SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Sep-11-2015 12:29 pm Case Number: CPF-15-514477 Filing Date: Sep-11u2015 11:50 Filed by: ARLENE RAMOS Juke Box: 001 Image: 05071924 PETITION FOR WRIT OF CERTIFICATION CAL200 ET AL VS. APPLE VALLEY UNIFIED ET AL 001005071924 Instructions: Please place this sheet on top of the document to be scanned. SUM-100 (CIngyy?gglAL) sensationalist?, NOTICE TO DEFENDANT: (A vrso DEMANDADO): APPLE VALLEY (continued on Attachment One) YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): Ca1200 and Marc Babin You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are sewed on you to ?le a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can ?nd these court forms and more information at the California Courts Online Self-Help Center your county law library, or the courthouse nearest you. If you cannot pay the ?ling fee, ask the court clerk for a fee waiver form. If you do not ?le your response on time, you may lose the case by default. and your wages, money. and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney. you may want to call an attorney referral service. If you cannot afford an attorney. you may be eligible for free legal services from a nonpro?t legal services program. You can locate these nonpro?t groups at the California Legal Services Web site the California Courts Online Self-Help Center or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. Le han demandade. Si no responds dentre de 30 dies, la corte puede decidir en su contra sin escuchar su versien. Lea la infermacien a centinuacien. Tiene 30 DIAS DE CALENDARIO despu?s de que le entreguen esta citacien papeies legaies para presenter una rospuesta per escrito en esta certe hacer que se entregue una eepia ai demandante. Una canta una llamada telefenica no le pretegen. Su respuosta per escn'to tiene que ostar on female legal correcte si doses que procesen su case en la certe. Es posible que haya un fennuiario que usted pueda usar para su respuesta. Puede encentrar estes formularies de la certe mas informacien en ol Centre de Ayuda de las Cortes de California en la biblioteca do leyes de su cendado 0 en la certe que le quede mas coma. Si no puede pager la cueta do presentacien, pida al secretarie de la corte que le d? un formulario do exencidn de page do cuotas. Si no presents su respuesta a tiempo, puede perder el caso per incumplimiente la certe le podra quitar su suolde, dinere bienes sin mas advertencia. Hay etros requisites logales. Es rocomendable que liame a un abogado inmediatamente. Si no conoce a un abogado, puede liamar a un servicio de remisidn a abogades. Si no puede pager a un abogado, es posible que cumpla con los requisites para obtener servicios legales gratuitos de un programa de servicios legales sin ?nes do lucro. Puede encentrar estes grupos sin ?nes do lucro en el sitio web do California Legal Services, on oi Centre do Ayuda do las Cortes do California, poni?ndose on contacte con la corto 0 el colegio de abogades locales. Per ley, la eerte tiene derecho a reclamar las cuol?as las castes exentos per impener un gravamen sobre cuaiquier recuperacien do $10, 000 mas de valor recibida mediante un acuerdo una concesien de arbitraje en on case do dereche civil. Tiene que pagar el gravamen de la corte antes de que la corte pueda desechar el caso. The name and address of the court is: CASE . I (El nombre diroccidn de la certe es): San Francisco Superior Court Miami400 McAllister Street San Francisco, California 94102-4514 The name, address, and telephone number of plaintist attorney, or plaintiff without an attorney, is: (El nombre, la direcbi?n el ndmere do tel?feno del abogado del demandante, 0 del demandanto que no tiene abogado, es): Donald Driscoll, PO Box 6596, Albany CA 94706, Tel: (510) 527-4500 2:155) SEP 1 1 20l5 CLERK OF THE by Jilin"; RAMOS . Deputy ecretarie) I (Adlunto) (For proof of service of this summons, use Proof of Service of Summons (form (Para prueba do entrega de esta citatien use of formulario Proof of Service of Summons, NOTICE TO THE PERSON SERVED: You are served 1. as an individual defendant. 