Filed 6/23/14

                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              FIRST APPELLATE DISTRICT
                                      DIVISION TWO


AMERICAN INDIAN MODEL SCHOOLS,
        Plaintiff and Respondent,
                                                      A139652
v.
                                                      (Alameda County
OAKLAND UNIFIED SCHOOL DISTRICT
                                                      Super. Ct. No. RG13680906)
et al.,
        Defendants and Appellants.


        The American Indian Model Schools (AIMS) operates three public charter schools
in the City of Oakland (Oakland). The Oakland Unified School District (the District)
decided to revoke AIMS’s three charters after an independent audit uncovered evidence
of conflict of interest violations, fiscal mismanagement, and improper use of public funds
at the three charter schools. Funding of the charter schools was to halt while AIMS
appealed the revocation decision.
        AIMS filed a writ petition in the superior court against the District and others
(collectively, defendants),1 challenging the District’s revocation of its charters. AIMS
also requested a preliminary injunction to stop the implementation of the revocation order
during the appeal process.
        The trial court granted in part AIMS’s request for a preliminary injunction. The
court highlighted the outstanding scholastic achievements of the students at AIMS’s three


        1 The defendants are the District, the Governing Board of the Oakland Unified
School District (the District’s Board), District Superintendent Tony Smith, and Acting
District Superintendent Gary Yee.


                                              1
charter schools and the harm these students and schools would suffer if instruction were
interrupted and the schools were no longer able to operate. The court concluded that the
hardships weighed in favor of granting a preliminary injunction and that AIMS had
demonstrated a likelihood of prevailing at trial because the record did not contain
substantial evidence that the District complied with the requirements under Education
Code section 47607, subdivision (c)(2).2 The court issued a preliminary injunction to
maintain the status quo pending resolution of the appeal of the revocation decision.
       Defendants appeal from the preliminary injunction order, arguing that the trial
court abused its discretion in finding that AIMS is likely to prevail at trial. Defendants
maintain that section 47607, subdivision (c)(2) requires the District to consider academic
achievement but the trial court incorrectly interpreted this provision as requiring the
District to make findings supported by substantial evidence that it complied with this
provision. Defendants also challenge the trial court’s interpretation of section 47607,
subdivision (i), and claim that issuing an injunction, which requires continued funding to
the charter schools during the pendency of AIMS’s appeal, contravenes the mandate of
section 47607, subdivision (i). Additionally, defendants maintain that the court failed to
give sufficient deference to the District’s decision when it ruled AIMS was likely to
prevail on the merits, that the court usurped the jurisdiction of the State Board of
Education (the SBE), and that the court should not have issued any ruling in the absence
of the California Department of Education (the CDE), which they maintain was an
indispensable party.
       We are not persuaded by defendants’ arguments and affirm the order granting the
preliminary injunction.
                                     BACKGROUND
California’s Charter School Law
       The Legislature is charged with providing a public education system for the
citizens of the State of California. (Cal. Const., art. IX, § 5; Today’s Fresh Start, Inc. v.


       2   All further unspecified code sections refer to the Education Code.


                                              2
Los Angeles County Office of Education (2013) 57 Cal.4th 197, 205 (Today’s Fresh
Start).) The Legislature’s power over the public school system is plenary, subject only to
constitutional restraints. (Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125,
1134 (Wilson).) The Legislature has established public school districts and authorized
charter schools with the Charter Schools Act of 1992 (§ 47600 et seq., added by Stats.
1992, ch. 781, § 1, pp. 3756-3761). (See Today’s Fresh Start, at p. 205.)
        Charter schools are “public schools funded with public money but run by private
individuals or entities rather than traditional public school districts.” (Today’s Fresh
Start, supra, 57 Cal.4th at p. 205.) “The Legislature intended its authorization of charter
schools to improve public education by promoting innovation, choice, accountability, and
competition. [Citation.]” (Id. at pp. 205-206.) The legislation “authorized various public
bodies to approve charters, supervise charter school operations, and revoke charters in the
event particular standards and conditions were not met.” (Id. at p. 205) “ ‘ “Where the
Legislature delegates the local functioning of the school system to local boards, districts
or municipalities, it does so, always, with its constitutional power and responsibility for
ultimate control for the common welfare in reserve.” ’ ” (Wilson, supra, 76 Cal.App.4th
at p. 1135.)
        “[C]harter schools are strictly creatures of statute.” (Wilson, supra, 75
Cal.App.4th at p. 1135.) “Charter schools are initiated by submitting a petition to the
chartering authority, generally the governing board of a public school district but
occasionally a county board or the [SBE]. [Citations.]” (Today’s Fresh Start, supra, 57
Cal.4th at p. 206.) “Once approved, charter schools are operated independently, but are
subject to public oversight. [Citations.]” (Ibid.) “Chartering authorities must monitor
schools’ fiscal condition and academic performance and are authorized to investigate
whenever grounds for concern arise. [Citations.]” (Ibid.) Section 47607 specifies the
grounds and manner in which a school’s charter may be revoked. (§ 47607, subds. (c)-
(k).)
        The Legislature has amended the Charter Schools Act of 1992 various times. In
2006, the Legislature amended section 47607 (added by Stats. 2006, ch. 757, Assem. Bill


                                              3
No. 2030) to require, among other things, that the decision to revoke be supported by
substantial evidence. (See § 47607, subds. (c), (e), (f), & (g).) In 2012, the Legislature
added subdivision (c)(2) when amending section 47607. (Sen. Bill No. 1290.) This
provision provides that “increases in pupil academic achievement for all groups of pupils
served by the charter school” shall be considered “as the most important factor in
determining whether to revoke a charter.” (§ 47607, subd. (c)(2).) According to the
legislative history of Senate Bill No. 1290, “ ‘all groups of pupils served by the charter
school’ ” is defined as “a numerically significant pupil subgroup served by the charter
school.”
       The comments section of the analysis of Senate Bill No. 1290 provides:
“According to the author, in October 2010, the [CDE] was informed by the federal
Department of Education (DOE) that California’s public charter school petition
authorization, renewal and revocation laws were inadequate and therefore out of
compliance with the Public Charter School Grant (PCSG) Program. The PCSG Program
provides grants of up to $575,000 to plan and implement new charter schools. Its
funding is integral to the successful development of successful and high quality public
charter schools. Specifically, the DOE informed the CDE that the state is . . . completely
out of compliance with Assurance 3B in the PCSG application because increases in pupil
academic achievement in all groups of pupils . . . is not the ‘primary consideration’ in the
approval, renewal, and revocation of California charter schools.”
       The comments section of the analysis of Senate Bill No. 1290 elaborated:
“Assurance 3B requires that authorized public chartering agencies use increases in
student academic achievement for all groups of students . . . as the most important factor
when determining to renew or revoke a school’s charter.” The DOE determined that
California was “out of compliance” with Assurance 3B “because there [was] no explicit
statutory or regulatory requirement that (1) each and every charter school demonstrate
improved student academic achievement or (2) increases in academic achievement for all
pupils be the primary factor in a renewal decision[] . . . . In addition, the DOE noted that
California’s revocation regulations apply only to charter schools in the lowest deciles and


                                              4
not all charter schools.” “On September 1, 2011, the CDE sent a letter to the DOE
committing to pursue legislation during the 2012 legislative year to resolve these areas of
noncompliance. By passing this measure, the state can ensure that California will not put
at risk or jeopardize much needed funding to support the establishment of high quality,
high performing charter school operations for California students and their families.”
       The comments to Senate Bill No. 1290 observed that the changes resulting from
this bill were “not sweeping,” but they also were “not unsubstantial.” The comments
provided: “This bill specifies that a charter authorizer must consider increases in pupil
academic achievement for all groups of pupils served by the school, as measured by the
[Academic Performance Index (API)], ‘as the most important factor’ for renewal and
revocation. This does not mean the charter school is automatically not renewed or
revoked, but it does mean that the charter authority must consider this information as the
most important factor in making its decision. In other words, the charter authority must
give extra weight to this factor when it considers all the factors for renewal or
revocation.”
The Revocation of the Charters Granted to AIMS
       The District revoked the three charters for the schools in Oakland operated by
AIMS in 2013, after the enactment of section 47607, subdivision (c)(2). The three
charter schools operated by AIMS are the American Indian Public High School (AIPHS),
which opened in 2006; the American Indian Public Charter School (AIPCS), which
opened in 1996, and includes grades five through eight;3 and the American Indian Public
Charter School II (AIPCS II), which opened in 2007, and serves kindergarten through
eighth grade. In 2013, approximately 285 students attended AIPHS, 250 students
attended AIPCS, and 649 students attended AIPCS II.




       3 Kimberly Palmore, the Assistant Site Administrator for AIPHS and AIPCS
declared that AIPCS serves approximately 250 inner-city students in fifth through eighth
grade, while the trial court’s order granting in part the preliminary injunctions states that
AIPCS includes grades six through eight.


