IL 2018 Clerk of the Court aupe?or of Santa Clara av . DEPUTY ??am/U IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA Petition filed: March 2.6, 2018 Respondents/Defendants. Petition amended: April 19, 2018 PROMISE PUBLIC SCHOOLS, INC., CASE NO.: 18CV325491 Petitioner/Plaintiff, ORDER GRANTING MOTION FOR ISSUANCE OF V. WRIT OF MANDATE AND JUDGMENT GRANTING SAN JOSE UNIFIED SCHOOL PETITION FOR WRIT OF and DOES 1 through 10, inclusive, MANDATE- Good cause appearing, the motion for issUance of writ of mandate of Petitioner and Plaintiff PUBLIC SCHOOLS, INC. (?Promise?) in this proceeding is GRANTED IN PART as set forth below. The Court?s June 15, 2018 Amended Order Granting Promise?s Motion For issuance of Writ of Mandate is attached hereto as Exhibit A, and the Court?s June 15, 2018 Order Correcting Nunc Pro Tunc Date In Amended Order Granting Promise?s Motion For Issuance of Writ of Mandate is attached hereto as Exhibit B. As Promise?s request for issuance of a writ of mandate having been granted in part and as the only other cause of action in the above?entitled matter (second cause of action for declaratory relief) having been dismissed at Promise?s request on June 5, 2018, the court hereby enters judgment in favor of Promise granting in part its petition for a writ of mandate as set forth below. Upon reviewing the objection of Respondent SAN JOSE SCHOOL DISTRICT (?The District?) to the proposed order submitted by Promise, the court agrees with the District that Education Code section 47614(b] does not require a school district to allocate a site in a charter school?s preferred location. Rather, ?[t]he school district shall make reasonable efforts to provide the charter school with facilities near to where the charter school wishes to locate, and shall not move the charter school unnecessarily.? (ibid.) Moreover, in view of the court having received Promise?s proposed court order, objection to the proposed order and proposed writ on Wednesday, June 20, 2018, and to afford the parties an opportunity to review the court?s proposed order and proposed writ, the court has revised the compliance schedule to afford the District a reasonable opportunity to comply with the writ, with the final deadline by which Promise is to respond to the District?s final offer to remain the same. The court issues no relief concerning a declaration, temporary restraining order, preliminary injunction, and/or permanent injunction as requested, as the courtfinds-such relief moot in view of the court order and the writ to be issued as set forth herein, and/or in view of the dismissal of the second cause of action for declaratory relief. Any application for costs and attorney?s fees is to be made through standard post?judgment procedures. The Court shall exercise continuing jurisdiction over this action to ensure that the District comply with this order, judgment, and writ of mandate. 2 ACCORDINGLY, IT IS HEREBY ORDERED that a writ of mandate issue under the seal of this Court commanding the District to make Promise a preliminary offer of reasonably equivalent, contiguous and furnished and equipped facilities, pursuant to Proposition 39, sufficient to accommodate Promise?s projected in-district average daily attendance of 193.64 by no later July 2, 2018; and after receipt of any comments, concerns, and /or counter proposals to said preliminary offer that Promise may make to the District by July 13, 2018, the District is commanded to provide Promise with a final offer of reasonably equivalent, contiguous, and furnished and equipped facilities sufficient for the aforementioned in-district ADA projection of 193.64 within 10 days of the District?s receipt of said comments, concerns, and /or counter proposals from Promise. The District?s final offer notification must specifically identify, among other things, the location and the specific facilities it is allocating. The District shall make reasonable efforts to provide Promise with facilities near to where Promise wishes to locate, and shall not move Promise unnecessarily. By no later than July 30, 2018, Promise shall notify the District in writing of Promise?s decision to accept or decline the District?s final offer. The District shall make and file a return to this writ within five (5) calendar days of receiving Written notification from Promise as to whether Promise has accepted or declined its final offer. Said return shall show what the District has done to comply with the writ. A courtesy copy of'said return shall be directed to Depa rtment 21 of this Court. The District is further directed to serve Promise by email all communications this writ of mandate commands the District to make, and to accept service by email Promise?s response to the District?s preliminary offer-and final. offer. l/ f/ f/ With the new school year looming, it is readily apparent to the court that time 'is of the essence for compliance with the writ, and further delay may render moot the relief requested and thus will cause irreparable harm to Promise. Accordingly, any appeal of the Court?s order for issuance of a writ of mandate that may be taken by the District shall not operate as a stay on the enforcement of this writ ofm?andate. (Code of Civil Procedure {9 1110b.) IT IS SO ORDERED. Date: l? Thang N. Barrett Judge of the Superior Court ELE Joni-sigma oi the Court Superior Ln "Him County of Santa Store or .. DEPUTY Ii COUNTY OF SANTA CLARA PROMISE PUBLIC SCHOOLS, INO, CASE NO: ISCV325491 PetitioneriPleintiff, AMENDED ORDER GRANTING