. 2002 ch. 935 § 14 (AB 14).) Under the program, an eligible project may receive funding for new construction or rehabilitation of a school facility for charter school pupils, including, but not limited to, the cost of retrofitting an existing building for charter school purposes, purchasing a building, or retrofitting a building that has been purchased by the charter school, subject to certain restrictions. (Ed. Code, § 17078.54, subd. (a).)

On April 13, 2011, Petitioners, the District, and Camino Nuevo High School Charter (“Camino Nuevo”) entered into a Memorandum of Understanding (“MOU”) under the Charter School Facilities Program to finance construction of a school facility. (Verified Petition for Writ of Mandate, ¶ 17.) The facility at issue is “located at 1215 Miramar Street, Los Angeles, California” and includes “a three-story, 513-seat secondary school on 1.37 acres, with approximately 49,961 of programmable space, 19 classrooms, 47 underground parking stalls, administration offices, food services and dining area, library, and labs” (the “Facility” or “Facilities”). (Id. ¶ 11 and fn. 1.) Pursuant to the California School Facilities Program, Petitioners extended funds to Camino Nuevo to construct the Facility pursuant to a Funding Agreement dated April 25, 2011, for an amount of up to $10,000,000 (the “Loan”). (Id. ¶ 18.)

In or around January 2021, Petitioners learned that Camino Nuevo intended to close its charter school at the Facility. (Id., ¶ 19.) As of June 2021, Camino Nuevo no longer occupied the Facility and the obligations of Camino Nuevo with respect to the MOU and Funding Agreement ceased. (Ibid.) Camino Nuevo vacated the Facilities and relinquished to the District all right, title and interest in the occupancy and use of the Facilities. (Ibid.) In the event a charter school uses to use a facility, the District is required to do the following: (a) Publicly notify all eligible charter schools authorized to operate within the District’s boundaries, (b) Use a “fair and competitive process” to identify and rank eligible charter schools, and (c) Identify, in ranking order, with approval from the Office of Public School Construction and the CSFA, a successor charter school. (Id., ¶ 20.)

On March 18, 2021, the District issued a notice of invitation and publicly notified all eligible charter schools to submit proposals to operate at the Facility and to assume the Loan, which are referred to as “Request for Qualifications” (“RFQ”). (Id., ¶ 21.) Alliance College-Ready Public Schools (“Alliance”) submitted a timely proposal. (Ibid.) Another charter school, Ednovate, Inc. (“Ednovate”) responded to the RFQ. (Ibid.) Petitioners allege that the District improperly deemed Ednovate not eligible due to an “outstanding over allocation penalty,” which Ednovate subsequently cured. (Ibid.) Petitioners and the District selected Alliance as the successor charter school to use the Facility and assume the Loan. (Ibid.) However, Alliance subsequently withdrew its proposal because it was unable to assume the financial obligations of the Loan and use the Facility. (Id., ¶ 22.)

On or about December 17, 2021, the District issued a second RFQ to all eligible charter schools inviting them to submit proposals to operate a high school at the facility. (Id., ¶ 23.) The RFQ set a deadline to submit proposals, which was February 2, 2022. (Ibid.) Two charter schools submitted timely proposals, including Ednovate. (Ibid.) On or about March 30, 2022, Petitioners approved Ednovate as a qualified successor charter school under the California School Facilities Program. (Id., ¶ 24.) On or about April 6, 2022, the District recommended Ednovate and posted its selection of Ednovate as the successor charter school, pending approval by the District’s Board of Education. (Id. ¶ 25.) The next day, the District notified Petitioners of its recommendation and stated that the report would be presented to the Board of Education on May 10, 2022. (Id., ¶ 26.)

