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For Opinion See 145 Cal.Rptr.3d 454

Court of Appeal, Second District, Division P, California.Sharail REED, et al., Plaintiffs and Respondents,

v.LOS ANGELES UNIFIED SCHOOL DISTRICT, Partnership for Los Angeles Schools, Defendants,

andUnited Teachers Los Angeles, Defendant and Appellant.No. B230817.

February 17, 2011.

Appeal from Final Judgment and Order Approving Settlement of the Superior Court for the County of LosAngeles Case No. BC 432420Hon. William F. Highberger, Dept. 307 (213) 351-8601

Petition for Writ of Supersedeas by Appellant and Defendant United Teachers Los Angeles; Memorandum ofPoints and Authorities

Stephen Berzon (SBN 46540), Jeffrey Demain (SBN 126715), Eileen Goldsmith (SBN 218029), Danielle E. Le-onard (SBN 218201), P. Casey Pitts (SBN 262463 ), Altshuler Berzon LLP, 177 Post Street, Suite 300, SanFrancisco, California 94108, Telephone: (415) 421-7151, Facsimile: (415) 362-8064, Email: [email protected]ús E. Quiñonez, Esq. (SBN 106228), Holguin, Garfield, Martinez & Quiñonez APLC, 800 WestSixth Street, Suite 950, Los Angeles, California 90017, Telephone: (213) 623-0170 / Facsimile: (213) 623-0171,E-mail: jquinonez @hgmq.org, Attorneys for Petitioner and Appellant-Defendant, United Teachers Los Angeles.

*i TABLE OF CONTENTS

INTRODUCTION AND SUMMARY ... 1

PETITION FOR WRIT OF SUPERSEDEAS ... 6

A. OVERVIEW OF THE LITIGATION ... 7

B. THE SETTLEMENT AGREEMENT ABROGATED TEACHERS' STATUTORY AND CONTRACTUALSENIORITY RIGHTS ... 9

C. THE SUPERIOR COURT APPROVED THE NON-CONSENSUAL SETTLEMENT AGREEMENT OVERUTLA'S OBJECTIONS ... 12

D. THE UPCOMING 2011-2012 REDUCTION IN FORCE ... 18

E. THE SUPERIOR COURT DECLINED TO CLARIFY THAT ITS ORDER WAS MANDATORY ANDSTAYED PENDING APPEAL, AND DENIED UTLA'S MOTION FOR A DISCRETIONARY STAY ... 22

VERIFICATION ... 26

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© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF SUPER-SEDEAS ... 27

I. THE SUPERIOR COURT'S JUDGMENT ENFORCING THE SETTLEMENT OPERATES AS A MANDAT-ORY INJUNCTION AND THIS COURT SHOULD ENFORCE THE STAY OF THAT JUDGMENTPENDING APPEAL ... 28

II. EVEN IF THE JUDGMENT WERE NOT A MANDATORY INJUNCTION, THIS COURT SHOULDGRANT A STAY PENDING APPEAL IN ORDER TO PREVENT IRREPARABLE HARM TO TEACHERSAND STUDENTS ... 36

*ii III. THE TRIAL COURT'S JUDGMENT IS FATALLY FLAWED AS A MATTER OF STATUTE, CON-TRACT, AND CONSTITUTIONAL DUE PROCESS ... 44

A. The Judgment Should Be Reversed On Appeal For Failure to Comply With the Strict Statutory Requirementsof C.C.P. §664.6 ... 44

B. The Judgment Should Also Be Reversed On Appeal Because Due Process Does Not Permit the Teachers'Contractual and Statutory Seniority Rights To Be Abrogated by a Non-Consensual ‘Consent Decree’ Agreed toby Other Parties ... 46

1. The Trial Court Erred as a Matter of Law By Concluding that a Class Action Settlement Fairness Hearing,Rather than an Adjudication on the Merits, Was Sufficient Process for a Non-Consenting Party Whose RightsWere Infringed by the Settlement ... 47

2. The Superior Court Erred in Abrogating Teachers' Contractual and Statutory Seniority Rights Without a Find-ing that its Order Was Necessary to Remedy Specific Constitutional Violations ... 55