2. as the person sued under the ?ctitious name of (specify): 3, on behalf of (specify): under: CCP 416.10 (corporation) :1 CCP 416.60 (minor) :1 CCP 416.20 (defunct corporation) CCP 416.70 (conservatee) CCP 416.40 (association or partnership) CCP 416.90 (authorized person) I: other (specify): 4. CI by personal delivery on (date): Figs 1 of 1 Form adopted for MandatoryUse Code of Civil Procedure 412.20, 465 Judleai Council of California SUM-100 [Rev July 1, 2009} Attachment One (Respondents, Continued) AUBURN UNION BALDWIN PARK BENICIA BERKELEY BONITA BUCKEYE UNION CAJ ON VALLEY CAPISTRANO CARLSBAD CENTRALIA CHARTER OAK CHICO CHINO VALLEY CLAREMONT CLOVIS CORONA-NORCO CUPERTINO DUARTE DUBLIN EASTSIDE UNION ELK GROVE ENCINITAS UNION ENTERPRISE ESCONDIDO EVERGREEN FOLSOM-CORDOVA FOUNTAIN VALLEY FOWLER FULLERTON HESPERIA HILLSBOROUGH CITY KERMAN LA HABRA CITY LA MESA-SPRING LAFAYETTE LONG BEACH LOS ALAMITOS LOS ALTOS LOS GATOS UNION LUCIA MAR MARYSVILLE JOINT MENIFEE UNION MENLO PARK CITY MILPITAS MONTEBELLO MOUNTAIN VIEW MT. DIABLO MURRIETA NATIONAL NATOMAS NOVATO OAK PARK OAKDALE JOINT OAKLEY UNION ORINDA UNION PAJARO VALLEY PALO ALTO PALOS VERDES PENINSULA PANAMA-BUENA VISTA PLACENTIA-YORBA LINDA POWAY REDONDO BEACH ROWLAND SACRAMENTO CITY SADDLEBACK VALLEY SAN DIEGO SAN JOSE SAN JUAN SAN MATEO-FOSTER SANGER SANTA ANA SANTA CRUZ CITY SARATOGA UNION SOUTH BAY TEMECULA VALLEY TULARE TWIN RIVERS UNION UPLAND VALLEY CENTER-PAUMA WASHINGTON WESTERN PLACER WISEBURN CALIFORNIA DEPARTMENT OF and DOES 1 through 200 Chit-010 ATTORNEY 0R PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): r?Donald P. Dnscoll, SBN 95472 Law Of?ces of Donald P. Driscoll FOR COURT USE ONLY Boxc?i'gr6 94706 any, a ornla TELEPHONE NO.: {3510) 527-4500 FAX NO.: (510) 250-0770 I ATTORNEY FOR (Name): etltloners 5m om?a rancleco SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco STREET ADDRESS: 400 McAllister St. MAILING ADDRESS: 400 McAllister St. CITY AND ZIP CODE: San Francisco 94102-4514 BRANCH NAME: Civic Center Courthouse SEP 11 2015 CLER OFT ecum- CASE NAME: CALZOO AND MARC BABIN vs. APPLE VALLEY UNIFIED, et a1. CIVIL CASE COER SHEET Complex Case Designation CASE NUMBER: Unlimited Limited . (Amount (Amount CI Counter [3 Jomder JUDGE. demanded demanded is Filed with ?rst appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: Items 1?6 below must be completed (see instructions on page 2). . Check one box below for the case type that best describes this case: Auto Tort Contract Provisionally Complex Civil Litigation Auto Breach of contract/warranty Rules Of Court, rules Uninsured motorist (46) Rule 3.740 collections (09) I: Antitrust/Trade regulation (03) Other PIIPDIWD (Personal InjuryIProperty Other collections (09) Construction defect (10) Damagelwrongfl? Death) To? Insurance coverage (18) Mass 10'1(40) ?best? (04) El Other contract (37) Securities litigation (28) PmdUCt "ability (24) Real Property Environmentalfl'oxic tort (30) El Medical malpramioe (45) Emmem domain?InVerse Insurance coverage claims arising from the El Other P?po (23) condemnation (14) above listed provisionally complex case (Other) Tort Wrongful eviction (33) types (41) Business tort/unfair business practice (07) '3 Other '93? Pmpe'ty (26) Enforcement ?f Judgment Civil rights (08) Unlawful Detainer Enforcement of judgment (20) Defamation (13) CommerCia' (31) Miscellaneous Civil Complaint Fraud (16) Residential (32) El RICO (27) Intellectual property (19) Drugs (38) Professional negligence (25) Judicial Review Other tort (35) Asset forfeiture (05) Employment Petition re: arbitration award (11) Wrongful termination (36) Writ of mandate (02) :1 Other employment (15) I: Other judicial review (39) DDUDD Other complaint (not speci?ed above) (42) Miscellaneous Civil Petition Partnership and corporate governance (21) CI Other petition (not speci?ed above) (43) other? This case is CI is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: a. Large number of separately represented parties d. Large number of witnesses b. I: Extensive motion practice raising dif?cult or novel e. I: Coordination with related actions pending in one or more courts issues that will be timeoonsuming to resolve in other counties, states. or countries, or in a federal court c. I: Substantial amount of documentary evidence f. Substantial postjudgment judicial supervision Remedies sought (check all that apply): monetary bill nonmonetary; declaratory or injunctive relief 0. I:Ipunitive Number of causes of action (specify): 2 This case is is not a class action suit. . If there are any known related cases. ?le and serve a notice of related case. ou may use for -015.) Date: September 1 1, 2015 Donald P. (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY) NOTICE 0 Plaintiff must ?le this cover sheet with the first paper ?led in the action or proceeding (except small claims cases or cases ?led under the Probate Code. Family Code. or Welfare and Institutions Code). (Cal. Rules of Court. rule 3.220.) Failure to ?le may result in sanctions. 