MOTION FOR v. ISSUANCE OF WRIT OF MANDATE SAN JOSE UNIFIED SCHOOL and DOES 1 through 10, inclusive, Respondentstefendants. This Amended Order Granting Promise?s Motion For Issuance of Writ of Mandate ("Amended Order?) shall replace the Order Granting Promise?s Motion For issuance of Petition For Writ of Mandate (?Original Order?), filed on June 14, 2018. The Amended Order is effective nunr: pro tune to July 14, 2018.1 ?it 1 The Amended Order makes corrections of the Original Order as follows: The language in the title and in the first sentence of the. ?rst page of the Original Order, "Motion For issuance of Petition For Writ of Mandate? is changed to "Motion For Issuance of Writ of Mandate,? "obligation? in the first sentence under paragraph on n?son?Deole-iil?SHE?xhi nal- w?m .. -- Order is deleted; ?considering" is inserted between "especially" and "that? on page 11 of the Original Order; the language in footnote-4 on page 12 of the Original Order, "It is reasonable for a student [sic] have meaningful interest in more than two schools although'ultirnateiy he or she could only enroll in one,? is changed to "it is reasonabie for a student to have interest in more than one school although ultimately- he or she could only enroll in one,? ?After? in footnote 5 on page 14 of the Original Order is deleted-and "applying? is changed to "Applying? ?bears? in footnote 6 on page 15 of the Original Order is changed to ?boa and the language in paragraph 6 on page 1? of the Original Order, "The motion of issuance of writ of mandate of Promise? is changed to Motion For issuance of Writ of Mandate.? Due to the additional footnote in the Amended Order [the instant footnote 1), all footnotes in the Original Order have been renumbered sequentially in the Amended Order. The above corrections do not affect the court?s analysis, conclusions, and rulings as set forth in the Original Order. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA Shantei Hernandee The Motion for Issuance of Writ of Mandate, brought by PROMISE PUBLIC SCHOOLS, INC. ("Promise?) requests that Respondent SAN JOSE UNIFIED SCHOOL ("District?) be directed to immediately make a preliminary offer of reasonabiv equivalent, contiguous and furnishedand equipped "facilities in the downtown San Jose area, pursuant to Proposition 39, sufficient to accommodate Promise-?5. daily attendance. CAPE.) . . 3 incoming students. A. Proposition 39 and its Regulations Charter schools are, by law, part of California?s public school system and students who attend charter schools are public school students. (Wilson v. State Board of Education (1999] 75 Cal.App.4th 1125; see Ed. Code 47614, subd. (at) Proposition 39 is a statutory initiative approved by the voters of California in November which commands that ?public school facilities should be shared fairly among all public school. pupils, including those in charter schools.? (Ed. Code School districts are required to provide public school "facilities sufficient to accommodate all ofthe charter school?s in-District students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending the other public schools of the district. Facilities provided shall be contiguous, furnished, and equipped and shall remain the propertv oithe school district.? (Ed. Code? I I?or a one rte?" ac! to be eligible?to? for facilities'to' the-school district by November 1 in the year preceding the year in which facilities are to be allocated. '(Cal. Code Regs, tit. 5, 11969.9, subd. Under the Education Code, if the charter schooi provides the district with a reasonable. projection ofin~district ADA of at least 80, the district must provide the charter school facilities commensurate with that projection. (Educ. Code 47614, .subcl. On or before December 1, the school district "shall review the charter school?s projections of in- District and total ADA and in-District and total classroom ADA and . . . express any objections in writing and state the projections the district considers reasonable. lfthe district does not express objections in writing and state its own projections by the deadline, the charter school?s projections are no longer . .. subiectte Protease. and tassitseffsr eifacilitiee on Code Regs., tit. 5, 11969.9, subd. By Janan 2, the charter school must respond to the District?s objections, ifany, and "shall reaffirm or modify its previous projections as necessary to respond to the information received from the district.? (Cal. Code Regs, tit. 5, 1} 11959.9, subd. jet) By February 1, the school district must provide the charter school with a preliminary propoSai for reasonably equivalent, contiguous, and furnished and equipped facilities sufficient for the established ln?District ADA projection. (Cal. Code Rege, tit. 5, 11969.9, su bd. By March 1, the charter school shall review and comment on the preliminary proposal, as well as express concerns and make counter~proposals to the school district. (Cal. Code Regs, tit. 5, 11969.9, subd?. By April 1, the school district must provide a final offer of reasonably equivalent, contiguous, and furnished and equipped facilities to the charter school sufficient for the established In?District ADA projection. This final offer notification must specificaliy identify, among other things, the location and pacific facil itresetiocated?riCaITCode? Reg?5., from receipt of'the final-offer to notify the district if it intends" to cocupy the space. (Cal. Code Regs, tit. 5, 11969.9, subd. in.) 2 ADA stands for Daily Average Attendance. The ADA number is different than the enroilment number. Attendance is the presence of a student on days when school is in session. Enrollment is when a student signs up to attend a school. School districts are only obligated under Proposition 39 to allocate reasonably equivalent school facilities to accommodate the number of units of ADA representing students who would otherwise be eligible to attend the school district?s schools. B. ,Sjtanda rd of Review A California school district?s obligations under Proposition 39 are mandatory obligations enforceable by traditional mandate under Code of Civil Procedure {3 1085. {Bullis Charter School v. Los Altos School Dist. (2011}. 