                                              5
       Ben Chavis, frequently referred to as “the founder,” was hired as the director of
AIPCS in 2000, and became the director of AIPHS and AIPCS II when they opened.
Chavis resigned as the director sometime prior to 2011. The charter schools are governed
by a board of directors (AIMS’s Board).
       The API score for the students at AIPCS in the school year of 2001-2002
increased to 596 from a score of 436 a year earlier.4 No other school in California that
year improved as much as AIPCS. The National Charter School Clearinghouse wrote on
its website about the 2002 results, “ ‘These accomplishments took place among a student
population where 96 [percent] of students qualified for free/reduced lunch, 5-20 [percent]
were homeless, and all were minorities.’ ”
       In the school year of 2009-2010, AIPCS had a score of 988 on the API, which was
the highest in the state. For that same school year, AIPCH II had an API of 974, the sixth
highest score in the state, and the AIPHS had an API of 976, the fourth highest score in
the state. According to reports by the CDE, all three schools in the 2011-2012 school
year scored between 928 and 981 on the API. AIPCS and AIPHS have had an API over
950 for the past five years, and AIPHS serves an 86 percent low-income, and 100 percent
minority population. During the 2010-2011 school year, the CDE recognized AIPCS II
with the Title I California Distinguished School Award for closing the achievement gap
between rich and poor students. In 2012, AIPCS II students and teachers earned the
highest API for any public middle school in Alameda County.
       On June 12, 2012, the Fiscal Crisis and Management Assistance Team, at the
request of the Alameda County Superintendent of Schools (the Superintendent),
conducted an extraordinary audit of AIMS. The audit uncovered evidence of conflict of
interest violations, fiscal mismanagement, and improper use of public funds at the three
charter schools.
       The District issued a Notice of Violation (NOV) dated September 20, 2012, to
AIMS. The NOV set forth numerous violations under section 47607, subdivision (d),


       4   The API is a numeric score ranging from 200 to 1,000.


                                             6
including an allegation that Chavis and his spouse, Marsha Amador, received
approximately $3.9 million in financial benefit through contract and other financial
arrangements between the AIMS and AIMS’s Board. The NOV further provided:
“There was no indication that [AIMS’s] Board took any steps to account for the founder’s
financial interests in the agreements it approved, or was even aware that such agreements
were illegal. [AIMS’s] Board also failed to maintain fiscal control over the AIMS charter
schools, or to demonstrate capacity to grasp even the fundamentals of governance.”
       AIMS responded to the NOV on November 26, 2012. After reviewing AIMS’s
response, the District’s Board issued a Notice of Intent to Revoke (NIR) on January 24,
2013. The NIR stated that the primary grounds for revoking were the following: “AIMS
did not acknowledge that its founder, . . . Chavis, committed conflict of interest
violations, nor did AIMS take steps to address those conflicts of interests.” “AIMS failed
to institute acceptable institutional reforms to safeguard against future violations.”
“AIMS failed to institute acceptable changes in its financial and operational procedures to
ensure that future fiscal mismanagement does not occur.” “AIMS failed to engage
sufficient institutional expertise, such as a charter management organization, to
implement the necessary institutional and organizational overhaul of its operations.”
“AIMS failed to address in an acceptable manner any means or process for defining the
role of the founder or achieving the necessary separation of him from the organization.”
The Superintendent recommended the approval of the issuance of the NIR.
       On February 27, 2013, the District’s Board held a public hearing on whether to
revoke the charters of the three schools operated by AIMS. AIMS provided a
supplemental response to the NOV.
       Superintendent Anthony Smith, Ph.D., filed a report dated March 16, 2013 (the
Report). This Report stated that a charter may be revoked under section 47607,
subdivision (c). The Report delineated the alleged violations and the evidence in support
of them. With regard to the District’s consideration of student achievement, the Report
specified: “Effective January 1, 2013, [s]ection 47607[, subdivision] (c)(2) . . . was
amended to provide that the authority that granted the charter shall consider increases in


                                              7
pupil academic achievement for all groups served by the charter school as the most
important factor in determining whether to revoke a charter. [¶] Although the
performance of AIMS students is an important factor in its decision, the [s]taff believes
that AIMS’s failure to remedy the conflict of interest violations, its failure to institute
sufficient changes to the management of the AIMS organization, its failure to institute
structural or permanent changes to the governing board, its failure to take action to
recover the public funds intended for AIMS students paid to Dr. Chavis, and its lack of
candor in response to the District’s revocation proceedings, outweigh all other factors in
considering whether to revoke the AIMS charters, including the schools’ academic
performance.”
       The Report also provided the 2012 API scores of the three charter schools. It
observed that the schools had “a track record of high academic performance.” The
Report pointed out that “[t]he District must balance the academic performance of AIMS
schools against [the] weighty legal obligation” to oversee the use of public funds.
Superintendent Smith concluded that revocation was appropriate to respond to the alleged
acts of fiscal misconduct.
       The District’s Board held a public meeting regarding the NIR on March 20, 2013.
Following the meeting, it issued a resolution revoking the charter of AIMS’s three
schools (the Resolution). The Resolution delineated the requirements of section 47607,
subdivision (c)(2), and noted the 2012 API scores of the three charter schools. The
Resolution stated that substantial evidence supported the allegations that AIMS violated
conflict of interest laws when it entered into contracts with its founder and his spouse,
which resulted in profit for the founder and his spouse. The Resolution provided that
substantial evidence supported various other allegations, including the charges that AIMS
violated section 47605, subdivision (d)(1), that AIMS committed fiscal mismanagement,
and that AIMS failed to acknowledge or address many of the violations.
       The Resolution concluded: “The District has considered ‘increases in pupil
academic achievement for all groups of pupils served by the charter school’ under . . .
[s]ection 47607[, subdivision] (c)(2). Although the performance of AIMS students is an


                                               8
important factor in its decision, the [s]taff believes that [AIMS’s] failure to remedy the
conflict of interest violations, its failure to institute sufficient changes to the management
of the AIMS organization, its failure to institute structural or permanent changes to the
governing board, its failure to take action to recover the public funds intended for AIMS
students paid to Dr. Chavis, and its lack of complete candor in response to the District’s
revocation proceedings, outweigh all other factors in considering whether to revoke the
AIMS charters, including the schools’ academic performance.” The District’s Board
ordered the revocation of AIMS’s three charters, with an effective date of June 30, 2013.
       On March 28, 2013, counsel for the District sent the Director of the AIMS’s three
charter schools a letter. In this letter, AIMS was advised, among other things, that the
three schools “will cease to be eligible for funding apportionments as of July 1, 2013.”
The letter added, “The District has conducted outreach sessions with AIMS parents to
facilitate the transition of their children to their new programs, including inclusion of the
impacted families in the District’s options program.”
       AIMS appealed the revocation decision to the Alameda County Board of
Education (the County Board), and the County Board held a public hearing on the
revocation. In June 2013, the County Board voted to uphold the revocation.
Subsequently, AIMS filed an appeal to the SBE.
The Preliminary Injunction
       On May 23, 2013, prior to its appeal of the District’s revocation decision to the
County Board, AIMS filed in the superior court a petition for writ of mandate and
complaint for injunctive relief pursuant to Code of Civil Procedure sections 1085, 1094.5,
and 1102 against defendants. The petition requested an order to compel the setting aside
of the revocation of the three charters granted to AIMS, and an order prohibiting any
action pursuant to the revocation. AIMS alleged that the District’s Board did not comply
with section 47607, subdivision (c)(2), and violated AIMS’s right to due process.
       AIMS filed on June 3, 2013, an ex parte application for a temporary restraining
order to prevent the District from revoking the three charters. On June 6, 2013, the trial
court issued its order granting in part the request for a temporary restraining order; the


                                              9
court set a hearing on the request for a preliminary injunction. The court stated that it
was not addressing whether AIMS demonstrated a likelihood of prevailing on its claims.
Rather, the court’s sole finding was that AIMS had demonstrated an imminent danger of
irreparable harm to itself and its students if the temporary restraining order were not
granted.
       AIMS filed a motion for a preliminary injunction on June 14, 2013. It alleged in
the petition that the status quo must be maintained or its three charter schools would be
forced to close and the students, staff, and schools would suffer irreparable harm. In
defendants’ opposition, they argued, among other things, that the District complied with
the statute and that the CDE is an indispensable party.
       After holding a hearing, the superior court issued its order on July 19, 2013,
granting in part AIMS’s motion for a preliminary injunction. The court stated that when,
as in this case, the underlying claim is a petition for writ of mandate pursuant to Code of
Civil Procedure section 1094.5, the court must consider “(1) the likelihood that the
plaintiff will prevail on the merits at trial and (2) the interim harm the plaintiff may suffer
if the injunction is denied as compared to the harm that the defendant may suffer if the
injunction is granted.” It noted that its “analysis of the merits of the case is expressly
preliminary. ‘The granting or denial of a preliminary injunction does not amount to an
adjudication of the ultimate rights in controversy.’ (Woods v. Superior Court (1980) 102
Cal.App.3d 608, 615-616.)”
       When evaluating the harm that AIMS might suffer, the superior court explained in
its order the following: “The core purpose of this action is to stay the District’s decision
to revoke the charter of the AIMS schools under [section] 47607 and thereby permit the
AIMS schools to continue to operate and provide educational services to their students
while AIMS pursues its administrative appeals and judicial remedies. AIMS has
demonstrated that it will suffer significant interim harm if the preliminary injunction is
denied because its faculty and student body will dissipate to other institutions. In
addition, the students served by the AIMS schools will be deprived of the opportunity to
obtain an education at schools that have enabled those students to obtain high API and


                                              10
SAT test scores.” The District, the court noted, asserted that it would “suffer harm from
the misuse of public funds if it [were] required to fund the AIMS schools for [the]
duration of administrative process.” The court pointed out that the District identified
financial irregularities in the past management of the AIMS schools but failed to specify
any “threat of future financial irregularity.” The court concluded, “On balance, the court
finds that AIMS has demonstrated that the interim harm it and AIMS students would
suffer if the injunction is denied will substantially exceed the harm that the [District]
would suffer if the injunction is granted.”
       With regard to the second factor, prevailing on the merits at trial, the superior
court cited section 47607, subdivision (c)(2), and found that the District “made legal
errors in its analysis because it (1) failed to consider increases in pupil academic
achievement ‘as the most important factor’ and (2) failed to consider increases in pupil
academic achievement ‘for all groups of pupils.’ ” The court emphasized that it was
making “no preliminary finding whether there is substantial evidence that the [District]
considered academic achievement as ‘the most important factor.’ ” The court pointed out
that the NIR, the Report, and the Resolution, recited portions of section 47607,
subdivision (c), and declared, “ ‘performance of AIMS students is an important factor in
the decision . . . .” The Report and Resolution provided that the District considered and
weighed the academic performance scores of the AIMS schools and the court concluded
that substantial evidence showed that the District considered academic achievement as an
important factor. The court cautioned, however, that “the content and quality of the
analysis does not clearly reflect that the [District] considered academic achievement as
‘the most important factor.’ ” The court added that it was not reaching the question
whether the record contained substantial evidence that the District considered academic
achievement as the most important factor.
       The trial court stated that it was making a preliminary finding that the record did
not contain substantial evidence to show that the District considered increases in pupil
academic achievement for all groups of pupils. The court observed that the District cited
the API scores, but the record contained no information suggesting that the District