0 File this cover sheet in addition to any cover sheet required by local court rule. 0 If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. 0 Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes onlyw o? Form Adopted for Mandatory Use Judicia1 Council of California Cal. Rules of Court, rules 2.30, 3.220, 3400?3403, 3.740; Cal. Standards of Judicial Administration, std. 3.10 CIVIL CASE COVER SHEET July 1, 20071 Donald P. Driscoll, SBN 95472 Adryane Omens, SBN 143126 Law Of?ces of Donald P. Driscoll PO. Box 6596 I iaD ii, Albany, California 94706 ?of Court 0 3 cm - Telephone: (510) 527-4500 ?rth] (?San-Francisco SW 1' 1 2015 Attorneys for Petitioners CLER OF COURT an . . - clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN FRANCISCO COUNTY PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF FOR VIOLATION OF EDUCATION CODE SECTION vs. 51210(g) AND REQUEST FOR MANDAMUS AND DECLARATORY RELIEF FOR VIOLATION OF PUBLIC RECORDS ACT CAL200 and MARC BABIN, Case No. Petitioners, APPLE VALLEY AUBURN UNION BALDWIN PARK BENICIA BERKELEY BONITA BUCKEYE UNION CAJ ON VALLEY CAPISTRANO CARLSBAD CENTRALIA CHARTER OAK CHICO CHINO VALLEY CLAREMONT CLOVIS CORONA-NORCO CUPERTINO DUARTE DUBLIN EASTSIDE UNION ELK GROVE ENCINITAS UNION ENTERPRISE ESCONDIDO EVERGREEN FOLSOM-CORDOVA PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -1- FOUNTAIN VALLEY FOWLER FULLERTON HESPERIA HILLSBOROUGH CITY KERMAN LA HABRA CITY LA MESA-SPRING LAFAYETTE LONG BEACH LOS ALAMITOS LOS ALTOS LOS GATOS UNION LUCIA MAR MARYSVILLE JOINT MENIFEE UNION MENLO PARK CITY MILPITAS MONTEBELLO MOUNTAIN VIEW MT. DIABLO MURRIETA NATIONAL NATOMAS NOVATO OAK PARK OAKDALE JOINT OAKLEY UNION ORINDA UNION PAJARO VALLEY PALO ALTO PALOS VERDES PENINSULA PANAMA-BUENA VISTA PLACENTIA-YORBA LINDA POWAY REDONDO BEACH ROWLAND SACRAMENTO CITY SADDLEBACK VALLEY SAN DIEGO SAN JOSE SAN JUAN SAN MATEO-FOSTER SANGER SANTA ANA SANTA CRUZ CITY SARATOGA UNION SOUTH BAY TEMECULA VALLEY TULARE TWIN RIVERS UNION UPLAND PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -2- VALLEY CENTER-PAUMA WASHINGTON WESTERN PLACER WISEBURN CALIFORNIA DEPARTMENT OF and DOES 1 through 200, Respondents. THE FEDERAL ELEMENTARY AND SECONDARY EDUCATION ACT 1. In 1965, the Federal Elementary and Secondary Education Act (ESEA) was passed as a part of President Lyndon B. Johnson's War on Poverty. The act is the most far- reaching federal law relating to elementary school education. 2. In 2001 the No Child Left Behind Act (NCLB), Public Law 107-110, amended and reauthorized ESEA. NCLB was not a success. It entrusted the education of our children to an unproven but ambitious belief that if we tested children and held educators responsible for improving test scores, almost all our children would score ?pro?cient? by 2014. In fact, the narrowing of curriculum and constraining of instruction was harmful to our children. More time was devoted to sitting and less to physical activity. Our children lost the short-term and lifetime bene?ts of being physically active during their school day. 3. This year, NCLB will be reauthorized as the Every Child Achieves Act of 2015. The act expands the de?nition of core subjects to include physical education. 4. Recognition of the importance of physical education to America?s children has widespread support. 5. Schools offer a unique platform for children and adolescents to become more healthy and active. Physical education provides an opportunity to meet the Centers for Disease Control and Prevention (CDC) recommendation of 60 minutes of physical activity each day. 6. Physical activity has been shown to improve academic performance, behavior, and attendance. 7. In 2007, the CDC estimated that 9.5 percent of children in the United States aged 4 to 17 have ADHD. Children with ADHD often struggle with sustained listening, a skill PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF important to long-term classroom success. Physical activity improves the ability of children with ADHD to better engage in sustained listening. 