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Judicial Watch • Felarca v Berkeley United opposition cross motion 06282

Felarca v Berkeley United opposition cross motion 06282

Felarca v Berkeley United opposition cross motion 06282

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Case 3:17-cv-06282-VC Document Filed 08/20/18 Page
ROBERT PATRICK STICHT (SBN 138586)
JUDICIAL WATCH, INC.
425 Third Street, SW, Suite 800
Washington, 20024
Telephone: (202) 646-5172
Facsimile: (202) 646-5199
Email: rsticht@judicialwatch.org
California Office:
2540 Huntington Drive, Suite 201
San Marino, 91108
Telephone: (626) 287-4540
Attorney for Real Party Interest,
Judicial Watch, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT CALIFORNIA
CASE NO.: 17-cv-06282-VC
YVETTE FELARCA, LORI NIXON,
LARRY STEFL,
JUDICIAL WATCH NOTICE
MOTION AND MOTION FOR
SUMMARY JUDGMENT
Plaintiffs/Petitioners,
BERKELEY UNIFIED SCHOOL
DISTRICT, DONALD EVANS, JANET
LEVENSON,
Defendants/Respondents.
Date:
Time:
Location:
Judge:
JUDICIAL WATCH,
October 2018
10:00 a.m.
Courtroom
Hon. Vince Chhabria
Real Party Interest. THE COURT ALL PARTIES AND THEIR ATTORNEYS RECORD:
PLEASE TAKE NOTICE that Thursday, October 2018, 10:00 a.m., soon thereafter counsel may heard, before Honorable Vince Chhabria, United States District Judge, Courtroom 17th Floor this Court, located 450 Golden Gate Avenue, San Francisco, 94102, Judicial
Watch, and through its attorney record, Robert Patrick Sticht, will and hereby does move the Court
17-cv-06282-VC
Judicial Watch Notice Motion
and Motion for Summary Judgment
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page
pursuant Rule the Federal Rules Civil Procedure and this Court order filed June 26, 2018
(Doc. 71) for summary judgment favor Judicial Watch and against Plaintiffs Yvette Felarca Felarca Lori Nixon Nixon and Larry Stefl Stefl (collectively Plaintiffs
This motion brought pursuant Rule the ground that Plaintiffs claims have merit
and are frivolous. First, Defendants Berkeley Unified School District BUSD Donald Evans Evans and Janet Levenson Levenson (collectively Defendants are immune from this lawsuit.
Second, Plaintiffs U.S.C. 1983 claim incomprehensible, but whether cast traditional
retaliation claim something else, such attempt compel invocation the First Amendment
discovery privilege described NAACP Alabama and Perry Schwarzenegger, that claim wholly
lacks merit, since Plaintiffs fail provide any evidence credible arguments either that they engaged protected First Amendment activity, that Evans and/or Levenson violated Plaintiffs First Amendment
rights, that the records qualify protected speech even their speech, that the alleged chilling effect
from disclosure anything more than speculative conjecture. Even Plaintiffs could establish
arguable First Amendment interest that interest substantially outweighed the obviously compelling
governmental interest disclosure.
Third, Plaintiffs reverse-CPRA claim fails matter law because petition for writ
mandate under section 1085 the California Code Civil Procedure does not lie federal court. That
claim also fails the merits because the records themselves opposed Plaintiffs description
them clearly are public records defined Cal. Gov. Code 6252(e), and section 6255(a) which
Plaintiffs now rely discretionary and therefore not subject mandamus procedure. Plaintiffs
various substantive arguments about the four categories records issue also are without merit.
Fourth, Plaintiffs Educational Employment Relations Act EERA claim, even can
asserted this lawsuit, fails because Plaintiffs not present any evidence they raised this claim with
the Public Employment Relations Board, which has exclusive, initial jurisdiction over alleged violations the EERA.
Fifth, Plaintiffs Labor Code claims, even they can asserted this lawsuit, fails matter law because Cal. Labor Code 1101 applies employer rules, regulations and policies, and the
CPRA not BUSD rule, regulation policy but rather state law. Further, the CPRA does not
17-cv-06282-VC
Judicial Watch Notice Motion
and Motion for Summary Judgment
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page
regulate employee participation politics. Plaintiffs Labor Code claim also fails because Cal. Labor
Code 1102 plainly requires employer coercion through discharge threat discharge and
Plaintiffs present evidence showing BUSD response Judicial Watch CPRA request led their
being fired threatened with firing. Moreover, Plaintiffs present evidence they exhausted
administrative remedies filing Equal Employment Opportunity complaint, necessary prerequisite filing civil lawsuit for alleged violations Labor Code sections 1101 and 1102.
Accordingly, the evidence submitted demonstrates there are triable issues any material fact,
and under applicable law and the undisputed facts and evidence before the Court, Judicial Watch
entitled judgment matter law all claims presented Plaintiffs.
This motion based upon this notice and the accompanying memorandum points and
authorities, declaration Robert Patrick Sticht and accompanying exhibits, and proposed order; Judicial
Watch reply support its motion; the file and record this case; supporting evidence for which the
Court may take judicial notice; and such argument and further evidence the Court may allow.
Dated: August 20, 2018
Respectfully submitted,
JUDICIAL WATCH, INC.
By:
/s/ Robert Patrick Sticht.
ROBERT PATRICK STICHT
Attorneys for Real Party Interest,
JUDICIAL WATCH
17-cv-06282-VC
Judicial Watch Notice Motion
and Motion for Summary Judgment
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page
CERTIFICATE SERVICE hereby certify that August 20, 2018, electronically filed the foregoing JUDICIAL
WATCH NOTICE MOTION AND MOTION FOR SUMMARY JUDGMENT with the Clerk
the Court for the United States District Court for the Northern District California using the district
CM/ECF system. Participants the case who are registered CM/ECF users will served the
district CM/ECF system.
/s/ Robert Patrick Sticht.
ROBERT PATRICK STICHT
17-cv-06282-VC
Judicial Watch Notice Motion
and Motion for Summary Judgment
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page
ROBERT PATRICK STICHT (SBN 138586)
JUDICIAL WATCH, INC.
425 Third Street, SW, Suite 800
Washington, 20024
Telephone: (202) 646-5172
Facsimile: (202) 646-5199
Email: rsticht@judicialwatch.org
California Office:
2540 Huntington Drive, Suite 201
San Marino, 91108
Telephone: (626) 287-4540
Attorney for Real Party Interest,
Judicial Watch, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT CALIFORNIA
YVETTE FELARCA, LORI NIXON,
LARRY STEFL,
Plaintiffs/Petitioners,
BERKELEY UNIFIED SCHOOL
DISTRICT, DONALD EVANS, JANET
LEVENSON,
JUDICIAL WATCH MEMORANDUM POINTS AND AUTHORITIES
OPPOSITION PLAINTIFFS MOTION
FOR SUMMARY JUDGMENT AND
SUPPORT JUDICIAL WATCH
MOTION FOR SUMMARY JUDGMENT
Defendants/Respondents.
CASE NO.: 17-cv-06282-VC
JUDICIAL WATCH,
Real Party Interest.
Date:
Time:
Location:
Judge:
October 2018
10:00 a.m.
Courtroom
Hon. Vince Chhabria
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page
TABLE CONTENTS
INTRODUCTION ...........................................................................................................................1
II.
UNDISPUTED FACTS AND PROCEDURAL BACKGROUND ...............................................1
Statement Undisputed Facts ............................................................................................1
Procedural Background ........................................................................................................4
III.
ARGUMENT ...................................................................................................................................5
Summary Judgment Standard ..............................................................................................5
BUSD Immune from Suit .................................................................................................6
Evans and Levenson Are Immune from Official Capacity Lawsuits Seeking
Injunctive Relief for Alleged Violations State Law ........................................................6
Plaintiffs U.S.C. 1983 Claim Against Evans and Levenson Also Lacks Merit..........7
Plaintiffs Reverse-CPRA Claim Fails Under Mandate Law and The Merits .............15
Plaintiffs EERA Claim Meritless ..................................................................................21
Plaintiffs Labor Code Claims Are Meritless .....................................................................21
IV.