3. The Settlement Agreement Violates the Contractual and Statutory Seniority Rights of Hundreds of TeachersWho Will Laid Off During the 2011 Reduction in Force Who Would Otherwise Have Kept Their Jobs ... 57

CONCLUSION ... 61

CERTIFICATE OF COMPLIANCE ... 62

*iii TABLE OF AUTHORITIES

STATE CASES

ALRB v. Superior Court (1983) 149 Cal.App. 3d 709 ... 32

Ambrose v. Alioto (1944) 62 Cal. App.2d 680 ... 31, 33

Bledsoe v. Biggs Unified Sch. Dist. (2008) 170 Cal. App. 4th 127 ... 43

Chapala Management Corp. v. Stanton (2010) 186 Cal. App. 4th 1532 ... 30

Critzer v. Enos (2010) 187 Cal. App. 4th 1242 ... 5, 45

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Feinberg v. One Doe Co. (1939) 14 Cal.2d 24 ... 31, 32

Glendale City Employees'Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328 ... 55

Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299 ... 45

Hayworth v. City of Oakland (1982) 129 Cal. App. 3d 723 ... passim

In re Estate of Dabney (1951) 37 Cal.2d 402 ... 30

Levy v. Superior Court (1995) 10 Cal. 4th 578 ... 5, 45, 46

People v. Hill (1977) 66 Cal. App. 3d 320 ... 34

*iv People v. Imergent (2009) 170 Cal. App. 4th 333 ... 34

Sonoma County Organization of Public Employees v. County of Sonoma (1979)23 Cal. 3d 296 ... 55

Sully-Miller Contracting Co. v. Gledson/Cashman Constr., Inc. (2002) 103 Cal. App. 4th 30 ... 45

United Railroads of San Francisco v. City & County of San Francisco (1916) 172 Cal. 80 ... 31, 33

Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765 ... 55

FEDERAL CASES

Arthur v. Nyquist (2d Cir. 1983) 712 F.2d 816 ... 56

Durrett v. Housing Auth. of Providence (1st Cir. 1990) 896 F.2d 600 ... 54

EEOC v. AT&T Co. (3d Cir. 1977) 556 F.2d 167 ... 53

Johnson v. Lodge No. 93 of the Fraternal Order of Police (10th Cir. 2004) 93 F.3d 1096 ... 50, 52

Lelsz v. Kavanaugh (N.D. Tex. 1991) 783 F. Supp. 286 ... 54

Local Number 93, Int'l Ass'n of Firefighters, AFL-CIO, CLC v. City of Cleveland (1986) 478 U.S. 501 ... 2, 48

Nelson v. Nat'l Aeronautics & Space Admin. (9th Cir. 2008) 530 F.3d 865 ... 40

*v Oliver v. Kalamazoo Bd. of Educ. (6th Cir. 1983) 706 F.2d 757 ... 56

People Who Care v. Rockford Bd. of Educ. School Dist. No. 205 (7th Cir.1992) 961 F.2d 1335 ... passim

United States v. City of Hialeah (11th Cir. 1998) 140 F.3d 968 ... passim

United States v. City of Los Angeles (9th Cir. 2002) 288 F.3d 391 ... 50, 53

United States v. City of Miami (former 5th Cir. 1981) (en bane) 664 F.2d 435 ... 50, 53

United States v. Oregon (9th Cir. 1990)913 F.2d 576 ... 53

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Univ. of Hawai'i Prof. Assembly v. Cayetano (9th Cir. 1999) 183 F.3d 1096 ... 40