                                              11
considered test scores of any “ ‘numerically significant pupil subgroup’ ” or that the
District determined that there were no “ ‘numerically significant pupil subgroups’ ” as
defined by section 52052.
       The trial court added: “Although not raised by the parties, the court notes that . . .
section 47607[, subdivision] (c) requires an authority to consider ‘increases’ in pupil
academic achievement. The reference to ‘increases’ suggests that an authority must
consider improvement over time rather than a one-year snapshot of academic
performance. There is no information in the record suggesting that the [District]
considered ‘increases’ in pupil academic achievement.” The court thus concluded that
there was a reasonable probability that AIMS would prevail on the merits of its claim
because there was “a reasonable probability that there is no substantial evidence that the
[District] considered ‘increases’ in pupil academic achievement for ‘all groups of
pupils.’ ”
       The superior court elaborated: “Balancing the factors, the court finds that a
preliminary injunction is appropriate. The court’s goal in this preliminary injunction
order is to ensure the AIMS schools can remain open while they pursue their
administra[tive] and judicial remedies. The court does not intend to interfere with any
appeal to the [SBE], with the [District’s] ability to monitor and supervise the AIMS
schools in the manner that it would monitor and supervise other schools that have
charters, with the [District’s] ability to monitor the use of public funds by or at the AIMS
schools to the fullest extent permitted to schools that have charters, or with [the
District’s] conduct of any audit that might be a consequence of the [District’s] revocation
decision.”
       The trial court also addressed the absence of the CDE. It refused to defer the
hearing on the motion for a preliminary injunction to permit joinder of the CDE,
explaining that its order was not addressing the CDE’s obligations.
       Following the superior court’s ruling on the preliminary injunction, AIMS
appealed the revocation of its three charters to the SBE.



                                             12
Writ and Appeal in this Court
       On August 30, 2013, defendants filed a petition for writ of mandate in this court.
We summarily denied this petition on November 22, 2013.
       On September 9, 2013, defendants filed a notice of appeal from the order granting
in part the preliminary injunction. Subsequently, on November 13, 2013, defendant filed
a motion requesting this court to take judicial notice of a letter from counsel for the CDE
regarding AIMS’s appeal to the SBE (the CDE letter), AIMS’s brief in support of its
appeal, and the minutes of the County Board meeting on June 25, 2013. AIMS filed
opposition to our taking judicial notice of the CDE letter. On December 12, 2013, we
issued an order stating that this court would rule on the request for judicial notice when
deciding the appeal.
       On January 14, 2014, AIMS filed a motion requesting that we take judicial notice
of the petition for writ of mandate filed by defendants in this court. We granted this
unopposed request on February 11, 2014.
       The California School Boards Association’s Education Legal Alliance (Education
Legal Alliance) applied to file an amicus curiae brief in support of defendants. We
granted this request on March 11, 2014; the amicus brief was filed on this same date.
AIMS filed a response to the amicus curiae brief.
                                      DISCUSSION
                                  I. Standard of Review
       Generally, the standard of review for grant or denial of a preliminary injunction is
whether the trial court committed an abuse of discretion. (Sahlolbei v. Providence
Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1145.) In exercising that discretion, the
court must consider “two interrelated factors: the likelihood the moving party ultimately
will prevail on the merits, and the relative interim harm to the parties from the issuance or
nonissuance of the injunction.” (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999.)
We review each determination for an abuse of discretion. (DVD Copy Control Assn., Inc.
v. Bunner (2003) 31 Cal.4th 864, 890.) However, where “the determination on the
likelihood of a party’s success rests on an issue of pure law not presenting factual issues


                                             13
to be resolved at trial,” “we review the determination de novo.” (14859 Moorpark
Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1403.)
       In the present case, all of defendants’ arguments challenge the trial court’s finding
that AIMS did not prove a probability of success on the merits. Defendants, the party
with standing, did not challenge the trial court’s finding that the balance of harms
weighed in favor of AIMS.5 Education Legal Alliance, however, claims error on this
basis in its amicus brief. An appellate court generally does not consider new arguments
raised on appeal by amicus curiae. (Costa v. Workers’ Comp. Appeals Bd. (1998) 65
Cal.App.4th 1177, 1187-1188.) The Supreme Court has recognized two exceptions: The
amicus curiae may raise an issue that will support affirmance and the amicus curiae may
assert jurisdictional questions that cannot be waived even if not raised by the parties. (Id.
at p. 1188.) Neither of these exceptions applies here.6
                               II. AIMS’s Motion to Strike
       On March 13, 2014, AIMS filed a letter objecting to portions of defendants’ reply
brief, and defendants filed opposition. We issued an order on April 4, 2014, stating that
we were treating the letter as a motion to strike portions of the reply brief and that we
would decide this request with the appeal.


       5  Indeed, defendants criticize AIMS for attempting to divert this court’s attention
to the alleged irreparable harm it would suffer absent the injunction and declare that
irreparable harm is “an issue that is not raised on appeal[.]”
       6  Education Legal Association contends that the Education Code mandates the
discontinuation of any funding during the pendency of an appeal when the revocation is
based on a legal violation or fiscal mismanagement and therefore any hardship resulting
from the disruption of instruction should be addressed to the Legislature, not the court.
Education Legal Association concludes that the trial court did not correctly weigh the
relative hardships because all of the hardships suffered by AIMS were required by the
statute.
        Defendants make essentially the same argument that the statute bars funding
during the pendency of an appeal when the decision to revoke is based on fiscal
mismanagement, but characterize this as a challenge to the trial court’s finding that AIMS
showed a probability of success on the merits. We address all arguments related to the
Education Code and continued funding during the pendency of an appeal in part V.


                                             14
       In its motion to strike, AIMS objects to one footnote and to four pages in
defendants’ 31-page reply brief. AIMS protests defendants’ citation to statutes (e.g.,
§§ 47607.3, 52060) that defendants did not mention in their opening brief in this court.
AIMS stresses that it did not have an opportunity to respond to argument related to these
statutes. As an alternative to striking this material, AIMS requests permission to file a
supplemental brief to respond “to these new issues and points.”
       We will not ordinarily consider issues raised for the first time in a reply brief.
(Kovacevic v. Avalon at Eagles’ Crossing Homeowners Assn. (2010) 189 Cal.App.4th
677, 680, fn. 2.) An issue is new if it does more than elaborate on issues raised in the
opening brief or rebut arguments made by the respondent in respondent’s brief. Fairness
militates against allowing an appellant to raise an issue for the first time in a reply brief
because consideration of the issue deprives the respondent of the opportunity to counter
the appellant by raising opposing arguments about the new issue. (Reichardt v. Hoffman
(1997) 52 Cal.App.4th 754, 764.)
       In their reply brief, defendants cite statutes not discussed in their opening brief.
These statutes are cited in support of their argument that the trial court incorrectly
interpreted section 47607, subdivision (c)(2). Defendants challenged the trial court’s
construction of section 47607, subdivision (c)(2) in their opening brief, and defendants
did not raise a new issue or argument in their reply brief. Defendants may cite new
authorities in support of arguments properly raised in the opening brief.
       Accordingly, we deny AIMS’s request to strike portions of the reply brief or to file
a supplemental brief.




                                              15
       III. Defendants’ Failure to Comply with Section 47607, Subdivision (c)(2)
A. Construction of the Statute
       Defendants maintain that when the trial court found that AIMS was likely to
prevail on its claim that the District did not comply with section 47607, subdivision
(c)(2), the court incorrectly interpreted this statute.7
       Section 47607, subdivision (c) sets forth the grounds for revoking a charter.
Subdivision (c)(1) provides: “A charter may be revoked by the authority that granted the
charter under this chapter if the authority finds, through a showing of substantial
evidence, that the charter school did any of the following: [¶] (A) Committed a material
violation of any of the conditions, standards, or procedures set forth in the charter. [¶]
(B) Failed to meet or pursue any of the pupil outcomes identified in the charter. [¶] (C)
Failed to meet generally accepted accounting principles, or engaged in fiscal
mismanagement. [¶] (D) Violated any provision of law.” Subdivision (c)(2) reads:
“The authority that granted the charter shall consider increases in pupil academic
achievement for all groups of pupils served by the charter school as the most important
factor in determining whether to revoke a charter.”
       Defendants argue that subdivision (c)(2) of section 47607 simply required the
District to “consider,” take into account, or keep in mind, pupil academic achievement for
all groups of students as the most important factor as a procedural step in the revocation
process, and that the trial court was limited to reviewing whether the District complied
with this duty. Defendants maintain that the record showed the District did consider the
academic achievement of the AIMS students and the court should have found that it
complied with this procedural requirement. Defendants argue that the substantial
evidence requirement applies to section 47607, subdivision (c)(1), and no language in
subdivision (c)(2) includes a substantial evidence requirement. They assert that the


       7The amicus brief in support of defendants filed by Education Legal Alliance
advances many of the same arguments raised by defendants. We will specify that a point
or argument is urged by Education Legal Alliance only in those situations where the point
or argument is in addition to or different from the argument in defendants’ brief.


