The Santa Monica Malibu Unified School District’s Board of Education Defendants’ Craig Foster and Oscar de la Torre will testify against their other Santa Monica Malibu Unified School District Board of Education members, and admit that they knew that if they tested the caulk they would find PCBs in excess of 50 PPM and have to remove them!
See witness list numbers 15 (Oscar de la Torre) and 16 (Craig Foster) as located on page 5 and 6 of the attached Plaintiff’s witness list.
See attached Witness List:
AMERICA UNITES FOR KIDS WITNESS LIST WITH BOARD MEMBERS,TEACHERS AND CUSTODIAN WITNESS’
See link to JDSUPRA News:
Teachers and Custodians will also testify against their own Santa Monica Unified School District and exclaim that the District failed to comply with their own Best Management Practices (BMPs).
The attached Declarations from Malibu High School teachers Katy Lapajne and Lisa Lambert includes evidence from 33 other Malibu High School teachers that the Santa Monica Malibu Unified School District (SMMUSD) is not complying with their Best Management Practices (BMPs) and is in violation of the EPA Region 9’s guidelines.
See pdf copies of the Declarations from two Malibu High School Teachers:
DECLARATION OF MALIBU HIGH SCHOOL TEACHER KATY LAPAJNE
DECLARATION OF MALIBU HIGH SCHOOL TEACHER LISA LAMBERT
Declaration of Jaun Cabrillo Elementary Teacher Robin Levy with allegations that she felt intimidated by Pillsbury, Winthrop, Shaw and Pittman Law Firm’s Attorney Julia Stein.
See Robin Levy’s declaration signed under penalty of perjury:
DECLARATION OF JAUN CABRILLO TEACHER ROBIN LEVY
Robin Levy has declared under penalty of perjury that she believed she was being coerced to change her testimony to implicate Malibu Parent Matt DeNicola with allegations of trespassing and vandalism to Jaun Cabrillo Elementary School.
Two elected members of the SMMUSD have condemned the criminal complaint, as have several staff members, including the school librarian who decried the “administration’s hounding of staff members for statements and the threat of prosecution.” (See attached emails from Board members Craig Foster and Oscar de la Torre) (See attached email from School Librarian Suzanne Moscoso)
See School Board Member emails here:
See School Librarian’s email here:
The attached declaration from Malibu High School Parent Matt DeNicola declares that former SMMUSD Board of Education member Ben Allen, now California State Senator Ben Allen admitted in September 2014 that the SMMUSD Board of Education chose not to test for PCBs, because they knew that they would find illegal levels of toxic PCBs and be forced to remove them under the TSCA. (See Matt DeNicola Declaration, pg. 1, paragraph 2)
DECLARATION OF MATT DENICOLA RE CALIFORNIA STATE SENATOR BEN ALLEN
See Declaration from Malibu High School Teacher Carla Bowman Smith declaring that Malibu High School’s condition is horrific, and is infested with rats, feces and urine:
DECLARATION OF MALIBU HIGH SCHOOL TEACHER CARLA BOWMAN SMITH
CURRENT HEALTH ISSUES WITH STUDENTS AND TEACHERS AT MALIBU SCHOOLS
6 teachers with thyroid cancer;
4 alumni (28-year-old)with thyroid cancer;
1 current student with thyroid disease, possible thyroid cancer
25 teachers with thyroid disease (including 14 of 30 Malibu Middle School teachers);
10 alumni in their 20s with thyroid disease;
1 alumni (22-year-old) with environmentally induced melanoma;
2 current teachers with environmentally induced melanoma;
1 teacher hospitalized from an environmentally-induced rash;
1 current student with an environmentally-induced rash lasting several months
innumerable cases of headaches; persistent rashes; daily migraines; infertility issues; hair loss; immune issues; respiratory issues; and diabetes.
See United States District Court’s Order Denying the Santa Monica Malibu Unified School District’s Motion for Summary Judgment
Order denying summary judgment
U.S. District Court Judge Percy Anderson rejected the Santa Monica-Malibu School District’s latest attempt to prevent a trial over its failure to protect public school students and teachers from cancer-causing chemicals known as PCBs.
Judge Anderson denied the school district’s motion for summary judgment despite its cynical strategy of restricting PCB testing to bolster its defense against a federal Citizen Suit that seeks a court order compelling the removal of hazardous PCBs from Malibu public schools. The suit seeks no monetary damages. Trial is scheduled for May 17, 2016 in Los Angeles.