200 Cal.App.4th 1022, 1034.] ?Our high court has described the appropriate -- ieve?l of-j-udicial-scrutiny is?perh-aps not-susceptible of preei-se?--?-? - - formulation, but lies somewhere along a continuum with nonreviewabiilty atone end and independent judgment at the other. [citation] Quasi-legislative administrative decisions are properly placed at that point of the continuum at which judicial review is more deferential; ministerial and informal actions do not merit such deferenceand therefore lie toward the opposite end of the continuum." (Id. at 1036 [internal quotation marks removed].} The Sixth District Court.oprpealalso adopted some guiding principles: "'Courts exercise limited review in ordinary mandamus proceedings. They may not reweigh the evidence or substitute'theirjudgment for that of the agency. They uphold an agency action unless. it is arbitrary, capricious, lacking in evidentiary support, or was made without due regard for the petitioner's rights. [Citations] However, courts must ensure that an agency has adequately considered ali relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute. libido) C. Evidenti-ary Obiectlons ue ts For Judicial Notice, the parties? Witness deCIarationsand accompanying exhibits, and deposition transcripts submitted the District, subject to the written objections. if the-court sustains an objection based on a stated ground, other objections to the so me evidence based on other grounds are deemed moot1. Requests for Judicial Notice The parties? respective Requests for Judicial Notice are granted, subject to any evidentia-ry rulings below. . i 2. The District?s Ob?iections to Promise?s Evidence I ?The District?s objection to paragraph 19 of the Declaration of Anthony Johnson is SUISTAINED as irrelevant since the District is only obligated to consider documentation submitted by the Charter School in support of its facilities request by December 1 under the Proposition 39 process. ~The District?s objection to paragraph 2 through 7 of the Post-Hes ring Declaration of A. Johnson and to the accompanying exhibits is SUSTAINED as irrelevant since the District is only obligated to ?consider documentation submitted by the Charter School in support of its facilities request by December 1 underthe Proposition 39 process. 3.. Promise?s Obiections to the District?s Evidence ~Promise?s objection to the Declaration of John R. Yeh', regarding the comments of Patrick Walsh is based on the grounds stated. -Promise"s Objections to paragraphs 9, 10, 13, 14, 15, 16, 17, 18, 21, 22, 23,24, 25, 26 and Exhibit of the Declaration of Stephen McMahon are OVERRULED based on the grounds stated. ~Promise?s Objections to the Declarations of Ana Martinez, Catalina Gomez, Sandra Camacho, Sandra Lomeii Jose in, Palma, Marika De Ville, lmelda Cruz, Jenny Zepeda, Lila Chavez, Onofre I Gonzalez, and Sarai Gomez are based on the. grounds stated. ~Promise?s Objections to paragraphs 10, 11,12, 13, 14, 15, 1'6, 17 and Exhibit A to the Post?Hearing Declaration of Stephen McMahon are OVERRULED based on the grounds stated. Promise?s Objections to the Consideration ofthe Deposition TeStimony of Ana Martinez, Sandra tom'el'ifan'di'Lili'a'Chavez 3T9 D. Factual Summary 1. Promise?s Charter Application On April 6, 2017 Promise submitted a charter petition to the District to establish a California public charter school. The District?s Board of Education voted on June 1, 201?, to deny Promise?s charter petition. Following an unsuccessful appeal to the Santa Clara County Board of Education, Promise appealed the denial to the State Board of Education. On January 19, 2018, the State Board of Education approved Promise?s charter petition to open Promise Academy for the 2018?19 school year. As a condition of the State Board of Education?s approval of Promise?s charter, Promise must provide the State Board of Education with proof, byJune 15, 2018, that it has made the necessary arrangements for school facilities for the coming year. 2. Promise?s Request-for Facilities 0 n?OctotrerB?lrz?ltrporsuant "to?PropositionB 9, re ise su ism itted its red uest to theDiStrict --for reasonably equivalent school facilities to accommodate Promise?s i nComing in-district students, detailing the methods by which it came to its projected in?District ADA forthe 20184019 school year. Promise projected to have an l-n~District ADA of 193.64 for its 2013-19 school year, representing I a total enrollment of 206 in-District students. in support of its projections, Promise provided the District - u, I with 318 ?Intent to Enroll? forms, each exhibiting parental signatures andcontaining their averments to their ?meaningful interest? in having their attend Promise Academy. Of the 318 Intent to Enroll forms submitted with its Proposition 39 request, 184 were collected as part of Promise?s charter petition in April of 2017. Promise