                                               16
Legislature expressly states that findings are required in other statutes and the absence of
any such requirement in section 47607, subdivision (c)(2), makes it clear that the
Legislature did not intend such a requirement in this provision.
       It is well settled that when interpreting a statute we “determine and give effect to
the intent of the enacting legislative body.” (People v. Braxton (2004) 34 Cal.4th 798,
810.) To do this, “ ‘[w]e first examine the words themselves because the statutory
language is generally the most reliable indicator of legislative intent. [Citation.] The
words of the statute should be given their ordinary and usual meaning and should be
construed in their statutory context.’ [Citation.] If the plain, commonsense meaning of a
statute’s words is unambiguous, the plain meaning controls.” (Fitch v. Select Products
Co. (2005) 36 Cal.4th 812, 818.) “[T]he various parts of a statutory enactment must be
harmonized by considering the particular clause or section in the context of the statutory
framework as a whole.” (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 505.) If the
statute is susceptible to more than one interpretation, we “may consider various extrinsic
aids, including the purpose of the statute, the evils to be remedied, the legislative history,
public policy, and the statutory scheme encompassing the statute. [Citation.]” (Torres v.
Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.) Moreover, “ ‘ “[i]t is a settled
principle of statutory interpretation that language of a statute should not be given a literal
meaning if doing so would result in absurd consequences which the Legislature did not
intend.” [Citations.]” ’ ” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.)
       The Legislature enacted section 47607, subdivision (c)(2) in 2012. (Sen. Bill No.
1290.) This subdivision required the District to “consider increases in pupil academic
achievement for all groups of pupils served by the charter school as the most important
factor in determining whether to revoke a charter.” (§ 47607, subd. (c)(2).) The statute
does not indicate that the District’s obligation is satisfied by announcing it has considered
increases in pupil academic achievement. Rather, this statute pronounces that this
consideration must be made as “the most important factor” when deciding whether to
revoke a charter. (Ibid.)



                                              17
       Defendants’ construction of subdivision (c)(2) is incompatible with the language
of other subdivisions of section 47607. When revoking a charter, section 47607 requires
“a written decision with factual findings supporting any revocation decision.” (Today’s
Fresh Start, supra, 57 Cal.4th at p. 207.) Subdivision (e) of section 47607 specifies that
“[t]he chartering authority shall not revoke a charter, unless it makes written factual
findings supported by substantial evidence, specific to the charter school, that support its
findings.” Furthermore, if the school district is the chartering authority and revokes a
charter, which is appealed, the county board of education reviews the decision for
substantial evidence. (§ 47607, subd. (f)(1)-(3).) If appealed to the SBE, the SBE “may
reverse the revocation decision” if it “determines that the findings made by the chartering
authority under subdivision (e) are not supported by substantial evidence.” (§ 47607,
subd. (f)(4); see also § 47607, subd. (g).)8
       Subdivisions (e) and (f)(2) of section 47607 make it clear that the decision to
revoke the charter must be supported by substantial evidence. Since subdivision (c)(2)
requires a consideration of increases in pupil academic achievement for all groups of
pupils served by the charter school as the most important factor when determining
whether to revoke the charter, the District’s consideration of this factor must be supported
by substantial evidence under section 47607, subdivision (e). (See also Topanga Assn.
for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-515
(Topanga Assn.) [Code of Civil Procedure section 1094.5, the state’s administrative
mandamus provision, “contemplates that at minimum, the reviewing court must
determine both whether substantial evidence supports the administrative agency’s
findings and whether the findings support the agency’s decision” and implicit to this
statute “is a requirement that the agency which renders the challenged decision must set


       8 The reviewing bodies may choose to allow the prescribed time for review to
expire rather than review a decision for substantial evidence. (See § 47607, subd. (f)(3);
Cal. Code Regs., tit. 5, § 11968.5.5, subd. (f) [if the SBE does not take action within the
prescribed time, “the appellant is deemed to have exhausted its administrative
remedies”].)


                                               18
forth findings to bridge the analytic gap between the raw evidence and ultimate decision
or order”].)
       Defendants stress that substantial evidence is included in the language in section
47607, subdivision (c)(1), and argue that the absence of such language in subdivision
(c)(2) is significant. Defendants also cite sections 47607.3, subdivision (b),9 and 5206010

       9 Section 47607.3, subdivision (b), provides in relevant part: “A chartering
authority shall consider for revocation any charter school to which the California
Collaborative for Educational Excellence has provided advice and assistance pursuant to
subdivision (a) and about which it has made either of the following findings, which shall
be submitted to the chartering authority: [¶] (1) That the charter school has failed, or is
unable, to implement the recommendations of the California Collaborative for
Educational Excellence. [¶] (2) That the inadequate performance of the charter school,
based upon an evaluation rubric adopted pursuant to Section 52064.5, is either so
persistent or so acute as to require revocation of the charter.”
       10  Section 52060, subdivision (c) states: “A local control and accountability plan
adopted by a governing board of a school district shall include, for the school district and
each school within the school district, both of the following: [¶] (1) A description of the
annual goals, for all pupils and each subgroup of pupils identified pursuant to Section
52052, to be achieved for each of the state priorities identified in subdivision (d) and for
any additional local priorities identified by the governing board of the school district. For
purposes of this article, a subgroup of pupils identified pursuant to Section 52052 shall be
a numerically significant pupil subgroup as specified in paragraphs (2) and (3) of
subdivision (a) of Section 52052. [¶] (2) A description of the specific actions the school
district will take during each year of the local control and accountability plan to achieve
the goals identified in paragraph (1), including the enumeration of any specific actions
necessary for that year to correct any deficiencies in regard to the state priorities listed in
paragraph (1) of subdivision (d). The specific actions shall not supersede the provisions
of existing local collective bargaining agreements within the jurisdiction of the school
district.”
        Section 52060, subdivision (d)(4) reads: “(d) All of the following are state
priorities: [¶] . . . [¶] “(4) Pupil achievement, as measured by all of the following, as
applicable: [¶] (A) Statewide assessments administered pursuant to Article 4
(commencing with Section 60640) of Chapter 5 of Part 33 or any subsequent assessment,
as certified by the state board. [¶] (B) The Academic Performance Index, as described
in Section 52052. [¶] (C) The percentage of pupils who have successfully completed
courses that satisfy the requirements for entrance to the University of California and the
California State University, or career technical education sequences or programs of study
that align with state board-approved career technical educational standards and
frameworks . . . . [¶] (D) The percentage of English learner pupils who make progress

                                              19
because these statutes specify exactly what the school district must do. Defendants
conclude that the Legislature knows how to require specific findings and since no
findings were mandated in section 47607, subdivision (c)(2), the Legislature did not
intend such a requirement.
       Defendants, however, ignore that prior to the enactment of Assembly Bill No.
2030 in 2006, subdivision (c) did not require that a revocation be supported with
substantial evidence. (Former § 47607, subd. (c).) Subdivisions (e), (f), and (g) were not
included in this earlier version of the statute. In 2006, Assembly Bill No. 2030, amended
the statute to add the substantial evidence requirements in subdivision (c). The statute
was also amended to, among other things, add subdivisions (e), (f)(2), and (g)(2), which
included the substantial evidence requirement. In 2012, when Senate Bill No. 1290 was
enacted and added subdivision (c)(2) to section 47607, there was no need to include the
substantial evidence language because subdivision (e) of section 47607, added earlier in
2006, made it clear that “[t]he chartering authority shall not revoke a charter, unless it
makes written factual findings supported by substantial evidence, specific to the charter
school, that support its findings.”
       Similarly, defendants’ citations to sections 47607.3 and 52060 are not compelling.
These statutes specify what is required because no other statute or provision sets forth
what is needed. In contrast, section 47607 makes it clear that a revocation decision must
be supported by factual findings.
       Education Legal Alliance argues that section 47607, subdivision (c)(1) provides
that a charter may be revoked if any one of the enumerated violations is supported by
substantial evidence. It claims that interpreting subdivision (c)(2) in a manner that
requires pupil academic achievement to be the most important factor nullifies subdivision

toward English proficiency as measured by the California English Language
Development Test or any subsequent assessment of English proficiency, as certified by
the state board. [¶] (E) The English learner reclassification rate. [¶] (F) The
percentage of pupils who have passed an advanced placement examination with a score
of 3 or higher. [¶] (G) The percentage of pupils who participate in, and demonstrate
college preparedness pursuant to, the Early Assessment Program . . . .”


                                             20
(c)(1) because it would divest the chartering authority of the discretion to revoke a charter
on any one of the bases enumerated in that subdivision. It notes that “[i]mplied repeals
may be found only where ‘ “there is no rational basis for harmonizing the two potentially
conflicting statutes [citation], and the statutes are ‘. . . so inconsistent that the two cannot
have concurrent operation.’ ” ’ ” (Medical Board v. Superior Court (2001) 88
Cal.App.4th 1001, 1005, fn. omitted.)
       Education Legal Alliance insists that the trial court’s interpretation of subdivision
(c)(2) results in an improper repeal of subdivision (c)(1) of section 47607 and that these
two subdivisions can be harmonized. Education Legal Alliance points out that a charter
may be revoked under section 47607, subdivision (c)(1)(b) for failure “to meet or pursue
any of the pupil outcomes identified in the charter.” “ ‘Pupil outcomes,’ ” must be set
forth in the charter petition and they mean “the extent to which all pupils of the school
demonstrate that they have attained the skills, knowledge, and attitudes specified as goals
in the school’s educational program. Pupil outcomes shall include outcomes that address
increases in pupil academic achievement both schoolwide and for all groups of pupils
served by the charter school . . . .” (§ 47605, subd. (b)(5)(B).)
       Education Legal Alliance emphasizes that section 47607, subdivision (c)(2) uses
the same words and phrases as section 47605, subdivision (b)(5)(B). It proposes that
subdivision (c)(2) does not require a new showing or any additional requirement. Rather,
according to Education Legal Alliance, when revocation occurs under section 47607,
subdivision (c)(1)(B), subdivision (c)(2) of section 47607 clarifies that student
achievement of all groups is the most important factor.
       The construction urged by Education Legal Alliance does not harmonize the
statutes; it rewrites them. Subdivision (c)(2) of section 47607, which states that “[t]he
authority that granted the charter shall consider increases in pupil academic achievement
for all groups of pupils served by the charter school as the most important factor in
determining whether to revoke a charter[,]” was not written to be applied simply to
section 47607, subdivision (c)(1)(B). Rather, the express language of subdivision (c)(2)
is that it is the most important factor whenever a charter may be revoked. Indeed, the