The school district has taken the preposterous position that there is no evidence that PCBs exist on its campuses outside of precise areas that have already tested positive, and it has refused testing of any other areas — even of adjacent classrooms built at the same time; even of adjacent windows or doors installed at the same time. PCBs were commonly used in construction materials including window and door caulking until PCBs were completely banned by Congress.
The school district argues that rather than investigate or remove similar caulk to that which tested above legal limits, its application of so-called “Best Management Practices” (essentially wiping surfaces with wet rags) is sufficient, despite it being a violation of Federal law – a law created because Congress determined that PCBs are an unacceptable risk to human health.
Judge Anderson wrote in his ruling: “[T]he District’s own testing has shown PCBs in excess of 50 ppm [parts-per-million] in multiple rooms in six different buildings on the Malibu Campus, 70% of the rooms tested by the District contained PCBs in excess of 50 ppm, 28 out of 32 samples taken by the district contained PCBs above 50 ppm, with most above 100,000 ppm, many of the buildings on the Malibu Campus were built prior to 1979, and caulk and other materials containing PCBs were used in schools built from the 1950s through the 1970s.”
The court also found evidence, from affidavits from custodians, that the school district was not even implementing the promised “Best Management Practices” supposedly designed to reduce levels of toxic exposure in classrooms.
Judge Anderson concluded: “In reviewing the admissible evidence, and drawing reasonable inferences from that evidence, the Court concludes that triable issues of fact exist concerning the continued ‘use’ of PCBs at the Malibu Campus despite the remediation work performed to date by the District. The Court additionally concludes that evidence suggesting that the District has failed to implement and consistently employ BMPs as contemplated by the EPA’s approvals calls into question the amount of deference the Court should give to the District’s purported compliance with the EPA’s guidelines and approvals. For all of the foregoing reasons, the Court denies Defendants’ Motion for Summary Judgment.”
The Citizen Suit, to enforce Federal law, was brought by America Unites for Kids, on behalf of parents, and Public Employees for Environmental Responsibility (PEER), representing teachers.
“We are ready to go to trial as the evidence, sworn testimony and scientific research will reveal the truth — that Malibu public school classrooms are laden with illegal levels of cancer-causing chemicals that must be removed.”
“It is incomprehensible that in the past two years the district has spent $10 million to mislead parents and the court about the existence of PCBs rather than be honest and work with the parents to remove PCBs and make our public schools safe.” said Jennifer deNicola, a Malibu High School parent who heads America Unites for Kids.
“We hope this ruling convinces the district to end its scorched earth legal approach and embrace a solution which puts the health of students, teachers and staff in the forefront,” stated PEER Senior Counsel Paula Dinerstein, noting that the overwhelming percentage of the district’s own test results show illegal levels of PCBs. “The district’s legal bills already dwarf what it would have cost to clean up all three campuses – and we haven’t even gone to trial yet.”
The Citizen’s Suit was filed after the school district refused to remove toxic PCBs at an estimated cost of $750,000 to $1.5 million. The district’s legal bills to fight removal and the Citizen’s Suit have now hit at least $3.38 million. When consultants and other PCB related costs are factored in, the tab exceeds $10 million.
See attached Order:
Order denying summary judgment
Santa Monica Malibu Unified School District’s Timeline
See letter to Sandra Lyon and the SMMUSD’s Board of Education dated Oct. 7, 2013 from AMPS, Malibu High PTSA, The Shark Fund, The Boys & Girls Club of Malibu, members of the Malibu High School Site Council, & Malibu Special Education Demanding that the SMMUSD take Steps to Keep Our Children and Teachers Safe:
In January 2014, SMMUSD staff raised concerns about PCB exposure in Malibu High School and Middle School (MHS) and Juan Cabrillo Elementary School (JCS) after three teachers reported thyroid cancer diagnoses.
See letter to Sandra Lyon from 12 teachers at Malibu High School:
The City of Malibu through Resolution No. 14-58 requests that the Santa Monica-Malibu Unified School District (SMMUSD) conduct further source testing for polychlorinated biphenyls (PCBs) at all Malibu school campuses and in all rooms. Every inch of caulking does not need to be tested to verify there are PCBs. It is reasonable and based on standard building practices is responsible to assume that all like caulking in the same building contains PCBs.
