OPPOSITION TO IMMEDIATE STAY BY

JUNE 30, 2017

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

OXFORD PREPARATORY ACADEMY,

CHINO VALLEY UNIFIED SCHOOL DISTRICT, GOVERNING BOARD OF THE CHINO VALLEY

UNIFIED SCHOOL DISTRICT, and WAYNE JOSEPH, in his capacity as District Superintendent,

APPEAL FROM THE SUPERIOR COURT FOR SAN BERNARDINO COUNTY

HON. DAVID COHN

[CASE No. CIVDS 1710045]

COURT OF APPEAL CASE No. E068620

OPPOSITION TO PETITION FOR TEMPORARY STAY; MEMORANDUM IN SUPPORT THEREFOR

LAW OFFICES OF MARGARET A. CHIDESTER & ASSOCIATES

* MARGARET A. CHIDES'IER (SBN 95795) M.CHIDESTER@CALIFORNIASCHOOLLAW.NET

S'l EVEN R. CHIDES I ER (SBN 144639) DYLAN E. CONROY (SBN 311244)

17762 COWAN, FIRST FLOOR IRVINE, CALIFORNIA 92614

(949)474-5040 FAX (949)474-8540

ATTORNEYS FOR DEFENDANTS AND RESPONDENTS

Plaintiff and Appellant,

vs.

Defendants and Respondents

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES 4

INTRODUCTION 5

WHY A TEMPORARY STAY MUST NOT ISSUE 6

MEMORANDUM OF POINTS AND AUTHORITIES 6

I. Contrary To OPA' s Contention, The Status Quo Is Expiration Of The Charter On June 30, 2017 6

A. OPA Has Tried And Failed On Seven Occasions To Renew Its Charter And Inappropriately Seeks Emergency Appellate Relief Here. 6

B. The Expired TRO In The Trial Court Did Not Enjoin Expiration Of The Charter. 7

C. OPA Asks This Court For An Extension That Ignores The Five Year Education Code Limit On Charter Terms And Sets Aside Their Contracted Agreement To Close After Five Year If Not Renewed 8

II. Petitioners Cannot Demonstrate Any Irreparable Harm 10

A. Students And Teachers Are Not Irreparably Harmed. They Have Multiple Educational And Employment Options, Having Received Notice On OPA's Website On May 11, 2017 That OPA Would Not Be Renewed 10

B. OPA Is Not Irreparably Harmed 11

III. OPA Failed To Exhaust All Available Trial Court Remedies 12

2

IV. If The Temporary Stay Were Granted, The Harm To District Would Outweigh Any Prejudice Or Harm To OPA 12

CONCLUSION 13

3

TABLE OF AUTHORITIES

Page Cases

(2010) 186 Cal.App.4th 1298 5

(1962) 211 Cal. App. 2d 367 10

(2014) 224 Cal.App.4th 1393 10

(1936) 7 Cal. 2d 574 12

Statutes Cal. Code Civ. Proc. § 923 6, 10

Cal. Educ. Code § 47600 (California Charter Schools Act of 1992) 5,6

Cal. Educ. Code § 47604 13

Cal. Educ. Code § 47605 9

Cal. Educ. Code § 47607 8

Rules California Rules of Court, Rule 8.112 6, 13

4

Cal. Sch. Bds. Ass’n v. State Bd. of Educ.

Early v. Santa Clara Broadcasting Co.

Nathan G. v. Clovis Unified School Dist.

Nuckolls v. Bank of Calif., Nat’l Ass’n

et seq.

INTRODUCTION

Plaintiff and Appellant, Oxford Preparatory Academy's ("OPA")

appeal and request for a temporary stay are the latest and eighth round of acts

in a protracted closure avoidance scheme that offends the California Charter

Schools Act of 1992 and the California public school system. "The

chartering of a school and the charter school's compliance with the law, the

regulations, and the conditions imposed on its charter can be matters of

serious concern to the public and to the public school system." (

(2010) 186 Cal.App.4th 1298, 1326-1327.)