                                               21
interpretation urged by Education Legal Alliance would render subdivision (c)(2)
redundant and meaningless.
       Furthermore, the trial court’s construction of the statute did not nullify section
47607, subdivision (c)(1). The chartering authority may revoke a charter based on any
one of the four criteria set forth in subdivision (c)(1), but when making this decision it
must consider increases in pupil academic achievement as the most important factor.
       Education Legal Alliance claims that the legislative history supports its
interpretation. It maintains that section 47607, subdivision (c)(2) was added to meet the
higher charter school accountability standards required by the federal government. It
claims that the purpose was to make sure that charter schools would not continue if one
or more student groups was not succeeding.
       We disagree that the legislative history supports Education Legal Alliance’s
construction of the statute. The fact that the purpose for enacting subdivision (c)(2) of
section 47607 was to prevent charter schools from being able to continue if their students
were not doing well academically, does not mean that the Legislature intended for
academic excellence to be discounted in those situations where the charter was being
revoked from a school where the students excelled academically.
       As already discussed, subdivision (c)(2) of section 47607 became effective on
January 1, 2013. (Sen. Bill No. 1202.) The comments section to the Senate hearing on
Senate Bill No. 1202 emphasized “that a charter authorizer must consider increases in
pupil academic achievement for all groups of pupils served by the school, as measured by
the API, ‘as the most important factor’ for renewal and revocation. . . . In other words,
the charter authority must give extra weight to this factor when it considers all the factors
for renewal or revocation.” These comments indicate that the District’s obligation was to
give this factor extra weight whenever it was deciding whether to revoke the charter and
was not limited to those situations involving schools with low API scores.
       Finally, policy considerations support the trial court’s construction of the statute.
As our Supreme Court explained in Topanga Assn., supra, 11 Cal.3d 506, requiring an
administrative agency to set forth findings to support their decisions “stems primarily


                                             22
from judge-made law [citations], and is ‘remarkably uniform in both federal and state
courts.’ As stated by the United States Supreme Court, the ‘accepted ideal . . . is that “the
orderly functioning of the process of review requires that the grounds upon which the
administrative agency acted be clearly disclosed and adequately sustained.” [Citations.]
[¶] Among other functions, a findings requirement serves to conduce the administrative
body to draw legally relevant sub-conclusions supportive of its ultimate decision; the
intended effect is to facilitate orderly analysis and minimize the likelihood that the
agency will randomly leap from evidence to conclusions. [Citations.]” (Id. at pp. 515-
516.)
        Defendants argue that imposing a substantial evidence requirement would prevent
the District from ever revoking a charter if the school had high test scores because,
according to defendants, “there would not be substantial evidence that the school
considered the high test scores as the most important factor.” This argument is not
persuasive. The District must give extra weight and consideration to high test scores, but
high test scores would not prevent revocation of a charter when the violations or
egregious behavior outweigh this factor. As the comments to Senate Bill No. 1290
observed: “This bill specifies that a charter authorizer must consider increases in pupil
academic achievement for all groups of pupils served by the school, as measured by the
API, ‘as the most important factor’ for renewal and revocation. This does not mean the
charter school is automatically not renewed or revoked, but it does mean that the charter
authority must consider this information as the most important factor in making its
decision. In other words, the charter authority must give extra weight to this factor when
it considers all the factors for renewal or revocation.” (Italics added.) Similarly, extra
weight does not mean that a decision to revoke is automatically rejected when the
students at the charter school have high test scores, but the increases in pupil academic
achievement for all groups of pupils served by the school must be given extra weight
when considering whether to revoke the charter.
        Accordingly, we conclude that the trial court correctly interpreted section 47607,
subdivision (c)(2), as requiring a decision to revoke to be supported by substantial


                                             23
evidence that the District complied with this provision. We thus now determine whether
the trial court abused its discretion when it found the record did not show that the District
complied with the mandates of this statute.
B. Evidence in the Record Regarding Compliance with the Statute
       In their briefs in this court, defendants and AIMS seem to suggest that the trial
court ruled that the evidence did not show that the District considered academic
achievement as the most important factor. The trial court, however, expressly stated that
it was making “no preliminary finding whether there is substantial evidence that the
[District] considered academic achievement as ‘the most important factor.’ ” The court
noted that the evidence did not clearly demonstrate that the District considered academic
achievement as the most important factor, but the court announced that it was not going
to “reach whether there is substantial evidence that the [District] considered academic
achievement as ‘the most important factor.’ ”11
       The trial court’s grounds for granting the preliminary injunction were that the
record was devoid of evidence indicating that the District considered increases in pupil
academic achievement for pupil subgroups. The court acknowledged that the District
cited the 2012 API scores for all three charter schools, but the record contained “no
information” “suggesting that the [District] considered test scores of any ‘numerically
significant pupil subgroup’ or that the [District] determined that there were no
‘numerically significant pupil subgroups’ as defined by [section] 52052.”12 The court


       11  In support of their argument that they considered academic achievement as the
most important factor, defendants cite the NIR, which stated that “[t]he District has
considered the academic achievement of the AIMS program and considers AIMS’[s]
academic record as the paramount factor to consider during the revocation process.”
They also cite evidence in the Superintendent’s Report to the District’s Board that the
District considered the charter school’s “track record of high academic performance.”
       12 Section 52052, subdivision (a) provides: “(2) A school or school district shall
demonstrate comparable improvement in academic achievement as measured by the API
by all numerically significant pupil subgroups at the school or school district, including:
[¶] (A) Ethnic subgroups. [¶] (B) Socioeconomically disadvantaged pupils. [¶] (C)
English learners. [¶] (D) Pupils with disabilities. [¶] (E) Foster youth. [¶] (3)(A) For

                                              24
also noted that subdivision (c) of section 47607 requires the District “to consider
‘increases’ in pupil academic achievement.” Since the record contained no information
suggesting that the District considered improvement over time rather than for just one
year, the superior court’s preliminary finding was that substantial evidence did not
support the decision to revoke the three charters.
       Defendants argue that the record contained evidence of increases in pupil
academic achievement for all groups of pupils because the API score “inherently
embedded data regarding pupil performance of all groups of pupils, as well as increases
in pupil performance through the use of ‘base’ and ‘growth’ scores, and that the [c]harter
[s]chool’s historical performance, including increases in pupil performance for all
subgroups of students, was part of the administrative record for the revocation process.”
Defendants then cite to six pages of argument at the hearing and to a request for judicial
notice that includes a 38-page exhibit, dated April 4, 2012, which was the District’s staff
report regarding the renewal request of AIPCS II. They argue that the District had to
evaluate the academic performance for all subgroups of students during the charter
renewal process, the year prior to their decision to revoke the charter, and therefore it
“was aware of all public information regarding the charter school’s track record of
academic performance, including increases in pupil performance for all student
subgroups, and evaluated that data as part of its decision as to whether or not to renew or
revoke the charter.”
       Defendants’ citations to the record are woefully inadequate. An appellant has the
burden on appeal of demonstrating that the trial court abused its discretion. (E.g.,
Conservatorship of Ben C. (2006) 137 Cal.App.4th 689, 697.) This burden includes
supporting factual assertions by providing appropriate references to the record. (Cal.
Rules of Court, rule 8.204(a)(1)(C).) Rule 8.204(a)(1)(C) of the California Rules of


purposes of this section, a numerically significant pupil subgroup is one that consists of at
least 30 pupils, each of whom has a valid test score. [¶] (B) Notwithstanding
subparagraph (A), for a subgroup of pupils who are foster youth, a numerically
significant pupil subgroup is one that consists of at least 15 pupils.”


                                             25
Court provides that each appellate brief must “[s]upport any reference to a matter in the
record by a citation to the volume and page number of the record where the matter
appears.” This rule requires exact page references, and block-page references present
difficulties because the appellate court is unable to evaluate which facts contained on
those pages support the party’s position. (Bernard v. Hartford Fire Ins. Co. (1991) 226
Cal.App.3d 1203, 1205.) Here, defendants’ block references covered over 40 pages and
they did not identify any particular page or evidence that showed they considered
“increases in pupil academic achievement for all” subgroups “as the most important
factor in determining whether to revoke a charter.” (See § 47607, subd. (c)(2).) In fact,
there is nothing in the record before us that indicates that the District considered
improvement over time for all subgroups as the most important factor.
       Furthermore, the report prepared to consider whether to renew a charter does not
establish that the District properly evaluated this information when deciding to revoke the
charter. The fact that it was attached to the NIR does not shed any light on how the
District used the report when making its revocation determination.
       We also agree with the trial court that the Report and the Resolution do not
contain evidence showing that the District considered academic achievement for all
groups as the most important factor. The Report and Resolution set forth the
requirements under the statute and asserts that the violations outweigh all other factors,
including the schools’ academic performance. The Report and Resolution set forth the
API scores for 2012, and the Report states these scores have been considered and
acknowledges that “the AIMS charter schools have a track record of high academic
performance.” The Report also states that the District “has considered ‘increase in pupil
academic achievement for all groups of pupils served by the charter school’ under”
section 47607, subdivision (c)(2). These conclusory statements do not provide




                                             26
substantial evidence demonstrating that the District considered the increases in pupil
academic achievement for all pupil subgroups.13
       We agree with the trial court that the Revocation and Report are devoid of any
evidence indicating that the District considered test scores for pupil subgroups.14
                         IV. Deference to the District’s Decision
       Defendants contend that the trial court failed to give sufficient deference to the
District’s decision when it ruled that AIMS was likely to prevail on the merits. AIMS
brought its writ under Code of Civil Procedure sections 1085 and 1094.5, and both of
these statutes, defendants argue, require the court to defer to the agency’s decision.
       Writ review, whether through administrative mandate (Code Civ. Proc., § 1094.5)
or ordinary mandate (Code Civ. Proc., § 1085), gives substantial deference to the
agency’s findings. (Runyon v. Board of Trustees of California State University (2010) 48
Cal.4th 760, 774.) When reviewing an administrative agency’s interpretation of a
governing statute, we must “ ‘independently judge the text of the statute, taking into
account and respecting the agency’s interpretation of its meaning.’ [Citation.] The
degree of ‘respect’ accorded the agency’s interpretation is ‘ “ ‘not susceptible of precise
formulation, but lies somewhere along a continuum,’ ” ’ or, in other words, is
‘situational.’ [Citation.] . . . [T]he degree of deference due an agency’s interpretation
depends upon two factors. First, the interpretation is entitled to significant deference if
‘ “the agency has expertise and technical knowledge, especially where the legal text to be


        The trial court made no finding regarding the District’s determination that
       13
AIMS engaged in fiscal mismanagement and this issue is not considered in this appeal.
       14  We need not address the merits of AIMS’s arguments about what the District
had to show. For example, AIMS maintains that the District had to show substantial
evidence supported a finding that increases in student achievement by subgroups were
causally related or otherwise linked to the alleged administrative failings.
        The issue before us is simply whether the trial court abused its discretion when it
granted the preliminary injunction; we thus decide only that AIMS showed a probability
that it would prevail because the Report and Revocation contained no evidence that the
District considered increases for numerically significant pupil subgroups as the most
important factor.