See City of Malibu’s September 23, 2014 Resolution No. 14-58 below:
Despite the October 2013, January 2014 letters and City of Malibu passing this Resolution, the SMMUSD refuses to relocate its students and teachers and administer any further testing, even turning down the offer of Malibu parent and supermodel Cindy Crawford to personally pay for the tests. The EPA, in the Oct, 31st, 2014 approval, made very clear that PCBs over 50ppm cannot be left in place. PCBs are not like lead paint and asbestos; they are not chemically the same nor are they handled by EPA the same way.
The SMMUSD is misleading the public with false statements to try and justify their choice to keep exposing Malibu children to cancerous, toxic PCBs.
On Tuesday, December 16th, 2014, the SMMUSD ordered a “special” cleaning of the classrooms prior to Environ testing the dust and air. They asked teachers to remove all items from all surfaces so they can send a “special” crew to remove dust from surfaces; the same surfaces that Environ will be wipe testing hours later.
This renders PCB results meaningless. The goal of wipe and air testing is to see what the students and staff have been exposed to for the past 4 months. However, if they clean it hours before testing then any evidence of PCB exposure is removed. Click Here to see email
This was done to guarantee the results are below EPA guidelines. Sadly, these test results will be nothing more than a PR move by the district to reassure parents and waste taxpayer dollars.
Moreover, EPA guidance may have been compromised by the following actions.
The SMMUSD’s Superintendent Sandra Lyon sought the assistance of the California Association of School Administrators to lobby the EPA to not enforce PCB source testing and remediation in Malibu schools.
Thereafter, on August 1, 2014 Laura Preston, legislative advocate for the California Association of School Administrators, sent an email to Jared Blumenfeld, EPA Region 9 Administrator, in which she revealed that her organization had been working with Superintendent Sandra Lyon for several months on the PCB issue in Malibu schools. She expressed that her office had also met with the offices of all of our state and federal elected officials, including the California Governor’s office about this issue.
This email suggested that Blumenfeld’s actions could give the appearance of “preferential treatment “ to Malibu. Preston said that: “…any preferential treatment to the community of Malibu will give the appearance that an affluent largely white community will receive preferential treatment. This can easily become a civil rights issue for all of us.” (see email below)
See America Unites for Kids October 29, 2015 letter to Santa Monica Malibu Unified School District’s Superintendent Sandra Lyon concerning new PCB test results showing widespread PCB contamination at Malibu High School:
See New PCB Test Results from Malibu High School:
America Unites for Kids Seeks Retraction from the Santa Monica Malibu Classroom Teachers Association for Misleading, Libelous and Inaccurate Statements Concerning PCB Contamination in Malibu Schools
See America Unites for Kids November 23, 2015 letter to SMMCTA:
Letter to SMMCTA Sarah Braff
The SMMUSD has spent approx. $8 million dollars
on lawyers and environmental expenditures rather than $100 per caulk test. Superintendent Sandra Lyon told the board at the December 11, 2014 board meeting that the District has approval to spend $600+ per hour and the use of Pillsbury Law Firm as legal counsel, and now the SMMUSD Board has given her carte blanche permission to spend unlimited amounts of money to protect their decisions. See list of SMMUSD expenditures to date: $8,000,000 and rising!
July 15, 2015
Aug 12, 2015
Malibu Schools Drain $8 Million From SMMUSD In Legal Fees
For details, go to:
Just what is the Santa Monica Malibu Unified School District spending so much money to hide from the public?
The Santa Monica Malibu Unified School District appears to be more interested in attempting to limit their exposure to liability from a toxic tort complaint, rather than to just simply comply with the TSCA, and protect its students and teachers from this continuing harm.
The TSCA suit seeks no monetary damages. Trial is scheduled for May 17, 2016 in Los Angeles.
Other Santa Monica Malibu Unified School District Litigation, and Errors in Judgment:
There are many other troubling issues with the Santa Monica Malibu Unified School District.
- Superintendent Sandra Lyon ordered the use of Fumitoxins and Strychnine on Saturday, Aug 22, 2015 at Malibu High School, Juan Cabrillo and Webster Elementary schools despite hundreds of letters from parents in protest.
