On May 22, 2020 a
KIPP BAY AREA SCHOOLS' RESPONSES TO RESPONDENTS' OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF MILAN NINKOVIC AND DECLARATION OF JOHN LEMMO (TRANSACTION ID # 100106539) FILED BY PETITIONER KIPP BAY AREA SCHOOLS, A CALIFORNIA NONPROFIT PUBLIC BENEFIT CORPORATION OPERATING A CALIFORNIA PUBLIC CHARTER SCHOOL
was filed
involving a dispute between
Kipp Bay Area Schools, A California,
San Francisco Unified School District, A,
and
Board Of Education Of The San Francisco Unified,
Matthews, Vincent,
San Francisco Unified School District, A,
for WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN
in the District Court of San Francisco County.
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1 John C. Lemmo (Bar No. 190885) Fee Exempt
E-mail:john.lemmo@procopio.com Per Gov. Code § 6103
2 Kevin M. Davis (Bar No. 259693)
ELECTRONICALLY
E-mail:kevin.davis@procopio.com
3 Jacob Kozaczuk (Bar No. 294734) F I L E D
Superior Court of California,
E-mail:jacob.kozaczuk@procopio.com County of San Francisco
4 PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP 07/14/2020
5 525 B Street, Suite 2200 Clerk of the Court
BY: EDWARD SANTOS
San Diego, CA 92101 Deputy Clerk
6 Telephone: 619.238.1900
Facsimile: 619.235.0398
7
Attorneys for Petitioner
8 KIPP BAY AREA SCHOOLS
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11 KIPP BAY AREA SCHOOLS, a California Case No. CPF-20-517094
nonprofit public benefit corporation operating a
12 California public charter school, KIPP BAY AREA SCHOOLS’
RESPONSES TO RESPONDENTS’
13 Petitioner, OBJECTIONS TO THE
SUPPLEMENTAL DECLARATION
14 v. OF MILAN NINKOVIC AND
DECLARATION OF JOHN LEMMO
15 SAN FRANCISCO UNIFIED SCHOOL
DISTRICT, a California school district; BOARD Date: July 16, 2020
16 OF EDUCATION OF THE SAN FRANCISCO Time: 9:30 a.m.
UNIFIED SCHOOL DISTRICT; and VINCENT Dept: 302
17 MATTHEWS, in his capacity as Superintendent,
Petition Filed: May 22, 2020
18 Respondents.
19 AND RELATED CROSS-PETITION.
20
21 Petitioner KIPP BAY AREA SCHOOLS (“Petitioner” or “KIPP”), a California nonprofit
22 public benefit corporation operating a California public charter school known as KIPP Bayview
23 Elementary (“KIPP Bayview”), respectfully submits the following responses to Respondents SAN
24 FRANCISCO UNIFIED SCHOOL DISTRICT, a California school district; BOARD OF
25 EDUCATION OF THE SAN FRANCISCO UNIFIED SCHOOL DISTRICT; and VINCENT
26 MATTHEWS, in his capacity as Superintendent (collectively, “SFUSD” or the “District”)’s
27 Objections to the Declaration of John Lemmo and the Supplemental Declaration of Milan Ninkovic
28 as follows:
KIPP BAY AREA SCHOOLS’ RESPONSES TO OBJECTIONS TO THE SUPPLEMENTAL DECLARATION
MILAN NINKOVIC AND DECLARATION OF JOHN LEMMO
CASE NO. CPF-20-517094
1 I. LIMITED EVIDENCE ON REPLY IS APPROPRIATE HERE.
2 In light of the unusual circumstances presented here, KIPP is compelled to respond to
3 SFUSD’s objections to the limited evidence presented on reply. In part, this motion is about
4 SFUSD’s failure to provide information in the challenged Proposition 39 process—that failure is at
5 the core of this lawsuit. In opposition, SFUSD for the first time submitted, in part, misleading
6 information about the Malcolm X and Bret Harte school sites, which necessitated the limited
7 evidence on reply.
8 SFUSD’s Fitzsimons and Davis declarations contain incorrect or misleading information
9 that SFUSD should have provided months ago as part of the Proposition 39 process for review, but
10 did not. Yet SFUSD proclaims in its opposition that its evidence is “unrebutted”. The
11 Supplemental Declaration of Milan Ninkovic and the Declaration of John Lemmo are presented for
12 the limited purpose of addressing the incorrect or misleading statements contained in the
13 Fitzsimons declaration, and to authenticate documents requested for judicial notice in that regard,
14 as explained in the reply brief.
15 “It is well established that a trial court’s consideration of additional reply ‘evidence is not
16 an abuse of discretion so long as the party opposing the … motion has notice and an opportunity to
17 respond to the new material.’” (See, Jacobs v. Coldwell Banker Residential Brokerage Co. (2017)
18 14 Cal.App.5th 438, 449 [holding that the party opposing a summary judgment motion had ample
19 opportunity to submit responsive evidence or file a sur-reply to additional materials submitted with
20 reply papers].) SFUSD had notice, and did in fact respond.