8. On May 1, 2015, several prominent organizations including the American Heart Association, The American Council on Exercise, and the National PTA sent a letter to the Chairman and Ranking Member of the Senate Committee on Education voicing their support for I physical education as a core subject. The letter explained: Sadly, one-third of children in the United States are overweight or obese, and nearly a third of youths are inactive. New research has shown that inactivity is an epidemic. The epidemic impact of obesity/inactivity on our health system is estimated $147-$210 billion a year. Evidence suggests that physical education programs are effective at improving physical ?tness, promoting the health of students, and decreasing obesity. Quite simply, we can?t afford to not have physical education in our schools. Physical education is now recognized as essential to a young person's overall education experience and a foundation for lifelong healthy living. Research shows a positive relationship between participation in physical education and academic achievement. It has a signi?cant impact on students? educational outcomes and is part of a well-rounded curriculum. The inclusion of physical education as a core subject in federal legislation helps to ensure that every student achieves success. CALIFORNIA LAW REQUIRES PHYSICAL EDUCATION 9. Education Code section 51210(g) places a ministerial duty on all California school districts to adopt a course of study, beginning in grade one and continuing through grade six, that includes physical education ?for a total period of time of not less than 200 minutes each 10 schooldays, exclusive of recesses and the lunch period.? Education Code section 51210(g) also places a ministerial duty on all California school districts to provide students with not less than 200 minutes of physical education each 10 schooldays. ROLE WITH RESPECT TO PHYSICAL EDUCATION 10. The California Department of Education (CDE) reviews school district compliance with the physical education mandate in Education Code section 51210(g) through its Federal Program Monitoring (FPM). PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -4- June, 2008, the California State Auditor reviewed FPM and found it woefully de?cient. The report says in part: Documentation of the monitoring visit is evidenced by the Cross-Program Instrument (CP). This CP is the only of?cial documentation that is retained to support the procedures performed during the monitoring visit. does not retain detail work paper documentation of the scope of the procedures that are performed (for example, samples tested and interviews performed) to support the conclusions reached. Typically the only documented evidence for procedures performed is a check mark next to a type of document reviewed (for example, LEA plan, LEA policies, or Complaint a checkmark next to a level of authority (for example, staff, parent, or student) interviewed, and a checkmark next to ?meets requirements.? There was no documented sign-off of approval for the procedures performed and conclusions reached for the monitoring visit on the CP by someone other than the preparer. We noted instances where the team leader performed the monitoring procedures and signed off on the overall conclusions on the Noti?cation of Findings. 12. On information and belief, CDE employees advise districts undergoing FPM review to submit paperwork showing compliance with the physical education mandate even when a district?s teacher?s schedule shows noncompliance. This, naturally, results in widespread fraud in the area of physical education monitoring. 13. For instance, CDE employee Bob Calvo sent an email to Martha Stuemky of Porterville Uni?ed School District on March 3, 2011 saying, review of the tables uploaded to meet the requirements of PE 5 shows that one teacher had only 70 minutes for the week. 100 minutes is needed to equal 200 minutes over 10 school days. Screen each table and upload them again- be sure every one has at least 100 minutes for the week.? 14. On March 7, 2011, Mr. Calvo sent a follow-up email to Ms. Stuemky complaining that Porterville had uploaded another schedule which ?show[ed] only 80 minutes of PE instruction.? Mr. Calvo did not cite Porterville?s noncompliance with the physical education mandate and ask for corrective measures. Instead, he said, ?To meet the requirements of PE 5 please upload a schedule for this teacher showing 100 minutes for the week.? Thirty-three minutes later, after Porterville had uploaded an altered schedule for the same teacher, Mr. Calvo emailed ?the requirements for PE 5 have been met.? PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -5- April, 2012, Dinuba Uni?ed School District uploaded a record to California Accountability and Improvement System (CAIS) identifying physical education instruction as ?elective.? Mr. Calvo emailed the district Saying, ?To meet the requirements of PE 5, The LEA must remove the word ?elective? from the schedule showing Elective PE and upload the revised schedule. Questions? Bob Calvo On information and belief, in this instance, and many others, Mr. Calvo used the email tag-line ?Questions? Bob Calvo 916-747- 6129? to signify his readiness to tell by telephone that they should falsify paperwork related to the provision of the mandatory physical education minutes. 