W.R. Grace & Co. v. Local Union 759 (1983)461 U.S. 757 ... passim

White v. Alabama (11th Cir. 1996) 74 F.3d 1058 ... 50

Wilder v. Bernstein (S.D.N.Y. 1986) 645 F. Supp. 1292 ... 54

Williams v. City of New Orleans (E.D.La. 1987) 116 F.R.D. 561 ... 54

Wygant v. Jackson Bd. of Educ. (1986)476 U.S. 267 ... 39, 40

STATUTES

Code of Civil Procedure §664.6 ... 5

Code of Civil Procedure §916 ... 30

*vi Code of Civil Procedure §918 ... 23, 28, 29






Code of Civil Procedure §664.6 ... 44, 45, 46

Education Code §44955 ... passim

Government Code §3543.2(c) ... 43, 60

*1 INTRODUCTION AND SUMMARY

On February 8, 2011, the Superior Court entered judgment against Defendants Los Angeles Unified School Dis-trict (“LAUSD” or the “District”), the Partnership for Los Angeles Schools (the “Partnership”), and UnitedTeachers Los Angeles (“UTLA”) in this lawsuit, in which plaintiff students at three LAUSD schools claimedthat abnormally high teacher turnover at their schools caused by the District's teacher layoffs violates their fun-damental right to an education under the California Constitution. The judgment nullifies teachers' contractualand statutory seniority rights at the Plaintiffs' three schools and up to 45 schools of the District's choosing. Thebasis for this judgment was not a finding of constitutional liability after summary judgment or trial, or a determ-ination that such a remedy was necessary to address constitutional violations, but rather a settlement agreementto which all of the affected parties did not agree.

After excluding UTLA from settlement negotiations, Plaintiffs, the District, and the Partnership entered into theSettlement Agreement at issue, which purports to exempt many District schools from the teacher seniority sys-

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tem in the upcoming 2011 Reduction in Force, in which the District will layoff more than 4,500 teachers. UTLAnever consented to this settlement, and consistently objected to the Superior Court's entry of Judgment enforcingthis Agreement. Despite these objections, the trial court, which had encouraged this settlement and agreed withthe expansion of relief beyond the Plaintiffs' three schools, concluded that the settlement terms were“reasonable,” ruled that Defendant UTLA had no further right to object, and entered judgment enforcing the Set-tlement.

The Supreme Court long ago held that due process prohibits parties *2 from settling a lawsuit in a manner thatconflicts with another party's legal rights. See Local Number 93, Int'l Ass'n of Firefighters, AFL-CIO, CLC v.City of Cleveland (1986) 478 U.S. 501, 529 (“Of course, parties who choose to resolve litigation through settle-ment may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on athird party, without that party's agreement”); see also W.R. Grace & Co. v. Local Union 759 (1983) 461 U.S.757, 771 (“[A]lthough the Company and the Commission agreed to nullify the collective bargaining agreement'sseniority provision, the conciliation process did not include the Union. Absent a judicial determination, theCommission, not to mention the Company, cannot alter the collective bargaining agreement without the Union'sconsent.”); United States v. City of Hialeah (11th Cir. 1998) 140 F.3d 968, 976-77 (holding that due process re-quires full adjudication at trial of the underlying claims prior to disposing of non-consenting parties' contractualrights). A trial court cannot permit a government entity to so easily set aside the contractual terms that it has bar-gained for, or the seniority rights that the California Legislature has imposed as a matter of state education andlabor policy. As one federal court explained, when faced with a similar non-consensual “consent decree” inwhich a public employer agreed with plaintiffs to abrogate a non-consenting union's contractual rights:

If we can dispense with the consent of the unions and the intervening employees and resolve this case over theirobjections, why should we not dispense with the consent of the City as well? Why not let the Department ofJustice, once it has demonstrated a prima facie case, enter into a settlement agreement with itself (and perhapswith the original plaintiff class as well), and have the court enter a “consent” decree to that effect even if theCity objects? If the consent of the *3 intervenors is not required before their legal rights can be settled away,why should the consent of the original defendant be required? Fortunately, the holdings of [prior] decisions saveus from such possibilities, because those decisions compel the conclusion that a proposed consent decree is dueto be rejected if it would affect the legal rights of the objecting parties.

City of Hialeah, 140 F.3d at 981. In contrast to the wise approach required by these federal courts and others, theSuperior Court's approach in this case, which it characterized as “an amalgam of delicate balancing, gross ap-proximations, and rough justice” in the name of facilitating and encouraging a settlement that it agreed with as apolicy matter, violates due process. Petitioner's Exhibits in Support of Writ (“Pet. Ex.”) 2 at 40.