                                             27
interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact,
policy, and discretion.” ’ [Citation.] Second, the interpretation is entitled to even greater
deference if it is the result of high-level, formal agency decisionmaking. [Citation]”
(Southern California Cement Masons Joint Apprenticeship Committee v. California
Apprenticeship Council (2013) 213 Cal.App.4th 1531, 1541-1542 (Southern California
Cement Masons).)
       Here, subdivision (c)(2) of section 47607 does not involve technical, obscure, or
complex language. Additionally, the interpretation urged by the District is not the result
of high-level, formal agency decisionmaking. Thus, the District’s interpretation of the
statute is not entitled to significant deference.
       We are required to exercise independent judgment regarding an agency’s statutory
interpretation, giving due deference to the agency’s views, but we evaluate the agency’s
application of its governing statute to particular circumstances for an abuse of discretion.
(Southern California Cement Masons, supra, 213 Cal.App.4th at p. 1549.) Courts “may
not reweigh the evidence or substitute their judgment for that of the agency. They uphold
an agency action unless it is arbitrary, capricious, lacking in evidentiary support, or was
made without due regard for the petitioner’s rights.” (Sequoia Union High School Dist.
v. Aurora Charter High School (2003) 112 Cal.App.4th 185, 195.)
       In the present case, the trial court did defer to the factual findings of the District.
The court did not reweigh evidence, refuse to consider evidence supporting revocation, or
make any credibility determination. The court considered all of the evidence and made a
preliminary finding that there was no evidence suggesting that the District considered test
scores of any subgroups or that it considered the increases in pupil academic achievement
as required by the statute. Defendants have not provided this court with any citation to
the record to show that it made findings showing that it weighed heavily the foregoing
when deciding to revoke the charters. The trial court did not usurp the role of the
District.
       Defendants cite to the trial court’s statements at the hearing on the preliminary
injunction when arguing that the trial court impermissibly reweighed the evidence and


                                               28
substituted its judgment for the District’s judgment. They maintain that the court’s
comments showed that the court reweighed the evidence.15 We disagree. The court’s
comments simply indicated that it understood that the District had to weigh the various
factors and that school achievement was the most important factor. The court also
correctly observed that it had to balance the hardships suffered by AIMS if the injunction
were not granted by the hardships suffered by the District if the injunction were granted.
Here, as already stressed, the court did not reweigh the factors; it properly found that the
District did not make factual findings that showed it complied with section 47607,
subdivision (c)(2).
       Defendants also argue that the record contains evidence that it considered
academic achievement as the most important factor and that the court ignored this
evidence. As already discussed, the court did not ignore this evidence. In fact, the trial
court did not grant the preliminary injunction on the ground that the District failed to
consider academic achievement as the most important factor. Rather, the court found that
the District failed to consider increases in academic achievement and it failed to look at
increases in academic achievement for all groups of pupils at AIMS’s schools as the most
important factor when deciding to revoke the charter.

       15  The trial court stated: “If you have a weighing process, and you say, on the one
side is an important factor, and we’re going to weigh it against all of these other factors,
the scale may very well tip in the favor of the other factors. On the other hand, if you say
it’s the most important factor, which indicates both a qualitative and a quantitative
difference, then maybe the scale tips in the other direction.” Later, the court commented:
“I agree with you that different people could reach different conclusions on this record. I
do agree with that. But having looked at that, and then having to do the balancing that I
have to do as a judicial officer, before I decide whether or not the school will live for
another day while it exercises its appellate rights or not, and in that balancing process,
look at the school, and look at its performance, which is, according to our Legislature, the
most important standard . . . . And I’m looking at this litany of what I believe the record
shows as very, very extraordinary performance. And then I have to weigh that against if I
say they don’t get another day, or they don’t have the opportunity to exhaust their final
appeal. [¶] I’m not seeing how the balance of hardships favors your client as against the
school, AIM school, and the students, who are getting the benefit of what appears to be,
everybody agrees, is a very, very extraordinary education that far surpasses the education
that students not just in this county but in this state receive.”


                                             29
       Finally, defendants contend that the trial court impermissibly directed a particular
outcome. They again claim that the court was restricted to deciding whether the District
considered academic achievement and was not to assess how the District considered this
factor. They declare that the court should have remanded the matter back to the District
if it concluded that the District failed to consider academic achievement in violation of
section 47607, subdivision (c)(2).
       The trial court had a limited question before it: Should it issue a preliminary
injunction? The court answered this question in the affirmative after it balanced the harm
AIMS would suffer if it did not issue an injunction by the hardships the District would
suffer if it granted the injunction and after it determined that AIMS had demonstrated a
likelihood of prevailing on the merits at trial. The issue before the court was not whether
AIMS would actually prevail and it properly resolved the question of whether a
preliminary injunction should be issued.
     V. Funding the Charter Schools Pending Appeal of the Revocation Decision
       Defendants insist that the grant of the preliminary injunction was an abuse of
discretion because it permits AIMS to continue operating during the pendency of the
appeal process.16 Defendants assert that the Education Code bars charter schools from

       16  As noted earlier, Educational Legal Alliance makes essentially the same
argument when it claims that the trial court erred in finding that the balance of harms
weighed in favor of AIMS. It maintains that the statute permits charter schools to remain
open during the appeal of the revocation decision when the revocation is not based on a
legal violation or fiscal mismanagement. It stresses that the Legislature mandated that
there be no continued funding when there is fiscal mismanagement or a legal violation,
and therefore the hardship of disruption will always occur. Education Legal Alliance
maintains that any complaint regarding the undue burden resulting from closing the
charter schools should be directed towards the Legislature.
        As discussed below, we do not agree with Educational Legal Alliance that the
statute absolutely bars funding during the pendency of the appeal when the revocation is
based on fiscal mismanagement or a legal violation. Moreover, the burden caused by
closing the charter school is not uniform. The closing of three charter schools where the
students’ academic achievement has been outstanding has a different consequence for the
students and the community than the closing of charter schools where the students have
low API scores.


                                            30
continuing to operate during the appeal process when the charters were revoked for fiscal
mismanagement, and they cite section 47607, subdivisions (i) and (j).
       Section 47607, subdivision (i) provides: “(i) During the pendency of an appeal
filed under this section, a charter school, whose revocation proceedings are based on
subparagraph (A) or (B) of paragraph (1) of subdivision (c), shall continue to qualify as a
charter school for funding and for all other purposes of this part, and may continue to
hold all existing grants, resources, and facilities, in order to ensure that the education of
pupils enrolled in the school is not disrupted.” Section 47607, subdivision (c)(1) states in
relevant part: “A charter may be revoked by the authority that granted the charter under
this chapter if the authority finds, through a showing of substantial evidence, that the
charter school did any of the following: [¶] (A) Committed a material violation of any
of the conditions, standards, or procedures set forth in the charter. [¶] (B) Failed to meet
or pursue any of the pupil outcomes identified in the charter.” (§ 47607, subds. (c)(1)(A)
& (B).) Under subdivision (c)(1), a charter may also be revoked for failing “to meet
generally accepted accounting principles, or engag[ing] in fiscal mismanagement” or for
violating “any provision of law.” (§ 47607, subds. (c)(1)(C) & (D).)
       Defendants contend that the language of section 47607 reveals an intent to prohibit
any continued funding during the appeal process when the charter is revoked for fiscal
mismanagement or legal misconduct, which were found in the present case. Defendants
assert that subdivision (i) of section 47607 “provides that charter schools revoked for a
violation of the charter or failure to meet pupil outcomes may continue to receive funding
and to qualify as a charter school pending appeal. But [this provision] also states that
charters revoked for legal or financial misconduct may not continue operations during the
appeal process.” (Italics added.)
       Defendants’ reading of subdivision (i) of section 47607 is clearly inaccurate.
Subdivision (i) of section 47607 does not state that the funding “may” continue under
certain circumstances and “may” not continue for legal or financial misconduct. Rather,
the statute specifies that the funding “shall” continue when based on a material violation
of a condition in the charter or on a failure to meet the pupil outcomes identified in the


                                              31
charter. (§ 47607, subd. (i).) Thus, when revocation is based on these violations, funding
must continue during the pendency of the appeal. The statute is silent regarding funding
during the pendency of the appeal when the revocation is based on a legal violation or
fiscal mismanagement.
       Defendants also cite to subdivision (j) of section 47607 to support their
construction of the statute. This provision specifies the following: “Immediately
following the decision of a county board of education to reverse a decision of a school
district to revoke a charter, the following shall apply: [¶] (1) The charter school shall
qualify as a charter school for funding and for all other purposes of this part. [¶] (2) The
charter school may continue to hold all existing grants, resources, and facilities. [¶] (3)
Any funding, grants, resources, and facilities that had been withheld from the charter
school, or that the charter school had otherwise been deprived of use, as a result of the
revocation of the charter shall be immediately reinstated or returned.” (§ 47607, subd.
(j).) This provision provides that any funding that had been withheld is restored upon the
county board of education’s decision to reverse the school district’s decision to revoke
the charter. Defendants argue, “By necessary implication, if a county board upholds a
revocation, a charter school is not eligible for continued funding[.]”
       Section 47607, subdivision (j) does not suggest, as defendants assert, that a charter
school is not eligible for continued funding if the county board of education affirms the
decision to revoke. This statute ensures that all funding and resources that had been
withheld based on the revocation must be restored once a decision to revoke is reversed.
The statute does not address the situation where the county board affirms the decision to
revoke.
       “When a statute is silent on a point, the courts resort to statutory interpretation.”
(Waterman Convalescent Hospital, Inc. v. State Dept. of Health Services (2002) 101
Cal.App.4th 1433, 1439.) If the Legislature had intended to bar funding during the
pendency of an appeal when the revocation is based on fiscal or legal violations, it could
have so specified.