collected an additional 134 signed forms in subsequent-month's, fora tota'l'of'3'18'.? utilized the 94%attendance rate in its charter petition budget, and factored in lottery preference for in? District students as required by law. 3. District Reiection By letter dated November 30, 2017, the District wrote to Promise indicating it did not believe Promise was eligible for Proposition 3-9 facilities based on the District?s own in?district' ADA projection. in its letter, the District explained that 216 remained from the 31-8 submissions after the District removed all duplicate submissions, all incompiste-submissions, all incorrect grade submissions, and all addresses not located within the District. The District then further removed 66 submissions "of parents that previously verified thatthey are not meaningfully interested in Promise Academy.? This previous verification of lack of mea ningful interest came from a telephone survey the District conducted in connection with Promise?s previous Charter application (?first telephone survey?) in May of EDIE?five months before Promise made its Proposition 39 request forfacilities. Thus, 150 submissions remained, of which 16 were previously confirmed to the District?s satisfaction as having meaning interest based on the District?s first telephone survey. The remaining 134 submissions were collected after the charter application process and therefore were not part ofthe District?s first telephone survey. Of these ?new? 134 submissions, the District decided to apply a 55% rejection rate based on ?the previous verification yielded a rate of 55% not meaningfully interested in '7 Promise Academy? from the first telephone survey. Projecting this veri?cation yield rate of 55% to the i 134 submissions that were not part of the first telephone survey, the District arrived at a projection of 61 as having meaningful interest in Promise, and thereby automatically rejected 73 (or 55% of the 134 submissions] as not meaningfully- interested. Adding to 61 to ?the 16 previously verified responses? of fromtheiirsttelephonicsurvey, the. District. arrived at..?a total of 77 reasonably_ .. . .- projected verified responses? of meaningful interest. Applying the ADA rate of 94% to the remaining 77 submissions which the District deemed to be "reasonably projected. verified responses,? the District?s in~district ADA projection for Promise was 73, a figure under the minimum ADA of 80 at which a charter school is eligible for Proposition 39 facilities. (See Education Code section 4. Protest and Second Telephone Survey On December 31r 2017, Promise wrote back to protest the District?s counter-projection of 73, reaffirm its in?District ADA projection of193.64, and further defend the reasonableness of Promis-e?s in? District ADA projection of 193.64. Dverianuary 23 and 24, 2018', the District conducted telephonic surveys of Promise?s 134 most recent intent to Enroll form signatories ("second telephone survey"), the same group of submissions to which the District had previously applied the 55%yieid rate. From the second telephone survey, the District found that ?36 in?District students did verify as meaningfully interested in attending Promise Academy for the 2018-19 school year, 332 in?District student's did not verify as meaningfully interested in attending Promise Academy for the 2018-19 school year, and the District was unable to receive verification from 42 in-District students.? For the last group of 42 written and signed submissions of 3 By ?u nabie to receive verification? the District meant that it could not reach the parents by telephone. 8 meaningful interest for which the District could not reach the parents by telephone, the District decided not to count them. On March 30, 2018, the District wrote to Promise to formally deny Promise any school facilities for the coming school year. - Discussion- Education Code section 47514 provides, that upon a charter'school providing a school district with a reasonable projection of the in-District ADA for the request year and ?[t]he district shall allocate facilities to the charter school for that'following year based upon this projection.? (Ed. Code 47614 subd. Applied here, it Promise?s projections are reasonable, the District must accept those projections and allocate facilities based on those ADA projections. (Sequoia Union High Schooi Dist. v. - Aurora Charter High School (2003) 112 Cal.App.4th 185, 195.) 1. Standard of Reasonableness The standard for a reasonable projection under Proposition 39 is not stringent. The law merely requires that the charter school ?must-offer some explanation in its facilities request for the basis for its projection.? (id. at 195-96.] A charter school?s explanation need not ?demonstrate arithmetical precision in its projection or provide the kind of documentary or testimonial evidence that would be admissible at a trial.? (id. at 196.} charter school need only provide ?documentation ofthe number of students meaningfully interested in attending the charter school that is suf?cient for the district to determine the reasonableness ofthe projection, but that need not be veri?able for precise arithm eti'cal accuracy.? (Coirfornio Schooi Eds. Assn. v. State Bd. of Education (2010} 191 Ca .App.4th 530, 554-65.) ii if -.. I . Moreover, the requirement that a school district rely on a charter school?s projections is self? because charter schools have a strong incentive not to overestimate enrollment, because they must pay for over~allocated space. (Ed. Code, 47614, subd. (him; Cal, Code Regs, tit. 5, 11959.8. See 'Seqmio Union High School Dist. v. Aurore Charter High Schooi, supra, 112 CaI.App.4th at 196 [?the Schgoi i5. .subsaq its projection was incorrect. by having. tore-impose the. .diStrict for . . . over?allocated spa in this case, if it proves that Promise has over-projected its in?di?strict ADA, the District will be entitled to collect an ?over-allocation penalty.? (Cal. Code Regs. tit. 5 ?.11969.8.} This disincentive to over?projection argues against making the Proposition 39 review by a chooi district of a charter school?s request for facilities an adversarial and evidence?gathering process. 2. District Review is Limited lithe District?s position is accepted, a school district would have the right to gather evidence to rebut or impeach the documentary support a charter School provides with its Proposition 39 request, or the right to obtain its own confirmation or veri?cation of meaningful interest directly from the parents despite the-submitted signed. documents eXpressing their meaningful interest. A-school district would also have the discretion to weigh its rebuttal evidence against the charter school?s supporting documentation, and then holds the authority to. rule on the quality of the competing evidence according to its own subjective standard of proof. This cannot be so. Proposition 39 and its implementing regulations describe, if anything, an iterative, good faith protocol for the procurement of district school facilities by eligible charter schools. It is pi-ainly rooted in Proposition 39?s-cornmand ?that public school facilities should be. shared fairly among all public school pupils, including those .in charter schools.? (Education Code section ?Considered together, the provisions of Regulations, section 11969.9 require a charter school to provide a school district with some explanation, based on a documentary showing, of its ADA projections. AlthOngh the School District Associations argue more ?information is necessary, We see no 10 reason to believe, on this facial challenge to the regulation, that the information required by section 11959.9 will be insufficient to allow a school. district to carry out its duties to evaluate the facilities request and provide reasonably equivalent facilities.? (California School Bds. Assn. v. State Bd. Of Education [2010) 191 Cal.App.4th 530, 565.} a'rr'i?a'so?sappraved bythe State abstract Ed?ati?o?n "reisavats?"? what information should form the basis for a reasonable ADA projection stated as follows: ?Required information would be limited to names and addresses, consistent with the statement of legislative intent in section 49073.5 to ?minimize? the release of telephone numbers ?in' the absence of express parental consent.? Names-and addresses should be sufficient foundational information for school districts to determine the reasonableness of ADA projections.? Th us, it is evident that the scope of a school district?s review ofthe required level of meaningful interest in a charter school?s request for facilities is limited, especially considering that charter schools have an incentive to not overestimate its projected ADA in light of the reimbursement penalty and that school districts. have an incentive to minimize the amount of facilities they must allocate to charter schools with. no countervailing penalty.?1 in sum, a district review does not entail a separate confirmation or verification to the school- district directly from the parent of his or her meaningfui interest in a charter school. A district may review the charter school?s projections and supporting documentation for-obvious defects, such as listing a child outside the qualifying age range, listing a child who resides outside the a district boundaries, listing of incorrect grades, more than one submission by the same student to the same 4 The District?s reliance on an acknowiedgment by thep'arents in the Intent to Enroll form that they understand that the District may contact them dire-ctly'to verify their responses is not well taken, as the District is still bound by the scope of review established by Proposition 39. Moreover, the District still proceeded to conduct the second telephone survey despite objection by Promise in its letter dated December 31, 2017. 11 - - charter school, etc.. The screening process reducing the submissions from 318- to 216, as described in the District?s letter of November 30, 2017, is a goo-d illustration as to the functions of the District and scope of its review when considering a request for facilities5 A school district, however, im perm issibly exceeds the scope of its review when it embarks on school district obtaining its own confirmation or verification of meaningful interest directly from the parents. if this is permitted, one could also imagine a situation in which a parent is repeatedly disturbed by a charter school or a school district trying to gather lmpeaching, rebuttal, or rehabilitating evidence, with no mechanism under Proposition 39 to evaluate and adjudicate dueling evidence. Accordingly, the court finds that Proposition 39 does not permit by the District the use of results from its surveys of interested parents as a basis for rejecting signed Intent to Enroll forms Or other documentation supporting meaningful interest. 