21
22 DATED: July 14, 2020 PROCOPIO, CORY, HARGREAVES
& SAVITCH LLP
23
24
By:
25 John C. Lemmo
Kevin M. Davis
26 P. Jacob Kozaczuk
Attorneys for Petitioner
27 KIPP BAY AREA SCHOOLS
28 2
KIPP BAY AREA SCHOOLS’ RESPONSES TO OBJECTIONS TO THE SUPPLEMENTAL DECLARATION
MILAN NINKOVIC AND DECLARATION OF JOHN LEMMO
CASE NO. CPF-20-517094
Document Filed Date
July 14, 2020
Case Filing Date
May 22, 2020
Category
WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN
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1 John C. Lemmo (Bar No. 190885) Fee Exempt E-mail:john.lemmo@procopio.com Per Gov. Code § 6103 2 Kevin M. Davis (Bar No. 259693) ELECTRONICALLY E-mail:kevin.davis@procopio.com 3 Jacob Kozaczuk (Bar No. 294734) F I L E D Superior Court of California, E-mail:jacob.kozaczuk@procopio.com County of San Francisco 4 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 07/14/2020 5 525 B Street, Suite 2200 Clerk of the Court BY: EDWARD SANTOS San Diego, CA 92101 Deputy Clerk 6 Telephone: 619.238.1900 Facsimile: 619.235.0398 7 Attorneys for Petitioner 8 KIPP BAY AREA SCHOOLS 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 KIPP BAY AREA SCHOOLS, a California Case No. CPF-20-517094 nonprofit public benefit corporation operating a 12 California public charter school, KIPP BAY AREA SCHOOLS’ RESPONSES TO RESPONDENTS’ 13 Petitioner, OBJECTIONS TO THE SUPPLEMENTAL DECLARATION 14 v. OF MILAN NINKOVIC AND DECLARATION OF JOHN LEMMO 15 SAN FRANCISCO UNIFIED SCHOOL DISTRICT, a California school district; BOARD Date: July 16, 2020 16 OF EDUCATION OF THE SAN FRANCISCO Time: 9:30 a.m. UNIFIED SCHOOL DISTRICT; and VINCENT Dept: 302 17 MATTHEWS, in his capacity as Superintendent, Petition Filed: May 22, 2020 18 Respondents. 19 AND RELATED CROSS-PETITION. 20 21 Petitioner KIPP BAY AREA SCHOOLS (“Petitioner” or “KIPP”), a California nonprofit 22 public benefit corporation operating a California public charter school known as KIPP Bayview 23 Elementary (“KIPP Bayview”), respectfully submits the following responses to Respondents SAN 24 FRANCISCO UNIFIED SCHOOL DISTRICT, a California school district; BOARD OF 25 EDUCATION OF THE SAN FRANCISCO UNIFIED SCHOOL DISTRICT; and VINCENT 26 MATTHEWS, in his capacity as Superintendent (collectively, “SFUSD” or the “District”)’s 27 Objections to the Declaration of John Lemmo and the Supplemental Declaration of Milan Ninkovic 28 as follows: KIPP BAY AREA SCHOOLS’ RESPONSES TO OBJECTIONS TO THE SUPPLEMENTAL DECLARATION MILAN NINKOVIC AND DECLARATION OF JOHN LEMMO CASE NO. CPF-20-517094 1 I. LIMITED EVIDENCE ON REPLY IS APPROPRIATE HERE. 2 In light of the unusual circumstances presented here, KIPP is compelled to respond to 3 SFUSD’s objections to the limited evidence presented on reply. In part, this motion is about 4 SFUSD’s failure to provide information in the challenged Proposition 39 process—that failure is at 5 the core of this lawsuit. In opposition, SFUSD for the first time submitted, in part, misleading 6 information about the Malcolm X and Bret Harte school sites, which necessitated the limited 7 evidence on reply. 8 SFUSD’s Fitzsimons and Davis declarations contain incorrect or misleading information 9 that SFUSD should have provided months ago as part of the Proposition 39 process for review, but 10 did not. Yet SFUSD proclaims in its opposition that its evidence is “unrebutted”. The 11 Supplemental Declaration of Milan Ninkovic and the Declaration of John Lemmo are presented for 12 the limited purpose of addressing the incorrect or misleading statements contained in the 13 Fitzsimons declaration, and to authenticate documents requested for judicial notice in that regard, 14 as explained in the reply brief. 15 “It is well established that a trial court’s consideration of additional reply ‘evidence is not 16 an abuse of discretion so long as the party opposing the … motion has notice and an opportunity to 17 respond to the new material.’” (See, Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 18 14 Cal.App.5th 438, 449 [holding that the party opposing a summary judgment motion had ample 19 opportunity to submit responsive evidence or file a sur-reply to additional materials submitted with 20 reply papers].) SFUSD had notice, and did in fact respond. 21 22 DATED: July 14, 2020 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 23 24 By: 25 John C. Lemmo Kevin M. Davis 26 P. Jacob Kozaczuk Attorneys for Petitioner 27 KIPP BAY AREA SCHOOLS 28 2 KIPP BAY AREA SCHOOLS’ RESPONSES TO OBJECTIONS TO THE SUPPLEMENTAL DECLARATION MILAN NINKOVIC AND DECLARATION OF JOHN LEMMO CASE NO. CPF-20-517094