This case in particular arises from OPA' s repeated violation of its own

2012 charter which expires June 30, 2017 and state law, including the Fiscal

Crisis & Management Assistance Team's Extraordinary Audit finding that

OPA' s conflicts of interest, weak governance structure, and financial

mismanagement allowed the diversion of $4.7 million of public funds.

Diligent control and oversight by public officials legitimize charter schools.

Extending OPA' s 2012 charter even temporarily after its two charter renewal

petitions were found insufficient and thus twice went unrenewed by the

Chino Valley Unified School District, the San Bernardino County Office of

Education, and the California Board of Education, offends and calls the entire

statutory schemed of such oversight governing charter schools into question.

Respondents vigorously oppose issuance of a temporary stay and respectfully

request the right to file an opposition to the petition for writ of supersedeas

5

Cal. Sch.

Bds. Ass’n v. State Bd. of Educ.

within 15 days of the Court's decision on the temporary stay, to satisfy the

due process requirements of California Rule of Court, Rule 8.112(b)(3).

WHY A TEMPORARY STAY MUST NOT ISSUE

OPA seeks a stay of the expiration of its current charter under

California Code of Civil Procedure § 923 to "preserve the status quo."

OPA' s request is fundamentally deficient on multiple grounds: (1)

, and not ongoing operation

in contradiction of the Charter Schools Act of 1992 and fundamental contract

principles; (2) OPA has failed to exhaust all available trial court remedies;

and (3) the District's harm from a judicial temporary extension of the charter

outweighs any prejudice or harm to OPA.

MEMORANDUM OF POINTS AND AUTHORITIES

I. Contrary To OPA's Contention, The Status Quo Is Expiration Of The Charter On June 30, 2017.

A. OPA Has Tried And Failed On Seven Occasions To Renew Its Charter And Inappropriately Seeks Emergency Appellate Relief Here.

OPA first commenced its renewal efforts in January 2016 with a

deficient charter renewal petition that was denied by Defendants and

Respondents, Chino Valley Unified School District, Governing Board of the

Chino Valley Unified School District, and Wayne Joseph, in his capacity as

District Superintendent ("District" or "Respondents"), and next denied

consideration by both the San Bernardino County Office of Education and

6

The status

quo is expiration of the charter on June 30, 2017

California State Board of Education because of its deficiencies. OPA then

submitted a second deficient charter renewal petition on September 30, 2016,

which was also denied by District, denied consideration by San Bernardino

County Office of Education for its deficiencies, and recommended for

denial by the California Department of Education. Because the State Board

of Education took no action on the petition during its regularly scheduled

meeting on May 11, 2017, OPA sought judicial review and petitioned the

San Bernardino County Superior Court for a writ of mandate on May 31,

2017.

When on June 23, 2017, in attempt number seven to achieve renewal,

that petition was denied, OPA failed to request issuance of a stay by the trial

court to avert the alleged harm it now asserts. OPA filed the instant appeal

on June 28, 2017, just two days before the expiration of the charter, an event

that Petitioner OPA contracted for when it entered into the 2012 Charter for

a statutory term of five years.

B. The Expired TRO In The Trial Court Did Not Enjoin Expiration Of The Charter

. The expired TRO restrained any acts to

7

twice

The status quo is and has always been denial

of OPA’s September 30, 2016 renewal petition and expiration of OPA’s

current charter on June 30, 2017

Even the Temporary Restraining Order (“TRO”) issued by the lower

court on June 2, 2017, which expired by its terms on June 23, 2017, did not

enjoin expiration of the charter

implement District's denial, any acts "inconsistent with the continuation of

Petitioner's charter", and any acts interfering with the funding, premises, or

property of OPA or its operations. [Request For Immediate Stay And Petition

For Writ Of Supersedeas Or, In The Alternative, Motion For Stay Or Other

Relief, Ex. 19, at 190-191 (TRO, at 2:21-28, 3:1-7)], District need not

"implement" its denial for OPA' s charter to expire. By the very terms of the

current charter that OPA contracted for in 2012, "Closure Action will be

deemed to have been automatically made when. . . [t]he charter lapses." [Ex.

