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  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
						
                                

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1 John R. Yeh (SBN 154576) Exempt from Filing Fees E-mail: jyeh@bwslaw.com Government Code § 6103 2 BURKE, WILLIAMS & SORENSEN, LLP 60 South Market Street, Suite 1000 ELECTRONICALLY 3 San Jose, CA Tel: 408.606.6300 95113-2336 Fax: 408.606.6333 F I L E D Superior Court of California, 4 County of San Francisco Danielle M. Houck (SBN 197972) 07/10/2020 5 E-mail: daniellehouck@sfusd.edu Clerk of the Court Tamera J. Wong (SBN 226626) BY: EDWARD SANTOS Deputy Clerk 6 E-mail: wongt11@sfusd.edu SAN FRANCISCO UNIFIED SCHOOL DISTRICT 7 555 Franklin Street, 3rd Floor San Francisco, CA 94102 8 Tel: 415.241.6054 Fax: 415.241.6371 9 Attorneys for Respondents SAN FRANCISCO UNIFIED SCHOOL 10 DISTRICT; BOARD OF EDUCATION OF THE SAN FRANCISCO UNIFIED SCHOOL 11 DISTRICT; and VINCENT MATTHEWS 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SAN FRANCISCO 14 15 KIPP BAY AREA SCHOOLS, a Case No. CPF-20-517094 16 California nonprofit public benefit corporation operating a California public 17 charter school, SAN FRANCISCO UNIFIED SCHOOL 18 Petitioner, DISTRICT; BOARD OF EDUCATION OF THE SAN FRANCISCO UNIFIED SCHOOL 19 v. DISTRICT; and VINCENT MATTHEWS’ OBJECTIONS TO THE SUPPLEMENTAL 20 SAN FRANCISCO UNIFIED SCHOOL DECLARATION OF MILAN NINKOVIC DISTRICT, a California school district; 21 BOARD OF EDUCATION OF THE SAN Petition Filed: May 22, 2020 FRANCISCO UNIFIED SCHOOL 22 DISTRICT; and VINCENT MATTHEWS, Hearing Date: July 16, 2020 in his capacity as Superintendent, Time: 9:30 a.m. 23 Dept: 302 Respondents. 24 ___________________________________ 25 SAN FRANCISCO UNIFIED SCHOOL DISTRICT, a California school district, 26 Cross-Petitioner. 27 v. 28 KIPP BAY AREA SCHOOLS, a California B URKE , W ILLI AM S & S ORENS EN , LLP ATTO RNEY S AT LAW -1- SAN JO SE SFUSD; BOARD OF EDUCATION OF THE SFUSD; AND VINCENT MATTHEWS’ OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF MILAN NINKOVIC 1 nonprofit public benefit corporation operating a California public charter school, 2 and ROES 1-100 3 Cross-Respondents 4 5 SAN FRANCISCO UNIFIED SCHOOL DISTRICT; BOARD OF EDUCATION OF 6 THE SAN FRANCISCO UNIFIED SCHOOL DISTRICT; and VINCENT MATTHEWS hereby 7 object to the SUPPLEMENTAL DECLARATION OF MILAN NINKOVIC as follows: 8 9 Factual Assertion Objection Sustained/ Overruled 10 1. I am the Director of Facilities The DISTRICT objects to the Sustained: and Planning for Petitioner KIPP BAY Petitioner’s delayed filing of further ______ 11 AREA SCHOOLS (“Petitioner” or evidence in support of its motion with “KIPP”), a California nonprofit public its reply brief in an attempt to deprive Overruled: 12 benefit corporation that operates the the DISTRICT of its due process rights ______ California public charter school known of notice and opportunity to respond. 13 as KIPP Bayview Elementary (“KIPP (See, e.g., San Diego Watercrafts, Inc. Bayview”). I submit this supplemental v. Wells Fargo Bank, N.A. (2002) 1021 14 declaration in support of KIPP’s Cal.App.4th 308, 316.) Motion for Judgment. The following 15 statements are based on my own personal knowledge, and if called as a The DISTRICT objects to this evidence 16 witness in this matter, I could and on the grounds that it is irrelevant would competently testify thereto. (Evidence Code 350) and moot. “A 17 case is considered moot when the question addressed was at one time a 18 live issue in the case but has been deprived of life because of events 19 occurring after the judicial process was initiated.” (Wilson & Wilson v. City 20 Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.) The 21 DISTRICT further objects to this evidence on the grounds that the 22 Charter School failed to exhaust administrative remedies as to all 23 objections to the DISTRICT’s offer other than the location. (See, e.g., 24 Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293; Johnson v. 25 City of Loma Linda (2000) 24 Cal.4th 61, 70) [“Exhaustion of administrative 26 remedies is a ‘jurisdictional prerequisite to resort to the courts.’”]; 27 Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 28 Cal.App.4th 577, 589 (“the requirement B URKE , W ILLI AM S & S ORENS EN , LLP ATTO RNEY S AT LAW -2- SAN JO SE SFUSD; BOARD OF EDUCATION OF THE SFUSD; AND VINCENT MATTHEWS’ OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF MILAN NINKOVIC 1 of exhaustion is a jurisdictional prerequisite, not a matter of judicial 2 discretion”).) “The essence of the exhaustion doctrine is the public 3 agency’s opportunity to receive and respond to articulated factual issues and 4 legal theories before its actions are subjected to judicial review.” 5 (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 6 1198 [original emphasis]).) 2. On June 15, 2020, I executed a The DISTRICT objects to the Sustained: 7 declaration in this case in support of Petitioner’s delayed filing of further ______ KIPP’s Motion for Judgment, which evidence in support of its motion with 8 Overruled: described the letter from Michael its reply brief in an attempt to deprive ______ Davis, San Francisco Unified School the DISTRICT of its due process rights 9 District (“SFUSD”) Director of Policy of notice and opportunity to respond. & Planning and Charter Schools, sent (See, e.g., San Diego Watercrafts, Inc. 10 to KIPP Bayview with the subject line v. Wells Fargo Bank, N.A. (2002) 1021 “REVISED Final Notification of Cal.App.4th 308, 316.) 