CONCLUSION..............................................................................................................................23
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TABLE AUTHORITIES
Cases
Albino Baca,
747 F.3d 1162 (9th Cir. 2014) ...................................................................................................................22
Albright Oliver,
510 U.S. 266 (1994) .....................................................................................................................................7
Ashcroft Iqbal,
556 U.S. 662 (2009) .....................................................................................................................................8
Balenger Madera Unified Sch. Dist.,
963 F.2d 248 (9th Cir. 1992) .......................................................................................................................6
BRV Inc. Superior Court,
143 Cal. App. 4th 742 (2006) ....................................................................................................................15
Brown Socialist Workers Campaign Comm. (Ohio),
459 U.S. (1982) .......................................................................................................................................8
Buckley Valeo,
424 U.S. (1976) ...................................................................................................................................8,
CBS, Inc. Block, Cal.3d 646 (1986) .................................................................................................................................18
Celotex Corp. Catrett,
477 U.S. 317, 323 (1987) .............................................................................................................................6
Connick Myers,
461 U.S. 138, 149 (1983) ...........................................................................................................................11
City Limits Nev., Inc. Cnty. Sacramento,
2006 U.S. Dist. LEXIS 75414 (E.D. Cal. Oct. 2006) ............................................................................17
Couch Morgan Stanley Co.,
2015 U.S. Dist. LEXIS 104021 (E.D. Cal. Aug. 2015) .........................................................................22
Doe Reed,
561 U.S. 186 (2010) .....................................................................................................................................8 parte Young,
209 U.S. 123 (1908) .....................................................................................................................................7
Felarca Berkeley Unified School District, al.,
Case No. 3:16-cv-6184-RS (N.D. Cal.) .......................................................................................................5
Fresno Unified Sch. Dist. K.U.,
980 Supp. 1160 (E.D. Cal. 2013)......................................................................................................16
Garcetti Ceballos,
547 U.S. 410 (2006) ...................................................................................................................................11
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Govan City Clovis,
2013 U.S. Dist. LEXIS 145517 (E.D. Cal. 2013) ........................................................................................7
Hanson Medical Board,
279 1167 (9th Cir. 2002) ....................................................................................................................7 Ke,
2017 U.S. Dist. LEXIS 197381 (N.D. Cal. 2017) .....................................................................................16
Int Federation Prof. Technical Engineers Bunch, Cal. App. 4th 670 (Cal. Ct. App. 1995) ................................................................................................21
Kirchmann Lake Elsinore Unified Sch. Dist., Cal. App. 4th 1098 (Cal. Ct. App. 4th Dist. 2000) .................................................................................6
Maldonado Harris,
370 945 (9th Cir. 2004) ......................................................................................................................6
Marken Santa Monica-Malibu Unified School Dist.,
202 Cal. App. 4th 1250 (Cal. Ct. App. 2012) ...............................................................................14, 16,
McInteer Ashley Distrib. Servs., Supp. 1269 (C.D. Cal. 2014) ........................................................................................................5
Mendocino Envtl. Ctr. Mendocino County, 457 (9th Cir. 1994) ....................................................................................................................8,
Morgan Hill Concerned Parents Ass Cal. Dep Educ.,
2017 U.S. Dist. LEXIS 114293 (E.D. Cal. 2017) ........................................................................................8
Mory City Chula Vista,
2011 U.S. Dist. LEXIS 19874 (S.D. Cal. 2011) ........................................................................................16
NAACP Alabama,
357 U.S. 449 (1958) ...........................................................................................................................8,
Nat Abortion Fed Ctr. For Med. Progress,
2015 U.S. App. LEXIS 23397 (9th Cir. 2015) ............................................................................................8
Nat Conference Black Mayors Chico Community Publishing, Inc.,
2018 Cal. App. LEXIS 653 (Cal. Ct. App. 2018) ......................................................................................15
N.Y. San Ramon Valley Unified Sch. Dist.,
2018 U.S. Dist. LEXIS 92310 (N.D. Cal. 2018) .........................................................................................6
OSU Student Alliance Ray,
699 1053 (9th Cir. 2011) ....................................................................................................................7
Pac. Bell Tel. Co. City Walnut Creek,
428 Supp. 1037 (N.D. Cal. 2006) .....................................................................................................17
Pasadena Police Officers Assn. City Pasadena, Cal. App. 5th 147 (Cal. Ct. App. 2018) ................................................................................................16
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and Support Judicial Watch MSJ
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Pennhurst State Sch. Hosp. Halderman,
465 U.S. (1984) .......................................................................................................................................6
Perry Schwarzenegger,
591 1147 (9th Cir. 2010) ..............................................................................................8, 10, 12,
Pickering Board Educ.,
391 U.S. 563 (1968) ...................................................................................................................................11
Planned Parenthood Fed Am., Inc. Ctr, for Med. Progress,
2018 U.S. Dist. LEXIS 91336 (N.D. Cal. 2018) .........................................................................................8
ProtectMarriage.com Bowen,
599 Supp. 1197 (E.D. Cal. 2009)........................................................................................................8
Roe Gustine Unified Sch. Dis.,
678 Supp. 1008 (E.D. Cal. 2009)........................................................................................................6
San Diego Teachers Assn. Superior Court, Cal. (1979) ....................................................................................................................................21
San Francisco Apt. Ass City Cnty. San Francisco,
142 Supp. 910 (N.D. Cal. 2015) .......................................................................................................16
San Joaquin Cnty. Local Agency Formation Comm Superior Court,
162 Cal. App. 4th 159 (2008) ...................................................................................................................19
San Lorenzo Valley Community Advocates for Responsible Education San Lorenzo Valley
139 Cal. App. 4th 1356 (Cal. Ct. App. 2006) ............................................................................................17
Schuette BAMN,
572 U.S. 291 (2014) ...................................................................................................................................13
Shaheen Cal. Supreme Court,
2002 U.S. Dist. LEXIS 24969 (N.D. Cal. 2002) .......................................................................................16
Sloman Tadlock, 1462 (9th Cir. 1994) ......................................................................................................................8
Sunnyvale Unified School Dist. Jacobs,
171 Cal. App. 4th 168 (Cal. Ct. App. 2009) ..............................................................................................21
Terris County Santa Barbara, Cal. App. 5th 551 (Cal. Ct. App. 2018) ................................................................................................22
Unnamed Physician Board Trustees, Cal. App. 4th 607 (2001) ......................................................................................................................18
Weishaar County Napa,
2016 U.S. Dist. LEXIS 173833 (N.D. Cal. 2016) ......................................................................................6
Will Mich. Dep State Police,
491 U.S. (1988) .......................................................................................................................................6
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and Support Judicial Watch MSJ
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Wilridge Kernan,
2018 U.S. Dis. LEXIS 92088 (N.D. Cal. 2018).........................................................................................16
Statutes U.S.C. 1983 ................................................................................................................ 18, 21, Passim
Cal. Code Civ. 1085..........................................................................................................15, 16, 18,
Cal. Gov Code
6252(e) ..............................................................................................................................................17,
6254(k) ..............................................................................................................................................18,
6255(a) ..........................................................................................................................................1, 17,
6258.........................................................................................................................................................15
Cal. Lab. Code
1101...................................................................................................................................................21,
1102...................................................................................................................................................21,
Cal. Pen. Code
245(a)(4) ...................................................................................................................................................2
404(a) ........................................................................................................................................................2
404.6(a) .....................................................................................................................................................2
Rules
Fed. Civ.
12(f)............................................................................................................................................................15
56(a) .............................................................................................................................................................5
Constitutional Provisions
Cal. Const., art. subd. (b)(1) ............................................................................................................14
U.S. Const. amend. .......................................................................................................................... Passim
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JUDICIAL WATCH MEMORANDUM POINTS AND AUTHORITIES OPPOSITION PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND SUPPORT
JUDICIAL WATCH MOTION FOR SUMMARY JUDGMENT
INTRODUCTION much Plaintiffs might try argue otherwise, this case not and for multiple reasons
cannot garden-variety California Public Records Act CPRA lawsuit that happens have been
filed federal court. Judicial Watch understands it, Plaintiffs assert four claims against Defendants
BUSD, BUSD Superintendent Donald Evans, and King Middle School Principal Janet Levenson: (1)
petition for writ mandate posited reverse-CPRA claim; (2) section 1983 claim for alleged
violation Plaintiffs rights under the First Amendment the U.S. Constitution and Article section the California Constitution; (3) claim under California Education Employment Relations Act EERA and (4) claim under California Labor Code.1 They invoke the Court federal question
jurisdiction over their section 1983 claim and ask exercise supplemental jurisdiction over their state
law claims. They seek injunctive relief only. Because Plaintiffs fail present any admissible evidence
supporting their claims and are not entitled judgment matter law, their motion for summary
judgment should denied and summary judgment should entered against them all their claims.
II.
UNDISPUTED FACTS AND PROCEDURAL BACKGROUND.
Statement Undisputed Facts.
Yvette Felarca, 7th grade teacher BUSD King Middle School, came Judicial Watch
attention following her participation June 26, 2016 attack demonstrator the State Capitol
Sacramento. television news video shows Felarca punching the demonstrator the stomach multiple
times while repeatedly yelling Get the fuck off our streets. Felarca can heard referring the
demonstrator Nazi scum and piece shit she assaults him. Others join Felarca the attack,
forcing the demonstrator the ground and repeatedly kicking him Felarca stands by. When police
intervene, Felarca winds the ground. See Declaration Robert Patrick Sticht Sticht Decl.
Plaintiffs abandoned their U.S.C. 1983 claim for alleged violation their rights under
the Fourth Amendment the U.S. Constitution and Article section the California Constitution.
See Dkt. Entry No.
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Afterwards, Felarca gave interview2 television news reporter which she identified
herself affiliated with the Coalition Defend Affirmative Action, Integration Immigrant Rights,
and Fight for Equality Any Means Necessary, also known BAMN. Felarca then states, The
goal today was shutdown the Nazi recruitment rally and want congratulate everyone who came
out today because succeeded doing that. defeated them their efforts. They had run
hiding, running from hiding behind the police and then just running away altogether. They were not
able hold any kind demonstration the west steps any steps the capital and that was
absolutely because the militant integrated direct action the people who came out. BAMN
mobilized get people out here shut them down and really, really glad that there been such integrated direct action struggle people who came out succeed doing that. us, there
free speech for fascists. Sticht Decl.
Asked second reporter about bandage her head, Felarca responded, You know,
looks worse that is. fact, pretty dramatic, sorry, just because, you know, head injuries have lot blood. fine and not want don want people feel, you know, put off that
afraid that because the end they came out this worse shape than us, not just physically but
politically they lost. Sticht Decl. She makes mention being stabbed bludgeoned, she
now claims. Plfs Mem. 2:2. Felarca would later criminally charged the attack. The charges
include felony assault means force likely produce great bodily injury (Penal Code 245(a)(4),
misdemeanor participation riot (Penal Code 404(a)), and misdemeanor incitement riot
(Penal Code 404.6(a)). Felarca preliminary hearing set for October 2018. Sticht Decl. February 2017, Felarca participated protest aimed shutting down speech scheduled given the British polemicist and political commentator Milo Yiannopoulos Berkeley.
described the Berkeleyside online news website, group about 150 black-clad protesters removed
metal barricades, threw rocks and incendiary devises police, smashed windows the MLK
Student Union building, and later rampaged downtown, breaking bank windows and setting ATM
Full transcripts Felarca interviews discussed herein are attached exhibits the
accompanying declaration counsel.
Plaintiffs counsel, Shanta Driver, co-founder BAMN.
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machines fire. Sticht. Decl. day later, Felarca gave interview local television
news station, defending the violence, Well, first all, Milo Yiannopoulos fascist. white
supremacist. funded Steve Bannon and Breitbart. acolyte Donald Trump and was the Berkeley campus try recruit more fascists and wage attacks Muslim students,
immigrant students, women and trans students. Sticht Decl. She continued, Well, just back how you characterized the protest, this isn question violent versus peaceful protests. was there
and there were thousands people out there who were united. was mass protest. And was
militant protest. Everyone was there shut him down. And whatever was going take that, were all there with united cause and were stunningly successful. Sticht Decl.