The District did not present the recommendation to the Board of Education. On April 22, 2022, the District notified Petitioners that it had decided to delay presentation to the Board of Education until June 14, 2022, to give the new superintendent time to gain “a better understanding of the transaction’s history.” (Id., ¶ 27.) Then, before that meeting, “the agenda item was pulled and effectively cancelled [sic] for consideration.” (Id., ¶ 28.) The State Allocation Board inquired why the selection process had been canceled. (Id., ¶ 29.) The LAUSD sent an email that stated, among other things, that the LAUSD “would like to evaluate available options for the Facility and will be exercising its rights under the RFQ to cancel the entire RFQ.” (Id., ¶ 29.)

On or about March 29, 2023, Petitioners sent a written demand letter to the District, copying the Board of Education and the Superintendent, asking the District to comply with Education Code section 17078.62 and the Implementing Regulations. (Id., ¶ 30.) Specifically, Petitioners allege that Respondents’ actions violate the Charter School Facilities Program—Education Code section 17078.62, California Code of Regulations, title 2, section 1859.171 and California Code of Regulations, title 4, section 10157(a)—because the intended use of a portion of the general obligation bond funds is to provide charter school facilities to house California’s charter school students. (Id., ¶ 31.) Respondents responded to the demand letter, alleging that the District complied with its obligations concerning the first RFQ, which was canceled because Alliance withdrew, and it had no obligations with respect to the second RFQ. (Id., ¶ 32.)

Petitioners filed a petition for a writ of mandate and complaint for injunctive and declaratory relief on October 9, 2023. Petitioners seek a writ of mandate under Code of Civil Procedure section 1085 to prevent Respondents from violating state law by taking possession of, and using, the Facility in a manner inconsistent with Education Code section 17078.62, subdivision (b)(2) and California Code of Regulations, title 2, section 1859.171, subdivision (a) and title 4, section 10157, subdivision (a), which requires the District to use certain school facilities to house charter school students. Petitioners also seek a writ of mandate to compel the District to continue with the solicitation and selection process to identify a successor charter school to use the Facility until the District has sufficiently demonstrated due diligence to the CSFA, as required under California Code of Regulations, title 4, section 10157.

Petitioners filed an ex parte application for an order to show cause why a preliminary injunction should not issue, which the court (Beckloff, J.) denied on October 19, 2023, finding that there was no evidence of urgency or emergency. Petitioners filed a noticed motion for a preliminary injunction on December 29, 2023, and an amended motion on March 14, 2024.

The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. (Major v. Miraverde Homeowners Ass’n. (1992) 7 Cal. App. 4th 618, 623.) In deciding whether or not to grant a preliminary injunction, the court looks to two factors, including “(1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal.4th 528, 553-54.) The factors are interrelated, with a greater showing on one permitting a lesser showing on the other. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) However, the party seeking an injunction must demonstrate at least a reasonable probability of success on the merits. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73-74.) The party seeking the injunction bears the burden of demonstrating both a likelihood of success on the merits and the occurrence of irreparable harm. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.) Irreparable harm may exist if the plaintiff can show an inadequate remedy at law. (Code Civ. Proc. § 526(a).)

The motion is based on Petitioners’ cause of action for writ of ordinary mandate. There are two essential requirements to the issuance of an ordinary writ of mandate: (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.)

Petitioners allege that Respondents “have a legal duty to follow the law set forth in Education Code section 17078.62, subdivision (b)(2) and the Implementing Regulations including, but not limited to, California Code of Regulations, title 2, section 1859.171, subdivision (a).” (Petition for Writ of Mandate, ¶ 37.) Petitioners allege that Respondents have a ministerial duty “to refrain from using the Facility for other purposes as allowed under Education Code section 17078.62, subdivision (b)(3) until Respondents have demonstrated ‘due diligence’ to solicit and identify a successor charter school, as determined by the California School Finance Authority, which has not occurred.” (Id. ¶ 39.) Petitioners further allege that “[a]t the time of the filing of this petition, Respondent District has not demonstrated sufficient due diligence to the satisfaction of Petitioner California School Finance Authority under California Code of Regulations, title 4, section 10157, subdivision (a).” (Ibid.)

The CSFP gives priority to a successor charter school to occupy the facility, over a school district, when a previous charter school ceases using it. (Educ. Code § 17078.62(b)(2); 2 CCFR § 1859.171.) In furtherance of this legislative purpose, CSFP regulations mandate that school districts complete a process to solicit and select a successor charter school before the school district can occupy the facility. (2 Cal. Code Regs., § 1859.171(a).) Specifically, the school district in which the facility is located “shall publicly notify all eligible Charter Schools authorized to operate in the School District's boundaries.” (2 Cal. Code Regs., § 1859.171(a)(1).) “If more than one eligible Charter School responds to the School District's notification, the School District must use a fair and competitive process, such as a request for proposal, to identify and rank eligible Charter Schools.” (§ 1859.171(a)(2).) Finally, “[t]he School District, with approval from the OPSC and CSFA, must identify, in ranking order if applicable, a successor Charter School.” (2 Cal. Code Regs., § 1859.171(a)(3).)

Should the process fail to identify a successful charter school candidate, the District still must obtain approval from the CSFA before the District may lawfully consider other uses for the facility. (Ed. Code, § 17078.62, subds. (b)(2) and (b)(3); Cal. Code Regs., tit. 4, § 10157, subd. (a).) To obtain such approval, the District must demonstrate sufficient due diligence in its process to solicit and identify a successor charter school. (Cal. Code Regs, tit. 4, § 10157, subd. (a).) Specifically, section 10157(a) provides as follows:

Pursuant to Education Code, Section 17078.62(b)(3), the school district in which the Charter School is physically located may take possession and title of the facility only after having demonstrated due diligence in soliciting alternative Charter Schools within the local area to take possession and title of the facility, as permitted by Education Code Section 17078.62(b)(2). Such demonstration of due diligence shall be at the Authority's discretion, but shall include, but not be limited to, documentary evidence of solicitation of Charter Schools within the district boundaries, where applicable.

Petitioners contend that District has not complied with sections 1859.171(a) and 10157(a) because it “has not demonstrated due diligence to the satisfaction of the California School Finance Authority to solicit and identify a successor charter school” and has not fulfilled “its mandatory duties to solicit and identify a successor charter school, including the requirement to conduct a fair and competitive process.” (Petitioners’ Memorandum of Points and Authorities, pp. 13, 15.) Specifically, Petitioners contend that after Alliance declined to accept the loan and occupy the Facility, “the District unilaterally cancelled the second RFQ in September 2022 without justification.” (Id., p. 15, citing Johantgen Decl. ¶¶ 10, 18, 22, 25-26, Exh. J, M. N.)

Petitioners rely on the following evidence: In response to the first RFQ, the District received two proposals. (See Declaration of Katrina M. Johantgen, ¶ 8.) Alliance timely submitted a proposal. (See ibid.) Endovate also responded to the March 2021 RFQ, but the District improperly deemed Endovate ineligible due to an outstanding over allocation penalty balance, which Endovate subsequently cured.” (See ibid.) The District selected Alliance, and Petitioners concurred. (See ibid.) However, Alliance declined to accept the loan and occupy the Facility. (See id., ¶ 10.)

After learning that Alliance withdrew, Petitioners notified the District that another RFQ would be required. (See id., ¶ 10, Exh. N.) Thereafter, the CSFA and District prepared a second RFQ to solicit and identify a successor charter school to use the Facility and to assume the Loan. (See id., ¶10, Exh. M.) On December 17, 2021, the District issued the second RFQ for use of the Facility. (See id. ¶ 11, Exh. E.)

In response to the second RFQ, the District received two charter school proposals, including one from Ednovate. (See id. ¶ 12, Exh. F.) On March 30, 2022, Petitioners approved Ednovate as the qualified successor charter school under the CSFP. (See id. ¶ 13.) In April 2022, the District recommended to its Board of Education that Ednovate be selected as the successor charter school and the District posted its selected recommendation on its public website. (See id. ¶¶ 14-15, Exh. G.) A Board of Education hearing on the matter was continued to June 2022 to allow the District’s new Superintendent to get “a better understanding of the transaction’s history.” (See id. ¶ 16, Exh. H.) In September 2022, the Office of Public School Construction and Petitioner CSFA discovered that the RFQ had been canceled. (See id. ¶ 17, Exh. I.) In response to an inquiry from the Office of Public School Construction and Petitioner CSFA, the District provided an internal memo dated September 19, 2022, which stated:

On December 17, 2021, Los Angeles Unified School District (Los Angeles Unified) issued a Request for Qualifications (RFQ) to identify a qualified successor charter school to assume the $8,083,564 Charter School Facilities Program loan and the remainder of the 40 year lease for Los Angeles Unified-owned property at 1215 Miramar Street, Los Angeles, CA 90026 (Facility). The Facility was previously occupied by Camino Nuevo Charter Academy, which closed its school, and the Facility has remained vacant since June 30, 2021. On April 6, 2022, Los Angeles Unified posted the selection of Ednovate, Inc. (Ednovate) pending approval by the Los Angeles Unified Board of Education (Board). Currently, Los Angeles Unified would like to evaluate available options for the Facility and will be exercising its rights under the RFQ to cancel the entire RFQ. Ednovate will be notified accordingly. Staff will return to the Board after it has evaluated available options.

On March 29, 2023, Petitioners sent a demand letter to the District and copied its Superintendent and Board of Education members. (See id., ¶¶ 19-20, Exh. K.) The letter demanded, among other things, compliance with Education Code section 17078.62(b)(2) and the Implementing Regulations. On June 30, 2023, the District responded by letter. (Johantgen Decl., ¶ 21, Exh. L.) In the letter, the District denied it violated the CSFP and stated:

After Camino Nuevo Charter Academy (operating Camino Nuevo High School Charter) defaulted under the CSFP and MOU, LAUSD published and conducted an open, transparent and neutral RFQ process to find a successor charter school in accordance with Education Code section 17078.62(b)(2) and the MOU. The prevailing charter school operator, Alliance College Ready Public Schools (to operate its school Dr. Olga Mohan High School), was approved by the State and LAUSD’s Board of Education (“Board”). Thereafter, Alliance College Ready Public Schools withdrew prior to executing the necessary agreements. At that point, LAUSD had fully satisfied its obligations under section 17078.62(b)(2) and the regulations that existed at the time it had entered into the MOU with the State. No other proposers were qualified to be a successor charter school pursuant to the above-referenced process.

Thereafter, the State asked LAUSD to conduct yet another search process. While LAUSD had no legal obligation to do so under either the CSFP or MOU, it voluntarily decided to publish an additional RFQ for the occupancy and use of Miramar by a charter school. Following a reevaluation of the continued use of Miramar as a school facility, LAUSD exercised its discretion to cancel the additional RFQ.

(See id., Exh. L.) Finally, Katrina M. Johantgen, the Executive Director of the CSFA, states: “At the time of the filing of the petition for writ of mandate, which my declaration supports, the Los Angeles Unified School District has not demonstrated due diligence to solicit and identify an eligible charter school to occupy the Facility and assume the Loan.” (Id. ¶ 22.)

Respondents do not dispute any of this evidence. Instead, Respondents argue that the District “had no legal obligation to conduct a second RFQ process, and did so only voluntarily. The District was also within its own discretion to reevaluate and cancel that process.” (Respondents’ Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction, p. 8:14-16.) Respondents argue that section 10157(a)—which imposes the due diligence requirement—is invalid because it “imposes requirements beyond the scope of its authorizing statute . . . .”

As an initial matter, it is not clear the court needs to reach the issue of the second RFQ process. The undisputed evidence demonstrates that the first RFQ process was legally deficient because the District “improperly deemed Endovate ineligible . . . .” (Declaration of Katrina M. Johantgen, ¶ 8.) It cannot be disputed that Endovate would have qualified during the first RFQ process but for the District’s error, because Endovate was deemed to be qualified during the second RFQ process after the penalty balance was paid. The failure to consider Endovate during the first RFQ process renders that process legally deficient, which means the LAUSD did not properly comply with the statute and regulations.

b. The second RFQ process was required under the California Code of Regulations, title 4, section 10157(a), and the regulation is lawful

Putting that aside, the Court disagrees with Respondents’ contention that section 10157(a) is invalid. “Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.” (Gov. Code § 11342.2.) “Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to strike down such regulations.” (Morris v. Williams (1967) 67 Cal.2d 733, 748.) However, “‘In determining whether a specific administrative rule falls within the coverage of a delegated power, ‘the sole function of this court is to decide whether the department reasonably interpreted the legislative mandate.’ [Citations.]’ [Citation.] ‘The construction given to a regulation by the officials charged with its enforcement is entitled to great weight.’ (Ibid.) However, ‘an administrative agency has only such authority as has been conferred on it.’” (San Jose Teachers Assn. v. Barozzi (1991) 230 Cal.App.3d 1376, 1379.) Significantly, “the burden is on the party challenging a regulation to show its invalidity, since ‘the administrative agency's action comes before the court with a presumption of correctness and regularity.’” (Mineral Associations Coalition v. State Mining & Geology Bd. (2006) 138 Cal.App.4th 574, 589.)

Respondents do not satisfy their burden. The purpose of the CSFP is “to provide funding to qualifying entities for the purpose of establishing school facilities for charter school pupils.” (Educ. Code § 17078.52(a).) “As a first priority, the existing charter school shall be permitted to continue to use the facility until it is no longer needed by the charter school for charter school purposes.” (Educ. Code § 17078.62(a).) “The school district shall permit continued use of the facility for charter school purposes as long as the facility is needed for those purposes.” (Educ. Code § 17078.62(b)(6).)

“in consultation with the board, shall adopt regulations establishing uniform terms and conditions that shall apply equally to all projects for funding in accordance with Section 17078.58, including, but not limited to, all of the following: … (2) The method for determining whether a charter school is financially sound …. (3)(A) Security provisions, including, but not limited to, whether title to project facilities shall be held by the school district in which the facility is to be physically located, in trust, for the benefit of the state public school system, or by another entity as authorized pursuant to Section 17078.63.”[1]

Based upon the foregoing, Petitioners have a valid argument that section 10157(a) is consistent with the CSFP statutory scheme and does not enlarge its scope, especially considering the presumption of correctness and regularity that applies. Petitioners could reasonably determine that the due diligence requirement of section 10157(a) is reasonably necessary to effectuate that purpose of the CSFP.

Respondents argue that the absence of the phrase “due diligence” in Education Code section 17078.62 is evidence that the regulation exceeded the CSFP’s statutory authority. Not so. ““[T]he absence of any specific [statutory] provisions regarding the regulation of [an issue] does not mean that such a regulation exceeds statutory authority....” [Citations.] The [agency] is authorized to ‘fill up the details’ of the statutory scheme.’” (See California School Bds. Assn. v. State Bd. of Education (2010) 191 Cal.App.4th 530, 544.) For this same reason, the absence of the word “succession” in section 17078.57 does not necessarily render section 10157(a) unlawful.

Respondents point out that the credits to section 10157 cite only Education Code section 17078.57 as the statutory authority for the regulation. (Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction, pp. 8-9.) As noted, section 17078.57(a) authorizes Petitioner CSFA to “adopt regulations establishing uniform terms and conditions that shall apply equally to all projects for funding in accordance with Section 17078.58….” In context of the entire statutory scheme, section 17078.57(a) may reasonably be interpreted to provide authority for the succession provisions in section 10157(a). To the extent there is ambiguity in section 17078.57(a), Respondents have not cited any legislative history or other extrinsic aids from which the court could resolve such ambiguity. (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340 [“when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part”].)

In sum, for purposes of this motion, Respondents have not satisfied their burden of proving that section 10157(a) conflicts with, or impermissibly enlarges, the scope of the CSFP’s regulations.

In the alternative, Respondents argue that the operative version of section 10157(a) was promulgated after Petitioners and Respondents entered the MOU (on April 13, 2011), and the MOU does not apply retroactively. “Generally, the same rules of construction and interpretation which apply to statutes govern the construction and interpretation of administrative regulations.” (Union of American Physicians & Dentists v. Kizer (1990) 223 Cal.App.3d 490, 504-505, citation omitted.)

The general rule is that statutes are not be given a retroactive operation unless it is “clearly made to appear that such was the legislative intent.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207, citation omitted.) However, a statute does not operate retroactively merely because “some of the facts or conditions upon which its application depends came into existence prior to its enactment.” (Kizer v. Hanna (1989) 48 Cal.3d 1, 7.)

Section 10157 was amended to impose the due diligence requirement, and the amendment became effective on October 1, 2018. (See Petition for Writ of Mandate, ¶ 16.) Camino Nuevo vacated the Facility—thereby triggering the due diligence requirement of section 10157—in June 2021. Because the act triggering section 10157(a) did not occur until after its enactment, Petitioners are seeking to apply this section prospectively, not retroactively. Respondents cite no authority for the proposition that the law applicable in 2011 will govern all aspects of the parties’ relationship under the MOU, and with respect to the Facility, in perpetuity.

The court also must consider “the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.) “Irreparable harm” generally means that the defendant’s act constitutes an actual or threatened injury to the personal or property rights of the plaintiff that cannot be compensated by a damages award. (See Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

Petitioners move for an order enjoining Respondents “from using” the Facility in a manner inconsistent with Education Code section 17078.62(b)(2) and California Code of Regulations, title 2, section 1859.171(a), and title 4, section 10157(a). Thus, Petitioners seek only a prohibitory preliminary injunction that would maintain the status quo by preventing Respondents from using (i.e., physically occupying) the Facility before trial.

Petitioners have demonstrated that they could suffer irreparable harm if Respondents were to proceed with steps to use the Facility–physical school property– to house a District-affiliated charter school or other school functions prior to completing the solicitation and selection process set forth in the CSFP governing regulations. Such conduct would defeat the purposes of the CSFP to give priority to a successor charter school to occupy the facility, over a school district, when a previous charter school ceases using it. (Educ. Code § 17078.62(b)(2); 2 CCFR § 1859.171.) Further, if Respondents were to take further steps to use the Facility for a District-affiliated charter school without completing the solicitation and selection process, that would deprive Petitioners of their authority and discretion in section 10157(a) to determine whether Respondents have “demonstrated due diligence in soliciting alternative Charter Schools within the local area to take possession and title of the facility, as permitted by Education Code Section 17078.62(b)(2).”

Respondents argue that the threatened harm is “speculative” and “[n]owhere in their Motion do they assert that Respondents have taken any steps since cancelling the RFQ a year and a half ago to utilize the Miramar Facility to house a District-affiliated charter school or for any other purpose.” (Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction, p. 6:22-24.) “An injunction cannot issue in a vacuum based on the proponents' fears about something that may happen in the future. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.” (Korean Philadelphia Presbyterian Church v. Cal. Presbytery (2000) 77 Cal.App.4th 1069, 1084.) In this case, Petitioners rely on Respondents’ letter, dated June 30, 2023, in which the District admits that it intends to use the Facility. Specifically, the District wrote that it “is currently engaged in the evaluative process of considering options for the use of Miramar that would provide educational opportunities to students attending a locally funded charter school (i.e., an affiliated charter school).” (Declaration of Katrina M. Johantgen, ¶ 21, Exh. L.) In that letter, District described, in detail, how it had already selected a specific District-affiliated school to occupy the Facility:

A certain nearby existing affiliated charter school serving students in grades TK/K to 5 is in good standing with the District, serves over 600 students, and has an extensive waiting list…. The District is interested in expanding the charter school’s grade levels to provide a continuous TK/K to 12 educational experience to its diverse student population, but is currently unable to do so because the site it shares with the State agency does not have sufficient space to expand. Utilization of Miramar for this purpose would allow us to realize this exciting opportunity for charter school students and the community at an additional nearby site.

This is a very unique situation and opportunity. LAUSD has provided millions of dollars in funding for the land and development of Miramar, and there is an existing nearby affiliated charter school that lacks sufficient facilities to expand its program. Use of Miramar would also be entirely consistent with the intent of CSFP to provide permanent school facilities to charter schools.

(Ibid.) Tellingly, Respondents submit no declarations disavowing this letter or confirming that the District has no plans to use the Facility prior to the trial in this matter. Further, the Court is concerned by the apparent contradiction. Respondents’ counsel suggests that the District has no plans to use the Facility, arguing that there is only a “mere possibility that the District might at some point in the future utilize the Miramar Facility for its own purposes, when it has taken no action to do so over the last year and half . . . .” (Memorandum of Points & Authorities in Opposition to Motion for Preliminary Injunction, p. 6:25-27.) Yet, Petitioners’ client’s correspondence suggests otherwise.

Regardless, whichever is true, the balancing of harms favors Petitioners. If Respondents do not plan to use the Facility before trial, there is no prejudice to Respondents in granting this motion. If Respondents do, in fact, plan to use the Facility to house an affiliated charter school with over 600 students in grades between kindergarten and fifth grade, in the absence of a preliminary injunction, Respondents may force the court to evict these children—with no place to go—should Petitioners prevail in this litigation (which appears to be likely at this point).

Respondents also argue that Petitioners fail to establish imminent harm because they delayed in seeking relief. Delay in moving for a preliminary injunction may be considered in determining whether the claimed injury is “irreparable.” (O’Connell v. Super. Ct. (2006) 141 Cal.App.4th 1452, 1481.) In this case, Petitioners filed the petition on October 9, 2023, approximately three months after receiving Respondents’ letter. Petitioners filed an ex parte application for an order to show cause why a preliminary injunction should not issue on October 17, 2023. Respondents appeared by filing a demurrer on November 20, 2023, and Petitioners filed a noticed motion for preliminary injunction on December 29, 2023. This is not a basis to deny the motion. Not only was there not significant delay, delay is “merely one of many factors bearing on irreparable injury.” (Nutro Products, Inc. v. Cole Grain Co. (1992) 3 Cal.App.4th 860, 866.)

“The function of a preliminary injunction is not merely to contain ongoing damage but to prevent prospective damage. To that end a trial court must exercise its discretion ‘in favor of the party most likely to be injured.” (Id. at 866-867.) As discussed, Petitioners would be irreparably harmed if the motion is denied, and Respondents identify no evidence suggesting any harm to them if the motion is granted (especially since they suggest they do not intend to use the Facility prior to trial). Therefore, the court grants the motion.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See CCP § 529(a).) However, the undertaking requirement does not apply to “[t]he State of California or the people of the state, a state agency, department, division, commission, board, or other entity of the state, or a state officer in an official capacity or on behalf of the state.” (CCP § 995.220(a); CCP § 529(b).) Accordingly, Petitioners are not required to post an undertaking.

1. The Court grants Petitioners’ motion for a preliminary injunction and signs the proposed order.

3. Petitioners’ counsel shall provide notice and file proof of service with the court.

[1] “As a basic principle of statutory construction, ‘include’ is generally used as a word of enlargement and not of limitation….” (Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, 1227.)