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Charter school's lawsuit dismissed again: BCS plans to appeal

Bullis Charter School's motion for a new trial in its long-running case against the Los Altos School District was denied Nov. 29 in a severe judgment in Santa Clara County Superior Court.

Judge Leslie C. Nichols found all reasons given for a new trial "without merit" and did not rule out the district's bringing a well-documented request for reimbursement for "a frivolous motion" when the case is finally closed.

The district reports spending $290,000 in the 14 months of the case so far. The charter school does not report its spending on this lawsuit.

The charter school plans to continue the case in the Sixth District Court of Appeals.

Marlin Miller, co-chairman of the Bullis Charter School Foundation, said last week, "It's still our intention to follow this case through to the end and get our day in court."

School district Superintendent Tim Justus said, "Every time they've asked the court to review the whole process and the decisions made by the district, the court has always said the district has followed the guidelines of the law and that its decisions are legal."

Miller said the school will meet its Dec. 29 filing deadline and retain the attorney whose arguments were dismissed. Robert P. Andris, of the Redwood City firm Ropers Majeski Kohn & Bently, has represented the charter school in court since January, taking over from Paul C. Minney, of Spector Middleton & Young of Sacramento, who filed the case Sept. 30, 2004.

"We are satisfied that Mr. Andris and his firm have prepared an excellent case, and we have no plans to change our counsel. We have always believed that when our case is fully heard in court it will be obvious that portables at Egan are not 'reasonably equivalent' per Proposition 39 to the schools that LASD has spent $100 million renovating," Miller said.

The charter school is in its second year in the portables on the campus of Egan Junior High School, 100 W. Portola Ave., Los Altos. The previous occupants were the students and staff of Santa Rita Elementary School, who held school there during the 2003-2004 academic year while their home school was renovated. The charter school's stated aim in the case is to win the right to the district's last remaining campus in Los Altos Hills, the old Bullis-Purissima Elementary School, which was the only school not renovated during the districtwide modernization program.

The district launched an open-enrollment, extended-day kindergarten program at the site this year, adding more than 90 children to the campus, the home of the district's small autistic preschool program and two commercial preschools since last year. The campus was empty of students in 2003-2004, when the charter school group brought and lost its first lawsuit to forestall the district's using the site.

Judge exasperated

"Absent explanation, the court can draw a permissible inference that the delay was due to tactical decision of counsel or to inexcusable neglect," Nichols wrote.

The charter school's expert witness was Eric Premack, co-director of the Sacramento-based Charter Schools Development Center and whose experience includes serving on the California State Superintendent's Charter School Advisory Committee.

"Counsel seem to assert that he could only know what his expert's opinion might be on Aug. 9, 2005, when he had completed his testimony under oath at deposition. This is so contrary to established practice ... as to be entirely unpersuasive," Nichols wrote.

The judge was also displeased with the way the charter school went about obtaining the deposition of Randy Kenyon, the district's assistant superintendent for business services. The charter school "completely flouted the statutory rules and stipulated order for submission of article" by scheduling the deposition after the deadline despite earlier agreement with the district to hear Kenyon's deposition well ahead of the deadline.

In dismissing the charter school attorney's assertion that Kenyon's deposition raised triable issues, Nichols wrote that Andris "never explained how" it did so.

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