Asked about the use violence the protesters, Felarca responded, You know, think that the
left has been far too timid for way too long and why even gotten this position where
even have someone like Donald Trump leading fascist movement the President the United States. need make sure that have more mass protests, more militant protests that are mass and
militant few broken windows nothing compared the lives that are stake and that what
takes order make sure that more people don get targeted, that what takes make sure that
Milo Yiannopoulos another white supremacist not welcome allowed come Berkeley
and attack our community then good, let make sure then that that doesn happen the future You
know, what think what need got draw lessons from this terms how can
build and build even stronger, how can make sure that build the movement and also that
continue organize because not spontaneous. This about organizing and fighting any means
necessary. Sticht Decl. February 13, 2017, Felarca appeared the nationally broadcast Fox News Channel program
Tucker Carlson Tonight. During the interview, Felarca again defended the violence Berkeley, But really, really glad say that thousands were out there last week February 1st and made
sure that there were thousands make sure that defended our campus, this community and
especially the immigrant and Muslim students who were under attack and have been under attack him
and other fascists. Sticht Decl. 10. Felarca continued, [T]he alt-right neo-fascist movement and
they trying hide behind some softer versions their more open counterparts who identify
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themselves Nazis, but they still part the same movement, first all. Second all, when
someone trying speak campus rally they doing not just because they have
opinion but someone like Yiannopoulos any other alt-righter fascist neo-fascist doing
recruit other people. No, don let them recruit. And fact, when you look the holocaust and the
lessons that draw from that, don say, oh, well, least let them voice their opinion. say
never again. (Inaudible) especially after Trump. Sticht Decl. 11. September 2017, Judicial Watch served CPRA request BUSD for the following
records: (1) Any and all records communications between the BUSD Superintendent and any other
BUSD officials and/or staff Martin Luther King, Jr. Middle School mentioning Felarca, Antifa, All Means Necessary, and/or BAMN. (2) Any and all records communications between and
among faculty/staff members Martin Luther King, Jr, Middle School mentioning Felarca, Antifa, All Means Necessary, and/or BAMN. (3) The personnel file Martin Luther King, Jr. Middle
School teacher Yvette Felarca. The time frame for the request was identified January 2016 the
present. Judicial Watch primary interest was uncovering information about (1) whether and
what extent Felarca non-work activities Plaintiffs describe them were impacting BUSD and
King Middle School; (2) whether BUSD and the school supported, opposed, took any position
Felarca non-work activities; and (3) Felarca non-work activities were impacting BUSD, the
school, other teachers and staff, parents and students, how the district and school were responding.
Sticht Decl. 13.
BUSD acknowledged receipt Judicial Watch request letter dated September 19, 2017 and
granted itself 14-day extension time beyond the standard 10-day deadline provide initial
determination responsive records its possession. letter dated October 2017, BUSD advised
Judicial Watch that had disclosable records responsive, least part, the request but had
determined that Felarca personnel file was exempt from disclosure. BUSD estimated that could
make disclosable responsive records accessible November 2017. Sticht Decl. 14.
Plaintiffs filed this putative class action lawsuit October 30, 2017 stop BUSD from
Procedural Background.
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searching for producing records responsive Judicial Watch request.4 Dkt. Entry No. Although
BUSD had not yet even identified any particular responsive record would produce, Plaintiffs alleged
that production any responsive records would violate their First Amendment rights. Id. (Count
Two). Judicial Watch intervened December 2017 protect its right under the California
Constitution inspect the records. Dkt. Entry Nos. 35, 37.
BUSD did not complete its search until the spring 2018. Sticht Decl. 14. BUSD eventually
gave Judicial Watch set heavily redacted, responsive records that neither BUSD nor Plaintiffs
sought withhold. Sticht Decl. 15. June 2018, Plaintiffs and BUSD presented logs purportedly
identifying the records being withheld and the reasons for their withholding.5 Sticht Decl. 15. Judicial
Watch does not take issue with BUSD redactions.6
Because Plaintiffs log was particularly deficient, the Court ordered Plaintiffs submit further
log and ordered parties meet the courthouse, beginning July 16, 2018, confer Plaintiffs
claims that BUSD disclosure additional records was unlawful. Sticht Decl. 16. The Court also set schedule for summary judgment motions. Sticht Decl. 15.
III.
Argument.
Summary judgment proper when the evidence shows that there genuine dispute
Summary Judgment Standard.
any material fact and that the movant entitled judgment matter law. Fed. Civ. 56(a).
The opposing party may not rely generalizations characterizations create genuine issue
material fact defeat summary judgment. See McInteer Ashley Distrib. Servs., Supp. 1269,
1275 (C.D. Cal. 2014) (In ruling summary judgment, the Court considers the evidence submitted
Plaintiffs have never asked the Court certify class taken any action pursue this case class action lawsuit.
Earlier, April 2018, BUSD presented separate log responsive records being withheld
altogether from Plaintiffs and Judicial Watch and the exemptions under which they were being withheld.
Sticht Decl. 15. Judicial Watch does not challenge these withholdings for purposes this action only.
Judicial Watch typically does not challenge withholdings obviously personal information
telephone numbers, email addresses, names lower level non-decisionmaking officials etc., and
many BUSD withholdings are this nature. BUSD and Plaintiffs initially attempted withhold
records from Felarca personnel file privacy grounds until Judicial Watch demonstrated that both
BUSD and Felarca had put these same personnel records the public docket other litigation between
them, Felarca Berkeley Unified School District, al., Case No. 3:16-cv-6184-RS (N.D. Cal.). Thus,
the issue the personnel file now moot.
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support and opposition the Motion, does not rely the parties characterization the
evidence.), citing Dalton Straumann Co., USA Inc., 2001 U.S. Dist. LEXIS 7111 *12 (N.D. Cal.
2001); see also Weishaar County Napa, 2016 U.S. Dist. LEXIS 173833 *40 (N.D. Cal. 2016) (the
court considers the evidence itself. The parties characterizations are argument.). moving party
entitled judgment matter law when the nonmoving party fails make sufficient showing essential element claim which the nonmoving party has the burden proof. Celotex Corp.
Catrett, 477 U.S. 317, 323 (1987). Plaintiffs bear the burden proof, they must produce admissible
evidence supporting every element their claims. Not only does their motion fail satisfy this
standard, but the materials the record this case demonstrate that they are unable so.
Consequently, Plaintiffs motion for summary judgment should denied and summary judgment
should entered against them all their claims.
California school districts are state agencies. Balenger Madera Unified Sch. Dist., 963 F.2d
248, 251 (9th Cir. 1992); N.Y. San Ramon Valley Unified Sch. Dist., 2018 U.S. Dist. LEXIS 92310,
**10-11 (N.D. Cal. June 2018); Roe Gustine Unified Sch. Dis., 678 Supp.2d 1008, 1020-21 (E.D.
Cal.); Kirchmann Lake Elsinore Unified Sch. Dist., Cal. App. 4th 1098, 1100 (Cal. App 4th Dist.
2000). such, BUSD immune from any suit law equity brought federal court. Balenger,
963 F.2d 254; U.S. Const., amend XI. This includes claims brought under state law. Pennhurst State
Sch. Hosp. Halderman, 465 U.S. (1984). Accordingly, Plaintiffs cannot maintain any their
claims against BUSD, and summary judgment must entered against Plaintiffs all such claims.
BUSD Immune from Suit.
Even were not immune from suit, BUSD not person for purposes section 1983
claim. Will Mich. Dep State Police, 491 U.S. (1988); Maldonado Harris, 370 F.3d 945, 951
(9th Cir. 2004); Kirchmann, Cal. App. 4th 1104-05. BUSD cannot sued under section 1983,
and summary judgment should entered against them for this additional reason. Id.
Evans and Levenson Are Immune From Official Capacity Lawsuits Seeking
Injunctive Relief for Alleged Violations State Law. suit against state official his her official capacity not suit against the official, but
rather suit against the official office. Will, 491 U.S. 71; Roe, 678 Supp.2d 1021.
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different from suit against the State itself. Id. Nonetheless, the Eleventh Amendment does not bar
suits for prospective injunctive relief brought against state officers their official capacities enjoin
alleged ongoing violation federal law. parte Young, 209 U.S. 123, 155-57 (1908); Hanson
Medical Board, 279 F.3d 1167, 1171 (9th Cir. 2002); N.Y., 2018 U.S. Dist. LEXIS 92310 *11.
The only federal law Evans and Levenson are alleged have violated section 1983. While
Plaintiffs may pursue official capacity claims against Evans and Levenson for injunctive relief federal
court under section 1983, Evans and Levenson are immune from official capacity lawsuits federal
court for alleged violations state law even though Plaintiffs seek injunctive relief only. Id. Summary
judgment must entered against Plaintiffs all but their section 1983, official capacity claims against
Evans and Levenson for injunctive relief. This includes Plaintiffs reverse-CPRA petition for writ
mandate and Plaintiffs EERA and Labor Code claims.
Section 1983 provides cause action for constitutional torts committed state local
Plaintiffs U.S.C. 1983 Claim Against Evans and Levenson Also Lacks Merit.
government officials. prevail section 1983 claim, plaintiff must plead and prove that each
government-official defendant, through the official own individual actions, violated the Constitution.
OSU Student Alliance Ray, 699 F.3d 1053, 1069 (9th Cir. 2011).
Section 1983 not itself source substantive rights, but merely provides method for
vindicating federal rights conferred elsewhere. Albright Oliver, 510 U.S. 266, 271 (1994). The first
inquiry any section 1983 suit whether the plaintiff has been deprived right secured the
federal constitution and federal laws. Baker McCollan, 443 U.S. 137, 140 (1979). Section 1983 does
not vindicate rights secured California constitution California law. Id.; Govan City Clovis,
2013 U.S. Dist. LEXIS 145517, *15 (E.D. Cal. Oct. 2013). Plaintiffs may not rely Article
section the California Constitution support their section 1983 claim. See Dkt. Entry No. 32, para.
85. the extent Plaintiffs section claim against Evans and Levenson seeks vindicate rights secured based Article section the California Constitution, summary judgment must entered
against Plaintiffs.
The only remaining federal right Plaintiffs seek vindicate their section 1983 claim the
First Amendment right freedom expression. The specific nature Plaintiffs First Amendment
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claim not identified, making nearly impossible determine whether the claim even legally
plausible. See Ashcroft Iqbal, 556 U.S. 662, 677-79 (2009). Plaintiffs claim plainly does not arise
the context privilege raised response discovery demand ongoing civil litigation, was the
case NAACP Alabama, 357 U.S. 449 (1958) and Perry Schwarzenegger, 591 F.3d 1147 (9th Cir.
2010). Perry, the Court held that [a] party who objects discovery request infringement
the party First Amendment rights essence asserting First Amendment privilege. Perry, 591
F.3d 1160; see also Nat Abortion Fed Ctr. For Med. Progress, 2015 U.S. App. LEXIS 23397
(9th Cir. Dec. 2015) (claiming privilege discovery dispute); Planned Parenthood Fed Am., Inc. Ctr. for Med. Progress, 2018 U.S. Dist. LEXIS 91336 (N.D. Cal. 2018) (same); Morgan Hill
Concerned Parents Ass Cal. Dep Educ., 2017 U.S. Dist. LEXIS 114293 (E.D. Cal. July 20,
2017) (same). such cases the underlying dispute between the parties, not section 1983, that
provides the basis for the court jurisdiction and defines the elements the claim being asserted.
Plaintiffs section 1983 claim does not appear challenge the constitutionality the CPRA
First Amendment grounds, either facially applied, making their claim very different from First
Amendment challenges other disclosure statutes. See, e.g., Doe Reed, 561 U.S. 186 (2010); Brown Socialist Workers Campaign Comm. (Ohio), 459 U.S. (1982); Buckley Valeo, 424 U.S.
(1976); ProtectMarriage.com Bowen, 599 Supp.2d 1197, 1213 (E.D. Cal. 2009). Plaintiffs not
ask the Court declare the CPRA unconstitutional its face applied them, public records
about them, even the particular records identified the BUSD responsive the request.
fact, Plaintiffs invoke the CPRA provisions, claiming its exemptions afford them the protection they
seek. Judicial Watch and the Court should not have guess about what claim Plaintiffs have brought.
Plaintiffs claim seems similar First Amendment retaliation claim under section 1983, but
Plaintiffs not assert retaliation claim expressly. See, e.g., FAC paras. 46, 51, and 91. prevail retaliation claim, plaintiff must plead and prove that (1) she engaged conduct protected
the First Amendment, i.e., the expression political opinion engaging political activities; and (2)
that the plaintiff protected First Amendment conduct was substantial factor, was motivating
factor the defendant decision take adverse action against the plaintiff and chill the plaintiff
protected speech. Sloman Tadlock, F.3d 1462, 1469 (9th Cir. 1994); Mendocino Envtl. Ctr.
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Mendocino County, F.3d 457, 464 (9th Cir. 1994). Plaintiffs had brought retaliation claim, they
would have prove something they have not even attempted prove intent. The defendant intent element the claim. Mendocino Envtl. Ctr., F.3d 464. Plaintiffs claim not retaliation claim, then would appear something entirely new
perhaps attempt compel invocation the First Amendment discovery privilege described
NAACP Alabama and Perry, albeit through section 1983 claim. Judicial Watch has found case
which government official failure invoke the First Amendment privilege was deemed
constitutional tort for purpose section 1983 claim. Plaintiffs cite none. Judicial Watch also has not
found and Plaintiffs have not cited any case describing what intent, any, required for such
constitutional tort under section 1983. Judicial Watch disputes whether such claim even cognizable.
The elements the First Amendment privilege are well established. party claiming the
privilege must make prima facie showing First Amendment infringement, demonstrating that
disclosure will result (1) harassment, membership withdrawal, discouragement new members, (2) other consequences which objectively suggest impact chilling the members
associational rights. Perry, 591 F.3d 1160 (internal quotations and citations omitted).7 the party
claiming the privilege makes the necessary prima facie showing, the government must demonstrate that
disclosure rationally related compelling government interest and the least restrictive means
obtaining the desired information. Id. 1161. The showing required the government not meant
preclude disclosure. Id. Rather, only balances the burden imposed the party asserting the First
Amendment interests against the significance the interest disclosure. Id.
Obviously, the privilege can only properly invoked prevent the disclosure information
material that not already public. Speech cannot chilled any objective sense disclosing
something already the public domain. The privilege also only applies information material that personal private and reveals least plays some role the expressive activity the person
invoking the privilege. The bulk what Plaintiffs seek withhold third party speech. Judicial
Watch has found case which the privilege was upheld even invoked, Plaintiffs attempt here,
Many First Amendment privilege cases arise the context associational rights rather than
individual expressive conduct, and, result, use language reflecting associational rights. The
privilege would appear encompass any type First Amendment activity.
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invoking the privilege. Plaintiffs cite such case. NAACP Alabama, the NAACP successfully
invoked the privilege avoid turning over the State Alabama the names and addresses all its
Alabama members and agents. 357 U.S. 451. Perry, proponents ballot initiative successfully
invoked the privilege prevent turning over discovery their private, internal campaign
communications concerning the formulation campaign strategy and messages. Id. 1165, n.12.
Doe, which concerned names, addresses, and signatures registered voters who signed referendum
petition, the Court described the privilege protecting against the compelled disclosure personal
information the disclosure which was reasonably likely expose the subject threats, harassment, reprisals from either Government officials private parties. 561 U.S. 200 (quoting Buckley, 424
U.S. 74). The privilege plainly does not apply just any information material touching
concerning expressive activity.
Regardless whether Plaintiffs section 1983 claim retaliation claim something else,
fails all fronts. Plaintiffs invoke the First Amendment for only two the four categories records
they object producing: (1) internal discussions among King Middle School staff about how the
school should respond the harassment and threats that Felarca and other King M.S. staff were
receiving and (2) communications from third parties BUSD allegedly containing vitriol, hate
speech, and personal attacks against Felarca trolls retaliation for [Felarca political
activities. Plfs Mem. and 13-14.
Plaintiffs Nixon and Stefl fail provide any evidence, sworn otherwise, that they even
engaged protected First Amendment activity. Their names are mentioned once, passing, their
brief. Id. 10. There complete lack proof these two plaintiffs.
Plaintiffs also fail provide any admissible evidence demonstrating that Evans Levenson
violated their First Amendment rights. There complete absence evidence demonstrating that
Evans Levenson made, supervised, were even involved the decision disclose any particular
record. There also evidence demonstrating that Evans Levenson ignored chose not invoke
the First Amendment privilege with respect any particular, responsive record response the
request general. There certainly evidence that Evans Levenson intended retaliate against
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Plaintiffs chill Plaintiffs speech. The absence any evidence intent all the more glaring
because the obvious motive behind the decision disclose whomever made the decision was
respond CPRA request.
Even Plaintiffs unsworn and unsubstantiated assertions about threats and harassment not
withstand scrutiny. They are contradicted Plaintiffs counsel own statement during February 27,
2017 media interview. With Felarca standing next her, Plaintiffs counsel described the threats
very unserious. Sticht Decl. 12.
Regarding Plaintiff first category records pages allegedly internal emails exchanged King Middle School staff about how the school should respond the disruption caused Felarca8
Plaintiffs assume, without presenting any admissible evidence, that the emails are expressive, protected
speech about matter public concern. described Plaintiffs brief, the emails concern internal
management issue the school was facing. Plfs Mem. presume that all matters which transpire
within government office are matters public concern would mean that virtually every office remark
and certainly every criticism directed public official, would plant the seed constitutional
case. Connick Myers, 461 U.S. 138, 149 (1983). Moreover, when public employees make
statements pursuant their official duties, the employees are not speaking citizens for First
Amendment purposes. Garcetti Ceballos, 547 U.S. 410, 421 (2006).
The internal emails are far cry from the teacher letter the editor found protected
speech Pickering Board Educ., 391 U.S. 563, 574 (1968). Plaintiffs fail present any evidence
demonstrating that the emails are even their speech. They not assert based admissible evidence
that they authored any the emails that the emails reflect their comments viewpoints. With the
exception Bates Nos. 206 and 208, which were purportedly sent Felarca,9 Plaintiffs present
evidence identifying whether they actively participated the discussion were merely included the
Plaintiffs identify Bates Nos. 185-188, 206, 207-209, 222, and 241. Plfs Mem.
Descriptions these and other documents Plaintiffs log were developed and noted Judicial
Watch during the parties meet and confer ordered the Court compensate for the fact that
Plaintiffs descriptions were the whole inadequate and unreliable. Sticht Decl. 17. Judicial
Watch notes are attached exhibit its counsel declaration. Sticht Decl., Ex.
Bates No. 206 contains two emails, the first which Plaintiffs claim from Felarca
Levenson. Sticht Decl., Ex. 14. Bates No. 208 likewise purportedly contains chain emails, one which from Felarca school staff. Id.
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listserv email distribution list. Plfs Mem. Plaintiffs also fail present evidence demonstrating
that the emails constitute protected speech about matter public concern. Likewise, they present
evidence demonstrating that, the extent the emails even reflect their speech, there anything sensitive
about them that triggers First Amendment privilege analysis. See, e.g., Perry, 591 F.3d 1165, n.12
(applying privilege only private, internal campaign communications about strategy and messaging).
Plaintiffs also fail present any evidence demonstrating that disclosure reasonably likely
have objective chilling effect their speech. Perry, 591 F.3d 1160. Again, their motion suffers
from fundamental lack proof. addition, Plaintiffs conflate the alleged harassment and threats
resulting from Felarca very public actions and television interviews with supposition about how the
public might respond the school internal discussions about how respond the public reaction
Felarca actions and interviews were disclosed. Not only Plaintiffs conflate apples and oranges, but
their argument about the latter nothing more than speculation.
Regarding the fourth category records Plaintiffs seek withhold from Judicial Watch
pages third-party communications BUSD criticizing Felarca10 the records issue are third
parties speech, not Felarca speech. Numerous individuals wrote and/or called King Middle School BUSD after seeing video Felarca attacking the demonstrator Sacramento, watching interviews
Felarca gave television condoning extreme violence during public demonstration Berkeley,
reading watching reports Felarca arrest. See generally Sticht Decl., Ex. Bates Nos. 1-2, 38-
39, 40, 43-54, 64, 75, 76, 93, 94, 95, 97, 103, 105, 116, 131, 134-35, 139, 141-42, 183, 192, 210, 211,
213, 214, and 216. Many called for her fired. Id. Bates Nos. 14, 47-53, 64, 72, 76, 103, 105,
110-11, 139, 141-42, 165, 192, and 249. Some them described Felarca unflattering terms. Id.
Plaintiffs identify and divide these records into three categories:
first, public reaction Felarca participation June 26, 2016 attack demonstrator the
State Capitol Sacramento for which she was eventually arrested and charged with felony assault:
Bates Nos. 43-44, 72, 75, 76, 96, 97, 98, 100, 139, 153, 150-51;
second, public reaction Felarca February 2017 participation violent protest aimed
shutting down speech the British polemicist and political commentator Milo Yiannopoulos
Berkeley: Bates Nos. 103, 113-14; and
third, public reaction Felarca February 13, 2017 appearance the nationally broadcast Fox
News Channel program Tucker Carlson Tonight defending the violence Berkeley: Bates Nos. 38,
46-54, 64, 94, 104, 160, 162-63, 169, 171, 175, 214, 249.
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Bates Nos. 64, 96, 98, 104, 158, 162-63, 175, 180, 192, 215, and 249. One two purported
affiliated with National Socialist organizations. Id. Bates Nos. and 100.