1 16. On April 12, 2013, Mr. Calvo emailed respondent San Juan Uni?ed School District saying, ?Proof read those so that ALL teachers show at least 100 minutes per week (200 are required every 10 school days). P.S. PE is not required for grade so no uploads are required for grade Questions Bob Calvo 916-747-6129.? 17. On information and belief, copies of Mr. Calvo?s email to Porterville Uni?ed School District, Dinuba Uni?ed School District, and San Juan Uni?ed School District were sent to his supervisor and stored in CAIS. CDE permitted the systematic efforts of Mr. Calvo and other CDE employees to undermine the physical education mandate. 18. On information and belief, without court intervention, none of the respondents will take the steps necessary to achieve compliance with the physical education mandate. On February 20, 2015, Barnes-Wallace, an employee of respondent San Diego Uni?ed School District, emailed CDE regarding the physical education mandate saying, ?Hope all is well in your world and districts continue to be completely compliant with state regulations. HaHa.? CDE, through Michael Lee, an employee tasked with analyzing district compliance with the mandate, emailed back ?Unfortunately not all districts are completely compliant, but hey, job security, right?? PARTIES 19. Marc Babin is a citizen and California taxpayer. He has an interest in the enforcement of the public duties established in the Education Code and is president of Ca1200. PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -6- 20. Ca1200 is a California unincorporated association advocating for the right of children to physical education in California?s elementary schools. It has an interest in the enforcement of the public duties established in the Education Code. 21. Respondent CDE is a California state agency with oversight responsibility for the education of California?s children through high school. 22. All respondents other than CDE (collectively, the District Respondents) are public school districts in California. Each of them operates schools that are not charter schools. 23. Petitioners do not know the true names of the school districts designated as Does 1 through 200 and therefore sue them under ?ctitious names. Petitioners will amend this petition to state their true names when they learn them. ADMINISTRATIVE REMEDIES HAVE BEEN EXHAUSTED 24. On information and belief, resort to an administrative process is futile with respect to each respondent and delaying enforcement of Education Code section 51210(g) through further pursuit of administrative remedies will do irreparable harm to students in respondents? schools. Petitioners have exhausted all available administrative remedies and have not obtained effective relief from any respondent. 25. On information and belief, no respondent provides an administrative process that comports with due process. As a practical matter, none of the respondents have an administrative process sufficient to address petitioners? allegations of noncompliance with Education Code section 51210(g). Other than these proceedings, there is no plain, speedy, and adequate remedy for respondents? noncompliance with Education Code section 51210(g). 26. On information and belief, the Uniform Complaint process was and is the only administrative process potentially available to petitioners for challenging respondent school districts? noncompliance with Education Code section 51210(g). 27. In December, 2014, petitioners sought administrative relief from each named district respondent?s noncompliance with Education Code section 51210(g) by sending each a Uniform Complaint. Petitioners will have likewise sought administrative relief from each Doe respondent prior to naming that respondent. PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -7- 28. Respondents Cajon Valley Union, Carlsbad Uni?ed, Enterprise Elementary, Escondido Union, Fountain Valley Elementary, La Mesa-Spring Valley, Murrieta Elementary, Novato Uni?ed, Palo Alto Uni?ed, Panama-Buena Vista Union, Tulare City, and Does 1 through 50 found petitioners? Uniform Complaint to be meritorious or to have some merit but, nonetheless, continue to violate Education Code section 51210(g). 