11 Facilities to be Allocated Under Proposition 39”, dated June 11, 2020 12 (the “June Letter”). The June Letter proposed that KIPP Bayview occupy The DISTRICT objects to this evidence 13 facilities at the Bret Harte Elementary on the grounds that it is irrelevant School campus, located at 1035 Gilman (Evidence Code 350) and moot. “A 14 Avenue, San Francisco, CA, including case is considered moot when the “[A]ll classrooms (8) and other spaces, question addressed was at one time a 15 including girls, boys and staff live issue in the case but has been restrooms located in Building ‘C’ (948 deprived of life because of events 16 Hollister Avenue), and rooms/areas occurring after the judicial process was 0123A and 0123B, located in Building initiated.” (Wilson & Wilson v. City 17 ‘D’ (950 Hollister Avenue)”. Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.) The 18 DISTRICT further objects to this evidence on the grounds that the 19 Charter School failed to exhaust administrative remedies as to all 20 objections to the DISTRICT’s offer other than the location. (See, e.g., 21 Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293; Johnson v. 22 City of Loma Linda (2000) 24 Cal.4th 61, 70) [“Exhaustion of administrative 23 remedies is a ‘jurisdictional prerequisite to resort to the courts.’”]; 24 Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 25 Cal.App.4th 577, 589 (“the requirement of exhaustion is a jurisdictional 26 prerequisite, not a matter of judicial discretion”).) “The essence of the 27 exhaustion doctrine is the public agency’s opportunity to receive and 28 respond to articulated factual issues and B URKE , W ILLI AM S & S ORENS EN , LLP ATTO RNEY S AT LAW -3- SAN JO SE SFUSD; BOARD OF EDUCATION OF THE SFUSD; AND VINCENT MATTHEWS’ OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF MILAN NINKOVIC 1 legal theories before its actions are subjected to judicial review.” 2 (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 3 1198 [original emphasis]).) 3. I have personally visited the The DISTRICT objects to the Sustained: 4 Bret Harte school location, as recently Petitioner’s delayed filing of further ______ as June 16, 2020, and have personally evidence in support of its motion with 5 Overruled: examined each of the rooms identified its reply brief in an attempt to deprive ______ in the June Letter. It is my the DISTRICT of its due process rights 6 understanding that SFUSD in its of notice and opportunity to respond. opposition materials has asserted or (See, e.g., San Diego Watercrafts, Inc. 7 implied that Building ‘C’ at Bret Harte v. Wells Fargo Bank, N.A. (2002) 1021 contains eight (8) full-sized teaching Cal.App.4th 308, 316.) 8 station classrooms. It does not. Of the eight (8) rooms contained in Building The DISTRICT objects to this evidence 9 ‘C’ that are referred to as “classrooms” on the grounds that it lacks foundation in the June Letter, only six (6) of those (Evidence Code 403); that the declarant 10 rooms are regular, full-sized lacks personal knowledge of the classrooms that can be utilized as matters stated therein (Evidence Code 11 instructional teaching stations. Those 403 and 702). six (6) rooms appear to be roughly 12 1,000 square feet, which in my experience is within the average range The DISTRICT further objects to this 13 for a teaching space classroom within evidence on the grounds that it is SFUSD. The other two (2) rooms are irrelevant (Evidence Code 350) and 14 half-sized rooms (roughly 500 square moot. “A case is considered moot when feet or less) that cannot accommodate a the question addressed was at one time 15 class for instruction, and cannot a live issue in the case but has been correctly be referred to as deprived of life because of events 16 “classrooms”. The two (2) rooms occurring after the judicial process was identified as rooms/areas 0123A and initiated.” (Wilson & Wilson v. City 17 0123B in Building ‘D’ are also small, Council of Redwood City (2011) 191 private rooms that are suited for single Cal.App.4th 1559, 1574.) The 18 office use, and cannot accommodate DISTRICT further objects to this classroom instruction. evidence on the grounds that the 19 Charter School failed to exhaust administrative remedies as to all 20 objections to the DISTRICT’s offer other than the location. (See, e.g., 21 Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293; Johnson v. 22 City of Loma Linda (2000) 24 Cal.4th 61, 70) [“Exhaustion of administrative 23 remedies is a ‘jurisdictional prerequisite to resort to the courts.’”]; 24 Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 25 Cal.App.4th 577, 589 (“the requirement of exhaustion is a jurisdictional 26 prerequisite, not a matter of judicial discretion”).) “The essence of the 27 exhaustion doctrine is the public agency’s opportunity to receive and 28 respond to articulated factual issues and B URKE , W ILLI AM S & S ORENS EN , LLP ATTO RNEY S AT LAW -4- SAN JO SE SFUSD; BOARD OF EDUCATION OF THE SFUSD; AND VINCENT MATTHEWS’ OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF MILAN NINKOVIC