                                              32
       Our review of the legislative history of subdivision (i) of section 47607 (Assem.
Bill No. 2030), reveals that this provision was added to ensure that the education of
pupils enrolled in the charter school would not be disrupted and to protect the due process
interests of the charter schools. (See Assem. Bill No. 2030 Analysis of Assem. Bil1,
page 4, Enrolled Bill Rep., p. 3.) There was also, however, a countervailing concern with
protecting students when the charter school violated the law or where the charter school’s
failure posed a severe and imminent threat to the health or safety of the pupils. (Ibid.)
       In balancing the foregoing concerns, the Legislature crafted a bill that required
funding when the charter school committed a material violation of the charter or failed to
meet a pupil outcome in the charter. Presumably, in such situations it could be presumed
that not disrupting the children’s instruction trumped any concerns that the school posed
any threat to the health or safety of the pupils. The statute does not require funding when
revocation is based on fiscal mismanagement or a violation of the law but it does not
suggest that funding can never continue in such situations or that it can be automatically
presumed that continued funding in such situations poses a severe threat to the school’s
children or the public.
       Policy considerations do not weigh in favor of the interpretation urged by
defendants. Clearly the Legislature recognized the drastic consequences of disrupting
instructional services to the students at charter schools if funding were halted during the
appeal of the revocation decision. Children at charter schools would not be protected if
courts have no discretion to use their equitable power to maintain the status quo during
the pendency of the appeal when revocation is based on fiscal mismanagement or a legal
violation. Policy supports an interpretation of the statute that provides the court with
discretion to maintain the status quo after it has balanced the hardships and assessed the
charter school’s likelihood of prevailing in overturning the revocation decision.
       If unable to seek a preliminary injunction in cases like the present, the initial
administrative decision to revoke would always shut down a school. Thus, whenever
fiscal mismanagement was alleged and found by the administrative agency to be
supported by the evidence, funding would be discontinued and the charter school would


                                             33
be forced to close. Subsequently, if the SBE or court reversed the revocation decision,
the charter schools and, most importantly, their students would have already suffered
harm as the instructional services would have halted and the school’s staff and instructors
would have sought alternative employment during the appeal process. Thus, public
policy does not support a construction of the statute that would prohibit a court from
evaluating the equities of the situation and determining whether the status quo should be
maintained while the charter school appeals the decision to revoke the charter based on
fiscal mismanagement or a legal violation.
       We affirm the trial court’s finding that it had the authority to issue an injunction
that continued the funding to AIMS’s charter schools while AIMS pursued its
administrative and court challenges to the District’s revocation decision.
                                      VI. Jurisdiction
       Defendants argue that the trial court’s preliminary injunction order prematurely
and incorrectly usurped jurisdiction over the revocation decision from the SBE. They
maintain that the court did not have jurisdiction over AIMS’s request for a preliminary
injunction because AIMS had not exhausted its administrative remedies.
       A charter school has the right to appeal the board’s decision to revoke to the
county board of education (§ 47607, subd. (f)(1)) and to the SBE (§ 47607, subds. (f)(2)
& (3)). In the present case, AIMS appealed to the County Board and, while this appeal
was pending, it filed a petition for writ of mandate under Code of Civil Procedure
sections 1085 and 1094.5 in the superior court. AIMS filed its request for a preliminary
injunction while the appeal before the County Board was pending. The trial court
granted the preliminary injunction after the County Board affirmed the decision to
revoke, but prior to AIMS’s administrative appeal to the SBE.
       When remedies before an administrative forum are available, a party must in
general exhaust them before seeking judicial relief. (Coachella Valley Mosquito &
Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th
1072, 1080 (Coachella Valley).) Exhaustion requires “a full presentation to the
administrative agency upon all issues of the case and at all prescribed stages of the


                                             34
administrative proceedings.” (Bleeck v. State Board of Optometry (1971) 18 Cal.App.3d
415, 432.) “ ‘The exhaustion doctrine is principally grounded on concerns favoring
administrative autonomy (i.e., courts should not interfere with an agency determination
until the agency has reached a final decision) and judicial efficiency (i.e., overworked
courts should decline to intervene in an administrative dispute unless absolutely
necessary).’ ” (Coachella Valley, at p. 1080.) The exhaustion doctrine is a fundamental
rule of procedure and “not a matter of judicial discretion.” (Abelleira v. District Court of
Appeal (1941) 17 Cal.2d 280, 293.)
       Education Legal Alliance argues that the injunction intruded on the discretion
provided by the statutes to the SBE and boards of education to oversee the educational
system. It maintains that the Legislature must have been aware of the duties provided to
the SBE and boards of education and made no express exemption from the exhaustion
doctrine. (See Grant v. Superior Court (1978) 80 Cal.App.3d 606, 609.)
       The exhaustion doctrine, however, has certain judicially created exceptions.
(Coachella Valley, supra, 35 Cal.4th at p. 1080.) The doctrine does not apply when the
administrative remedy is inadequate. (Los Angeles County Employees Assn. v. County of
Los Angeles (1985) 168 Cal.App.3d 683, 686.) For example, it does not apply when
irreparable harm would result if judicial intervention were withheld until a final
administrative decision is rendered. (Alta Loma School Dist. v. San Bernardino County
Com. On School Dist. Reorganization (1981) 124 Cal.App.3d 542, 555; see also
Greenblatt v. Munro (1958) 161 Cal.App.2d 596, 605-606.)
       Here, the trial court found irreparable harm would result unless it issued a
preliminary injunction to maintain the status quo. The court stressed that AIMS had
demonstrated that it would lose its faculty and student body if the injunction were not
granted. Additionally, the students at the AIMS schools would be “deprived of the
opportunity to obtain an education at schools that have enabled those students to obtain
high API and SAT test scores.” The record clearly supports the trial court’s finding that
the irreparable harm exception to the exhaustion doctrine applies.



                                             35
       Defendants argue that the superior court’s ruling caused the SBE to lose
jurisdiction and thus the court’s order improperly usurped its jurisdiction and prevented it
from performing its statutory duty. In support of this argument, defendants requested that
we take judicial notice of the CDE letter under Evidence Code section 452, subdivision
(h). (See Evid. Code, § 452, subd. (h) [judicial notice may be taken of “[f]acts and
proposition that are not reasonably subject to dispute and are capable of immediate and
accurate determination by resort to sources of reasonably indisputable accuracy”].) In the
CDE letter, the CDE advised the SBE that the trial court’s order staying the
implementation of the Resolution revoking AIMS’s charter resulted in the SBE’s no
longer having jurisdiction to review AIMS’s appeal. AIMS opposed the request for
judicial notice.
       We grant judicial notice of the CDE letter for the limited purpose of showing that
the CDE took the position that the SBE did not have jurisdiction to review AIMS’s
appeal. We, however, reject defendants’ request to the extent they claim that this letter
“prove[s]” the SBE did not have jurisdiction to hear the appeal. The CDE’s legal
conclusions clearly do not satisfy the requirements of Evidence Code section 452,
subdivision (h).17
       Defendants contend that even though the trial court expressly stated that its
findings were “preliminary” and that it was simply maintaining the status quo, its order
caused the SBE to lose jurisdiction. We disagree. The granting of a preliminary
injunction whether it be prohibitory or mandatory in nature does not amount to an
adjudication of the ultimate rights in controversy. (Continental Baking Co. v. Katz
(1968) 68 Cal.2d 512, 528.) “The general purpose of such an injunction is the
preservation of the status quo until a final determination of the merits of the action.”
(Ibid.) Here, the preliminary injunction was necessarily of limited scope; it prohibited

       17  The CDE stated that “[a]s a result of the [trial court’s] order, AIMS cannot
presently be considered a revoked charter school within the meaning of [t]itle 5 of
California Code of Regulations section[s] 11968.5.4-11968.5.5.” The CDE’s legal
conclusion is puzzling since these regulations simply set forth the procedure for revoking
a charter.


                                             36
closure of the three charter schools and ordered continued funding. The court did not
reverse the resolution revoking the charter. Rather, it temporarily restrained the
enforcement of the resolution. The order had no effect on the SBE. This order did not
cause the SBE to lose jurisdiction and it did not prevent the SBE from performing its
duty. The SBE chose not to consider AIMS’s appeal.18
       Education Legal Association maintains that this preliminary injunction thwarts the
purpose of the exhaustion process and would open the judicial floodgates to those
impatient with administrative review. It cites Board of Police Commissioners v. Superior
Court (1985) 168 Cal.App.3d 420 (Board of Police Commissioners) in support of its
argument that the exhaustion doctrine cannot be circumvented by bringing an action for
injunctive relief. (Id. at p. 499.)
       We agree that courts ordinarily cannot issue a preliminary injunction prior to the
completion of the administrative process. When no exception to the exhaustion doctrine
applies, permitting an injunction would result in parties bypassing administrative
agencies, clogging the courts, and making administrative agencies impotent. (Board of
Police Commissioners, supra, 168 Cal.App.3d at p. 432.) However, the court in Board of
Police Commissioners expressly stated that none of the exceptions to the exhaustion
doctrine applied in the case before it. (Id. at p. 432.)
       In contrast to the situation in Board of Police Commissioners, here, the irreparable
harm exception to the exhaustion doctrine applies. Permitting a preliminary injunction
when the exception applies will not overburden the courts since injunctions would be
granted only when equity demanded relief to prevent the irreparable harm that would
result if an injunction were not issued.
       Finally, defendants argue that the trial court incorrectly ruled it could stay the
operation of an administrative order or decision pending completion of judicial
proceedings pursuant to Code of Civil Procedure section 1094.5, subdivision (g). This

       18 We need not address AIMS’s argument that the failure to exhaust
administrative remedies is moot because the SBE was not required to respond to AIMS’s
appeal and the time for it to respond has expired.