29. Respondents Apple Valley Uni?ed, Auburn Union Elementary, Benicia Uni?ed, Berkeley Uni?ed, Bonita Uni?ed, Brea-Olinda Uni?ed, Buckeye Union Elementary, Capistrano Uni?ed, Centralia Elementary, Charter Oak Uni?ed, Chico Uni?ed, Clovis Uni?ed, Corona- Norco Uni?ed, Cupertino Union, Duarte Uni?ed, Dublin Uni?ed, Eastside Union Elementary, Elk Grove Uni?ed, Encinitas Union Elementary, Evergreen Elementary, Folsom-Cordova Uni?ed, Fowler Uni?ed, Fullerton Elementary, Hillsborough City Elementary, Kerrnan Uni?ed, La Habra City Elementary, Lafayette Elementary, Los Alamitos Uni?ed, Los Altos Elementary, Lucia Mar Uni?ed, Marysville Joint Uni?ed, Menifee Union Elementary, Menlo Park City Elementary, Milpitas Uni?ed, Montebello Uni?ed, Mountain View Elementary, Mt. Diablo Uni?ed, National Elementary, Natomas Uni?ed, Newhall, Oak Park Uni?ed, Oakdale Joint Uni?ed, Oakley Union Elementary, Ontario-Montclair, Orinda Union Elementary, Paci?ca, Pajaro Valley Uni?ed, Placentia-Yorba Linda Uni?ed, Poway Uni?ed, Redondo Beach Uni?ed, Rowland Uni?ed, Sacramento City Uni?ed, Saddleback Valley Uni?ed, San Diego Uni?ed, San Jose Uni?ed, San Juan Uni?ed, San Mateo-Foster City, Sanger Uni?ed, Santa Ana Uni?ed, Santa Cruz City Elementary, Saratoga Union Elementary, South Bay Union, Temecula Valley Uni?ed, Twin Rivers Uni?ed, Union Elementary, Upland Uni?ed, Valley Center-Pauma Uni?ed, Washington Uni?ed, Western Placer Uni?ed, Wisebum Uni?ed, and Does 51 through 125 have implicitly denied petitioners? Uniform Complaint by failing to adjudicate it in a timely fashion or have explicitly denied the Uniform Complaint. 30. Respondents Baldwin Park Uni?ed, Chino Valley Uni?ed, Claremont Uni?ed, Hesperia Uni?ed, Long Beach Uni?ed, Los Gatos Union Elementary, Palos Verdes Peninsula Uni?ed, and Does 126 to 175 denied having an administrative procedure for asserting a claim PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -3- for noncompliance with Education Code section 51210(g) and did not ?nd any merit to Respondents? uniform complaint. 31. On information and belief, Does 176 through 200 denied having an administrative procedure for asserting a claim for noncompliance with Education Code section 51210(g) but did ?nd merit to Respondents? uniform complaint. FIRST CAUSE OF ACTION BY PETITIONERS FOR MANDAMUS AND INJUNCTIVE RELIEF AGAINST ALL RESPONDENTS FOR VIOLATION OF EDUCATION CODE SECTION 51% 32. This cause of action is brought by petitioners against each respondent. Petitioners incorporate by reference the allegations of the ?rst 31 paragraphs of this petition. 33. On information and belief, each respondent fails to comply with the ministerial duties established by Education Code section 51210(g). 3.4. On information and belief, each respondent will continue the violations of law alleged in this petition until required to do otherwise. Absent immediate court intervention, each district respondent will continue to violate the physical education mandate. Each district respondent?s violation of the physical education mandate is causing and will continue to cause irreparable harm to the students in that district. 35. On information and belief, through the conduct alleged in this petition, CDE aids and abets the District Respondents? noncompliance with Education Code section 51210(g). 36. Petitioners seek all appropriate relief including mandamus and injunctive relief. PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -9- SECOND CAUSE OF ACTION BY PETITIONERS I FOR MANDAMUS AND DECLARATORY RELIEF AGAINST CDE FOR VIOLATION OF THE CALIFORNIA PUBLIC RECORDS ACT 37. This cause of action is brought by petitioners against CDE. Petitioners incorporate by reference the allegations of the ?rst 31 paragraphs of this petition. 38. California?s Public Records Act, Govemment'Code section 6250 et seq. (the PRA), is essential to open government and to promoting informed democracy in California. 39. On January 21, 2015, Marc Babin and Cal200, through their counsel of record (petitioners? counsel), sent CDE a PRA request (the January 2015 PRA Request). The request was initially for records transmitted to or from any Local Educational Authority on or after January 1, 2010, in connection with CDE Compliance Monitoring of Local Educational Authorities and for data stored in any computer ?le or database, or computer backup in connection with CDE Compliance Monitoring of any Local Educational Authority. 