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8/14/2019 Answer to First Amended Petition for Writ of Mandate in Balde v. AUSD
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LOUIS A. LEONE (SBN: 099874)KATHER INE A. ALBERTS (SBN: 212825)STUBBS & LEONEA Professional Corporation2175 N. California Blvd., Suite 900Walnut Creek, CA 94596Telephone: (925) 974-8600Facsimile: (925) 974-8601
Attorneys for RespondentsALAM EDA UNIFIED SCHOOL DISTRICT andKIRSTEN VITAL
dke
F L.E DA L A mE D A COUNTY
O CT 2 2 2009
Mei IJ,HIQRCQU
Oepu
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
Case No .:. RG 09-468037ISHA BALDE, JOLELE CHAN, TOMM YCHEUN G, DANIEL CHIN, HANDF ORDCHIU, RICHARD CLARK, DIANECLARK, MIKEL DEL ROS ARIO, ARCHIEFELIX, J'AIME FELIX, WENDY FONG,SUE FONG, MARIA GUADALUPEGOM EZ, JUDY JOHANSING, DANLINLI, KERRI LONER GAN, MATTLONGERAN, LIND M ORGAN,JONATHAN STAIRS, and VICKISTAIRS,
Petitioners,V S .
ALAMEDA UNIFIED SCHOOLDISTRICT, KIRSTEN VITAL,SUPERINTENDENT, in her officialcapacity.
Respondents.
ANSWER TO FIRST AMENDEDVERIFIED PETITION FO R WRIT OFMANDAMUS
BY FAX
8/14/2019 Answer to First Amended Petition for Writ of Mandate in Balde v. AUSD
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COMES NOW Respondents ALAMED A UNIFIED SCHOO L DISTRICT
("DIST RICT ") and KIRSTE N V ITA L, and for their answer to the First Am ended Verified
Petition for W rit of Mandam us by Petitioners AIESH A BA LD E E T AL . on file herein,
admits, denies and allege as follows:
INTRODUCTION
Respondents oppose the issuance of the Writ of Mandamus prayed for by
Petitioners in this action. The Education Code allows a parent to opt out their child from
school lesson in very limited circumstances. California Education Code 51240 allows
an opt out for a "school's instruction in health." The lesson at issue in this Petition,
Lesson 9, is not part of the school's instruction in health, but rather was adopted by the
District as part of its Caring School Community Curriculum. Lesson 9 is part of an anti-
bullying and anti-harassment curriculum adopted pursuant to the District's statutory duty
to provide safe and non-discriminatory schools to all students. Therefore, the Caring
School Community Curriculum is not part of the "school's instruction in health" and not
subject to the opt out in Education Code 51240.
PARTIES
1. Responding to paragraph 1 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 1, and
as such, the allegations are denied.
2. Responding to paragraph 2 of the Petition, Respondents lack sufficient
information and belief upon which to admit or deny the allegations in paragraph 2, and
as such, the allegations are denied.
3. Responding to paragraph 3 of the Petition, Respondents lack sufficientinformation and belief upon which to admit or deny the allegations in paragraph 3, and
as such, the allegations are denied.
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4. Responding to paragrap h 4 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 4, and
as such, the allegations are denied.5. Responding to paragraph 5 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 5, and
as such, the allegations are denied.
6. Responding to paragraph 6 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 6, and
as such, the allegations are denied.
7. Responding to paragraph 7 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 7, and
as such, the allegations are denied.
8. Responding to paragraph 8 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 8, and
as such, the allegations are denied.
9. Responding to paragrap h 9 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 9, and
as such, the allegations are denied.
10. Responding to paragraph 10 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 10, and
as such, the allegations are denied.
11. Responding to paragrap h 11 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 11, and
as such, the allegations are denied.
12. Responding to paragrap h 12 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 12, and
as such, the allegations are denied.
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13. Responding to paragrap h 13 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 13, and
as such, the allegations are denied.14. Responding to paragrap h 14 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 14, and
as such, the allegations are denied.
15. Responding to paragrap h 15 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 15, and
as such, the allegations are denied.
16. Responding to paragrap h 16 of the Petition, Respondents admit the
allegations co ntained therein.'
17. Responding to paragraph 17 of the Petition, Respondents admit the
allegations contained therein.
