PLAINTIFFS RESPONSE TO

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1 1 1 GIBSON, DUNN & CRUTCHER LLP Theodore J. Boutrous, Jr. (SBN ) tboutrous@gibsondunn.com Marcellus A. McRae (SBN 0) Theane Evangelis Kapur (SBN 0) South Grand Avenue, Los Angeles, CA 001 Telephone: , Facsimile: 1..0 Enrique A. Monagas (SBN 0) Joshua S. Lipshutz (SBN ) Mission Street, Suite 000, San Francisco, CA Telephone:..00, Facsimile:..0 Theodore B. Olson (SBN ) 0 Connecticut Avenue, N.W., Washington, DC 00 Telephone: 0..00, Facsimile: 0..0 Attorneys for Plaintiffs Beatriz Vergara, et al. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES BEATRIZ VERGARA, et al., Plaintiffs, vs. STATE OF CALIFORNIA, et al., Defendants. CASE NO. BC PLAINTIFFS RESPONSE TO CALIFORNIA TEACHERS ASSOCIATION AND CALIFORNIA FEDERATION OF TEACHERS MOTION TO INTERVENE Date: May, 01 Time: :0 a.m. Dept.: Judge: The Honorable Rolf M. Treu FAC Filed: August, 01 Trial Date: January, 01 PLAINTIFFS RESPONSE TO MOTION TO INTERVENE - CASE NO. BC

2 I. INTRODUCTION The California Teachers Association and the California Federation of Teachers (collectively, Intervenors ) seek to intervene in this action, more than ten months after Plaintiffs filed their lawsuit and a mere nine months before trial. Plaintiffs recognize that teachers (and their unions) have a distinct interest in the terms of their employment and therefore do not oppose intervention. Rather, Plaintiffs file this response to ensure that the focus of this case remains the constitutional rights of students. As this Court pointed out, whether the Challenged Statutes comply with the Due Process rights of teachers is a separate and distinct inquiry from whether they comply with the Equal Protection rights of students. (Tentative Ruling, November, 01 at p..) Public school students constitutional rights are being infringed each and every day that the Challenged Statutes remain in place. Thus, should this Court determine that intervention is appropriate, Plaintiffs ask that the Court prevent any delays in the current discovery and pretrial schedule or the trial date, and take whatever actions may become necessary to prevent prejudice to Plaintiffs interests due to the intervention. It would be ironic, indeed, if Intervenors in this case succeed in subjugating the students constitutional rights to the employment interests of teachers the very harm that led to this lawsuit in the first place. II. ARGUMENT A. Intervention Is Untimely And Unnecessary Intervenors assert that their intervention is timely and otherwise proper because none of the existing parties will adequately represent the interests of [Intervenors] and their members in this proceeding. (Motion to Intervene ( Mot. ) at pp.,.) But their decision to wait until nine months before trial is unreasonable, and their intervention is therefore untimely. Moreover, the existing defendants in this case particularly the State Superintendent of Public Instruction Tom Torlakson, the California Department of Education, and the State Board of Education (collectively, the State Defendants ) have consistently championed the very interests of teachers that Intervenors now assert. Intervention is unnecessary under these circumstances, and the Court would be well within its discretion to deny Intervenors motion on such grounds. (See Northern Cal. Psychiatric Society v. PLAINTIFFS RESPONSE TO MOTION TO INTERVENE - CASE NO. BC

3 City of Berkeley () Cal.App.d 0, [ The determination of whether the standards for intervention have been met is left to the sound discretion of the trial court ] [citations omitted].) 1. Intervenors Delay Is Unreasonable Timeliness is... one of the prerequisites for granting an application to intervene, and [i]t is settled that any unreasonable delay in filing a petition for leave to intervene is a sufficient ground for denial of the petition. (See, e.g., Northern Cal. Psychiatric Society v. City of Berkeley, supra, Cal.App.d at p. [internal citations and quotation marks omitted].) Intervenors proposed intervention is untimely. (See, e.g., id. [ Under the Code of Civil Procedure, intervention must be sought upon timely application whether intervention being sought is as of right or merely permissive. ] [quoting Code Civ. Proc., subds. (a) and (b)].) Plaintiffs filed this lawsuit on May 1, 01. Intervenors did not move to intervene until March, 01 more than ten months later, and a mere nine months before trial. Despite this delay, Intervenors argue that this motion is timely, because it was filed as soon as practicable following the dissolution of the court of appeal s stay of proceedings in this litigation. (Mot. at pp. -; see also Declaration of Dean E. Vogel ( Vogel Decl. ) ; Declaration of Jeffery Freitas ( Freitas Decl. ).) As an initial matter, the stay of proceedings in this case was lifted on February, 01 more than six weeks before the Motion to Intervene was filed. But even if this were as soon as practicable after the stay was lifted, the stay was not issued until December, 01, after the lawsuit had progressed for seven months, through the demurrer stage and approximately five months into discovery. Intervenors could have filed their motion at any time in those seven months. With trial only nine months away, their delay is unreasonable. 1 1 Intervenors do not, and cannot, claim that they were unaware of this lawsuit from the very beginning. Setting aside the high profile nature of these proceedings, an article about the lawsuit published the day after it was filed includes a comment from California Teachers Association s President. (See Jones, students file suit against LAUSD, governor alleging state s tenure laws deprive them of quality education (May, 01) < [as of Apr., 01] [quoting Dean Vogel, president of the politically powerful California Teachers Association ].) PLAINTIFFS RESPONSE TO MOTION TO INTERVENE CASE NO. BC

4 Intervention Is Unnecessary Because The State Defendants Have Vigorously And Consistently Advocated For Teachers Interests Intervenors assert that [b]ecause the State Defendants represent the interests of the public at large, and they do not share the teachers specific and narrower employment interests, they cannot adequately represent those interests. (Mot. at p..) But the record in this case demonstrates that the State Defendants have gone far beyond advocating for the public s generalized interest in defending the constitutionality of all laws (id. at p. ) and instead have vigorously defended the interests of teachers at every turn. State Defendants devoted an entire section of their demurrer to defending teachers constitutionally-mandated right to due process. (See Memorandum of Points and Authorities in Support of State Defendants Demurrer to Plaintiffs First Amended Complaint at pp. -.) They asserted that the Challenged Statutes protect against the arbitrary dismissal of employees and the unjustified or mistaken deprivation of process for teachers. (Id. at p..) State Defendants argued that the Challenged Statutes protect teachers from arbitrary action (id. at p. ), that they are required as part of a constitutional obligation to provide a hearing (id. at p. ), and that they provide important rights that have been codified (id. at p. ). These arguments were reasserted in State Defendants Reply in Support of their Demurrer, where State Defendants claimed that the Challenged Statutes are designed to protect teachers and students from the local politics and whims of governing school boards. (State Defendants Reply In Support of Their Demurrer to Plaintiffs First Amended Complaint at p. 1.) State Defendants continued vigorously to assert teachers interests after their demurrer was overruled in its entirety. In their Petition for Writ of Mandate, for example, they asserted that the Challenged Statutes serve a compelling interest in protecting the due process rights of teachers. (Petitioners Petition for Writ of Mandate, Certiorari and/or Prohibition With Request For Stay ( Petition for Writ of Mandate ) at pp. -; see also id. at pp. -0].) Indeed, Intervenors admit that they chose not to intervene when this case was initially filed because if this Court were to have disposed of the plaintiffs claims on demurrer, the litigation would not have posed any threat to the interests of [Intervenors] or [their] members. (Vogel Decl. ; see also Freitas Decl..) They elected to wait until after the demurrer stage to intervene, PLAINTIFFS RESPONSE TO MOTION TO INTERVENE CASE NO. BC

5 allowing the existing defendants to represent their interests without any protests that such representation was inadequate. Although the defendants were unsuccessful at the demurrer stage, nothing has changed they have consistently advocated for teachers rights throughout this litigation. B. Plaintiffs Do Not Oppose Intervention, Provided It Does Not Prejudice Their Interests Although this intervention is both belated and unnecessary, Plaintiffs do not oppose the intervention. Plaintiffs are compelled, however, to express their concern that additional defendants will slow down the proceedings and otherwise prejudice Plaintiffs, and ask that the Court guard against any such prejudice or delay. 1. The Current Case Calendar Should Remain Unchanged Discovery in this case is well underway, and trial has been scheduled for January, 01. Should this Court permit Intervenors to be parties in this case, Plaintiffs ask that such intervention not result in any delay and that the case proceed on the current schedule. As noted above, Intervenors have known about this lawsuit from the start, and could have sought to intervene before a trial date was set. Having waited more than ten months before seeking to intervene, Intervenors should not be permitted to slow down the proceedings after all, [a]s a general rule an intervener takes a suit as he finds it and intervention must not retard the principal suit, nor delay the trial of the action. (Hospital Council of Northern Cal. v. Super. Ct. () 0 Cal.App.d 1, [citations omitted].) Indeed, the main purpose of intervention is to obviate delay. (Sanders v. Pacific Gas and Electric Co. () Cal.App.d 1, [citations omitted; italics added]; see also Bright v. American Termite Control Co. (0) 0 Cal.App.d, 0 [recognizing the strong public policy in favor of expediting and disposing of litigation ].) In addition, because Intervenors repeatedly represent that their intervention will not enlarge the issues before this Court, there should be no reason for them to seek to extend the current timeline. (See, e.g., Mot. at pp.,.) Such concerns about the litigation schedule are particularly relevant here, where unnecessary delays would irreparably harm schoolchildren across California, including Plaintiffs. Every day that passes with the Challenged Statutes in place, public schoolchildren in California are unnecessarily harmed by grossly ineffective teachers. And all public school students, including Plaintiffs, face the PLAINTIFFS RESPONSE TO MOTION TO INTERVENE CASE NO. BC

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7 PROOF OF SERVICE I, Jacquelyne E. Murray, declare as follows: I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and am not a party to this action. My business address is South Grand Avenue, Los Angeles, California 001-, in said County and State. I am employed by and am currently working with Marcellus A. McRae, a member of the bar of this Court. On the date indicated below, I served the within: PLAINTIFFS RESPONSE TO CALIFORNIA TEACHERS ASSOCIATION AND CALIFORNIA FEDERATION OF TEACHERS MOTION TO INTERVENE by placing a true and correct copy thereof in an envelope addressed to each of the persons named below at the address shown, in the manner described below: Jennifer M. Kim, Esq., Supervising Deputy Attorney General Andrea Ventura, Esq., Deputy Attorney General Jonathan E. Rich, Esq., Deputy Attorney General California Department of Justice Office of the Attorney General 00 South Spring Street Los Angeles, CA 001 Jennifer.Kim@doj.ca.gov Andrea.Ventura@doj.ca.gov Jonathan.Rich@doj.ca.gov Counsel for State of California, Edmund G. Brown, Jr., Tom Torlakson, California Department of Education, and State Board of Education (the State Defendants ) Rogelio M. Ruíz, Esq. E. Luis Saenz, Esq. Mark Isola, Esq. Rehon & Roberts, APC 0 The Alameda San Jose, CA RRuiz@rehonroberts.com LSaenz@rehonroberts.com MIsola@rehonroberts.com Counsel for Alum Rock Union School District Alex Molina, Esq. Los Angeles Unified School District Office of the General Counsel South Beaudry Avenue, 0th Floor Los Angeles, CA 00 Alexander.Molina@LAUSD.net Sue Ann Salmon Evans, Esq. Dannis Woliver Kelley 01 East Ocean Boulevard, Suite 0 Long Beach, CA 00 SEvans@DWKesq.com Counsel for Los Angeles Unified School District Michael L. Smith, Esq. Office of the General Counsel Oakland Unified School District Second Avenue, Room 0 Oakland, CA 0 Mike.Smith@ousd.k1.ca.us Roy A. Combs, Esq. Fagen, Friedman & Fulfrost, LLP 0 Washington Street, Suite 0 Oakland, CA 0 RCombs@fagenfriedman.com Kimberly A. Smith, Esq. Fagen, Friedman & Fulfrost, LLP 00 Wilshire Boulevard, Suite 00 Los Angeles, CA 00 KSmith@fagenfriedman.com Counsel for Oakland Unified School District PROOF OF SERVICE

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