Her reckless actions put kids and wildlife at risk.
See link to America Unites For Kids Freedom of Information Act request dated Aug 22, 2015:
Freedom Of Info Act Dec 22-1
See link to Malibu Parent’s letter to Superintendent Sandra Lyon and Published in the Malibu Times on September 4, 2015:
Malibu Parent’s Letter: Protecting Children
Malibu Parent Stacie Cox’ Public Comment about Superintendent Sandra Lyon:
“An empathetic and confident leader would make all her decisions based on how to best protect children, and not make decisions based on legally what she can get away with. You seem to act on false information, archaic ideals, and without a conscience. Your behavior is unconscionable and you should be ashamed of yourself.”
Rodenticide use at Malibu Schools Rouses Call for District Separation
See Malibu Times Article here:
See City of Malibu Brochure Re: Poison Free Malibu:
2. The Santa Monica-Malibu Unified School District’s Classroom Teachers Association Urges SMMUSD Officials to Consider the Well-being of its Children and Staff
Santa Monica Teacher’s Public Comment:
I am a teacher at John Adams middle School. My classroom has been between 86 and 88 degrees every day since school started. I have not been provided with a fan and I’m using two of my own. It is unbearable . I have been suffering from heat exhaustion. My symptoms include nausea, dizziness and an inability to focus. My students are unable to concentrate. This is not a new issue. It is hot for at least 3 months out of every school year since I started working for SMMUSD 15 years ago. This is unacceptable.”
Dr. Henry Kirolos, a UCLA physician who specializes in preventive and primary care said that one of his patients is a John Adams Middle School teacher who reported that her students couldn’t focus in her hot classroom.
Kirolos added that it’s difficult to teach when students are loosening their shirt collars, fanning themselves and wiping sweat off their faces during instruction time.
He cited a scholarly article by Glen I. Earthman regarding the impact of school conditions on academic performance, which points to a study that determined optimal classroom temperatures to be between 68 and 74 degrees Fahrenheit.
“If children are hot and sweaty inside the classroom, they’re not going to be able to concentrate,” Kirolos said. “It’s not conducive to learning.”
See link to Santa Monica Daily Press New Article dated September 16, 2015:
Concerns over classroom temps heat up
3. Student v Wendy Wax Gellis & Santa Monica Malibu Unified School District:
This lawsuit alleges that the SMMUSD and Wendy Wax Gellis are criminally liable for violations of California Penal Code § 11166 and 11172(a) et seq. for filing a knowingly false child abuse report with child services and the police.
Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School District’s Retaliatory Acts Against Students and Parents by Filing False Claims of Child Abuse with the Department of Children & Family Services.
See link to News Article here:http://www.santamonicadispatch.com/2009/01/smmusd-vs-student/
The lawsuit alleges that an example of retaliatory action by the SMMUSD and Wendy Wax Gellis taken against this family includes knowingly and maliciously filing a false child rape and domestic violence allegation with the local law enforcement and with the Los Angeles County Department of Children and Family Services (DCFS) in retaliation for parent’s exercise of their federally protected right to bring claims against the SMMUSD before the United States Department of Education’s Office for Civil Rights (OCR).
The family alleges that on December 18, 2013, SMMUSD employee named Wendy Wax Gellis made a knowingly false referral to the Los Angeles Department of Children and Family Services (DCFS), and to local law enforcement that parent raped her own son. The allegations were determined by all investigating agencies to be unfounded.
For details of this pending Federal lawsuit go to:
4. Student v Santa Monica Malibu Unified School District:
9th Circuit Court of Appeals Case No. 13-55665 & District Court No. 2:12-cv-03059-SVWPJW
For details of this SMMUSD litigation, go to:
The Santa Monica Malibu Unified School District Did Not Act “Reasonably” When It Chose To Conduct An IEP Meeting Without the Parents’ Presence
*Legal Fees in the amount of $215,000 were approved by the SMMUSD’s Board of Education on June 29, 2015.