                                              37
statute requires the court to weigh the public interest and the court’s order, according to
defendants, did not do that. Additionally, defendants maintain that a Code of Civil
Procedure section 1094.5, subdivision (g) applies to a proceeding under Code of Civil
Procedure section 1094.5, and it is “the result of a proceeding in which by law a hearing
is required to be given, evidence is required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal . . . .” They argue that a hearing to
revoke a charter does not require an evidentiary hearing and therefore traditional mandate
applies, not Code of Civil Procedure section 1094.5. (See Today’s Fresh Start, supra, 57
Cal.4th at p. 228.)
       Defendants cite to Today’s Fresh Start, supra, 57 Cal.4th 197, but ignore that the
charter school in Today’s Fresh Start had challenged its charter revocation by filing a
petition for writ of administrative mandamus pursuant to Code of Civil Procedure section
1094.5. (Today’s Fresh Start, at p. 210.) The charter schools then moved for judgment
under Code of Civil Procedure section 1094, and the trial court granted the motion on the
basis that the charter school’s due process rights had been violated because the decision
to revoke was not made by an impartial adjudicator and the evidence in support of
revocation had not been introduced at the public hearing. (Today’s Fresh Start, at pp.
210-211.) The Court of Appeal reversed, and the Supreme Court affirmed the Court of
Appeal. (Id. at pp. 211, 231.) In affirming the Court of Appeal’s judgment, the Supreme
Court never suggested that the writ petition should not have been brought pursuant to
Code of Civil Procedure section 1094.5. Indeed, it cited Education Code section 47607,
subdivision (e), which requires a public hearing to consider whether evidence exists to
revoke the charter. (Today’s Fresh Start, at p. 228.) The court simply held that the
public meetings did not have to be “formal evidentiary hearings” as, “[i]n general,
“something less” than a full evidentiary hearing is sufficient prior to adverse
administrative action.’ ” (Ibid.)
       Code of Civil Procedure section 1094.5 does not require a “formal evidentiary
hearing,” and, here, a hearing was given, and evidence was required to be taken.
Education Code section 47607, subdivision (e) requires a chartering authority to “provide


                                              38
a written notice of intent to revoke and notice of facts in support of revocation” prior to
any revocation. (Italics added.) This provision also requires a public hearing “on the
issue of whether evidence exists to revoke the charter.” (§ 47607, subd. (e).) The charter
authority then must issue a final decision and, if revoking, it must make “written factual
findings supported by substantial evidence, specific to the charter school, that support its
findings.” (Ibid.)
       Defendant’s attack on the trial court’s citation to Code of Civil Procedure section
1094.5, subdivision (g) also lacks merit. This statute provides that except in situations
not relevant to the present case, “the court in which proceedings under this section are
instituted may stay the operation of the administrative order or decision pending the
judgment of the court . . . . However, no such stay shall be imposed or continued if the
court is satisfied that it is against the public interest.” (Code Civ. Proc., § 1094.5, subd.
(g).) This statute “unequivocally requires the superior court weigh the public interest in
each individual case.” (Sterling v. Santa Monica Rent Control Bd. (1985) 168
Cal.App.3d 176, 187.) The court in the present case clearly weighed the public interest
when considering whether to grant the request for a preliminary injunction. As already
discussed, the court emphasized that the denial of the preliminary injunction would injure
the three charter schools and the students at those schools. The court noted that
defendants identified financial irregularities in the past management of the AIMS schools
but failed to identify “any specific threat of future financial irregularity.” The court
explained that it could implement an equitable solution by crafting “a preliminary
injunction that [would] permit the [District] to more carefully monitor and regulate the
financial management of the AIMS schools while AIMS pursues its administrative
appeals.” Thus, the record showed that the court weighed the public interest prior to
deciding to grant the preliminary injunction.
       Accordingly, we conclude that the trial court had jurisdiction to issue a
preliminary injunction.




                                              39
                               VII. The Absence of the CDE
       Defendants contend that we should reverse the order granting the preliminary
injunction because the CDE was not a party in the preliminary injunction action. They
maintain that the CDE was an indispensable party.
       Code of Civil Procedure section 389 requires that a person be joined as a party “if
(1) in his absence complete relief cannot be accorded among those already parties or (2)
he claims an interest relating to the subject of the action and is so situated that the
disposition of the action in his absence may (i) as a practical matter impair or impede his
ability to protect that interest or (ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest.” (Code Civ. Proc., § 389, subd. (a).) A person meeting
these requirements is often referred to as a “necessary party.” (Bowles v. Superior Court
(1955) 44 Cal.2d 574, 583.)
      “If a person is determined to qualify as a ‘necessary’ party under one of the
standards outlined above, courts then determine if the party is also ‘indispensable.’
Under this analysis ‘the court shall determine whether in equity and good conscience the
action should proceed among the parties before it, or should be dismissed without
prejudice, the absent person being thus regarded as indispensable. The factors to be
considered by the court include: (1) to what extent a judgment rendered in the person’s
absence might be prejudicial to him or those already parties; (2) the extent to which, by
protective provisions in the judgment, by the shaping of relief, or other measures, the
prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s
absence will be adequate; (4) whether the plaintiff or cross-complainant will have an
adequate remedy if the action is dismissed for nonjoinder.’ (Code Civ. Proc., § 389,
subd. (b).)” (City of San Diego v. San Diego City Employees’ Retirement System (2010)
186 Cal.App.4th 69, 83-84.)
       “None of these factors is determinative or necessarily more important than
another. [Citations.] Further, the court’s consideration of these factors largely depends
on the facts and circumstances of each case. [Citation.] ‘Whether a party is necessary


                                               40
and/or indispensable is a matter of trial court discretion in which the court weighs
“factors of practical realities and other considerations.” ’ [Citation.] ‘A court has the
power to proceed with a case even if indispensable parties are not joined. Courts must be
careful to avoid converting a discretionary power or rule of fairness into an arbitrary and
burdensome requirement that may thwart rather than further justice.’ [Citation.]” (City
of San Diego v. San Diego City Employees’ Retirement System, supra, 186 Cal.App.4th at
p. 84.)
          Defendants maintain that because the CDE is the agency responsible for funding
public schools, it had an interest that could not be protected adequately. (See
Redevelopment Agency v. Commission on State Mandates (1996) 43 Cal.App.4th 1188,
1192, 1197 (Redevelopment Agency) [the State of California Department of Finance was
an indispensable party and a proper real party in interest in proceedings by a city’s
redevelopment agency against the Commission on State Mandates challenging the
commission’s ruling that the agency was not entitled to reimbursement for housing costs
the agency had incurred].) They claim that the need for the CDE was “demonstrated by
the fact that the [o]rder prematurely terminated the revocation appeals process and
divested the SBE of jurisdiction over the appeals process.”
          We agree with the superior court that its order had no effect on the obligations and
options of the CDE and the order did not prejudice the CDE. Rather, the order simply
required the charter to remain in effect and the CDE’s obligations and options remained
the same.
          The cases cited by defendants are inapplicable. (Serrano v. Priest (1976) 18
Cal.3d 728, 751-753 [Legislature and Governor were not indispensable parties in a
challenge to the constitutionality of school financing system because state officers with
statewide administrative functions under the challenged statute were the proper parties
defendant]; Butt v. State of California (1992) 4 Cal.4th 668, 673-674 [Supreme Court
affirmed preliminary injunction order to the extent it ordered a school district short on
funding to remain open for the final six weeks of the school year but reversed the order to
the extent it approved the diversion of emergency loan funds from appropriations


                                               41
intended by the Legislature for other purposes]; Grossmont Union High School Dist. v.
State Dept. of Education (2008) 169 Cal.App.4th 869, 888-889 [court held that the
judiciary had no general authority to compel appropriations or second guess legislative
spending decisions in a lawsuit by a high school alleging that the Legislature was not
providing enough funding for special education].) The state was a party in all of the
foregoing cases and the court did not have to consider whether the state was an
indispensable party. Moreover, these cases, including Redevelopment Agency, supra, 43
Cal.App.4th 1188, an additional case cited by defendants, involved a challenge to an
appropriation decision. No such challenge is present here. The preliminary injunction in
the present case stayed a revocation decision.
       Finally, even if the court had determined that the CDE was a necessary party, the
court’s decision to go forward without the CDE was not an abuse of discretion. Nothing
in this record shows that in the absence of the CDE the trial court could not accord
complete relief among those already parties to the action. AIMS did not seek any relief
in its request for an injunction or in its underlying mandate action that depended on
joinder of the CDE. AIMS’s petition sought to reverse the revocation action, which did
not involve the CDE.
                                     DISPOSITION
       The order granting the preliminary injunction is affirmed. Defendants are to pay
the costs of appeal.




                                            42
                                              _________________________
                                              Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Brick, J.*




      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



A139652, American Indian Model Schools v. Oakland Unified School District et al.




                                         43
Trial Court:                                   Alameda County Superior Court

Trial Judge:                                   Hon. Evelio Grillo


Attorneys for Defendants and Appellants        Office of General Counsel
                                               Jacqueline P. Minor

                                               Burke, Williams & Sorensen
                                               John R. Yeh
                                               Amy E. Hoyt

Attorneys for Plaintiff and Respondent         Weintraub, Tobin, Chediak, Coleman,
                                               Grodin Law Corporation
                                               Alex James Kachmar, Jr.
                                               Brendan J. Begley

                                               Procopio, Cory, Hargreaves & Savitch
                                               Gregory V. Moser
                                               Alyssa Aiko Yamakawa
                                               Adriana R. Sanchez


Attorneys for Amicus Curiae on behalf          Liberty Cassidy Whitemore
of Defendants and Appellants                   Laura Schulkind
                                               Megan M. Lewis

                                               California School Boards Association/
                                               Education Legal Alliance
                                               Keith Bray
                                               Joshua R. Daniels




                                          44