40. On January 30, 2015, CDE, through its counsel, announced it would not respond to the January 2015 PRA Request because, purportedly, the request was too broad. 41. In April, 2015, after further communication between CDE and petitioners? counsel, petitioners communicated that they were seeking emails to and from Bob Calvo and emails to and from Michael Lee. Mr. Calvo and.Mr. Lee are CDE employees tasked with reviewing school district compliance with the physical education mandate. On information and belief, Mr. Calvo and Mr. Lee have, during compliance monitoring, encouraged districts to falsify documentation related to their compliance with the physical education mandate. 42. In a May 5, 2015 email from CDE attorney Elizabeth Stein, CDE refused to produce any of Mr. Calvo?s emails saying that such production would be unduly burdensome given that ?Mr. Calvo has an e-mail account at CDE and has hundreds of e-mails to and from various internal and external parties on the CDE server.? PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -10- 43. Thereafter, CDE changed its position. On August 5, 2015, Ms. Clasen, a CDE attorney, emailed petitioners? counsel saying, am working on this request and anticipate providing Mr. Calvo?s emails to you, with redaction of any protected/privileged/exempt information, within approximately the next two weeks.? 44. On September 10, 2015, Ms. Clasen sent an email to petitioners? counsel saying, ?attached please ?nd the responsive emails of Mr. Calvo, excluding a few emails which require redactions that I am still working on.? 45. On information and belief, there are ?[h]undreds of e-mails to and from? Mr. Calvo that were created before May 5, 2015. Of those hundreds of emails, CDE produced only six. 7 46. CDE continues to promise to produce the Lee emails. On information and belief, CDE will not produce all disclosable Lee records from prior to May 5, 2015. 47. An actual controversy exists between petitioners and CDE. Petitioners contend that the Calvo and Lee emails are public records which must be disclosed to petitioners. CDE disagrees. 48. Respondent CDE repeatedly rebuffed petitioners? reduests through the PRA for all nonexempt and disclosable records pertaining to Mr. Calvo and Mr. Lee. Absent court intervention, CDE will continue to interfere with petitioners? and, therefore, the public?s access to these records. Accordingly, petitioners are entitled to an order pursuant to Government Code section 6258 declaring that the records sought are subject to disclosure. 49. Access to copies of the records is of substantial interest and bene?t to the public. On information and belief, the records relate directly to role in aiding and abetting violations of the physical education mandate by the District Respondents. 50. Petitioners are entitled to recover their attorneys? fees and other litigation costs, pursuant to Government Code section 6259. 51. Petitioners seek all appropriate relief including mandamus and injunctive relief. PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -11- Petitioners ask: 1. For mandamus and injunctive relief requiring each, respondent to comply with Education Code section 51210(g). 2. Mandamus, injunctive, and declaratory relief compelling CDE to produce the public records described in this petition. 3. That this court award such other and further relief as may be appropriate. Law Of?ces of Donald P. Driscoll emu emit Donald P. Driscoll Attorney for Petitioners Dated: September 1 1, 2015 PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -12- those matters, I believe them to be true. VERIFICATION I, Marc Babin, declare: I am one of the petitioners in this mandamus action. I have read the PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF FOR VIOLATION OF EDUCATION CODE SECTION 51210(g) AND REQUEST FOR MANDAMUS AND DECLARATORY RELIEF FOR VIOLATION OF PUBLIC RECORDS ACT. I know the allegations of the petition to be true of my own knowledge except as to those matters stated on information or belief and, as to I declare under penalty of perjury that the foregoing is true and correct. This declaration was executed on September 11, 2015, in Alameda, California. Marc Eabin PETITION FOR MANDAMUS AND INJUNCTIVE RELIEF -13-