See link to the June 29, 2015 Board of Education Minutes: Re: Attorney’s Fee Settlement in the amount of $215,000
See Related case:
DREW BALAGUER, REINA ROBERTS, and MARK BALAGUER v. SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT,
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Case No.: 2:14-cv-06823-CBM-MRW
THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT HAS CREATED A TWO-TRACK EDUCATIONAL SYSTEM THAT EXCLUDES MANY STUDENTS WITH DISABILITIES FROM MATRICULATING INTO A FOUR YEAR COLLEGE PROGRAM
For details, go to:
5. Other Superintendent Sandra Lyon’s Errors in Judgment:
“SANTA MONICA TEACHER WAS RIGHT, SUPERINTENDENT WAS VERY, VERY WRONG”
6. Severe Bullying at Malibu High School and Superintendent Sandra Lyon’s Ratification of the Conduct:
For details of this pending litigation, go to:
Student vs. Santa Monica Malibu Unified School District (SMMUSD) et al
LOS ANGELES SUPERIOR COURT COMPLAINT
SPECIAL INTERROGATORY NO. 13:
LIST THE FULL NAME AND JOB TITLE OF THOSE INDIVIDUALS AT SMMUSD (AND/OR MALIBU HIGH SCHOOL) RESPONSIBLE AMENDING/REVERSING CANCELING AND OR OTHERWISE MODIFYING THE DISCIPLINARY SUSPENSION OF DEFENDANT SEBASTIAN SARTORIUS ISSUED IN OR AROUND NOVEMBER 2012.
RESPONSE TO SPECIAL INTERROGATORY NO. 13:
SANDRA LYON, SUPERINTENDENT OF THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT.
7. PCBS REMOVED FROM SANTA MONICA SCHOOLS BUT LEFT IN MALIBU SCHOOLS
Superintendent Sandra Lyon cares more about protecting landfills than protecting children and teachers.
8. WHISTLEBLOWER PARENT DISCLOSES DRUG AND ALCOHOL PROBLEMS ON MALIBU HIGH SCHOOL’S BASEBALL TEAM
9. STUDENT vs. MARK KELLY & THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT
Re: Disability Discrimination
Plaintiffs allege that Mark Kelly’s conduct in baiting student was so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency,” Mintz, 905 P.2d at 563. Mark Kelly’s knowledge that the plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental condition rises to both extreme and outrageous conduct.” (“eggshell plaintiff” principle)
Some students may have vulnerabilities which necessitate a greater degree of caution on the part of school districts and their employees. In M.W. v. Panama Buena Vista Union School Dist., supra,
Abuse of Power
The extreme and outrageous conduct may take place in the course of a relationship in which the defendant holds authority or other power over the plaintiff or the plaintiff’s interests. If the authority — such as police officers, school authorities, landlords, and collecting creditor — abuse their positions in some extreme manner, they may be liable to the plaintiff for IIED.
10. PROFESSOR MICHAEL CHWE vs. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT
Verified Petition for Writ of Mandate Directed to Santa Monica Malibu Unified School District Ordering Compliance with the California Public Records Act
See pdf attachment of Professor Michael Chwe’s Public Records Act lawsuit against the Santa Monica Malibu Unified School District:
The Santa Monica Malibu Unified School District Was Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers
See pdf attachment to the Court of Appeals of the State of California, Second Appellate District’s landmark ruling in Professor Chwe’s lawsuit against the Santa Monica Malibu Unified School District:
The Court of Appeal of the State of California, Second Appellate District, ruled that “Marken occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy. . . . the public’s interest in disclosure of this information—the public’s right to know—outweighs Marken’s privacy interest in shielding the information from disclosure.”
In Baez v. Superior Court, 2008 WL 5394067 (Cal. Ct. App.) the defense representing the Burbank Unified School District asserted attorney-client privilege and the work-product doctrine as grounds for refusing to turn over the file from a investigation report.
The Second District Court of Appeal ordered production of the Sandhu investigative file,
holding that disclosure was essential for fair adjudication of the action. (Baez v. Superior Court
, 2008 WL 5394067 (Cal. Ct. App.).) Case Number B208294 Description: Petition granted by opinion
See link: http://chwe.net/safety/failures.html
See pdf attachment:
SMMUSD IRRESPONSIBILITY ENDANGERS OUR CHILDREN
Santa Monica-Malibu Unified School District’s Superintendent Sandra Lyon should be fired for not adequately protecting the School District’s students and teachers.
For details, go to:
ITS TIME TO FIRE SUPERINTENDENT SANDRA LYON
IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON
See link to Change.org Petition:
Email the Santa Monica Unified School District’s Board of Education: