America Unites for Kids Prevails Against the Santa Monica Malibu Unified School District As The Court Orders the School District to Remove ALL PCBS

The Honorable Judge Percy Anderson ruled that Malibu High School & Juan Cabrillo Elementary have illegal levels of PCBs.

The court found them in violation of Federal Law: Toxic Substance Control Act

The court ordered the district to remove all PCBs by 2019.

This ruling confirms how unconscionable the School District has been to spend $13 million to avoid complying with federal law

See Court Order here:

AMERICA UNITES FOR KIDS vs. SMMUSD RE COURT GRANTS INJUNCTIVE RELIEF TO PLAINTIFF 2 15 cv 02124 PA-AJW

POINTS: FROM JUDGE PERCY ANDERSON:

“The Court concludes, based on common sense, that it is highly likely that the same products were used to construct each of the buildings on the Malibu Campus. As a result, for the buildings completed at the Malibu Campus prior to 1979, and at which certain locations have been tested and found to contain caulk with PCBs in excess of 50 ppm, it is more likely than not that caulk containing PCBs in excess of 50 ppm remain in “use” at the Malibu Campus in areas that have not been tested or repaired.”

“Although Defendants have removed and replaced the caulk from the specific areas and rooms identified in their testing as exceeding the 50 ppm threshold, and some other areas may have had doors and windows repaired or replaced after 1979, there is no evidence that all of the caulk in the buildings at the Malibu Campus constructed prior to 1979 has been tested or removed.”

JUDGE PERCY ANDERSON ORDERED THAT:

“Defendants are hereby permanently enjoined from using any office, classroom, or other structure at Juan Cabrillo Elementary School (‘JCES’) and Malibu Middle and High School (‘MHS’) (collectively the ‘Malibu Campus’) constructed prior to 1979 in which students, teachers, administrators, or staff are regularly present after December 31, 2019, unless all window and door systems and surrounding caulk at any such location has been replaced.”

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.

Judgment and Permanent Injunction against the Santa Monica Malibu Unified School District:

See Court Order here:

AMERICA UNITES FOR KIDS vs. SMMUSD RE COURT GRANTS INJUNCTIVE RELIEF TO PLAINTIFF 2 15 cv 02124 PA-AJW

AMERICA UNITES FOR KIDS vs .SMMUSD RE FINDINGS OF FACTS AND CONCLUSIONS OF LAW 2 15 cv 02124 PA-AJW

The SMMUSD Board of Education people should not be running this school district as they spent $13 million of our tax payer money to NOT-protect the teachers, to NOT-protect the students, and now that they have been proven wrong in a Court of Law, they are STILL not taking responsibility and continue to put their students and teachers at risk!

Email the Santa Monica Unified School District’s Board of Education and tell them to stop wasting our money and destroying lives:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org
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Defendants’ Craig Foster and Oscar de la Torre Will Testify Against Their Own Santa Monica Malibu Unified School District & Admit That The Other Board of Education Defendants’ Knew That If They Tested The Caulk They Would Find PCBs in Excess of 50 PPMs and Have To Remove Them

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:

http://www.jdsupra.com/legalnews/defendants-craig-foster-and-oscar-de-la-33904/

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:

11_4_15_SMMUSD_board_members_protest

See School Librarian’s email here:

11_4_15_Librarian response

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:

525375b700692.pdf

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:

http://www.peer.org/assets/docs/ca/1_13_14_teacher_letter.pdf

1_13_14_teacher_letter-2

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:

9_23_14_Malibu_City_Council_Resolution

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

Special-Cleaning-12-16-2014

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)

https://lawofficesofbarryfagan.files.wordpress.com/2015/03/california-association-of-school-administrators-email-to-epa.pdf\

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!
11200986_700561446719884_1823505260638714771_o

July 15, 2015
Aug 12, 2015

http://malibuunites.com/wp-content/uploads/2015/09/Purchase-Orders-Approved-at-Board-Meetings2.pdf

Malibu Schools Drain $8 Million From SMMUSD In Legal Fees

For details, go to:

http://www.smmirror.com/articles/News/Malibu-Schools-Drain-8-Million-From-SMMUSD-In-Legal-Fees/45152

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.

  1. 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

http://www.malibutimes.com/opinion/article_fcd1df0e-51c4-11e5-b14c-f35d240585b1.html?mode=story

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:

http://www.malibutimes.com/news/article_09817ee0-4bb1-11e5-b2b0-7f6db2b94b50.html

See City of Malibu Brochure Re: Poison Free Malibu:

BROCHURE%20Wildlife_antiPoison%20final_201403211343153527

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:

“Genevieve Szafran
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:

https://lawofficesofbarryfagan.wordpress.com/2014/08/25/santa-monica-dispatch-article-concerning-smmusds-retaliatory-acts-against-students-and-parents-by-filing-false-claims-of-child-abuse-with-the-department-of-children-family-services/

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

https://lawofficesofbarryfagan.wordpress.com/2015/06/04/student-vs-santa-monica-malibu-unified-school-district-re-the-santa-monica-malibu-unified-school-district-did-not-act-reasonably-when-it-chose-to-conduct-an-iep-meeting-without-pa/

*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

http://www.smmusd.org/brd1415/min062915_spmtg.pdf

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:

https://lawofficesofbarryfagan.wordpress.com/2015/10/19/the-santa-monica-malibu-unified-school-district-has-created-a-two-track-educational-system-that-excludes-many-students-with-disabilities-from-completing-courses-offering-a-to-g-grading-thus-precludin/

5. Other Superintendent Sandra Lyon’s Errors in Judgment:

“SANTA MONICA TEACHER WAS RIGHT, SUPERINTENDENT WAS VERY, VERY WRONG”

April 07, 2014|By Robin Abcarian (LA Times Reporter)

http://articles.latimes.com/2014/apr/07/local/la-me-ra-santa-monica-teacher-was-right-20140407

http://patch.com/california/santamonica/fire-sandra-lyons

https://www.change.org/p/sandra-lyon-and-smmusd-school-board-an-apology-from-superintendent-sandra-lyon-to-mark-black-for-throwing-him-and-all-teachers-under-the-bus-as-well-as-for-making-a-biased-inflammatory-response-to-mark-s-heroic-classroom-actions

6. Severe Bullying at Malibu High School and Superintendent Sandra Lyon’s Ratification of the Conduct:

http://www.santamonicadispatch.com/2014/02/victim-becomes-villain-in-malibu-controversy/

For details of this pending litigation, go to:

https://lawofficesofbarryfagan.wordpress.com/2014/08/24/severe-bullying-at-malibu-high-school-the-smmusds-ratification-of-the-conduct/

IMAG0391

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.

http://www.peer.org/news/news-releases/pcbs-removed-from-santa-monica-schools-but-left-in-malibu.html

8. WHISTLEBLOWER PARENT DISCLOSES DRUG AND ALCOHOL PROBLEMS ON MALIBU HIGH SCHOOL’S BASEBALL TEAM

For details, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/05/05/whistleblower-parent-discloses-drug-and-alcohol-problem-on-malibu-high-school-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

http://www.jdsupra.com/legalnews/verified-petition-for-writ-of-mandate-di-72936/

See pdf attachment of Professor Michael Chwe’s Public Records Act lawsuit against the Santa Monica Malibu Unified School District:

dwt20110223

The Santa Monica Malibu Unified School District Was Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers

http://www.jdsupra.com/legalnews/the-santa-monica-malibu-unified-school-d-42102/

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:

B231787-1

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

https://lawofficesofbarryfagan.wordpress.com/2015/07/04/it-is-time-to-fire-the-santa-monica-malibu-unified-school-districts-superintendent-sandra-lyon/

See pdf copy:

IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON

See link to Change.org Petition:

https://www.change.org/p/the-santa-monica-malibu-unified-school-district-s-board-of-education-it-s-time-to-fire-santa-monica-malibu-unified-school-district-s-superintendent-sandra-lyon

Email the Santa Monica Unified School District’s Board of Education:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org

Declaration of Jaun Cabrillo Elementary Teacher Robin Levy With Allegations of Intimidation and Coercion by Pillsbury Law Firm’s Attorney Julia Stein

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.

District Attorney Will Not Pursue Charges for Alleged MHS Vandalism

Allegations Are Dead in the Water for School District

The District Attorney could not even find $400 in alleged damages despite the fact that the SMMUSD told the Police that damages were in excess of $17,000.

For details, go to:

http://www.malibutimes.com/news/article_b0f6aaea-9325-11e5-8f3e-ef8159f51eb2.html

See news articles concerning the SMMUSD Pressing Vandalism and Trespassing Charges Against the Parent who Proved that the Malibu Schools are Contaminated with Toxic Cancer Causing PCBs:

http://westsidetoday.com/2015/11/05/santa-monica-malibu-unified-school-district-want-sheriffs-to-investigate-parent-activists/#comment-123815

http://www.wnd.com/2015/11/mom-who-tested-classroom-for-carcinogens-to-be-charged/

http://fusion.net/story/227803/malibu-schools-pcb-thyroid-cancer/

http://laist.com/2015/11/05/malibu_pcb_case.php

http://patch.com/california/malibu/school-district-seeks-charges-against-malibu-mom-who-tested-classroom-materials-carcinogens

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:

11_4_15_SMMUSD_board_members_protest

See School Librarian’s email here:

11_4_15_Librarian response

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

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:

http://www.jdsupra.com/legalnews/defendants-craig-foster-and-oscar-de-la-33904/

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

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.

U.S. District Court Judge Percy Anderson denied the Santa Monica Malibu Unified 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.

See United States District Court’s Order Denying the Santa Monica Malibu Unified School District’s Motion for Summary Judgment

Order denying summary judgment

The TSCA suit seeks no monetary damages. Trial is scheduled for May 17, 2016 in Los Angeles.

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!
11200986_700561446719884_1823505260638714771_o

July 15, 2015
Aug 12, 2015

http://malibuunites.com/wp-content/uploads/2015/09/Purchase-Orders-Approved-at-Board-Meetings2.pdf

Malibu Schools Drain $8 Million From SMMUSD In Legal Fees

For details, go to:

http://www.smmirror.com/articles/News/Malibu-Schools-Drain-8-Million-From-SMMUSD-In-Legal-Fees/45152

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

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.

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

https://lawofficesofbarryfagan.wordpress.com/2015/07/04/it-is-time-to-fire-the-santa-monica-malibu-unified-school-districts-superintendent-sandra-lyon/

See pdf copy:

IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON

See link to Change.org Petition:

https://www.change.org/p/the-santa-monica-malibu-unified-school-district-s-board-of-education-it-s-time-to-fire-santa-monica-malibu-unified-school-district-s-superintendent-sandra-lyon

Email the Santa Monica Unified School District’s Board of Education:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org

America Unites for Kids & PEER Defeats the Santa Monica Malibu Unified School District’s Motion for Summary Judgment

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:

525375b700692.pdf

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:

http://www.peer.org/assets/docs/ca/1_13_14_teacher_letter.pdf

1_13_14_teacher_letter-2

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:

9_23_14_Malibu_City_Council_Resolution

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

Special-Cleaning-12-16-2014

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)

https://lawofficesofbarryfagan.files.wordpress.com/2015/03/california-association-of-school-administrators-email-to-epa.pdf\

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!
11200986_700561446719884_1823505260638714771_o

July 15, 2015
Aug 12, 2015

http://malibuunites.com/wp-content/uploads/2015/09/Purchase-Orders-Approved-at-Board-Meetings2.pdf

Malibu Schools Drain $8 Million From SMMUSD In Legal Fees

For details, go to:

http://www.smmirror.com/articles/News/Malibu-Schools-Drain-8-Million-From-SMMUSD-In-Legal-Fees/45152

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

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.

Perhaps this is the reason why the SMMUSD has Lawyered Up?

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.

There is a statistically significant “relationship” between spending your days at Malibu High School and Thyroid Cancer

For details, go to: https://lawofficesofbarryfagan.wordpress.com/2015/06/24/there-is-a-statistically-significant-relationship-between-spending-your-days-at-mhs-and-thyroid-cancer/

db0d68ca-c4da-4f51-b4ba-43594c74f514

PCBs Affect a Whole Building, Not Just a Single Window

If PCB-laden caulking over 50ppm has been found in one classroom, then it is probable that PCB-laden caulk is in all classrooms in that building. It would be absurd to propose removal of only the tested window (which is what the district has proposed) when adjacent windows used the same caulking that contain high levels of PCBs.

12029766_766201816822513_7554779534588348547_o

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.

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.

  1. 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

http://www.malibutimes.com/opinion/article_fcd1df0e-51c4-11e5-b14c-f35d240585b1.html?mode=story

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:

http://www.malibutimes.com/news/article_09817ee0-4bb1-11e5-b2b0-7f6db2b94b50.html

See City of Malibu Brochure Re: Poison Free Malibu:

BROCHURE%20Wildlife_antiPoison%20final_201403211343153527

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:

“Genevieve Szafran
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:

https://lawofficesofbarryfagan.wordpress.com/2014/08/25/santa-monica-dispatch-article-concerning-smmusds-retaliatory-acts-against-students-and-parents-by-filing-false-claims-of-child-abuse-with-the-department-of-children-family-services/

4. Student v SMMUSD:

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

https://lawofficesofbarryfagan.wordpress.com/2015/06/04/student-vs-santa-monica-malibu-unified-school-district-re-the-santa-monica-malibu-unified-school-district-did-not-act-reasonably-when-it-chose-to-conduct-an-iep-meeting-without-pa/

*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

http://www.smmusd.org/brd1415/min062915_spmtg.pdf

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:

https://lawofficesofbarryfagan.wordpress.com/2015/10/19/the-santa-monica-malibu-unified-school-district-has-created-a-two-track-educational-system-that-excludes-many-students-with-disabilities-from-completing-courses-offering-a-to-g-grading-thus-precludin/

5. Other Superintendent Sandra Lyon’s Errors in Judgment:

“SANTA MONICA TEACHER WAS RIGHT, SUPERINTENDENT WAS VERY, VERY WRONG”

April 07, 2014|By Robin Abcarian (LA Times Reporter)

http://articles.latimes.com/2014/apr/07/local/la-me-ra-santa-monica-teacher-was-right-20140407

http://patch.com/california/santamonica/fire-sandra-lyons

https://www.change.org/p/sandra-lyon-and-smmusd-school-board-an-apology-from-superintendent-sandra-lyon-to-mark-black-for-throwing-him-and-all-teachers-under-the-bus-as-well-as-for-making-a-biased-inflammatory-response-to-mark-s-heroic-classroom-actions

6. Severe Bullying at Malibu High School and Superintendent Sandra Lyon’s Ratification of the Conduct:

http://www.santamonicadispatch.com/2014/02/victim-becomes-villain-in-malibu-controversy/

For details of this pending litigation, go to:

https://lawofficesofbarryfagan.wordpress.com/2014/08/24/severe-bullying-at-malibu-high-school-the-smmusds-ratification-of-the-conduct/

IMAG0391

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.

http://www.peer.org/news/news-releases/pcbs-removed-from-santa-monica-schools-but-left-in-malibu.html

8. WHISTLEBLOWER PARENT DISCLOSES DRUG AND ALCOHOL PROBLEMS ON MALIBU HIGH SCHOOL’S BASEBALL TEAM

For details, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/05/05/whistleblower-parent-discloses-drug-and-alcohol-problem-on-malibu-high-school-baseball-team/

9. AMERICA UNITES FOR KIDS & PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY vs. SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT

UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Western Division – Los Angeles)

CIVIL DOCKET FOR CASE #: 2:15-cv-02124-PA-AJW

The Santa Monica Malibu Unified School District is Ordered to Stand Trial on May 17, 2016 for Failure to Protect Students & Teachers from Toxic Levels of PCBs

For details, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/08/15/america-unites-for-kids-peer-v-sandra-lyon-et-al-re-the-santa-monica-malibu-unified-school-district-is-ordered-to-stand-trial-on-may-17-2016-for-failure-to-protect-students-teachers-fro/

See link to America Unites for Kids & PEER’s Complaint against the Santa Monica-Malibu Unified School District For Violations of The Toxic Substances Control Act (TSCA).

https://lawofficesofbarryfagan.files.wordpress.com/2015/03/document-52.pdf

ON OCTOBER 24, 2015 AMERICA UNITES FOR KIDS RELEASED ADDITIONAL DISCOVERY CONCERNING SUPERINTENDENT SANDRA LYON.

In 2013-14, Superintendent Sandra Lyon did not tell Malibu High School teachers and parents that their children were occupying classrooms that the previous teacher just reported having thyroid cancer as well as other previous teachers also having cancer.

These rooms then tested at 570,000 ppm of PCBs! The highest level ever found in the NATION!
This public records request proves that Sandra Lyon knew and was asked by the Juan Cabrillo principal when Lyon was going to tell teachers and parents about it (which was never!) Anyone thinking Child endangerment?
Click on picture to expand:

 

10. 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.

11. 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

http://www.jdsupra.com/legalnews/verified-petition-for-writ-of-mandate-di-72936/

See pdf attachment of Professor Michael Chwe’s Public Records Act lawsuit against the Santa Monica Malibu Unified School District:

dwt20110223

The Santa Monica Malibu Unified School District Was Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers

http://www.jdsupra.com/legalnews/the-santa-monica-malibu-unified-school-d-42102/

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:

B231787-1

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

https://lawofficesofbarryfagan.wordpress.com/2015/07/04/it-is-time-to-fire-the-santa-monica-malibu-unified-school-districts-superintendent-sandra-lyon/

See pdf copy:

IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON

See link to Change.org Petition:

https://www.change.org/p/the-santa-monica-malibu-unified-school-district-s-board-of-education-it-s-time-to-fire-santa-monica-malibu-unified-school-district-s-superintendent-sandra-lyon

Email the Santa Monica Unified School District’s Board of Education:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org

Taxpayers Demand Investigation Into The SMMUSD Board Of Education’s President Laurie Lieberman and her Connection To Pillsbury Law Firm

Parents battle district over toxic PCBs in Malibu public schools

For details, go to:

http://www.scpr.org/news/2016/03/03/58118/parents-battle-district-over-toxic-pcb-s-in-malibu/

See America Unites For Kids News Alert

Demanding Investigation into Mismanagement of Funds and Laurie Lieberman’s Connection to Pillsbury Law Firm:

http://us9.campaign-archive2.com/?u=7f78cd97057aa8eaeb574d18d&id=893ca96972&e=b8bf88a019

FullSizeRender-5-1

Pillsbury Law Firm’s Legal Bills Reach $3.38 Million after another $500K was approved at the March 3rd, 2016 Santa Monica Malibu Unified School District Board of Education Meeting.

United States District Court Judge Percy Anderson Declares Pillsbury Law Firm’s Request For Attorneys Fees To Be Excessive And Not Adequately Supported by The Record

See Court’s Order here:

AU v SMMUSD RE COURT AWARDS $28000 AND DECLARES PILLSBURY LAW FIRM BILLING EXCESSIVE

Local parents and taxpayers are outraged that the school district has now spent more than $8 million to avoid removing hazardous waste, known as PCBs, from its schools; this includes a whopping $3.38 million spent on the law firm Pillsbury, Winthrop, Shaw and Pittman in only 2 years. The estimated cost of removing the PCBs is far less than those legal bills alone. Parents and taxpayers have raised questions about why a school district would spend 10 times more to force kids in classrooms with known toxic hazardous waste.

New information expands this questioning into the law firm’s selection, spending and strategy, the propriety of the School Board President Laurie Lieberman’s involvement in PCB-related votes, and the firm’s connections to Monsanto, the leading manufacturer of PCBs.

PCBs and Monsanto are in the news right now due to an ongoing a Los Angeles Superior Court trial where plaintiffs allege cancer as a result of PCB exposure. In addition, there is legislation pending, H.R.2576, to amend the Federal Toxic Substances Control Act in a manner that The New York Times reports may give Monsanto a ‘get out of jail free card’ relating to its PCB liability. Harvard researchers estimate that up to 20 million children nationally may be exposed to PCBs in their schools, making the Malibu case of broad importance.

See America Unites for Kids News Alert concerning Congress seeking to shift PCB remediation costs to school districts, and to abolish Monsanto’s liability for more than 80,000 miles of PCB-contaminated streams and rivers:

http://us9.campaign-archive2.com/?u=7f78cd97057aa8eaeb574d18d&id=88c54fecb2&e=b8bf88a019

Pillsbury is leading the fight on behalf of SMMUSD against parents and teachers who filed a citizen’s suit eleven months ago that does not seek any monetary damages, only an order from a Federal judge to remove illegal and hazardous PCBs from Malibu public schools. Removal is estimated to cost $750,000 to $1.5 million, and parents are shocked that Pillsbury’s legal fees alone far exceed this amount.

When consultant costs are factored in, the Pillsbury-led strategy to prevent identification and removal of PCBs has cost taxpayers more than $10 million, an amount that will continue to rise if the board keeps approving Superintendent Lyon’s spending requests — last week, the board approved an additional $500,000 for PIllsbury.

While public school districts routinely engage in sophisticated and competitive bidding processes for things like books and landscaping services, Pillsbury was hired to perform millions of dollars of legal work based on the recommendation of School Board President Laurie Lieberman through her husband’s law partner, Tom Larmore. Before becoming a law partner with Lieberman’s husband, Larmore was a partner at Pillsbury.

In response to a public records request, Gail Pinsker, SMMUSD’s public relations officer wrote, “In the case of Pillsbury, I am able to confirm that Tom Larmore, who is very involved on the district’s Financial Oversight Committee on which he has served for years, originally referred us to the Pillsbury firm, where he had been previously employed.”

Larmore currently sits on the district’s financial oversight committee and is representing Santa Monica on the committee to create a separate Malibu school district. In 2014, when Ben Allen was elected to the CA State Senate and his board seat was vacated, Larmore asked to be appointed to the board. The only vote Larmore received from the remaining six board members was from Laurie Lieberman.

The connections between Pillsbury, Larmore and Lieberman were not disclosed to the public in advance of the firm’s hiring. Also not disclosed to the public was the fact that Pillsbury represented a Monsanto spin-off (Solutia) in a bankruptcy case from 2003-2008. Monsanto was the only U.S. manufacturer of PCBs, and Solutia was formed through a divesture of its chemical business . Over the past two years, numerous legal teams approached SMMUSD suggesting, at no charge to the district, to file a case against Monsanto and Solutia to pay for PCB removal, as many other school districts have done. Pillsbury recommended against it.

PCBs are dangerous to Children and Teachers: International PCB expert David O. Carpenter, M.D., spoke to the Malibu community for several hours last week at Pepperdine University about the dangers of PCBs.

“What we need to do is get the PCBs out,” Carpenter said. “When I get asked what level of PCBs are safe, I say, ‘zero molecules.’ Any molecule is harmful. The more you have, the more harm.”

Declaration of renowned PCB Expert Dr. David Carpenter confirming that PCBs at Malibu High School greatly exceed legal limits under the TSCA, and inhalation of PCB vapors constitutes a continuous hazard to teachers and students:

See pdf copy of Dr. David Carpenter’s Declaration:

DECLARATION OF RENOWNED PCB EXPERT DR. DAVID CARPENTER

Expert to Community: ‘There Are No Safe Levels of PCB’

Dr. David Carpenter told a group of parents, teachers and community members at a town forum the toxic chemical is unsafe at any level. For details, go to:

http://patch.com/california/malibu/expert-community-there-are-no-safe-level-pcb-0?utm_source=newsletter-daily&utm_medium=email&utm_term=schools&utm_campaign=newsletter&utm_content=article-topstories

See peer-reviewed article by Dr. David Carpenter concerning the dangers of inhaling PCB vapors:

385.__volatile_pcbs

SMMUSD sent statements to the press trying to discredit Dr. Carpenter as being a biased expert witness for the plaintiffs, despite his extensive resume and recognition by other world experts. In fact, Pillsbury trusted the expertise of Dr. Carpenter when they retained him as an expert witness for them in 2006 when they represented shareholders of a Monsanto spin off called SOLUTIA in a PCB liability case.

Malibu High School Teachers’ Plea to the SMMUSD’s Board of Education for PCB-free Classrooms

See video of several Malibu High School Teachers’ Plea to the SMMUSD’s Board of Education:

See YouTube Video here:

https://youtu.be/Kg4hIiiovG0

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

THIRTY THREE MALIBU HIGH SCHOOL TEACHERS HAVE DECLARED THAT THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT IS NOT COMPLYING WITH THEIR OWN BEST MANAGEMENT PRACTICES AND THEREFORE THEY ARE IN VIOLATION OF THE EPA REGION 9 PCB GUIDELINES.

For details, go to:

MALIBU HIGH SCHOOL HAS PROBLEMS WITH CANCER, PCBs, RATS, RODENTCIDES, DRUGS, ALCOHOL, SEVERE BULLYING AND NOW A STUDENT’S GUN FOUND ON CAMPUS

EPA Guidelines that are already ill advised according to renowned PCB expert Dr. David Carpenter.

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

The SMMUSD 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 Santa Monica-Malibu Unified School District has thereby put the health of their students and teachers at risk.

IT’S TIME TO FIRE THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT’S SUPERINTENDENT SANDRA LYON

https://lawofficesofbarryfagan.wordpress.com/2015/07/04/it-is-time-to-fire-the-santa-monica-malibu-unified-school-districts-superintendent-sandra-lyon/

See pdf copy:

IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON

See link to Change.org Petition:

https://www.change.org/p/the-santa-monica-malibu-unified-school-district-s-board-of-education-it-s-time-to-fire-santa-monica-malibu-unified-school-district-s-superintendent-sandra-lyon

Email the Santa Monica Unified School District’s Board of Education:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org

The Santa Monica Malibu Unified School District Intentionally Discriminated Against its Disabled Students and Willfully Ignored Their “Child Find” Obligations in Violation of Section 504, ADA, and UNRUH Civil Rights Act

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

Case No. 2:15-cv-09339-RSWLDTB

Liz Soto, Dan Chapman, Tab Chapman vs. Santa Monica-Malibu Unified School District

Complaint for Intentional Discrimination and Willfully Ignoring “Child Find Obligations” in Violation of Section 504, ADA, and UNRUH Civil Rights Act

The Santa Monica Malibu Unified School District has a demonstrated policy of intentional discrimination and deliberate indifference when it comes to educating students with known disabilities.

The Santa Monica Unified School District (SMMUSD) officials had policies of inaction that resulted in failures to provide adequate procedural safeguards and failure to train their staff.

The SMMUSD’s failure to execute its “child find” duty and evaluation obligations under Section 504 constituted intentional discrimination in that their failure to act was not just negligent; it was a deliberate choice to not act evidencing discriminatory intent.

That SMMUSD acted with deliberate indifference as shown by the facts that the SMMUSD had knowledge of facts tending to establish that Student had a suspected disability:

1) The SMMUSD had knowledge from which an inference could be drawn that a harm to Student’s federally protected right to be identified and evaluated under Section 504 was substantially likely to occur, and

2) The SMMUSD failed to act upon that likelihood when they refused to evaluate Student. These policies included failure to adequately and properly train school staff regarding compliance with their mandatory duties.

Through the policies of the Santa Monica Malibu Unified School District, the SMMUSD exhibited a deliberate indifference to the foreseeable consequences of the violations, including the foreseeable consequence of abuse of students with disabilities.

As a direct and proximate result of the Santa Monica Malibu Unified School District’s violations of law, Plaintiffs suffered out-of-pocket expenses and mental and emotional distress.

See JD Supra article:

http://www.jdsupra.com/legalnews/complaint-for-intentional-discrimination-94039/

See pdf copy of Complaint:

STUDENT vs. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT RE VIOLATIONS SECTION 504 THE ADA AND UNRUH ACT

See Notice of Settlement:

STUDENT vs. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT RE STIPULATED SETTLEMENT

Other Santa Monica Malibu Unified School District Intentional Discrimination Cases:

1. 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,”.

Mark Kelly’s knowledge that Student 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.

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.

A Public Record Act request has been served upon the SMMUSD to receive the Debra Reilly “investigation Report” concerning the two UCP Compliance Complaints against the SMMUSD, and Assistant Superintendent Mark Kelly.
Complaints and/or charges of misconduct against a public employee can/must be disclosed if “the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded.” (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal. App. 4th 1041, 1044; see also BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742.)

2. Student v Santa Monica Malibu Unified School District:

9th Circuit Court of Appeals Case No. 13-55665

The Santa Monica Malibu Unified School District Did Not Act “Reasonably” When It Chose To Conduct An IEP Meeting Without the Parents’ Presence

For details of this SMMUSD litigation, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/06/04/student-vs-santa-monica-malibu-unified-school-district-re-the-santa-monica-malibu-unified-school-district-did-not-act-reasonably-when-it-chose-to-conduct-an-iep-meeting-without-pa/

*Legal Fees in the amount of $215,000 were approved by the SMMUSD’s Board of Education on June 29, 2015.

See June 29, 2015 Board of Education Minutes: Re: Attorney’s Fee Settlement in the amount of $215,000

http://www.smmusd.org/brd1415/min062915_spmtg.pdf

3. DREW BALAGUER, REINA ROBERTS, and MARK BALAGUER v. SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT

See Case No. 2:14-cv-06823-CBM-MRW Complaint here: document-142

See Plaintiffs’ Case No. 2:14-cv-06823-CBM-MRW Motion To Compel Further Responses here:document-143

“Plaintiffs ask this court to issue an order (3) compelling (a) Dr. Woolverton to respond to questions raised about documents produced by the Defendant which she previously refused to (upon the advice of counsel) to answer of the grounds that such questions sought information protected by attorney-client privilege; and (b) Ms. Keleher to respond to similar questions which she also refused to answer upon the advice of counsel

See Case No. 2:14-cv-06823-CBM-MRW Notice of Settlement here:document-141

DN-1002-15/16 (Special Education)
(postponed from 11/19/15)
Legal fees: $137,500
The total cost for this case is not to exceed $137,500. It was moved by Ms. Leon-Vazquez, seconded by Mr. Foster, and voted 6/0 (Dr. Escarce was absent) to approve the settlement case.

For details, go to:

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

https://lawofficesofbarryfagan.wordpress.com/2015/10/19/the-santa-monica-malibu-unified-school-district-has-created-a-two-track-educational-system-that-excludes-many-students-with-disabilities-from-completing-courses-offering-a-to-g-grading-thus-precludin/

4. 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

MICHAEL CHWE vs. SMMUSD RE WRIT OF MANDATE COMPLAINT

http://www.jdsupra.com/legalnews/verified-petition-for-writ-of-mandate-di-72936/

The Santa Monica Malibu Unified School District Was Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers

MICHAEL CHWE vs SMMUSD RE APPEALS COURT PUBLISHED OPINION

http://www.jdsupra.com/legalnews/the-santa-monica-malibu-unified-school-d-42102

Public Record Act requests for employee disciplinary records, investigative reports and/or complaints or charges of misconduct against public employees must be disclosed if “the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded.” (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal. App. 4th 1041, 1044; see also BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742.)

FFF_CA Public Records_V11

The Santa Monica-Malibu Unified School District

Board of Education

SPECIAL EDUCATION SETTLEMENTS

November 2013 to December 2015

Pursuant to Government Code §54956.9(d)(2)

1. DN-1001-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1001-13/14 was as follows:
a) Legal Costs: $16,000
The total cost for this case is not to exceed $16,000. It was moved by Mr. Mechur,
seconded by Mr. Patel, and voted 6/0 (Mr. de la Torre was absent) to approve the
settlement case.

2. DN-1002-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1002-13/14
was as follows:
a) Legal Costs: $14,000
The total cost for this case is not to exceed $14,000. It was moved by Mr. Mechur,
seconded by Mr. Patel, and voted 6/0 (Mr. de la Torre was absent) to approve the
settlement case.

3. DN-1003-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1003-13/14 was as follows:
a) Legal Costs: $6,500
The total cost for this case is not to exceed $6,500.
It was moved by Mr. Mechur, seconded by Mr. Patel, and voted 6/0 (Mr. de la Torre
was absent) to approve the settlement case.

4. DN-1004-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1004-13/14 was as follows:
a) Parent Reimbursement: $38,000
The total cost for this case is not to exceed $38,000. It was moved by Dr. Escarce,
seconded by Mr. de la Torre, and voted 7/0 to approve the settlement case.

5. DN-1006-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1006-13/14 was as follows:
a) Parent Reimbursement: $19,000
The total cost for this case is not to exceed $19,000. It was moved by Ms. Lieberman,
seconded by Mr. Allen, and voted 7/0 to approve the settlement case.

6. DN-1007-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1007-13/14 was as follows:
a) Parent Reimbursement: $13,600
b) Legal Cost: $15,000
The total cost for this case is not to exceed $28,600. It was moved by Mr. Mechur,
seconded by Dr. Escarce, and voted 7/0 to approve the settlement case.

7. DN-1008-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1008-13/14 was as follows:
a) Parent Reimbursement: $60,000
The total cost for this case is not to exceed $60,000. It was moved by Mr. Mechur,
seconded by Dr. Escarce, and voted 7/0 to approve the settlement case.

8. DN-1009-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1009-13/14 was as follows:
a)Legal Cost: $5,500
b) Parent Reimbursement: $7,500
The amended total cost for this case is not to exceed $13,000. It was moved by Mr.
Mechur, seconded by Dr. Escarce, and voted 7/0 to approve the settlement case.

9. DN-1005-13/14 (Special Education)
The substance of settlement agreement in case No. DN-1005-13/14 was as follows:
a) Legal Cost: $5,000
b)Parent Reimbursement: $17,789.48
The total cost for this case is not to exceed$ 22,789.48. It was moved by Dr. Escarce,
seconded by Ms. Lieberman, and voted 7/0 to approve the settlement case.

10. Student vs. SMMUSD, OAH Case No. 2013051152
Administrative Law Judge (ALJ) Eileen M. Cohn, determined on December 23, 2013 that the
SMMUSD must reimburse parents for all of their tuition costs for a Non-Public School (NPS)
along with reimbursement for all tutoring expenses.
These amounts exceed $56,970.99 in tuition reimbursement thus far, and does not include
approx. $70,000 inattorneys fees. This tuition will need to be reimbursed for 3-4 more years as well.

11. DN-1002-14/15 (Special Education)

Legal Fees: $70,000

The total cost for this case is not to exceed $70,000. It was moved by Ms. Lieberman, seconded by Mr. Patel, and voted 7/0 to approve the settlement case.

12. DN-1003-14/15 (Special Education)

Parent Reimbursement: $ 5,000/month (11/1/14 through 7/31/15)

The total cost for this case is not to exceed $45,000. It was moved by Ms. Lieberman, seconded by Dr. Tahvildaran-Jesswein, and voted 5/0 (Dr. Escarcewas absent) to approve the settlement case.

13. DN-1004-14/15 (Special Education)

Educational Evaluation Services: $11,485

Legal Fees: $TBD as per OAH Case No. 2014040578

It was moved by Ms. Lieberman, seconded by Dr. Tahvildaran-Jesswein, and voted 5/0 (Dr. Escarce was absent) to approve the settlement case.

14. DN-1005-14/15 (Special Education)

Parent Reimbursement: $2,200/month during school year (through 2019-2020 or whenever the student graduates from high school, whichever comes first) It was moved by Ms. Lieberman, seconded by Mr. Mechur, and voted 6/0 (Mr. de la Torre was absent) to approve the settlement case.

15. DN-1006-14/15 (Special Education)

Parent reimbursement (legal fees & other related costs): $9,000
The total cost for this case is not to exceed $9,000
It was moved by Mr. Mechur, seconded by Ms. Lieberman, and voted 6/0 (Ms. Leon-Vazquez was absent) to approve the settlement case.

16. DN-1007-14/15 (Special Education)

Parent Reimbursement (educational placement & services): $55,000
The total cost for this case is not to exceed $55,000. It was moved by Dr. Tahvildaran-Jesswein, seconded by Mr. Foster, and voted 6/0(Ms. Leon-Vazquez was absent) to approve the settlement case.

17. See June 29, 2015 Board of Education Minutes: Re: Attorney’s Fee Settlement in the amount of $215,000:

http://www.smmusd.org/brd1415/min062915_spmtg.pdf

DN-1009-14/15 (Special Education)
Legal fees & other related costs: $215,000
It was moved by Mr. Mechur, seconded by Ms. Lieberman, and voted 6/0 (Ms.Leon-Vazquez was absent) to approve the settlement case. Ayes: 6 (Lieberman, Escarce, de la Torre, Foster, Tahvildaran-Jesswein, Mechur)
September 2, 2015

18. DN-1001-15/16 (Special Education)

Attorney fees: $26,000
The total cost for this case is not to exceed $26,000. It was moved by Mr. De la Torre, seconded byMs. Leon-Vazquez, and voted 7/0 to approve the settlement case. Ayes: 7
October 1, 2015
19. DN-1002-15/16 (Special Education) TBD

20. DN-1003-15/16 (Special Education)
Legal fees $5,000
21. DN-1004-15/16 (Special Education)
Parent reimbursement: $6,000
22. DN-1005-15/16 (Special Education)
Parent reimbursement: $6,000
October 15, 2015

23. DN-1006-15/16 (Special Education) TBD

December 10, 2015
24. DN-1002-15/16 (Special Education)
(postponed from 11/19/15)
Legal fees: $137,500
The total cost for this case is not to exceed $137,500. It was moved by Ms. Leon-Vazquez, seconded by Mr. Foster, and voted 6/0 (Dr. Escarce was absent) to approve the settlement case.
25. DN-1007-15/16 (Special Education)
Parent reimbursement: $16,920
Legal fees: $4,410
The total cost for this case is not to exceed $21,330.
It was moved by Ms. Leon-Vazquez, seconded by Mr. Foster, and voted 6/0 (Dr. Escarce was absent) to approve the settlement case. Ayes: 6 (Lieberman, de la Torre, Leon- Vazquez, Foster, Tahvildaran-Jesswein, Mechur)
26. DN-1008-15/16 (Special Education)
Parent reimbursement: $18,500
Legal fees: $24,000
The total cost for this case is not to exceed $42,500.
It was moved by Ms. Leon-Vazquez, seconded by Mr. Foster, and voted 6/0 (Dr.
Escarce was absent) to approve the settlement case.

Below is how the Santa Monica-Malibu Unified School District treats some of its Special Education families.

See link to Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School Disrict’s Retaliatory Acts Against Students and Parents by filing false claims of child abuse with the Department of Children and Family Services:

http://www.santamonicadispatch.com/2009/01/smmusd-vs-student/

SMMUSD vs. Student

By Debra Shepherd

Good evening Council members. I am the parent of a child in general education and a child who requires special education services. I am also a member of the Working Group.

Although the non-disclosure agreements are no longer being used to my knowledge, the environment that brought about the use of those agreements still exists.

When a problem arises, there does not seem to be an ability to resolve the problem without input from the attorneys. Since November of 2008, the District has been more adversarial toward my family by threatening me with due process litigation at tax payers’ expense. The SMMUSD refuses to even acknowledge that my daughter has an autism spectrum disorder despite multiple pages of detailed assessments from UCLA in a school setting that have been a part of my child’s records for the last 4 years.

The District is also attempting to take needed services and accommodations out of my child’s educational program. I had to fight for two years for my daughter to receive occupational therapy services.

My extended family has also traveled thousands of miles to help me with these issues. The SMMUSD would rather spend thousands of tax payer dollars suing me than pay for a needed assessment for my child or provide her with a free and appropriate education as mandated by law.

I thought that we had reached our lowest point in the journey when school staff filed a false report against me with child services in retaliation against me for hiring an attorney. My youngest child is still not recovered from the trauma of that incident. I am also disturbed by the number of families of color that have left the district. When families of color complain about how they are treated by the district, their address is verified. This whole situation has taken a toll on my health and the well-being of my family.

See links to other litigation relating to other SMMUSD Retaliatory Acts:

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:

https://lawofficesofbarryfagan.wordpress.com/2014/08/25/santa-monica-dispatch-article-concerning-smmusds-retaliatory-acts-against-students-and-parents-by-filing-false-claims-of-child-abuse-with-the-department-of-children-family-services/

See link to Malibu Times Article Entitled “School Woes”

http://www.malibutimes.com/opinion/article_37232886-0af6-11e5-9805-c79129c3012e.html

See SMMUSD District Parent’s comment:

beachshopgirl posted at 12:07 pm on Mon, Jun 8, 2015.

The SMMUSD has an inordinate amount of due process cases (16 this school term). That would be the norm for a district five times this size. If they go that hard against the parents of children with disabilities that should tell everyone else something. The District will never stop fighting this lawsuit from all indications, regardless of the insane conclusion that is bound to occur. It’s pathetic that they are willing to burn down the village in an effort to avoid repairing it. It’s time for a new Board of Education, a new Superintendent and a new Director of Special Education Services. We need people in leadership that understand that tax dollars are not monopoly money and that this is not a private parts measuring contest.

The SMMUSD’s Adversarial Posturing is Costing the SMMUSD Hundreds of Thousands of Dollars and Causing Unnecessary Harm to These Special Education Families.

The Santa Monica-Malibu Unified School District’s Superintendent Sandra Lyon should be fired for not adequately protecting the School District’s students from all of this continuing harm.

For details, go to:

It’s time to fire Superintendent Sandra Lyon

https://lawofficesofbarryfagan.wordpress.com/2015/07/04/it-is-time-to-fire-the-santa-monica-malibu-unified-school-districts-superintendent-sandra-lyon/

See pdf copy:

IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON

See link to Change.org Petition:

https://www.change.org/p/the-santa-monica-malibu-unified-school-district-s-board-of-education-it-s-time-to-fire-santa-monica-malibu-unified-school-district-s-superintendent-sandra-lyon

Email the Santa Monica Unified School District’s Board of Education:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org

 

 

 

The Santa Monica Malibu Unified School District is Attempting to Shake Down Malibu Parents & Teachers with $160,000 in Sanctions for Only $1,798 in Repair Costs

The Santa Monica Malibu Unified School District was ordered by the Court to submit their actual repair costs for repair of the alleged damages raised when only slivers of PCBs were removed from 50 year old window caulking.

Environ spent $55,000 to figure out what the damages were and how to fix them. They ultimately concluded that there were only $1798 in repair costs, a far cry from the $100,000 that they had previously told the court.

This $1798 is literally for the custodians to use a caulk gun and caulk over the caulk and also paint brown epoxy over a few areas around the windows. Even $1798 is overpriced, but the idea that they spent more than THIRTY (30) times more than $1798 to figure out what to do is both outrageous and a waste of tax payers dollars.

The Santa Monica Malibu Unified School District’s attorneys, Pillsbury law firm says that they also spent $36,000 to research what kind of sanctions to file and $67,000 to file one motion.

Pillsbury law firm spent approx, $4000 to go to Juan Cabrillo to interview 2 teachers.

Pillsbury law firm spent over $10,000 in one day after they received a letter to EPA from Congressman Ted Lieu’s office.

This $67,000 means that that the Pillsbury law firm spent 2 full weeks on this one motion that was only 15 pages long. That’s $4500 per page!

United States District Court Judge Percy Anderson Declares Pillsbury Law Firm’s Request For Attorneys Fees To Be Excessive And Not Adequately Supported by The Record

See pdf copy of the Court’s Order:

AU v SMMUSD RE COURT AWARDS $28000 AND DECLARES PILLSBURY LAW FIRM BILLING EXCESSIVE

Why would the Santa Monica Malibu Unified School District’s Board of Education give approval for the school district to spend over $160,000 to recover $1798 in actual repair cost, even the Court did not buy it. (See Repair costs below)

See pdf copy:

SMMUSD ALLEGED EXPENDITURES FOR MALIBU HIGH SCHOOL REPAIRS

This is an absolute abuse of public money, and an abuse of our public trust

District Attorney Will Not Pursue Charges for Alleged MHS Vandalism

Allegations Are Dead in the Water for School District

The District Attorney could not even find $400 in alleged damages despite the fact that the SMMUSD told the Police that damages were in excess of $17,000.

While this seems like a bad business decision, recovering damages was not their goal, burying the evidence of PCB contamination was.

Spending $160,000 was worth it to the Santa Monica Malibu Unified School District because the Court also excluded evidence which proves that the Santa Monica Malibu Unified School District is in direct violation of the TSCA law, and is also putting all of their students and teachers at risk.

Malibu Schools Drain $8 Million From SMMUSD In Legal Fees

For details, go to:

http://www.smmirror.com/articles/News/Malibu-Schools-Drain-8-Million-From-SMMUSD-In-Legal-Fees/45152

The Santa Monica Malibu Unified School District is Attempting to Shake Down Malibu Parents & Teachers with $160,000 in Sanctions for Only $1,798 in Repair Costs

See link to JD Supra article:

http://www.jdsupra.com/legalnews/the-santa-monica-malibu-unified-school-d-68898/

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

THIRTY THREE MALIBU HIGH SCHOOL TEACHERS HAVE DECLARED THAT THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT IS NOT COMPLYING WITH THEIR OWN BEST MANAGEMENT PRACTICES AND THEREFORE THEY ARE IN VIOLATION OF THE EPA REGION 9 PCB GUIDELINES.

For details, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/12/10/malibu-high-schools-problems-with-cancer-pcbs-rodentcides-drugs-alcohol-severe-bullying-and-now-a-students-gun-on-campus-whats-next/

EPA Guidelines that are already ill advised according to renowned PCB expert Dr. David Carpenter.

SEE YOUTUBE VIDEO OF SEVERAL MALIBU HIGH SCHOOL TEACHERS PLEADING WITH THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT FOR A SAFE PLACE TO WORK

As a result, students and teachers continue to get sick. (See list of illnesses below)

There are many other troubling issues with the Santa Monica Malibu Unified School District’s Malibu High School.

1. STUDENT vs. WENDY WAX GELLIS & THE 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:

https://lawofficesofbarryfagan.wordpress.com/2014/08/25/santa-monica-dispatch-article-concerning-smmusds-retaliatory-acts-against-students-and-parents-by-filing-false-claims-of-child-abuse-with-the-department-of-children-family-services/

2Severe Bullying at Malibu High School and Superintendent Sandra Lyon’s Ratification of the Conduct:

Student vs. Sebastian Dane Sartorius; Jordan Clarke;

Santa Monica Malibu Unified School District et al.

http://www.santamonicadispatch.com/2014/02/victim-becomes-villain-in-malibu-controversy/

https://lawofficesofbarryfagan.wordpress.com/2014/08/24/severe-bullying-at-malibu-high-school-the-smmusds-ratification-of-the-conduct/

IMAG0391

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.

3. PCBS REMOVED FROM SANTA MONICA SCHOOLS BUT LEFT IN MALIBU SCHOOLS

Superintendent Sandra Lyon cares more about protecting landfills than protecting children and teachers.

http://www.peer.org/news/news-releases/pcbs-removed-from-santa-monica-schools-but-left-in-malibu.html

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.

All of which has caused America Unites for Kids and PEER to file a citizen’s lawsuit against the SMMUSD.

AMERICA UNITES FOR KIDS & PEER vs. SMMUSD

UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA

CIVIL DOCKET FOR CASE #: 2:15-cv-02124-PA-AJW

See link to America Unites for Kids and PEER’s First Amended Complaint against the SMMUSD:

document-52

https://lawofficesofbarryfagan.files.wordpress.com/2015/03/document-52.pdf

The person or persons responsible for the alleged violations are Sandra Lyon and Jan Maez, officials of the Santa Monica Malibu Unified School District; Oscar de la Torre, Joe Escarce, Maria Leon-Vazquez, Laurie Liebermann, Ralph Mechur, Nimish Patel, Craig Foster, and Richard Tavildaran-Jesswein, current members of the SMMUSD Board of Education.

4. 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. The Fumitoxin Tablet warning label says that re-occupancy cannot occur for a minimum of 72 hours, but based on the weather in Malibu, more likely 5 days. Sandra Lyon told parents that in 48 hours kids could return to the fields.

See America Unites For Kids Freedom of Information Act request dated Aug 22, 2015: Freedom Of Info Act Dec 22-1

See Malibu Parent’s letter to Superintendent Sandra Lyon and Published in the Malibu Times on September 4, 2015:

Malibu Parent’s Letter: Protecting Children

http://www.malibutimes.com/opinion/article_fcd1df0e-51c4-11e5-b14c-f35d240585b1.html?mode=story

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:

http://www.malibutimes.com/news/article_09817ee0-4bb1-11e5-b2b0-7f6db2b94b50.html

See City of Malibu Brochure Re: Poison Free Malibu:

BROCHURE%20Wildlife_antiPoison%20final_201403211343153527

America Unites for Kids link to Change.org’s Petition:

Petitioning SMMUSD Board of Education and Superintendent Sandra Lyon

Stop Poisoning our Children and our Environment

https://www.change.org/p/smmusd-board-of-education-and-superintendent-sandra-lyon-stop-poisoning-our-children-and-our-environment?recruiter=92014425&utm_source=share_petition&utm_medium=facebook&utm_campaign=share_facebook_responsive&utm_term=des-md-no_src-custom_msg&fb_ref=Default

5. The City of Malibu Unanimously Passes a Resolution to Form an Independent Malibu Unified School District

See link to Resolution here: CC150916_Item-1

6. THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT HAS FAILED ITS AFRICAN AMERICAN, HISPANIC, DISABLED & ECONOMICALLY DISADVANTAGED STUDENTS AT MALIBU HIGH SCHOOL, SANTA MONICA HIGH SCHOOL & JOHN MUIR ELEMENTARY SCHOOL

https://lawofficesofbarryfagan.wordpress.com/2015/09/13/the-santa-monia-malibu-unified-school-districts-caaspp-results-has-failed-its-african-american-hispanic-economically-disadvantaged-students-at-santa-monica-high-school-john-muir-element/

7. See link to the Santa Monica Malibu Unified School District’s Most Recent List of Expenditures relating to the Toxic Substances Control Act Violation Lawsuit (TSCA):

Over $8,000,000 spent so far and still rising!

http://malibuunites.com/wp-content/uploads/2015/09/Purchase-Orders-Approved-at-Board-Meetings2.pdf

Purchase-Orders-Approved-at-Board-Meetings2

8. DISTRICT ERROR CAUSES TEACHER WITH THYROID CANCER TO REMAIN IN TOXIC CLASSROOM

Defendant’s Calamity of Errors Validates Plaintiff’s PCB Lawsuit

For details, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/09/25/the-santa-monica-malibu-unified-school-districts-error-causes-teacher-with-thyroid-cancer-to-remain-in-toxic-classroom/

See map:

incorrect-PE-rooms-remediated

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.

9. WHISTLEBLOWER PARENT DISCLOSES DRUG AND ALCOHOL PROBLEMS ON MALIBU HIGH SCHOOL’S BASEBALL TEAM

For details, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/05/05/whistleblower-parent-discloses-drug-and-alcohol-problem-on-malibu-high-school-baseball-team/

10. 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.
PRA requests for employee disciplinary records, investigative reports and/or complaints against public employees
Generally, complaints and/or charges of misconduct against a public employee can/must be disclosed if “the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded.” (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal. App. 4th 1041, 1044; see also BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742.)
See pdf attachment explaining School District’s Public Records Act obligations:

11. 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

http://www.jdsupra.com/legalnews/verified-petition-for-writ-of-mandate-di-72936/

See pdf attachment of Professor Michael Chwe’s Public Records Act lawsuit against the Santa Monica Malibu Unified School District:

MICHAEL CHWE vs. SMMUSD RE WRIT OF MANDATE COMPLAINT

The Santa Monica Malibu Unified School District Was Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers

http://www.jdsupra.com/legalnews/the-santa-monica-malibu-unified-school-d-42102

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:

MICHAEL CHWE vs SMMUSD RE APPEALS COURT PUBLISHED OPINION

B231787-1

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
Baez was ultimately awarded over $3.2 million in attorney’s fees, and $2 million dollars in punitive damages against the Burbank Unified School District
See pdf copy of the Appellate Court’s January 2016 Decision:

12. See link to many other troubling issues with the Santa Monica Malibu Unified School District:

SMMUSD  IRRESPONSIBILITY  ENDANGERS  OUR  CHILDREN

The Santa Monica Malibu Unified School District demonstrates a consistent pattern of evading responsibility for child safety. The SMMUSD has refused to answer questions about teachers who have sexually abused and sexually harassed children, failed to inform parents when their children have been victims of potentially criminal harassment, destroyed evidence concerning harassment of children, asked parents to destroy emails and not talk to each other about teacher sexual harassment of children, removed evidence of child abuse from its own records, impugned the testimony of its own employees who report child abuse, ordered teacher’s aides to not talk to parents, tried to intimidate students and parents, tried to mislead parents about their legal rights, publicly misrepresented its own legal obligations, and violated California state law.

See link to Professor Michael Chwe’s Blog Concerning the Santa Monica Malibu Unified School District:

http://chwe.net/safety/failures.html

https://lawofficesofbarryfagan.wordpress.com/2014/08/24/smmusd-irresponsibility-endangers-our-children/

The Santa Monica-Malibu Unified School District’s Superintendent Sandra Lyon should be fired for not adequately protecting the School District’s students and teachers from this continuing harm.

For details, go to:

PCBs are known human carcinogens and inhalation of PCBs can cause cancer, heart disease, hypertension, diabetes, They also reduce IQ, learning and memory ability and thyroid cancer

Declaration of renowned PCB Expert Dr. David Carpenter confirming that PCBs at Malibu High School greatly exceed legal limits under the TSCA, and inhalation of PCB vapors constitutes a continuous hazard to teachers and students:

See pdf copy of Dr. David Carpenter’s Declaration:

DECLARATION OF RENOWNED PCB EXPERT DR. DAVID CARPENTER

See Expert Opinion and Peer-Reviewed Study of Dr. David Carpenter concerning PCBs at Malibu High School:

Report of Expert Carpenter, MD-1

David O. Carpenter
Exposure to and health effects of volatile PCBs

385.__volatile_pcbs

What Are Adverse Health Effects of PCB Exposure?

See link :

http://www.atsdr.cdc.gov/csem/csem.asp?csem=30&po=10

The EPA links PCBs to an array of serious illnesses

See link:

http://www3.epa.gov/epawaste/hazard/tsd/pcbs/pubs/effects.htm

Inhalation of PCBs reduce IQ, and cause learning  disabilities:

See link:

ehp-118-1654

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.

Several Malibu High School Teachers Plead with the SMMUSD’s Board of Education for PCB-free Classrooms

See video of several Malibu High School Teachers’ Plea to the SMMUSD’s Board of Education:

See YouTube Video here:

https://youtu.be/UYn6RZA0l9k

See YouTube Video here:

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.

Exhibit B to Katy Lapajne’s declaration includes evidence that thirty three (33) Malibu High school teachers have written a letter dated January 15, 2016 to the Santa Monica Malibu Unified School District declaring that the School District’s facilities manager admitted on January 8, 2016 that the SMMUSD’s Best Managements Practices (BMPs) for reducing concentrations of toxic PCBs and, therefore, potential exposure to PCBs has not been taking place at all. (See page 2 paragraph 17 of Teacher Katy Lapajne’s Declaration)

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

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

Expert to Community: ‘There Are No Safe Levels of PCB’

Dr. David Carpenter told a group of parents, teachers and community members at a town forum the toxic chemical is unsafe at any level.
For details, go to:

http://patch.com/california/malibu/expert-community-there-are-no-safe-level-pcb-0?utm_source=newsletter-daily&utm_medium=email&utm_term=schools&utm_campaign=newsletter&utm_content=article-topstories

Parents battle district over toxic PCBs in Malibu public schools

For details, go to:

http://www.scpr.org/news/2016/03/03/58118/parents-battle-district-over-toxic-pcb-s-in-malibu/

Malibu Schools Drain $8 Million From SMMUSD In Legal Fees

For details, go to:

http://www.smmirror.com/articles/News/Malibu-Schools-Drain-8-Million-From-SMMUSD-In-Legal-Fees/45152

UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Western Division – Los Angeles)
CIVIL DOCKET FOR CASE #: 2:15-cv-02124-PA-AJW

America Unites for Kids et al v. Sandra Lyon et al
Assigned to: Judge Percy Anderson
Referred to: Magistrate Judge Andrew J. Wistrich
Cause: 28:2201 Declaratory Judgment
Date Filed: 03/23/2015
Jury Demand: None
Nature of Suit: 893 Environmental Matters
Jurisdiction: Federal Question

AMERICA UNITES FOR KIDS, and PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY,
Plaintiffs,

v.

SANDRA LYON, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT,  JAN MAEZ, IN HER OFFICIAL CAPACITY AS ASSOCIATE SUPERINTENDENT AND CHIEF FINANCIAL OFFICER OF THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT, AND LAURIE LIEBERMAN, DR. JOSE ESCARCE, CRAIG FOSTER, MARIA LEON-VAZQUEZ, RICHARD TAHVILDARAN-JESSWEIN,  OSCAR DE LA TORRE, AND RALPH MECHUR, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE TOXIC SUBSTANCES CONTROL ACT

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.

 

The SMMUSD is now threatening to cut Art and other programs but is willing to spend $775,000 on attorneys (Pillsbury), and $3,225,000 on Consultants (Environ) who have been tasked with creating legal obstacles NOT to identify the sources of PCBs. See list of just some the SMMUSD’s expenditures to date: $8,000,000 and rising!

http://malibuunites.com/wp-content/uploads/2015/09/Purchase-Orders-Approved-at-Board-Meetings2.pdf

11200986_700561446719884_1823505260638714771_o

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.

1. Student v Wendy Wax Gellis & Santa Monica Malibu Unified School District:

See link to 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 and Family Services:

http://www.santamonicadispatch.com/2009/01/smmusd-vs-student/

The family alleges that an example of retaliatory action taken by Wendy Wax Gellis and the SMMUSD 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:

https://lawofficesofbarryfagan.wordpress.com/2014/08/25/santa-monica-dispatch-article-concerning-smmusds-retaliatory-acts-against-students-and-parents-by-filing-false-claims-of-child-abuse-with-the-department-of-children-family-services/

2. Student v SMMUSD:

9th Circuit Court of Appeals Case No. 13-55665 &District Court No. 2:12-cv-03059-SVWPJW

The Santa Monica Malibu Unified School District Did Not Act “Reasonably” When It Chose To Conduct An IEP Meeting Without the Parents’ Presence

For details of this other SMMUSD litigation, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/06/04/student-vs-santa-monica-malibu-unified-school-district-re-the-santa-monica-malibu-unified-school-district-did-not-act-reasonably-when-it-chose-to-conduct-an-iep-meeting-without-pa/

Before: FISHER, BEA and FRIEDLAND, Circuit Judges.
Appellant’s joint motion to continue deadline for motion requesting attorney’s fees, filed June 25, 2015, is granted. The request for attorney’s fees shall be filed on or before July 29, 2015. See June 29, 2015 Court Order: document-87

*Legal Fees in the amount of $215,000 were approved by the SMMUSD’s Board of Education on June 29, 2015.

See June 29, 2015 Board of Education Minutes: Re: Attorney’s Fee Settlement in the amount of $215,000

http://www.smmusd.org/brd1415/min062915_spmtg.pdf

DN-1009-14/15 (Special Education)
Legal fees & other related costs: $215,000
It was moved by Mr. Mechur, seconded by Ms. Lieberman, and voted 6/0 (Ms.Leon-Vazquez was absent) to approve the settlement case. Ayes: 6 (Lieberman, Escarce, de la Torre, Foster, Tahvildaran-Jesswein, Mechur)

The SMMUSD’s Adversarial Posturing is Costing the SMMUSD Hundreds of Thousands of Dollars and Causing Unnecessary Harm to These Special Education Families

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:

https://lawofficesofbarryfagan.wordpress.com/2015/10/19/the-santa-monica-malibu-unified-school-district-has-created-a-two-track-educational-system-that-excludes-many-students-with-disabilities-from-completing-courses-offering-a-to-g-grading-thus-precludin/

3. Other Superintendent Sandra Lyon’s Errors in Judgment:

“SANTA MONICA TEACHER WAS RIGHT, SUPERINTENDENT WAS VERY, VERY WRONG”

April 07, 2014|By Robin Abcarian (LA Times Reporter)

http://articles.latimes.com/2014/apr/07/local/la-me-ra-santa-monica-teacher-was-right-20140407

http://patch.com/california/santamonica/fire-sandra-lyons

https://www.change.org/p/sandra-lyon-and-smmusd-school-board-an-apology-from-superintendent-sandra-lyon-to-mark-black-for-throwing-him-and-all-teachers-under-the-bus-as-well-as-for-making-a-biased-inflammatory-response-to-mark-s-heroic-classroom-actions

4. Severe Bullying at Malibu High School and Superintendent Sandra Lyon’s Ratification of the Conduct:

Student vs. Santa Monica Malibu Unified School District;

Sebastian Dane Sartorius: Jordan Clarke et al.

http://www.santamonicadispatch.com/2014/02/victim-becomes-villain-in-malibu-controversy/

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.

5. 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.

Sandra Lyon’s reckless actions put kids and wildlife at risk. The Fumitoxin Tablet warning label says that re-occupancy cannot occur for a minimum of 72 hours, but based on the weather in Malibu, more likely 5 days. Sandra Lyon told parents that in 48 hours kids could return to the fields.

See America Unites For Kids Freedom of Information Act request dated Aug 22, 2015:

Freedom Of Info Act Dec 22-1

America Unites for Kids link to Change.org’s Petition:

Petitioning SMMUSD Board of Education and Superintendent Sandra Lyon

Stop Poisoning our Children and our Environment

https://www.change.org/p/smmusd-board-of-education-and-superintendent-sandra-lyon-stop-poisoning-our-children-and-our-environment?recruiter=92014425&utm_source=share_petition&utm_medium=facebook&utm_campaign=share_facebook_responsive&utm_term=des-md-no_src-custom_msg&fb_ref=Default

6. The City of Malibu Unanimously Passes a Resolution to Form an Independent Malibu Unified School District

See link to Resolution here: CC150916_Item-1

7. 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.
PRA requests for employee disciplinary records, investigative reports and/or complaints against public employees
Generally, complaints and/or charges of misconduct against a public employee can/must be disclosed if “the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded.” (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal. App. 4th 1041, 1044; see also BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742.)
See pdf attachment explaining School District’s Public Records Act obligations:

8. Other Santa Monica Malibu Unified School District Board of Education’s Errors in Judgment:

Superintendent Sandra Lyon Receives a Three Year Contract Extension:

Despite all of the above facts, on July 15, 2015 the Santa Monica Malibu Unified School District’s Board of Education has awarded Superintendent Sandra Lyon with a new three year Contract.

Santa Monica-Malibu Unified School District Superintendent Sandra L. Lyon was granted a new three-year contract Wednesday, raising her salary to $239,200 annually, among the highest in California. Sandra Lyon’s total compensation including fringe benefits is hard to determine, although it was put at $282,030 in 2013, according to Transparent California, a website that tracks salary and other compensation for public employees throughout the state.
For details, go to:

The Ninth Circuit Reversed Summary Judgment in Favor of School District on Claims of Discrimination Under Section 504 of The Rehabilitation Act and Title II of the Americans with Disabilities Act

STUDENT vs. MARK KELLY; BRANDON GALLAGHER; TARA BROWN; DINA MENDOZA; AL TRUNDLE & THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT

Disability Discrimination

The 9th Circuit reversed the district court’s summary judgment in favor of the school district on claims of discrimination under section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, reversed in part the district court’s summary judgment on tort claims under state law, and vacated a costs order in an action brought by a student and parents against a school district and related employees and principals.

Clarifying the standards for disability discrimination claims by disabled children based on access to educational services, the panel stated that the Individuals with Disabilities Education Act (“IDEA”) focuses on making a free appropriate public education (“FAPE”) available to disabled students through development of Individualized Education Programs (“IEPs”). The IDEA creates a cause of action for children and parents to pursue injunctive or other prospective relief through a civil action following an administrative due process hearing in order to compel compliance with the Act and proper implementation or modification of the child’s IEP.

Section 504 of the Rehabilitation Act is broader than the IDEA; it is concerned with discrimination in the provision of state services to all individuals with disabilities. The regulations adopted pursuant to section 504 require qualifying public schools to “provide a free appropriate public education to each qualified handicapped person.” FAPE is defined differently for purposes of section 504 than it is for the IDEA, and section 504’s regulations gauge the adequacy of services provided to disabled individuals by comparing them to the level of services provided to individuals who are not disabled.

Title II of the Americans with Disabilities Act (“ADA”) was modeled after section 504 and sets forth similar requirements for establishing a valid claim. A plaintiff bringing suit under section 504 or Title II of the ADA must show: (1) she is a qualified individual with a disability; (2) she was denied “a reasonable accommodation that [she] needs in order to enjoy meaningful access to the benefits of public services;” and (3) the program providing the benefit receives federal financial assistance.

To prevail on a claim for damages, the plaintiff must also prove a mens rea of intentional discrimination. The panel reversed the district court’s summary judgment on a claim that defendants denied the student meaningful access to educational benefits by violating 34 C.F.R. §§ 104.33(b)(1) and 104.34(a). The panel held that the parents’ consent to the student’s placement did not waive this claim.

The panel reversed the district court’s summary judgment on plaintiffs’ reasonable accommodation claim under section 504 and Title II. The panel concluded that a triable factual dispute existed as to whether the services plaintiffs faulted the school district for failing to provide were actually reasonable, necessary, and available accommodations for the student.

The district court also erred in dismissing plaintiffs’ damages claim for failure to show that the school district was on notice of the need for accommodation.

The 9th Circuit stated:

“To determine whether a defendant’s conduct was outrageous and a plaintiff’s emotional distress severe, courts have traditionally considered “defendant’s knowledge that the plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental condition.” Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 716 P.2d 1013, 1016 (Ariz. 1986) (in banc).

This focus on the plaintiff’s susceptibility to emotional distress is also referred to as the “eggshell plaintiff” rule. See Yanes v. Maricopa County, No. CV-11-0274, 2012 WL5989327, at *5 n.9 (Ariz. Ct. App. Nov. 8, 2012)

“The Restatement clearly recognizes the application of the eggshell plaintiff rule to claims for intentional infliction of emotional distress.” (citing Restatement (Second) of Torts § 46 cmt. j (Am. Law. Inst. 1965))); see also Restatement (Second) of Torts § 46 cmt. f

“The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.”

If Plaintiffs can establish that the school district’s conduct was extreme and outrageous, than a claim for intentional infliction of emotional distress can occur. Reasonable minds could differ in determining whether conduct is sufficiently extreme or outrageous that an IIED claim should survive summary judgment. Mintz, 905 P.2d at 563.“

A. DISABILITY DISCRIMINATION

Plaintiffs allege that Defendants’ 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. Defendants’ 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,

B. 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.
PRA requests for employee disciplinary records, investigative reports and/or complaints against public employees
Generally, complaints and/or charges of misconduct against a public employee can/must be disclosed if “the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded.” (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal. App. 4th 1041, 1044; see also BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742.)
See pdf attachment explaining School District’s Public Records Act obligations:

C. 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

http://www.jdsupra.com/legalnews/verified-petition-for-writ-of-mandate-di-72936/

See pdf attachment of Professor Michael Chwe’s Public Records Act lawsuit against the Santa Monica Malibu Unified School District:

MICHAEL CHWE vs. SMMUSD RE WRIT OF MANDATE COMPLAINT

dwt20110223

Even the SMMUSD believed that they were obligated to release the Investigation Report

See pdf attachment of the SMMUSD Appellate Brief:

SMMUSD BRIEF IN SUPPORT OF RELEASING INVESTIGATION REPORT BASED ON WELL FOUNDED COMPLAINT

The Santa Monica Malibu Unified School District Was Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers

http://www.jdsupra.com/legalnews/the-santa-monica-malibu-unified-school-d-42102/

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:

MICHAEL CHWE vs SMMUSD RE APPEALS COURT PUBLISHED OPINION

B231787-1

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 B208294Description:Petition granted by opinion

See link: http://chwe.net/safety/failures.html

See pdf attachment:

SMMUSD IRRESPONSIBILITY ENDANGERS OUR CHILDREN

The 9th Circuit also reversed the district court’s summary judgment on claims for assault, battery, and false imprisonment.

See pdf copy of the

A.G. v. Paradise Valley Unified School District

9th Circuit Opinion here:

13-16239

Sadly, there is so much dysfunction at the Santa Monica Malibu Unified School District

Other Santa Monica Malibu Unified School District litigation and Errors in Judgment

1. SEVERE BULLYING AT MALIBU HIGH SCHOOL & THE SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT’s RATIFICATION OF THE CONDUCT

Los Angeles Superior Court Complaint

Student vs. Santa Monica Malibu Unified School District;

Sebastian Dane Sartorius; Jordan Clarke et al.

About one in every four children in the United States is bullied regularly. It’s stunning to think that a quarter of our young people are having their lives ruined by the negative actions of others. And when you consider the levels of stress, depression and suicides in youngsters that can be tied in with this worrying epidemic, it brings the issue of bullying even sharper into focus. The situation needs addressing. And fast.

https://www.facebook.com/bullymovie/photos/a.137885059591313.24798.107214895991663/987550114624799/?type=3&theater

Parents of bullies can be sued

The financial and emotional consequences are potentially devastating

See Article here:

http://www.metrokids.com/MetroKids/November-2012/Bullies-parents-can-be-sued/

See Santa Monica Dispatch Article Entitled:

“Victim Becomes Villain in Malibu Controversy”

http://www.santamonicadispatch.com/2014/02/victim-becomes-villain-in-malibu-controversy/

A couple of incidents in the bleachers that overlook the swimming pool at Malibu High School two years ago are still reverberating through the school and the community and, ironically, the young victim has become the villain of the piece.

In November and December, 2012, on several occasions, during water polo team practice, a Varsity team player, Sebastian Sartorius committed what have been officially described as “multiple counts of battery” on a younger, smaller Junior Varsity team member who was sitting in the bleachers. On learning of the incident, High School principal Jerry Block removed Sartorius from the team.

Following the incidents, the younger boy left the team and discontinued his 9th grade PE class. He also told officials about two previous instances in which Sartorius had allegedly roughed him up.

Not only did members of both the Junior Varsity and Varsity water polo teams continue to harass the young boy, some parents and students spread stories that the so-called victim had exaggerated, describing what was obviously innocent water polo horseplay as serious assaults. At the same time, an online campaign expressed outrage at Sartorius’ being charged with battery and suspended, and some parents threatened to retaliate by withholding contributions they’d agreed to make to the school.

For more details, go to:

https://lawofficesofbarryfagan.wordpress.com/2014/08/24/severe-bullying-at-malibu-high-school-the-smmusds-ratification-of-the-conduct/

IMAG0391

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.

SIGNED UNDER PENALTY OF PERJURY AT SANTA MONICA, CA ON 12/20/2013.

2. STUDENT vs. WENDY WAX GELLIS & THE 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:

https://lawofficesofbarryfagan.wordpress.com/2014/08/25/santa-monica-dispatch-article-concerning-smmusds-retaliatory-acts-against-students-and-parents-by-filing-false-claims-of-child-abuse-with-the-department-of-children-family-services/

3. Student v SMMUSD:

9th Circuit Court of Appeals Case No. 13-55665 &District Court No. 2:12-cv-03059-SVWPJW

The Santa Monica Malibu Unified School District Did Not Act “Reasonably” When It Chose To Conduct An IEP Meeting Without the Parents’ Presence

For details of this other SMMUSD litigation, go to:

https://lawofficesofbarryfagan.wordpress.com/2015/06/04/student-vs-santa-monica-malibu-unified-school-district-re-the-santa-monica-malibu-unified-school-district-did-not-act-reasonably-when-it-chose-to-conduct-an-iep-meeting-without-pa/

*Legal Fees in the amount of $215,000 were approved by the SMMUSD’s Board of Education on June 29, 2015.

See June 29, 2015 Board of Education Minutes: Re: Attorney’s Fee Settlement in the amount of $215,000

http://www.smmusd.org/brd1415/min062915_spmtg.pdf

4. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT IRRESPONSIBILITY ENDANGERS OUR CHILDREN

The Santa Monica Malibu Unified School District demonstrates a consistent pattern of evading responsibility for child safety. The SMMUSD has refused to answer questions about teachers who have sexually abused and sexually harassed children, failed to inform parents when their children have been victims of potentially criminal harassment, destroyed evidence concerning harassment of children, asked parents to destroy emails and not talk to each other about teacher sexual harassment of children, removed evidence of child abuse from its own records, impugned the testimony of its own employees who report child abuse, ordered teacher’s aides to not talk to parents, tried to intimidate students and parents, tried to mislead parents about their legal rights, publicly misrepresented its own legal obligations, and violated California state law.

https://lawofficesofbarryfagan.wordpress.com/2014/08/24/smmusd-irresponsibility-endangers-our-children

See link: http://chwe.net/safety/failures.html

5. Other Santa Monica Malibu Unified School District Board of Education’s Errors in Judgment:

Superintendent Sandra Lyon Receives a Three Year Contract Extension:

Despite all of the above facts, on July 15, 2015 the Santa Monica Malibu Unified School District’s Board of Education has awarded Superintendent Sandra Lyon with a new three year Contract.

Santa Monica-Malibu Unified School District Superintendent Sandra L. Lyon was granted a new three-year contract Wednesday, raising her salary to $239,200 annually, among the highest in California. Sandra Lyon’s total compensation including fringe benefits is hard to determine, although it was put at $282,030 in 2013, according to Transparent California, a website that tracks salary and other compensation for public employees throughout the state.
For details, go to:

It’s time to fire Superintendent Sandra Lyon

See pdf copy:

IT’S TIME TO FIRE SMMUSD’S SUPERINTENDENT SANDRA LYON

See link to Change.org Petition:

https://www.change.org/p/the-santa-monica-malibu-unified-school-district-s-board-of-education-it-s-time-to-fire-santa-monica-malibu-unified-school-district-s-superintendent-sandra-lyon

Email the Santa Monica Unified School District’s Board of Education:

brd@smmusd.org

Oscar de la Torre
odelatorre@smmusd.org
Dr. Jose Escarce
jescarce@smmusd.org
Craig Foster
cfoster@smmusd.org
Maria Leon-Vazquez
mlvazquez@smmusd.org
Laurie Lieberman
President
llieberman@smmusd.org
Ralph Mechur
Vice President
rmechur@smmusd.org
Dr. Richard
Tahvildaran-Jesswein
rtahvildaranjesswein@smmusd.org