None the records reveals any personal private information about Felarca political beliefs,
affiliations, expressive activity. They also not reveal any private, internal strategies plans
Felarca may have about engaging expressive activity. anything, Felarca has made her political
beliefs, affiliations, and expressive activity extraordinarily public. seeking withhold these third-
party communications from Judicial Watch, Plaintiffs effect are trying suppress public criticism
Felarca under the guise avoiding chilling Felarca speech. Their argument different from
asserting that the First Amendment requires the suppression speech they not like agree with
avoid chilling speech they do.11 Obviously, that not correct statement First Amendment law.
Plaintiffs offer nothing other than speculation support their claim that Felarca protected
expression will chilled the criticisms her this fourth category records are made public.
They provide evidence all, and certainly specific evidence showing reasonable probability
threats, harassment, reprisals, some other chilling effect resulting from disclosure the records
issue. And again, the allegation contradicted Plaintiffs counsel own statement: most the
threats, think, have been very unserious. Sticht Decl. 12. Moreover, the chilling effect must
objective, not subjective. Perry, 591 F.3d 1160. addition suffering from lack admissible evidence, Plaintiffs chilling effect argument
fails take into account the broader context Felarca actions. Felarca voluntarily thrust herself into
the public eye, provoking debate, most likely intentionally, using extreme language and advocating
extreme militant tactics. Sticht Decl. Felarca routinely labels persons and entities with whom she
disagrees fascists, racists, and Nazis and advocates shutting them down any means
This not the first time Plaintiffs counsel has made such seemingly incongruous
argument. Plaintiffs counsel sued Michigan attorney general behalf BAMN have
amendment the Michigan Constitution declared unconstitutional. The amendment prohibited the use race-based preferences part the admissions process for state universities. Plaintiff counsel and
BAMN argued that the amendment violated the Equal Protection Clause. The effort was unsuccessful. one his more memorable concurring opinions, Justice Antonin Scalia wrote: has come this.
Called upon explore the jurisprudential twilight zone between two errant lines precedent,
confront frighteningly bizarre question: Does the Equal Protection Clause the Fourteenth
Amendment forbid what its text plainly requires? Needless say (except that this case obliges
say it), the question answers itself. Schuette BAMN, 572 U.S. 291, 316 (2014). appearance before the BUSD school board, Felarca claimed Judicial Watch racist,
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necessary, including mass more militant protests. Sticht Decl., Ex. 3-4, 5-6, 11; Id.,
Ex. 2-3; Id., Ex. 3-4, 7-8, 15-16. Felarca congratulated her fellow rioters Sacramento,
proclaiming there free speech for fascists, and described violent protest Berkeley
stunningly successful. Sticht Decl. While certainly Felarca right act provocateur,
should come surprise that her actions generate significant reactions from members the public,
including negative and sometimes harshly negative criticisms. Comments posted public websites
showing videos Felarca television interviews and community posts FaceBook page
Yvette.Felarca.Berkeley include great many criticisms Felarca that are not meaningfully different
from the criticisms the third-party communications Plaintiffs are now seeking withhold from the
public due their alleged chilling effect. Sticht Decl., Ex. (FaceBook) and (YouTube). Plaintiffs
fail explain why disclosure this relatively small number third party communications will
objectively chill Felarca speech, but the mountain criticism already the public domain has
effect. short, Plaintiffs chilling effect argument suffers from causation problem addition
evidentiary problem.
Finally, even assuming Plaintiffs could make the necessary prima facie showing arguable
First Amendment interest, that interest substantially outweighed the governmental interest
disclosure. One aspect that interest complying with the law, this instance the CPRA. Because
the California Constitution guarantees the public right access information concerning the
public business (Cal. Const., art. subd. (b)(1)), another aspect vindicating this important
constitutional right. has been noted with respect the constitutional rights privacy and public
access, the CPRA the Legislature has sought reconcile these two fundamental, but sometimes
conflicting rights. Marken Santa Monica-Malibu Unified School Dist., 202 Cal. App. 4th 1250, 1261
(Cal. App. 2012).
Whatever First Amendment interest Plaintiffs might have non-disclosure the particular
records issue and they have failed present any admissible evidence demonstrating any such
interest that interest far outweighed the interest disclosure. addition being political
activist and provocateur, Felarca teacher and public employee. Her non-work activities have
immigrant-bashing group connected the alt-right Sticht Decl. 18.
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plainly impacted her employer, BUSD, and King Middle School significant way, and the public has substantial interest understanding and assessing both the impact Felarca actions and activities have
had BUSD and King Middle School and how the district and the school have responded. See BRV
Inc. Superior Court, 143 Cal. App. 4th 742, 757 (2006) (public has significant interest the
competence and conduct school officials and how school district conducts its business). Such issues
are quintessentially the public business and are what motivated Judicial Watch request the first
instance. Sticht Decl. 13. The records Plaintiffs seek withhold represent important source
information that would help the public understand and assess how BUSD and the school have handled extraordinary situation Felarca has created. Because Judicial Watch has approximately 65,000 active
members California and has had approximately 137,000 members California over its 24-year
history, uniquely positioned vindicate the public constitutional right access, its willingness pursue this matter the face Plaintiffs false attacks demonstrates.13 Sticht Decl. Even the
Court were conclude that Plaintiffs had some minimal First Amendment interest non-disclosure,
that interest would far outweighed the governmental interest enforcing the constitutional right public access.
Plaintiffs reverse-CPRA claim fails for multiple, additional reasons. First and foremost the
Plaintiffs Reverse-CPRA Claim Fails Under Mandate Law and The Merits.
nature the claim itself petition for writ mandate under section 1085 the California Code
Civil Procedure. public agency refuses disclose requested record, the requester has the right file suit court competent jurisdiction compel disclosure. Cal. Gov Code 6258. The CPRA does not
authorize third-party suits prevent disclosure, however. Nat Conference Black Mayors Chico
Community Publishing, Inc., 2018 Cal. App. LEXIS 653, *11 (Cal. App. July 25, 2018). reverse- addition falsely labeling Judicial Watch racist, immigrant-bashing organization (see
supra n.12 13), Plaintiffs impute false motive the organization harass and assist
individuals who seek threaten and intimidate [King Middle School] teachers and staff due their
political beliefs and associations and/or perceived political beliefs and associations. See FAC para.
61. They also falsely accuse Judicial Watch pursuing political witch hunt against Felarca. See
Dkt. Entry No. 10, and 23. Plaintiffs and their counsel offer basis for these assertions.
There none. Such material has place pleadings and may stricken the Court, either
motion its own. Fed. Civ. 12(f).
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CPRA claim not permitted under and does not arise from the CPRA. Pasadena Police Officers
Assn. City Pasadena, Cal. App. 5th 147, 161 (2018). Rather, the California state courts have
identified petition for writ mandate under Cal. Code Civ. 1085 procedural mechanism
which third party may try challenge public agency decision disclose requested record.
Marken, 202 Cal. App. 4th 1266-67.
Mandamus will lie compel public official perform official act required law.
Marken, 202 Cal. App. 4th 1266. [T]here must clear, present, ministerial duty upon the part
the respondent and correlative clear, present, and beneficial right the petitioner the performance that duty. Id. [M]andamus should available prevent public agency from acting
unlawful manner releasing information the disclosure which prohibited law. Id.
Mandamus will not lie control exercise discretion, i.e. compel official exercise
discretion particular manner. Id.
Cal. Code, Civ. Proc. 1085 procedural rule which number courts have held does not
apply federal court. Wilridge Kernan, 2018 U.S. Dist. LEXIS 90288, (N.D. Cal. May 30,
2018) citing Hill County Sacramento, 466 App 577, 579 (9th Cir. 2012); see also Ke,
2017 U.S. Dist. LEXIS 197381, **3-4 (N.D. Cal. Nov. 30, 2017) (same); San Francisco Apt. Ass
City Cnty. San Francisco, 142 Supp.3d 910, 917 (N.D. Cal. 2015) (same); Shaheen Cal.
Supreme Court, 2002 U.S. Dist. LEXIS 24969 (N.D. Cal. Dec. 27. 2002) (same). This court
could not issue writ under 1085. Shaheen, 2002 U.S. Dist. LEXIS 24969 *3.
Other courts have analyzed the question from the perspective supplemental jurisdiction.
Mandamus proceedings are uniquely the interest and domain the state courts. Fresno Unified
Sch. Dist. K.U., 980 Supp.2d 1160, 1184 (E.D. Cal. 2013) (quoting Clemes Del Norte County
Unified Sch. Dist., 843 Sup. 583, 596 (N.D. Cal. 1994), overruled other grounds, Maynard City San Jose, F.3d 1396, 1403 (9th Cir. 1994)). federal court exercise jurisdiction over state
mandamus issue raises serious considerations regarding comity and federalism. Id. result,
federal district courts routinely decline exercise supplemental jurisdiction over California writ
mandate claims. Id.; Mory City Chula Vista, 2011 U.S. Dist. LEXIS 19874 (S.D. Cal. Mar.
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2011); City Limits Nev., Inc. Cnty. Sacramento, 2006 U.S. Dist. LEXIS 75414, *10 (E.D. Cal.
Oct. 2006); Pac. Bell Tel. Co. City Walnut Creek, 428 Supp.2d 1037, 1055 (N.D. Cal. 2006).
Even Plaintiffs were able overcome all these substantial obstacles, their mandate claim
would still fail the merits. Plaintiffs raise two substantive objections their reverse-CPRA petition
for writ mandate: they claim the records issue should not disclosed because they are not public
records under Cal. Gov Code 6252(e) and because the public interest withholding them clearly
outweighs the public interest their disclosure under Cal. Gov Code 6255(a). Neither well-
founded.
Section 6252(e) defines public records including any writing containing information
relating the conduct the public business prepared, owned, used, retained any state local
agency regardless physical form characteristics. Cal. Gov Code 6252(e). The term public
record construed broadly. San Lorenzo Valley Community Advocates for Responsible Education
San Lorenzo Valley Unified Sch. Dist., 139 Cal. App. 4th 1356, 1408 (2006). Plaintiffs invoke their
section 6252(e) argument with respect subset the records issue only, namely, records
Plaintiffs fourth category which they describe communications from third parties who have
relationship BUSD. Plfs Mem. 15. Again, Plaintiffs fail present any evidence supporting their
argument. Many not most the records are communications received from members the public some instances from parents then forwarded among and between BUSD officials. These include the
following: Bates Nos. 14, 38, 43-44, 46, 47, 50, 51, 52, 53, 54, 56, 64, 72, 94, 95, 96, 97, 98, 102, 116,
131, 141-42, 158, 179, 192-93, 212, and 214. Sticht Decl., Ex. Two others, Bates Nos. 110-11, are
photographs taken the BUSD public information officer, then sent other BUSD officials. Sticht
Decl., Ex. The obvious purpose Bates Nos. 110-11 was apprise BUSD officials issues and
disruptions BUSD was facing because Felarca and assist them addressing these issues and
disruptions. The records plainly relate the conduct the public business and are quintessential
public records. handful others were received BUSD officials, but not appear have been forwarded.