1, at 264 (OPA November 1, 2011 Charter Renewal Petition, at 264)].

Therefore, OPA' s current charter anticipates its expiration on June 30, 2017.

It would violate the charter's own terms for this Court to stay or extend the

expiration date, thereby subjecting OPA' s impermissibly extended charter to

revocation under Education Code 47607(c)(1), which provides for

revocation if the charter operators committed a material violation of any of

the terms set forth in the charter. Cal. Educ. Code § 47607(c)(1)(A). Ample

evidence in the trial court record attests to such material violations.

C. OVA Asks This Court For An Extension That I2nores The Five Year Education Code Limit On Charter Terms And Sets Aside Their Contracted Agreement To Close After Five Year If Not Renewed.

Staying expiration of OPA' s charter interferes with District's freedom

of contract and violates the Education Code. Section 47607(a)(1) of the

Education Code limits the operational term of a charter school to five years,

8

both in the initial grant and the renewal context. Knowing they have five

years of operation by the very terms of their charters, charter petitioners must

submit renewal petitions prior to the expiration of the charter, allowing

sufficient time to process the renewal under Education Code section 47605,

and, if necessary, on appeal to the County Board of Education then to the

State Board of Education. Here, OPA commenced renewal procedures in

January 2016, but has, on seven occasions, been unsuccessful in convincing

all reviewing bodies of their likelihood of success in implementing the

educational and operational program, as their financial and governance

misdeeds overwhelm their much proclaimed academic success. OPA' s

charter expires , and it would be in direct contradiction of

legislative intent for this Court to extend the term of its charter beyond the

five year limit permitted by statute.

Similarly, because charters are an agreement between the charter

petitioners and the authorizing entity, under Education Code section 47605,

permitting OPA to unilaterally extend the agreed-upon expiration date of its

charter would unlawfully interfere with Respondents' contractual rights.

OPA has known its charter would expire since 2011 when it was first

renewed through June 30, 2017. Staying expiration of the agreement would

violate fundamental principles of contract law. Just as a preliminary

injunction under California Code of Civil Procedure § 523(b)(5) cannot

endure beyond the expiration of the contract being enforced, a temporary stay

9

by operation of law

under California Code of Civil Procedure § 923 cannot endure beyond the

expiration of the contract being enforced. (

(1962) 211 Cal. App. 2d 367, 372-373.)

Moreover, staying expiration of OPA' s charter does not just impact

District's contract rights and daily operations, but it also interferes with third

party contracts. Extending OPA' s current charter beyond the contractual and

statutory limit would impermissibly extend third party contracts necessary to

the operation of both OPA and District programs. To indulge OPA' s

disingenuous claim of "irreparable harm" at the eleventh hour would be to

violate the contractual rights of multiple non-parties.

The temporary stay must therefore be denied.

II. Petitioners Cannot Demonstrate Any Irreparable Harm

A. Students And Teachers Are Not Irreparably Harmed. They Have Multiple Educational And Employment Options, Having Received Notice On OPA's Website On May 11, 2017 That OPA Would Not Be Renewed.

OPA' s contention that "nearly 1,200 elementary and middle school

student face the loss of their school" is, similarly, not a harm, because OPA

pupils are not being denied access to public education. In contrast to

suspension or expulsion, transfer to a different school, is the only possible

harm to OPA pupils, which does not deny access to public education.

( (2014) 224 Cal.App.4th 1393,

1404-1405 ["While the student may be moved from a... school, he or she still

10

Early v. Santa Clara Broadcasting

Co.

Nathan G. v. Clovis Unified School Dist.

receives educational instruction at an alternative venue"].) The California

public school system does not owe OPA pupils a duty of care to provide a

specific education, or even an adequate education; "[t]o hold [persons and

agencies who administer the academic phases of the public educational

process] to an actionable 'duty of care,' in the discharge of their academic

functions, would expose them to the tort claims — real or imagined — of

disaffected students and parents in countless numbers. . . . The ultimate

consequences, in terms of public time and money, would burden them — and

society — beyond calculation." (

(1976) 60 Cal.App.3d 814, 825 [plaintiff could not sustain a negligence

action].) While the relief requested in is distinct, the underlying

policy considerations are the same: just as the failure of educational

achievement cannot be characterized as an injury within the meaning of tort

law, it cannot be characterized as an injury within the meaning of "potential

harm" for the purposes of a temporary stay on appeal.

B. OVA Is Not Irreparably Harmed.

Because OPA's discontinued operation and use of District facilities

are creatures of contract, OPA' s "harms" are not harms whatsoever. Further,

OPA's contention that it will "lose its State funding" is not a harm capable

of remedy by the Court because the California Department of Education

("CDE") is not a party to this action, and CDE oversees funding of public

schools. In fact, the State Board of Education, on CDE's express

11

Peter W. v. San Francisco Unified Sch. Dist.

Peter W.

recommendation not to renew OPA, allowed CVUSD's nonrenewal action

to stand.

III. OPA Failed To Exhaust All Available Trial Court Remedies.

OPA was required to but did not exhaust all available trial court

remedies. If a stay could have been granted by the trial court, a writ of

supersedeas may issue if the stay was sought from and denied by the

trial court. ( (1936) 7 Cal. 2d 574, 577.)

OPA' s petition for writ of mandate was denied on June 23, 2017. OPA failed

to, orally or in writing, request a temporary stay pending OPA' s ability to

file a Notice of Appeal. OPA waited five calendar days, until the eleventh

hour, before filing a request for temporary stay with the appellate court.

Notwithstanding the Honorable David Cohn's absence this week, OPA could

have and should have filed an ex parte petition for temporary stay with Judge

Cohn's colleague judge in the civil division of the San Bernardino County

Superior Court, who, Judge Cohn had announced would be briefed on the

detail and the urgency of the instant matter. Because OPA failed to apply for

a trial court-ordered discretionary stay, the temporary stay may not issue.

IV. If The Temporary Stay Were Granted, The Harm To District Would Outweigh Any Prejudice Or Harm To OPA.

District's harm ultimately outweighs any prejudice or harm to OPA.

Extending OPA' s current charter would require District to institute

revocation procedures, or risk liability for OPA' s unlawful operation under

12

only

Nuckolls v. Bank of Calif., Nat’l Ass’n

Education Code section 47604(c). Liability for the illegal continuation of

OPA's charter would be at the expense of District's approximately 27,000

other enrolled students.

CONCLUSION

For the foregoing reasons, Respondents respectfully request that the

temporary stay be denied, and that Respondents be granted 15 days from

decision on the temporary stay to file an opposition, in accordance with

California Rule of Court, Rule 8.112(b)(3).

Dated: June 29, 2017

LAW OFFICES OF MARGARET A. CHIDESTER & ASSOCIATES

By: 64/ .041bli Margaret A. Ch dester, Attorney for Respondents and Defendants, Chino Valley Unified School District, Governing Board of Chino Valley Unified School District, and Wayne Joseph, in his capacity as District Superintendent

13

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF ORANGE

I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is: 17762 Cowan, First Floor, Irvine, California 92614.

On June 29, 2017, I served the foregoing document described as OPPOSITION TO PETITION FOR TEMPORARY STAY; MEMORANDUM IN SUPPORT THEREFOR on the parties in this action:

Brian J. Headman, Esq. Theodora Oringher PC Los Angeles Office 1840 Century Park East, Suite 500 Los Angeles, CA 90067-2120 Telephone: 310-557-2009 Fax: 310-551-0283 Email: bheadman@tocounsel.com

iJi

(BY ELECTRONIC SERVICE): Based on a court order or agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed on the attached service list. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.

[A (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

[ ] (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.

Executed on June 29, 2017, at Irvine, California.

Tiffany Gushiken

By: Type or Print Name Signature

1

PROOF OF SERVICE