Jurisdiction and Venue
18. Responding to paragraph 18 of the Petition, Respondents admit that
Petitioners purport to bring this action pursuant to California Civil Code 1085.
19. Responding to paragraph 19 of the Petition, Respondents admit that
venue is proper in Alameda C ounty.
Statement of Facts
20 , esponding to paragraph 20 of the Petition, Respondents admit that
Lesson 9 of the District's Caring School Com munity curriculum was adopted by the
District's Board of Edu cation on May 2 6, 2009. Respondents also admit that Lesson 9
and the entire Caring School Comm unity curriculum were adopted pursuant to the
District's duties under the Student Safety and Violence Prevention Act of 2000,
Education Code 200, Penal Code 42 2.6(a) and the District's Board Policies
concerning student safety, discrimination and harassment. Respondents also admit
that the entire Caring School Com munity curriculum is aimed at teaching safety and
tolerance on the District's campuses as well as to prevent bullying and harassment.
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Respondents admit that the goal of Lesson 9 is to create safe schools and to ensure
that all students feel safe in our schools and that all students have equal access to a
quality education. Respondents further admit that Lesson 9 is the part of the CaringSchool Community Curriculum. Except as expressly stated herein, Respondents denies
each and every rem aining allegation contained in paragraph 20.
21. Responding to paragraph 21 of the Petit ion, Respondents admit that the
Kindergarten lesson in L esson 9 is an introductory lesson to help students understand
what m akes children feel welcome, and to discover what the effect is of unw elcoming
behavior, such as hurtful teasing, name calling and exclusion. Respondents also admit
that the lessons for grades 1 3 discuss different family structures. Except as
eipressly stated herein, Respondents denies each and every remaining allegation
contained in paragraph 21.
22. Responding to paragraph 22 of the Petition, Respondents admit that
Exhibit 1 page 5 states under the heading "Lesson Purpo se" are three bullet points,
which state: "To identify what makes a fam ily" "To identify and describe a variety of
families" and "To understand fam ilies have som e similarities and some differences."
Respondents also admit that Exhibit 1, page 6 states "Ask the class the following
questions and record their answers on paper" and tw o of the listed questions are "W hat
do family m embers give or share with each other?" and "What responsibilities do family
members have?" Respondent admits that Exhibit 1 page 9 lists under "Lesson
Purpose" tw o bullet points and that one of the bullet points is "To be a ble to identify
alternative types of family structures." Respondents adm it that Exhibit 1 page 13 lists
under "About Talking About F amilies Class Meeting three bullet points and one of the
bullet points is "The class meeting will also assist students in developing sensitivity to
gay and lesbian fam ily structures." Responden ts admit that Exhibit 1, page 13 lists
under "About Developing Empathy and B eing an Ally" two paragraphs and one of the
paragraphs states "Students will be introduced to an article by Robert, an 11 yea r old,
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whose families have two moms.' Except as expressly stated herein, Respondents
denies each and every remaining allegation contained in paragraph 22.
23. Responding to paragraph 23 of the Petition, Respondents admit thatExhibit 1 page 23 states under "About Stereotypes including Lesbian, Gay, Bisexual
and Transqender People" that "In this lesson students will increase their awareness of
all stereotypes, including lesbian, gay, bisexual and transgender people." Respondents
also admit that Exhibit 1 page 23 lists under "Lesson Purpose" four bullet points and
one of them is "To learn that LGBT people are represented among all races, genders,
religions, socio-economic classes and professions." Except as expressly stated herein,
Respondents denies each and every remaining allegation contained in paragraph 23.24. Responding to paragrap h 24 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 24
regarding whether Petitioners' religious training and beliefs and personal moral beliefs
and Petitioners' ability to provide mo ral and religious training to their children, and as
such, the allegations are denied. Moreover, Respondents admit that they received
letters from parents purporting to opt their children out of L esson 9 pursuant to
Education Code 51240. Respondents admit that Section 51240 is quoted accurately.
Except as expressly stated herein, Respondents denies each and every remaining
allegation contained in paragraph 24.