These include: Bates Nos. 75-76, 100, 103, 104, 105, 159, 160, 162-63, and 180. Sticht Decl., Ex.
The fact that this particular subset records does not appear have been forwarded electronically does
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not mean they were not shared, used, relied BUSD officials some other way that they
not relate the public business. Plaintiffs offer evidence, admissible otherwise, either way.
The records obviously were received BUSD, and they put BUSD officials notice substantial
public concerns about Felarca. BUSD determined these records were public records within the meaning section 6252(e), and Plaintiffs provide reason reject that conclusion.
Plaintiffs are fundamentally mistaken about section 6255(a).14 The provision does not require
public agencies withhold requested records. allows them under certain circumstances.
CBS, Inc. Block, Cal.3d 646, 652 (1986) (Section 6255 permits the government agency
withhold record. Section 6255(a) permissive, not mandatory. fundamentally different from
CPRA provisions that mandate certain records withheld. Because section 6255(a) permissive
rather than mandatory, not the proper subject writ mandate proceeding under Cal. Code Civ. 1085. Mandate will not issue compel action unless shown the duty the thing asked for plain and unmixed with discretionary power the exercise judgment. Unnamed Physician
Board Trustees, Cal. App. 4th 607, 618 (2001). Plaintiffs cannot rely Cal. Code Civ. 1085 compel writ mandate withholdings that are discretionary under Cal. Gov Code 6255(a).
They cannot use mandamus procedure second-guess exercise discretion. Plaintiffs claim fails
for this additional reason, and summary judgment must entered against them their reverse-CPRA
petition for writ mandate claim. addition their Cal. Gov Code 6252(e) argument, Plaintiffs raise several substantive
arguments about four categories records. None has merit. The first category identified Plaintiffs
are the same records internal discussions issue Plaintiffs U.S.C. 1983 claim. Plaintiffs
First Amendment arguments fail under their writ mandate claim for the same reasons they fail under
their section 1983 claim. Plaintiffs other grounds for withholding the records fare better. They
Plaintiffs amended complaint does not cite invoke section 6255(a) justify withholding
records. invokes Cal. Gov Code 6254(k). FAC para. and 78. contrast, Plaintiffs motion
invokes section 6255(a), but not section 6254(k). See Dkt. Entry Nos. (Notice Motion) and
11, and (Mem.). Judicial Watch submits that Plaintiffs have abandoned any section 6254(k)
argument. the extent Plaintiffs claim otherwise, Judicial Watch incorporates reference the First
Amendment arguments asserted response Plaintiffs section 1983 (42 U.S.C.) claim.
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claim the records, which BUSD has redacted protect individuals privacy, should withheld under
the deliberative process privilege (Plfs Mem. 9), but they never pled such claim and have not
presented evidence showing that the records would disclose their individual deliberations comments.
Moreover, BUSD chose not invoke the deliberative process privilege, discretionary, qualified
privilege invoked senior government officials protect the process which government policy
formulated. See San Joaquin Cnty. Local Agency Formation Comm Superior Court, 162 Cal. App.
4th 159, 170-71 (2008). not all clear that the privilege would even apply teachers internal
discussions. Id. Regardless, Plaintiffs invocation privilege nothing more than attempt
second-guess BUSD decision produce redacted versions the records. Plaintiffs speculative,
unsupported, and illogical claim that disclosure these internal discussions would somehow encourage
continued escalated harassment fares better. also characterization third-parties speech
that, great many instances, odds with Plaintiffs description the records the July 16-19
meet and confer. See discussion infra 20; Sticht Decl., Ex.
The second category records identified Plaintiffs are pages parent communications
with Levenson about their children, who presumably are King Middle School students.15 BUSD
redacted these records protect the parents and students privacy. Plaintiffs second-guess BUSD
redactions and claim that the records should withheld under the deliberative process privilege, the
application which they readily acknowledge would novel.16 Plfs Mem. 12. Again, BUSD
chose not invoke the deliberative process privilege. addition the fundamental error trying
use petition for writ mandate second-guess discretionary decision, Plaintiffs claim regarding
this second category records fails because they did not raise their complaint. new claim
they never pled. also fails because Plaintiffs fail demonstrate their standing raise such claim.
Because Plaintiffs seek writ mandate, the claim fails for the additional reason that Plaintiffs fail
demonstrate they satisfy the second element Cal. Code Civ. 1085 petition: clear, present, and
Plaintiffs identify Bates Nos. 81, 93, 134-135, 179, 210-211, 216-217. Plfs Mem. 11. the extent Plaintiffs invoke the First Amendment privilege, would appear
behalf parents and/or students. Even the privilege applied, which does not, Plaintiffs have
standing try remedy alleged violations third parties speech. They also never asserted such
claim.
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and Support Judicial Watch MSJ
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page
beneficial right having the partially redacted records withheld full. Marken, 202 Cal. App. 4th
1266.
Plaintiffs claim about the third category records they identify pages communications
from third parties and/or among school administrators17 suffers from the same flaws the second
category. Plaintiffs never pled such claim and fail demonstrate their standing. They also fail
establish clear, present and beneficial right having the partially redacted records withheld full.
They simply second-guess the decision redact rather than withhold. three other exemptions
Plaintiffs cite, the first Cal. Gov Code 6255(f) does not exist, the second Cal. Gov Code
6254(aa) does not apply its face because the records are not assessments vulnerability
terrorist attack other criminal acts and are for distribution consideration closed session, and
the third Cal. Gov Code 6276.10, alphabetical listing statutes (cancer, child abuse, custody
and support, etc.) involving records not required disclosed under 6254(k) does not have any
relevance the records issue.
Plaintiffs describe fourth category records pages emails from trolls containing
vitriol, hate speech, and personal attacks against Felarca retaliation for her political activities. Plfs
Mem. 13-14. many instances, Plaintiffs characterization these records their brief directly
contradicted Plaintiffs counsel description the records the July 16-19 meet and confer. Sticht
Decl., Ex. Some are what Plaintiffs counsel described purported parents expressing concern
about Felarca conduct. These include Bates Nos. 14, 72, 95, 141-42, 213, 215, 216, 217, and 249. Id.
One Bates No. from self-described former president the Association California School
Administrators and retired principal and teacher. Id. Another Bates No. 131 from former
special education teacher. Id. great many are responding Felarca Tucker Carlson interview. Id. Bates Nos. 46-53, 94, 175, 183, and 214. Some were critical Felarca plan hold rally the
school protest her suspension after she was arrested riot charges. Id. Bates Nos. 14, 101, and
102. They all show the burden placed BUSD Felarca conduct.
Plaintiffs identify Bates Nos. 61, 99, 110-111, 129, 158, 160, 162-163, 165, 169, 171, 173177, 183, 189, 194, 204-205, 224, 226-229, 237-238, 244, 247-248. Plfs Mem. n.4.
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and Support Judicial Watch MSJ
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Plaintiffs object First Amendment grounds the production these records, many which
have been redacted BUSD protect third-parties privacy. Again, Plaintiffs First Amendment
argument under the CPRA fails for the same reason their First Amendment argument fails under
U.S.C. 1983: the records are third-party speech; they not reveal any personal private aspect
Felarca political beliefs, affiliations, expressive activities; Plaintiffs fail present any evidence objective chilling effect and their unsupported legal argument speculative and illogical; and any
First Amendment interest Plaintiffs might have withholding the records far outweighed the
substantial public interest the records disclosure. See supra 14-15. Summary judgment should
entered against Plaintiffs their reverse-CPRA petition for writ mandate claim.
Plaintiffs EERA claim would not well-founded even Plaintiffs could assert this
lawsuit. The EERA grants collective bargaining rights California public school teachers. Plaintiffs
fail demonstrate what provision the EERA was allegedly violated how compliance with the
CPRA could ever constitute violation the EERA. Even more significantly, the Public Employment
Relations Board PERB has exclusive initial jurisdiction over alleged violations the EERA. See,
e.g., Sunnyvale Unified School Dist. Jacobs, 171 Cal.App.4th 168, 181 (2009); Int Federation
Prof. Technical Engineers Bunch, Cal.App.4th 670, 675-76 (1995); San Diego Teachers Assn.
Superior Court, Cal.3d 12-13 (1979). Plaintiffs fail present any evidence that they raised their
EERA claim with the PERB before filing suit and that the PERB denied them relief.
Plaintiffs EERA Claim Meritless.
Like with their EERA claim, Plaintiffs Labor Code claims would not well-founded even
they could assert them this lawsuit. Plaintiffs allege violation Cal. Lab. Code 1101 and 1102.
Labor Code section 1101 provides: employer shall make, adopt, enforce any rule, regulation,
policy: (a) forbidding preventing employees from engaging participating politics from
becoming candidates for public office; (b) controlling directing, tending control direct the
political activities affiliations employees. Cal. Lab. Code 1101. The CPRA not BUSD rule,
regulation, policy; State law. Plaintiffs also present evidence about separate rule,
regulation, policy allegedly adopted BUSD.
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Plaintiffs Labor Code Claims Are Meritless.
Judicial Watch MPA Opp Plfs MSJ
and Support Judicial Watch MSJ
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page
Moreover, the CPRA does not forbid prevent employees from participating politics, nor
does control, direct, tend control direct employees political activities. cannot the case
that complying with one law the CPRA violates another Cal. Lab. Code 1101. matter
plain language, the prohibition applies only employer rule, regulation, policy that necessarily
forbids prevents employee from running for holding public office and lacks legitimate,
apolitical reasons for its implementation. Couch Morgan Stanley Co., 2015 U.S. Dist. LEXIS
104021, *33 (E.D. Cal. Aug. 2015). employer rule, regulation, policy that enacted for
legitimate, apolitical reasons, but has unintended effect employee ability run for hold
public office does not violate section 1101(a). Id. Section 1101 not intended prohibit
employer rule, regulation, policy that enacted for wholly apolitical reasons that may, when
enforced, infringe employee ability express his her political viewpoints. Id. *34.
Labor Code section 1102 provides: employer shall coerce influence attempt coerce influence his employees through means threat discharge loss employment adopt
follow refrain from adopting following any particular course line political action political
activity. The provision plainly requires coercion through discharge threat discharge. Plaintiffs
present evidence demonstrating that BUSD response Judicial Watch CPRA request led their
being fired threatened with firing.
Finally, Plaintiffs present evidence that they exhausted administrative remedies filing
EEO complaint, necessary prerequisite filing civil lawsuit for alleged violations Cal. Lab. Code
1101 and 1102. Terris County Santa Barbara, Cal. App. 5th 551, 555-56 (Cal. App. 5th
Dist. 2018). Where failure exhaust clear the face the complaint, defendant may move for
dismissal under Fed. Civ. 12(b)(6). Albino Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).
undisputed evidence viewed the light most favorable the opponent shows failure exhaust,
defendant entitled summary judgment under Fed. Civ. 56. See id.
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and Support Judicial Watch MSJ
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IV.
CONCLUSION
For all the foregoing reasons, this Court should deny Plaintiffs summary judgment and grant
summary judgment Judicial Watch all Plaintiffs claims.
Dated: August 20, 2018
Respectfully submitted,
JUDICIAL WATCH, INC.
By:
/s/ Robert Patrick Sticht.
ROBERT PATRICK STICHT
Attorneys for Real Party Interest,
JUDICIAL WATCH
17-cv-06282-VC
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and Support Judicial Watch MSJ
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page
CERTIFICATE SERVICE hereby certify that August 20, 2018, electronically filed the foregoing JUDICIAL
WATCH MEMORANDUM POINTS AND AUTHORITIES OPPOSITION
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND SUPPORT JUDICIAL
WATCH MOTION FOR SUMMARY JUDGMENT with the Clerk the Court for the United States
District Court for the Northern District California using the district CM/ECF system. Participants the case who are registered CM/ECF users will served the district CM/ECF system.
/s/ Robert Patrick Sticht.
ROBERT PATRICK STICHT
17-cv-06282-VC
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and Support Judicial Watch MSJ
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147
ROBERT PATRICK STICHT (SBN 138586)
JUDICIAL WATCH, INC.
425 Third Street, SW, Suite 800
Washington, 20024
Telephone: (202) 646-5172
Facsimile: (202) 646-5199
Email: rsticht@judicialwatch.org
California Office:
2540 Huntington Drive, Suite 201
San Marino, 91108
Telephone: (626) 287-4540
Attorneys for Real Party Interest,
Judicial Watch, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT CALIFORNIA
YVETTE FELARCA, LORI NIXON,
LARRY STEFL,
Plaintiffs/Petitioners,
BERKELEY UNIFIED SCHOOL
DISTRICT, DONALD EVANS, JANET
LEVENSON,
DECLARATION ROBERT PATRICK
STICHT SUPPORT JUDICIAL
WATCH OPPOSITION
PLAINTIFFS MOTION FOR SUMMARY
JUDGMENT AND JUDICIAL WATCH
MOTION FOR SUMMARY JUDGMENT;
EXHIBITS
Defendants/Respondents.
CASE NO.: 17-cv-06282-VC
JUDICIAL WATCH,
Real Party Interest.
Date:
Time:
Place:
Judge:
October 2018
10:00 a.m.
Courtroom
Honorable Vince Chhabria
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Declaration Robert Patrick Sticht
ISO Opp Plfs MSJ and MSJ
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147
DECLARATION ROBERT PATRICK STICHT Robert Patrick Sticht, state: attorney with Judicial Watch, Inc., counsel for real party interest Judicial
Watch this action. member the bar the State California and this Court. have personal
knowledge the facts contained this declaration, and called witness could, and would,
competently testify those facts.
Judicial Watch conservative, nonpartisan 501(c)(3) public interest organization
headquartered Washington, D.C. Founded 1994, Judicial Watch mission promote
accountability, transparency and integrity government, politics, and the law. Judicial Watch the
nation largest and most effective government watchdog group and perhaps the most active public
records requestor and litigator operating today. Judicial Watch has 65,642 active members who live
California and has had over 137,000 members California over its 24-year history. Judicial Watch
uniquely positioned vindicate the public constitutional right access the public records the
center this case.
Yvette Felarca Felarca 7th grade teacher Berkeley Unified School District BUSD King Middle School, came Judicial Watch attention following her participation June
26, 2016 attack demonstrator the State Capitol Sacramento. television news video shows
Felarca punching the demonstrator the stomach multiple times while repeatedly yelling Get the fuck
off our streets. Felarca can heard referring the demonstrator Nazi scum and piece shit she assaults him. Others join Felarca the attack, kicking the demonstrator the ground and
repeatedly kicking him Felarca stands by. When police intervene, Felarca winds the ground.
The video was recently re-published July 20, 2017 after Felarca arrest for the incident. One
video, Antifa Leader Yvette Felarca Arrested California for June 2016 Sacramento Riot, was
published the NonpartisanMedia channel YouTube and available this link and segment:
https://www.youtube.com/watch?v=i8w4gKDZir0 2:50 3:35. bleep-censored version, Berkeley Teacher Charged Connection With Riot 2016
Sacramento Rally, was published the KPIX CBS Bay Area channel YouTube and available this link and segment: https://www.youtube.com/watch?v=YqAv-kYTIsY 0:45-1:14; also 1:3917-cv-06282-VC
Declaration Robert Patrick Sticht
ISO Opp Plfs MSJ and MSJ
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147
1:50 and 2:15-2:28. third video, Berkeley teacher Yvette Felarca arrested charges inciting riot, was
embedded news article published Berkeleyside.com July 19, 2017, and available this
link:
https://www.berkeleyside.com/2017/07/19/berkeley-middle-school-teacher-yvette-felarca-arrested-
charges-inciting-riot
After the June 26, 2016 incident, Felarca gave interview news reporter which
she identified herself affiliated with the Coalition Defend Affirmative Action, Integration
Immigrant Rights, and Fight for Equality Any Means Necessary, also known BAMN. Felarca
then states, The goal today was shutdown the Nazi recruitment rally and want congratulate
everyone who came out today because succeeded doing that. defeated them their efforts.
They had run hiding, running from hiding behind the police and then just running away altogether.
They were not able hold any kind demonstration the west steps any steps the capital and
that was absolutely because the militant integrated direct action the people who came out. BAMN
mobilized get people out here shut them down and really, really glad that there been such integrated direct action struggle people who came out succeed doing that. us, there
free speech for fascists. See the video, Yvette Felarca BAMN shutting down KKK Nazi rally
Sacramento, published June 27, 2016 the nationalBAMN channel YouTube, available
https://youtu.be/V2dd1YoDULg 0:28-1:10; see also transcript the entire interview attached
Exhibit 2:16-3:8.
During the same interview, response question asked second reporter about
bandage her head, Felarca responded, You know, looks worse than is. fact, pretty
dramatic, sorry, just because, you know, head injuries have lot blood. fine and not
want don want people feel, you know, put off that afraid that because the end they
came out this worse shape than us, not just physically but politically they lost. Id. 6:58-7:22
(video) and 9:21-10:5 (transcript).
Plaintiffs counsel, Shanta Driver, co-founder BAMN. See
https://ballotpedia.org/By_Any_Means_Necessary
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ISO Opp Plfs MSJ and MSJ
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Felarca was criminally charged and arrested for the assault. The charges include felony
assault means force likely produce great bodily injury (Cal. Pen. Code 245(a)(4),
misdemeanor participation riot (Cal. Pen. Code 404(a)), and misdemeanor incitement riot
(Cal. Pen. Code 404.6(a)). Felarca preliminary hearing set for October 12, 2018. See Exhibit
which true and correct copy the criminal docket sheet for Sacramento Superior Court Case No.
17FE012090, also available
https://services.saccourt.ca.gov/PublicCaseAccess/Criminal/SearchByCaseNumber February 2017, Felarca participated protest aimed shutting down speech
scheduled given the British polemicist and political commentator Milo Yiannopoulos
Berkeley. described the Berkeleyside online news website, group about 150 black-clad
protesters removed metal barricades, threw rocks and incendiary devises police, smashed
windows the MLK Student Union building, and later rampaged downtown, breaking bank windows
and setting ATM machines fire. See Exhibit which true and correct copy the article, Rage
against Yvette Felarca mounts after Fox News interview, also available
https://www.berkeleyside.com/2017/02/14/rage-yvette-felarca-mounts-fox-news-interview. day later, Felarca gave interview local television news station, defending
the violence, Well, first all, Milo Yiannopoulos fascist. white supremacist. funded Steve Bannon and Breitbart. acolyte Donald Trump and was the Berkeley
campus try recruit more fascists and wage attacks Muslim students, immigrant students,
women and trans students. She continued, Well, just back how you characterized the protest,
this isn question violent versus peaceful protests. was there and there were thousands people
out there who were united. was mass protest. And was militant protest. Everyone was there
shut him down. And whatever was going take that, were all there with united cause
and were stunningly successful. See the video, Regrets Organizer calls for more militant
protests, published February 2017 the KTVU channel YouTube, available
https://youtu.be/YPrRLyFTzSU 0:10-1:10; see also transcript the entire interview attached
Exhibit 2:6-3:5.
During the same interview, when asked about the use violence the protesters,
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ISO Opp Plfs MSJ and MSJ
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Felarca responded, You know, think that the left has been far too timid for way too long and why even gotten this position where even have someone like Donald Trump leading fascist
movement the President the United States. need make sure that have more mass
protests, more militant protests that are mass and militant. Id. 1:25-1:42 (video) and 3:11-17
(transcript). She continued, few broken windows nothing compared the lives that are stake
and that what takes order make sure that more people don get targeted, that what takes make sure that Milo Yiannopoulos another white supremacist not welcome allowed come Berkeley and attack our community then good, let make sure then that that doesn happen
the future You know, what think what need got draw lessons from this
terms how can build and build even stronger, how can make sure that build the movement
and also that continue organize because not spontaneous. This about organizing and
fighting any means necessary. Id. 4:05-4:28 (video) and 6:9-7:3 (transcript).
10. February 13, 2017, Felarca appeared the nationally broadcast Fox News Channel
program Tucker Carlson Tonight. During the interview, Felarca again defended the violence
Berkeley, But really, really glad say that thousands were out there last week February
1st and made sure that there were thousands make sure that defended our campus, this
community and especially the immigrant and Muslim students who were under attack and have been
under attack him and other fascists. See the video, Berkeley riots backer proud shutting down
fascist Milo, published February 13, 2017 the Fox News channel YouTube, available
https://youtu.be/4di8KuECO7U 3:05-3:22; see also transcript the entire interview attached
Exhibit 5:4-10.
11.
Felarca continued, [T]he alt-right neo-fascist movement and they trying hide
behind some softer versions their more open counterparts who identify themselves Nazis, but
they still part the same movement, first all. Second all, when someone trying speak
campus rally they doing not just because they have opinion but someone like
Yiannopoulos any other alt-righter fascist neo-fascist doing recruit other people. No,
don let them recruit. And fact, when you look the holocaust and the lessons that draw from
that, don say, oh, well, least let them voice their opinion. say never again. (Inaudible)
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ISO Opp Plfs MSJ and MSJ
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especially after Trump. Id. 4:30-5:10 (video) 6:22-7:14 (transcript).
12.
Fourteen days after the Fox News/Tucker Carlson Tonight interview, Plaintiffs counsel
Shanta Driver, with Felarca standing beside her, spoke the media from the steps UC-Berkeleys
Sproul Plaza about the public reaction Felarca. large banner stretched behind them reads Trump
Must Any Means Necessary. When asked what kind things have been said done, Ms.
Driver characterized the threats received Felarca very unserious: You know most the
threats, think, have been very unserious and know there been some threats Yvette and the other
teachers her school that are just kind sick threats. See the video, published February 27, 2017, the nationalBAMN channel YouTube, available https://youtu.be/2v9E3056Gek 1:10-3:30.
13. September 2017, Judicial Watch served CPRA request BUSD for the
following records: (1) Any and all records communications between the BUSD Superintendent and
any other BUSD officials and/or staff Martin Luther King, Jr. Middle School mentioning Felarca,
Antifa, All Means Necessary, and/or BAMN. (2) Any and all records communications
between and among faculty/staff members Martin Luther King, Jr, Middle School mentioning
Felarca, Antifa, All Means Necessary, and/or BAMN. (3) The personnel file Martin
Luther King, Jr. Middle School teacher Yvette Felarca. The time frame for the request was identified January 2016 the present. See Exhibit 1-2. Judicial Watch primary interest was
uncovering information about (1) whether and what extent Felarca non-work activities
Plaintiffs describe them were impacting BUSD and King Middle School; (2) whether BUSD and the
school supported, opposed, took any position Felarca non-work activities; and (3) Felarca
non-work activities were impacting BUSD, the school, other teachers and staff, parents and
students, well how the district and school were responding.
14.
BUSD acknowledged receipt Judicial Watch request letter dated September 19,
2017 and granted itself 14-day extension time beyond the standard 10-day deadline provide
initial determination responsive records its possession. See Exhibit 3-4. letter dated
October 2017, BUSD advised Judicial Watch that had disclosable records responsive, least
part, the request but had determined that Felarca personnel file was exempt from disclosure. BUSD
estimated that could make disclosable responsive records accessible November 2017. Id.
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ISO Opp Plfs MSJ and MSJ
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15.
BUSD did not complete its search until about March 16, 2018. Dkt. Entry No. BUSD then provided for review counsel for Plaintiffs (and Plaintiff Felarca) 252 pages
records which BUSD deemed disclosable Judicial Watch under CPRA. Id. April 2018, BUSD
presented log responsive records (not Bates stamped) being withheld from Plaintiffs and Judicial
Watch and the exemptions under which they were being withheld. Dkt. Entry No. 20. about
May 11, 2018, BUSD gave Judicial Watch set heavily redacted, responsive records (Bates Nos.
277) that neither BUSD nor Plaintiffs sought withhold. May 15, 2018, privilege logs were
ordered the Court from BUSD and Plaintiffs. Dkt. Entry No. 63. about June 14, 2018,
Plaintiffs and BUSD presented logs purportedly identifying the records being withheld and the reasons
for their withholding. Dkt. Entry No. 64, 68.
16.
Because Plaintiffs log was particularly deficient, the Court ordered Plaintiffs submit
further log and ordered parties meet the courthouse, beginning July 16, 2018, confer
Plaintiffs claims that BUSD disclosure additional records unlawful. Dkt. Entry No. 71.
Specifically, the Court ordered Plaintiffs submit one list documents for which they believe they
have non-frivolous argument that disclosure BUSD would violate the First Amendment, and one
list documents for which they believe disclosure would violate the Fourth Amendment. Id. The
Court further ordered Plaintiffs show cause why Plaintiffs Lori Nixon and Larry Stefl have not
waived the right challenge disclosure documents they did not identify privilege log. Id. The
Court also set schedule for summary judgment motions. Id. June 29, 2018, Plaintiffs presented
further privilege log purportedly identifying records for which they believe disclosure would violate the
First Amendment. Dkt. Entry No. 73. This list included six records (Bates Nos. 134-35, 179, 210-11,
and 215) for which they believe disclosure would violate the California constitutional right privacy.
Id. Plaintiffs stated they are not seeking withhold redact any document based the Fourth
Amendment. Id.
17.
From July July 19, 2018, directed the Court (Dkt. Entry No. 71), the parties
(counsel for Plaintiffs, BUSD, and Judicial Watch) met and conferred with the objective determining
which documents are legitimately dispute and which exemptions asserted the privilege logs are
frivolous. The parties examined and discussed every document listed the logs. The document
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ISO Opp Plfs MSJ and MSJ
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descriptions given Plaintiffs log were the whole inadequate and unreliable. Consequently,
detailed descriptions for each document were developed and noted Judicial Watch real time the
parties examined and discussed every document. Plaintiffs counsel, Shanta Driver, had unredacted
set documents from BUSD except for the redactions BUSD made protect third-party privacy
personal information (telephone numbers, email addresses, names non-officials, etc.). Ms. Driver
read each document, provided details about the document (e.g., nature, date, from, to, subject, message
content), and answered questions where necessary complete description the document. Ms.
Driver also stated Plaintiffs reason for withholding each document. Judicial Watch memorialized
writing the words Ms. Driver used describe each document and the reason for withholding. Attached Exhibit true and correct copy Judicial Watch notes from the meet and confer.
18.
Felarca routinely labels persons and entities with whom she disagrees fascists,
racists, and Nazis. appearance before the BUSD school board, Felarca claimed Judicial Watch racist, immigrant-bashing group connected the alt-right See the video, Yvette Felarca Tries Stop FOIA Request, available https://www.youtube.com/watch?v=AdP4HTI2pGg.
19.
Attached Exhibit recently-generated .PDF printout entries posted
Facebook page for Yvette.Felarca.Berkeley and contains pages public comments posted
that site community page about Felarca. The link
https://www.facebook.com/pg/Yvette.Felarca.Berkeley/community/?ref=page_internal
20.
Attached Exhibit recently-generated .PDF printout consisting pages
public comments about Felarca that were posted YouTube beneath the video, Berkeley riots backer
proud shutting down fascist Milo, published February 13, 2017 the Fox News channel
YouTube, and available https://youtu.be/4di8KuECO7U declare under penalty perjury pursuant the laws the United States America that the
foregoing true and correct.
Executed this 20th day August, 2018.
/s/ Robert Patrick Sticht.
ROBERT PATRICK STICHT
17-cv-06282-VC
Declaration Robert Patrick Sticht
ISO Opp Plfs MSJ and MSJ
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147
EXHIBIT
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147
Transcript Video
Case: Felarca, al. -v- Berkeley Unified School District, al.
Planet Depos
Phone: 888-433-3767
Fax: 888-503-3767
Email: transcripts@planetdepos.com
www.planetdepos.com
WORLDWIDE COURT REPORTING INTERPRETATION TRIAL SERVICES
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147 Re: Felarca, al.
Berkeley Unified School District, al.
Case No. 17-cv-6282
Transcript Video:
Yvette Felarca BAMN
shutting down KKK/Nazi rally Sacramento
Job No.:
203269
Transcribed by:
Debra McCostlin
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147
Transcript Video
NEWS REPORTER: you mind sharing your first
and last name?
MS. FELARCA:
Sure.
Its Yvette Felarca.
Y-V-E-T-T-E, Felarca, Frank, E-L-A-R-C-A, and national organization with BAMN which stands for Any Means Necessary.
NEWS REPORTER:
MS. FELARCA:
Okay.
Our whole name the Coalition Defend Affirmative Action, Integration Immigrant
Right, and Fight for Equality Any Means Necessary.
NEWS REPORTER: there was lot going
today.
Obviously you have some blood your head. this how was planned?
expected?
today? this what you what was the plan?
MS. FELARCA:
What was the goal
The goal today was shutdown
the Nazis recruitment rally and want
congratulate everyone who came out today because
succeeded doing that.
efforts.
behind the police and then just running away
altogether. defeated them their
They had run hiding, running from hiding
They were not able hold any kind
PLANET DEPOS
888.433.3767 WWW.PLANETDEPOS.COM
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147
Transcript Video
demonstration the west steps any steps the
capital and that was absolutely because the
militant integrated direct action the people who
came out.
shut them down and were really, really glad that
theres been such integrated direct action struggle people who came out succeed doing that.
BAMN mobilized get people out here theres free speech for fascists.
They not have the right organize for genocide
and were organizing tell people, you know, to,
one, let the fascists know anyone who thinking
about joining them, dont, because its not going good day for you.
absolutely our side won, they lost.
And think balance
NEWS REPORTER:
And lot people have
their face covered, didnt want show their
faces.
you dont have your face covered.
difference the protestors.
were different groups.
You, the other hand, are speaking us,
MS. FELARCA:
different groups.
Talk about the seemed like there
Everyone has different -There were.
There were
People had you know, have
PLANET DEPOS
888.433.3767 WWW.PLANETDEPOS.COM
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147
Transcript Video
different ways that they approach the struggle.
BAMNs our method build mass militant
integrated anti-racist and immigrant rights movement
and that and getting many people possible take militant and mass direct action.
know, but all everyone who came here today came
here united with one goal and thats shut down the
Nazi scum and did that.
NEWS REPORTER:
And so, you
And they had recruitment
party.
Were not sure its because they cancelled
police said, hey, you cant have guess they
were permitted whoever permits people have
rallies here the capital. dont know why was cancelled, but know was
cancelled and that seemed have been your goal. ended being cancelled police told us.
MS. FELARCA:
Maybe they pulled it.
Absolutely.
The Nazis and the
fascists are dangerous.
They need stopped and
shutdown any means necessary.
them because then they grow.
not just talk each other, theyre trying
recruit, but today they looked weak they are, cant just ignore
They hold these rallies
PLANET DEPOS
888.433.3767 WWW.PLANETDEPOS.COM
Case 3:17-cv-06282-VC Document Filed 08/20/18 Page 147
Transcript Video
they had run hiding, and want make sure that
happens and were committed making sure that
they try show the