3. The District?s Second Telephone Survey Was Untimely Upon receipt of a Proposition 39 request, the school district shall ?review? the charter school?s ADA projections and, ?on or before December 1, express any objections in writing and state the projections the district considers reasonable. if the district. does not express objections in writing and state its own projections by the deadline, the charter school?s projections are no longer subject to challenge, and the school district shall base its offer of facilities on these projections.?_ (Cal. Code Regs, 5' it is questionable, however, whetherthe District could disregard submissions by the same students to more than one charter schooi without crediting any or all of the affected charter. schools. Here, two students expressed meaningful interest in Promise and Perseverance Preparatory. It is reasonable for a student to have meaningful interest in more than one school although ultimately he or she could only enroii in one. It should be noted that the net loss for Promise on this basis is only one student, as the first student had three submissions, two for Promise and one for Preparatory, and one submission for Promise was retained. 12 tit. subd. Any objection must be based on a review of the chartens supporting documentation. Here, the second telephone survey, conducted in January 2018, was untimelv and the results cannot provide a basis for rejecting Promise?s in-District ADA projection even if the survey was 4. The District?s Second Telephone Survev Was Flawed From the results of its second telephone survey, the District characterized 72 parents who answered negatively to the question ?are you planning to have [your child] attend Promise Academy next school year,? as ?Verified Not to Have Meaningful interest in Promise Academy." The District then reduced its projection of Promise?s in?district ADA accordingly. The standard under Proposition 39, however, is not whether a parent is planning to have his or her child attend a particular charter school, but whether a parent is ?meaningfully interested? in enrolling his or her child in that charter school. Thus, even Proposition 39 allows the District to directly survey a parent, the process .here is flawed because the question posed to the parents was not in the language ofthe standard under Proposition 39. Asking about a plan to enroll as opposed to a meaningful interest inserted a higher standard than that required of Promise under Proposition 39', particularly at a time whenit 'was still uncertain that Promise?s charter would even exist in the Fall of 2013. I 5. The District Acted Arbitrarilv and Capriciouslv in not Counting Forms for Which the District Was Unable to Contact the Parents When. the District engaged in the second telephone survey of the ?new? 134 submissions by Promise, the District was unable the parents 01?42 students so the District did not count these 42_ students in favor of Promise. 13 Not only the District insisted on the right to obtain independent verification directly from the parents, but when it failed to reach a parent it simply discarded that parents existing and documented expression of meaningful interest. The court finds the District?s action in this regard to be arbitrary and capricious. 6. The" D'i'?fr?ic'tAct?ed?Mtiitfarilv Percent?Pate From its first telephone survey of parental interest (taken in May 2017 at the charter petition phase of Promise?s existence), the District extrapolated and later applied a 55% rejection rate to the group of 134 enrollment forms that came after the first telephone survey, thereby rejecting 73 expressions of parent interest in Promise in the Proposition 39 context without any further review or analysis, First, the 55% percent rate is a derivative of a process which the court has already found herein to be not authorized under Proposition 36 in the context ofdistrict review ofa request for facilities. Second, the court finds that the artificial application of this 55% rate to the-gm up of 134 ?new? enrollment forms to be arbitrary and capricious. 7. Promise Provided a Sufficient Basis for its P?roiection To Triager'the District's Duty to Provide a Preliminary Proposal. - Pursuant to the lawful scope of a district review of a charter schooi?s request for facilities under had a duty to make a preliminary offer of reasons blyaequivalent, contiguous and furnished and equipped facilities in the downtown San Jose area, pursuant to Proposition 39, sufficient to '5 in fact, 215 remained from the 318 submissions after the District removed all duplicate submissions, ail incomplete submissions, all incorrect grade submissions, and all addresses not located within the District. This is the permissible scope of review under Proposition 39. Applying the ADA rate of 94%?to the remaining 216 submissions would yield a number higher than Promise?s projected in?district average daily attendance of 193 . 54. 14 or hearing on Promise?s Motion for Issuance of Writ of Mandate is not a "trial ofa question of fact accommodate Promise?s projected in?district average daily attendance of 193.661, in preparation for Promise's incoming students.7 F. A Statement of Decision Is Not Required The District had submitted a Request for Written of Statement of Decision. However, this trial by the court.? (See Code of Civil Procedure ?632 and Cal'riornia Rules of Court, Rule 3.1590.) indeed, the evidence in this matter was submitted to the court bvthe parties? respective Requests for Judicial the parties? witness declarations, and-deposition transcripts. While certain evidence was subject to a party?s evidentiary objections, there are no disputed facts torthe court to resolve. indeed, it is the recollection of the court that at one point in the District?s oral arguments, the District stated to the effect that while the parties disagreed on the law, the court was presented with uncontroverted evidence.8 Bullis Charter Schooi v. Los Altos School Dist, supra, concerns a review of a denial of a petition for writ of mandamus concerning Proposition 39. In the trial court, ?