25. Responding to paragrap h 25 of the Petition, Respondents lack sufficient
information and belief upon which to adm it or deny the allegations in paragraph 25
regarding whether the attorney for Petitioners sent a letter to Superintendent Vital and
the contents of said letter, and as such, the allegations are denied. Respondents deny
each and every rem aining allegation in paragraph 25.
26. Responding to paragrap h 26 of the Petition, Respondents admit that
Superintendent Vital sent a letter to parents who requ ested an opt out of Lesson 9
pursuant to Education Code 51 240, and informed them that the Board's motion and
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1 approval of Lesson 9 did not include an opt out. Except as expressly stated herein,2 Respondents denies each and every remaining allegation contained in paragraph 26.
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27. esponding to paragraph 27 of the Petition, Respondents adm it that the4 letter sent by Superintendent Vital to parents who requested an opt out of Lesson 95 pursuant to Education Code 51 240, stated that "On M ay 26, 2009, the Board of
6 Education approved the motion to adopt the Caring School Com munity curriculum
7 supplement, Lesson 9 as part of its Safe School Community program. Lesson 98 addresses issues of sexual orientation/gender identity. The Board's motion and
9 approval did not provide an op t out option." Except as expressly stated herein,10 Respondents denies each and every remaining allegation contained in paragraph 27.
1 1 ' 8. esponding to paragraph 28 of the Petition, Respondents deny each and
12 every allegation in paragraph 28.
13 29 . esponding to paragraph 29 of the Petition, Respondents deny each and
14 every allegation in paragraph 29.
15 FIRST CAUSE OF ACTION FOR WRIT OF MANDAMUS
16 30. esponding to paragraph 30 o f the Petition, Respondents incorporate by
17 reference their responses to paragraphs 1 -29 as though fu lly set forth herein.
16 31. Responding to paragraph 31 of the Petition, Respondents deny each and
19 every allegation in paragraph 31.
2 0 32 . esponding to paragrap h 32 of the Petition, Respondents lack sufficient21 information and belief upon which to adm it or deny the allegations in paragraph 32, and22 as such, the allegations are denied.
2 3 33. esponding to paragrap h 33 of the Petition, Respondents lack sufficient
24 information and belief upon which to adm it or deny the allegations in paragraph 33, and25 as such, the allegations are denied.
2 6 34. Responding to paragraph 34 of the Petition, Respondents deny each and
27 every allegation in paragraph 34.
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35 . Responding to paragraph 35 of the Petition, Respondents deny each and
every allegation in paragraph 35.
36. Responding to paragraph 36 of the Peti tion, Respondents admit thatPetitioners purport to petition this Court to issue a writ of mandamus, requiring
Respondents to co mply w ith Petitioners' written requests and excuse Petitioners'
children from the parts of theSafe School Community Curriculumthat conflict with their
religious training and belief or personal moral convictions.
37 . Responding to paragraph 37 of the Petition, Respondents deny each and
every allegation in paragraph 37.
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AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
(Failure to State Claim)
1. As a first affirmative defense, Respon dents allege and aver that
Petitioners' Petition, and each and every claim purportedly set forth therein, fails to sta
a claim upon w hich relief can be granted.
SECOND AFFIRMATIVE DEFENSE
(Statute of L imitations)
2. As a second affirmative defense, Respondents allege and aver that some
or all of Petitioners' claims are barred by the applicable statutes of limitations, including
but not limited to Cal. Gov't Code 920 and 945.6 and C al. Code Civ. Proc. 338-
340, inclusive.2 3
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THIRD AFFIRMATIVE DEFEN SE2 4
(Waiver and Estoppel)2 5
3. s a third affirmative defense, Responde nts allege and aver that the2 6
Petition, and each and every claim purportedly set forth therein, is barred by the2 7
doctrines of waiver and estoppel.
FOURTH AFFIRMATIVE DEFENSE
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(Laches)
4. As a fourth affirmative defense, Respondents allege and aver that the
Petition, and each and every claim purportedly set forth therein, is barred by the
doctrine of laches.
FIFTH AFFIRMATIVE D EFENSE
(Failure to Mitigate)
5. As a sixth affirmative defense, Respondents allege and aver that any
recovery on Petitioners' Petition, or any cause of action purportedly alleged therein, is
barred in whole or in part by Petitioners' failure to mitigate damages.
SIXTH AFFIRMATIVE DEFENSE
(Privilege and/or Justification)
6. As a sixth affirmative defense, Respondents allege and aver that any
recovery on Petitioners' Petition, or any cause of action purportedly alleged therein, is
barred because Respondents' conduct was privileged and/or justified.
SEVENTH AFFIRMATIVE DEFENSE
(Governmental Tort C laim)7. As a ninth affirmative defense, Respondents allege and aver that
Petitioners failed to comply with the claim provisions of the California Governmental
Code with respect to the timely presentation of a Governmental Claim. Further,
Petitioners' claim, if submitted, differs materially from the allegations contained within
the Petition, and as such, said claims not referenced in the Governmental Claim are
barred.
EIGHTH AFFIRMATIVE DE FENSE(Good F aith Imm unities)
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8. As a eighth affirmative defense, Respondents allege and aver that its is
immune from the allegations and causes of action contained within the Petition based
upon the qualified and good faith immunities available under California Law.NINTH AFFIRMATIVE DEFENSE
(Failure to Exhaust Remedies)
9. As an ninth affirmative defense, Respondents allege and aver that any
recovery on Petitioners' Petition, or any purportedly alleged claim therein, is barred
because Petitioners has failed to invoke and exhaust administrative remedies required
to be invoked and exhausted prior to the commencement of any action for recovery on
the grounds asserted in the Petition.TENTH AFFIRMATIVE DEFENSE
(Government Code Immunities)
10. As a tenth affirmative defense, Respondents allege and aver that they are
immune from the allegations and causes of action contained within the Petition based
upon the immunities available under California Government Code 815 at seq. and
820 at seq., including but not limited to Government Code 820.2 and 815.2(b).
ELEVENTH AFFIRMATIVE DEFENSE
(Failure to Exhaust Judicial Remedies)
11 . As a eleventh affirmative defense, Respondents allege and aver that any
recovery on Petitioners' Petition, or any purportedly alleged claim therein, is barred
because Petitioners failed to exhaust the judicial remedies available to them.
TWELFTH AFFIRMATIVE DEFENSE
(Unclean Hands)
12. As a twelfth affirmative defense, Respondents allege and aver that the
Petition, or any purportedly alleged claim therein, is barred in whole or in part by reason
of Petitioners' unclean hands.
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THIRTEENTH AFFIRMATIVE DEFENSE
(Failure to State Sufficient Facts)
13. As a thirteenth affirmative defense, Respondents allege and aver thatneither the Petition nor any of the alleged causes of action therein state facts sufficient
to constitute a cause of action against these answering Respondents.
FOURTEENTH AFFIRMATIVE DEFENSE
(Separation of Powers)
14. As a fourteenth affirmative defense, Respondents allege and aver that
the relief sought in the Petition, if awarded, w ould violate the separation of powers
doctrine between the judicial branch and a state adm inistrative/legislative agency.
FIFTEENTH AFFIRMATIVE DEFENSE
(Lack of Standing)
15. As a fifteenth affirmative defense, Respondents allege and aver that any
recovery on the Petition, or any cause of action purportedly alleged therein, is barred in
whole or in part by the fact that Petitioners and each them lack standing.
SIXTEENTH AFFIRMATIVE DEFENSE
(Good Faith)
16. As a sixteenth affirmative defense, Respondents allege and aver that any
recovery on the Petition, or any cause of action purportedly alleged therein, is barred in
whole or in part by the fact that the subject program is mand ated by state law and as
such, Respondents acted in good faith.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Mootness)
17 . As a seventeenth affirmative defense, Respondents allege and aver that
any recovery on the P etition, or any cause of action purportedly alleged therein, is
barred in whole or in part because such causes of action are moot.
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PRAYER
WHEREFORE,these answ ering Respo ndents pray that Petitioners take nothing
by their Petition and that these an swering Respo ndents be d ismissed hence with itscosts of suit incurred herein and for such other further relief as the C ourt deem s fit a
proper.
Dated: October4, 2009 STUBBS & LEONE
LOUIS A. LEONE, ESQ.KATHERINEA. ALBERTS, ESQ.Attorney for Respon dentsALAM EDA UNIFIED SCHOO L DISTRICT aridKIRSTEN VITAL
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