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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