[t]he parties submitted substantial briefing and evidence in support of, and in opposition to, the Petition, including supplemental supporting and opposing papers. After hearing extensive argument, on November 24, 2009, the court issued an order denying the relief sought in the Petition.? Chorte?rSchool v. tosAitos School Dist, supra, 200 CalAppAth at 1032,} On appeal, the Sixth District Court of'Appeal applied a de novo 7 For the reasons stated herein, the declarations of Ana Martinez, Catalina Gomez, Sandra Camacho, "Sandra Lomeli Jose M. Paima, Marika De Villa, imeida Cruz, Jenny Zepeda, Lila Chavez, Onofre Gonzalez, and Sarai Gomez, and the deposition testimony of?ine Martinez, Sandra Lomeli, and Lilia Chavez bear no impact on Promise?s submissions of meaningful interest on October 3'1, 201?. Not only this evidence was obtained after December 1, the deadline by which the District must object to Promise?s ADA projection, but also constituted impeachment or rebuttal evidence of Promise?s submissions in a manner not authorized by Proposition 39. it should be cautioned, howeVer, that the court does not have the benefit of the transcript of the hearing to confirm its recollection. 15 standard of review rather than the more deferential substantial evidence standard because the matter involved a question of law where the facts were undisputed. (id. at_1037.) The Court wrote: It is true that where a court?s ruling on a traditional writ of mandate is founded on a resolution of conflicting evidence, the appellate court?s inquiry [is] whether the ?ndings and judgment of the trial court are supported by substantial evidence. However, the appellate court may make its own determination when the case involves resolution of- 'q'ues'tions'of law Where" the fadf?f? is a" question of law subject to independent review. Notwithstanding the District's belated attempt'in its rehearing petition to characterize the trial court's decision as one involving a resolution of disputed facts, it is clear that the matter here involves an interpretation of Proposition 39 and its implementing regulations, and their application to the District?s Facilities Offer. The principal issues, as discussed, post, concern the propriety of the methodology employed by the District in the creation of the Facilities Offer?Le, the exclusion of nonclassroom space of the comparison group schools, the inclusion among the facilities offered to the charter school of a soccer field used by Bullis only-two days a week without proration clue to its shared use, the failure to consider site size of the comparison group schools, the use of standard room sizes for certain rooms at the compariSOn group schools, and the failure to consider certain facilities (such as before? and afterschool childcare facilities} available at each of the comparison group schools. The District confuses disputes overthe appropriate methodology for a Proposition 39 facilities offer that did exist and are at the heart of the controversy with disputes as to material facts the objective measurements of the comparison group schools and the Egan site] which did not exist. The de novo standard of review enunciated in Sequoia, supra, 112 Cal.App.4th at page 195 is therefore appropriate here.? (id. at1037~1038 [citations, internal quotations marks, and footnote omitted].i Similarly here, at issue before-the court ?is the methodology used by the District in reviewing Promise?s request for facilities which required the court" to interpret Proposition 39 and Its regulations. The. facts relied on by the court herein are not disputed by the parties. Accordingly, as the matter before the court does not invoivea "trial of question of fa ct? by the of decision is not required and the District?s request for one is-denied. f/ 16 G. Disposition Promise's Motion For issuance of Writ of Mandate in this proceeding is GRANTED. Petitioner shall forthwith prepare an order that a writ of mandate issue underthe seal of this Court ?compelling the District to make a preliminary offer by no iateriune 25, 2018, of reasonably equivalent, contiguous and furnished 'ari'qu'l?iipped facilities in the?'d'OIWnth? s'a?n'ids?'are'a, pu'rs'u'a riftE?P?jposnion "39, sdffic'i'?'r?it to accommodate .Promise?s projected inudistrict average daily attendance of 193.54. The order shall also establish deadlines for the rest ofthe Proposition 39 process as follows: By no later than July 6, Promise. shall review and comment on the preliminary proposal, as well as express concerns and make counter-proposals in writing to the District. By no later than July 13, the District must provide a final offer of reasonably equivalent, contiguous, and furnished and equipped facilities to the charter school sufficient for the established ln?District ADA projection. This final offer notification must specifically identify, among other things, the location and specific facilities. allocated. By no later thaniuly 3D, 2018, Promise shall notify the District in writing of Promise?s decision to accept or decline. the District?s final offe r, The deadlines provided herein are adjusted dates for compliance with Proposition 39 deadlines and are necessary! in View of the regular deadlines having already expired due to the District?s conduct in violation of Proposition 39 as addressed herein. ITIS SO ORDERED, - 5/ Date: (M *5 Thang N. Barrett Judge of the Superior Court 17 .. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA- L. DOWNTOWN COURTHOUSE . CALIFORNIA 95113 8 CWILDIVISION . JUN15 '201 . Gee a superioro ounyo na er ev oeeow RE: Promise Public Schools, inc. V. San Jose Unified School District a 1 Oi?i?i?i?i? Number; . PROOF OF SERVICE Amended Order Granting Promiee'e Motion for Issuance of Writ of Mandate was delivered to the parties listed below the above entitled case as eet forth In the sworn declaration below. if you, party represented by you. or a witness to be called on behalf ?that party need an accommodation under the American with Disabilities Act. please contact the Court Administrator?s office at (408) 882-2700, or Lise the Court?s TDD line (408) 882-2690 or the Voice? DD California Relay Service (300) 735-2922! DECLARATION OF SERVICE BY I declare that served this notioe by enclosing a. two copy in a sealed envelope. addressed to each person Whose name is shown below, and by depositing the envelope with postage fully prepaid. in the United States Mall at San Jose. CA on June 35. .2018. CLERK OF THE COURT, by Shantei Hernandez. Deputy. cc: Paul Christian Minney 655 University Avenue, Suite 150' Sacramento CA 95 825 Sarah Jean Koilmen 655 University Avenue, Snite 150 Sacramento CA 95 8-25 Edward Slabech 655' University Avenue, Suite 150? Sacramento 95825 John Yeh 1503 Grant Road suite 200 Mountain View CA 94040 oweoz? REV 12i08i16 PROOF OF SERVICE COUNTY OF SANTA CLARA INQ, PetitionerfPlaintiff, ORDER CORRECTING NUNC PRO TUNC DATE IN AMENDED Vi ORDER GRANTING MOTION FOR ISSUANCE OF SAN JOSE UNIFIED SCHOOL WRIT OF MANDATE and DOES 1 through 10, inclusive, I Respondentsz?Defendants. The ?Amended. Order Granting Promise?s Motion For Issuance of Writ of Ma ndate? ("Amended Order?), filed on June 15, 2018, is corrected as follows: The effective date ofthe Amended Order isJune 14, 2018 {and 14, 2018]. Accordingly, the Amended Order is effective nuns pro tuna to June 14, 2018. IT IS SO ORDERED. . Date: Jam 15/ c9901 8 . . Thang N. Barrett "r Judge of the Superior Court COUNTY OF SANTA CLARA INQ, lSC?v?325491 Petitioner/Plaintiff; ORDER CORRECTING NUNC PRO TUNC DATE IN AMENDED V. ORDER GRANTING MOTION FOR ISSUANCE OF SAN JOSE UNIFIED SCHOOL WRIT OF MANDATE and DOES 1 through 10, inclusiVe, Respondentstefendants. The ?Amended Order Granting Promise?s Motion For Issuance of Writ of Mandate? ("Amended Order?), ?led on June 15, 2018, is corrected as foilows: The effective date ofthe Amended Order'is June 14, 2018 {and 2018]. Accordingly, the Amended Order is effective nunc pro tuna to June 14, 2018. IT IS SO ORDERED. Date: 3W 15/ 3?0? . Thang N. Barrett 11ng of the Superior Court SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH saniosa. CALIFORNIA 95113 CIVIL DIVISION Cl .- oi the C: - a?uparior Gr. A 0? Sling Clara - RE: Promise Public Schools, Inc. V. San Jose Unified School Dietritgha emanate; Case Number: 1BCV325491 Order Correcting Nunc Pro Tune Date in Amended Order Granting Promises Motion for Issuance of Writ of Mandate was delivered to the parties listed below the above entitled case as set forth in the sworn deciarat on below. if you. a party represented by you, or a witness to be called on behalf of that party need an aeoommodation under the American with Disabilities Act. please contact the Court Administrator's office at (408) 882-2700. or use the Court?s TDD line (408) 882-2690 or the California Relay Service [800) 735-2922. DECLARATION OF SERVICE BY MAILL I declare that! served this notice by enclosing a true copy in a sealed envelope. addressed to each person whose name Is shown below. and by depositing the envelope with postage fully prepaid. In the United States Mall at San Jose. CA on June 15. 2018. CLERK OF THE COURT. by Shantel Hernandez, Deputy. oc: Paul Christian Minney .ominnevifiimvcharterieweom . 655 University Avenue.'8uiie 150 Sacramento. CA 95825 John Yeh dyeh@bweiam .com- 1503 Grant Road suite 200 Mountain View CA 94040 Sarah Jean Koliman Skollman?lmyoharterlaWon 655 University Avenue. Suite 150 Sacramento. CA 95825 8 Edward Sia?bach 655 University Avenue, Suite 150 Sacramento. CA 95825 REV 12:08:16 PROOF or: SERVICE SUPERIOR COURT OF CALIFORNIA . ?Fr IL COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN JOSE, CALIFORNIA 95113 . .JUN 2 1 2.018 CIVIL DIVISION Clerk of the Court Superior COWA County oi Santa Clara BY- DEPUTY Myth} RE: Promise Public Schools, Inc. V. San Jose Unified School District Case Number: 18011325491 PROOF OF SERVICE Order Granting Promise's Motion for Issuance of Writ of Mandate and Judgment Granting Writ of Mandate was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you. or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act. please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the California Relay Service (800) 7?35?2922. DECLARATION OF SERVICE BY MAIL: I declare that I served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mall at San Jose, CA on June 21, 2018. CLERK OF THE COURT, by Mark Rosales, Deputy. cc: Paul Christian Minney 701 University Ave Ste 150 Sacramento CA 95825 John Yeh 1503 Grant Road suite 200 Mountain View CA 94040 Sarah Jean Kollman 701 University Ave Ste 150 Sacramento CA 95825 8 Edward Slabach 140 Street Suite 5 Davis CA 95616 cw?eozr REV izrosne PROOF OF SERVICE ..-