UTLA now petitions this Court for preliminary relief in the form of a stay pending appeal, because despite thetrial court's recognition that the terms of this Judgment act as a mandatory injunction, it refused to enforce theautomatic stay pending appeal (or in the alternative to grant a discretionary stay). The District is therefore pro-ceeding with the 2011 RIF under the terms of the court's Judgment, and will issue RIF notices to teachers byMarch 15, 2011. Among the teachers to be laid off will be hundreds who would have been protected by the seni-ority rules but for the terms of this Judgment. UTLA requests a writ of supersedeas to enforce the automatic stayof this mandatory injunctive relief pending the resolution of UTLA's appeal of the trial court's unlawful judg-ment in this case. UTLA requested that the District comply with the mandatory stay, and at the very least to pre-pare RIF notices both ways in light of the appeal and this stay request, but unfortunately the District refused todo either. In order to protect the rights of these teachers, a stay would be required sufficiently in *4 advance of

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the March 15 deadline to allow the District to prepare the RIF notices for the proper group of teachers, consist-ent with the existing statutory and contractual requirements.

As explained in Section I of the Memorandum below, the court's judgment is mandatory in effect, and thereforethe writ of supersedeas must issue to stay the implementation of that Judgment pending appeal, because thejudgment entirely remakes the legal and contractual framework governing teacher layoffs in LAUSD.

In addition, as explained in Section II of the Memorandum, even if this Court were to hold that the terms of theJudgment were prohibitory rather than mandatory, the irreparable harm to the hundreds of teachers who will re-ceive layoff notices on March 15, 2011 (and to their students) warrants a discretionary stay.

Finally, UTLA demonstrates in Section III of the Memorandum that it has raised facially valid statutory andconstitutional challenges to this Judgment on appeal sufficient to warrant a stay. The Court erred by concludingthat due process required nothing more than a class action settlement fairness hearing, where UTLA had the bur-den of demonstrating that the terms of settlement were not ‘reasonable’ or ‘fair,’ and no party had to prove actu-al constitutional violations, prior to entering a judgment nullifying teachers' contractual and statutory rights.Moreover, the Court also erred by concluding there was no conflict with teachers' rights by invoking a narrowand inapplicable statutory exception to the seniority requirements.

Finally, in addition to the fundamental due process violation that has occurred by the trial court's entry of judg-ment based on a non-consensual settlement agreement that abrogates the rights of a non-consenting party, the *5judgment also violates basic requirements of the California law on judgments. The narrow exception to the gen-eral rule that judgment requires a merits determination for judgment after settlement does not permit judgmentto be entered against a party, like UTLA, that has not agreed in writing to the settlement. C.C.P. §664.6; Critzerv. Enos (2010) 187 Cal.App.4th 1242. Moreover, the California Supreme Court has held that the requirements ofC.C.P. 664.6 must be strictly construed (see Levy v. Superior Court (1995) 10 Cal.4th 578, 585), and the settlingparties have violated the most basic of requirements by submitting an unsigned settlement agreement as the basisfor judgment in this case. For all these reasons, UTLA has demonstrated that its statutory and constitutionalchallenges on appeal to this Judgment are facially valid, and sufficient to warrant granting a stay pending ap-peal.

UTLA does not seek a stay of the Superior Court's May 13, 2010 preliminary injunction, which prohibits theDistrict from laying off teachers at the original three schools that were the subject of Plaintiffs' complaint. Al-though the preliminary injunction at those schools, Gompers, Markham, and Liechty Middle Schools, is alsomandatory in its effect, the injunction has been in place since May 2010 and no party challenged it on appeal.The Superior Court granted that injunction based on a detailed record of evidence demonstrating the destructivenature of teacher layoffs on education at those schools. The settling parties' Agreement provides that that injunc-tion remains in effect by its own terms through June 2011. For these reasons, Gompers, Markham, and Liechtyare in a materially different procedural posture to the other 42 protected schools, which the District has just se-lected and as to which the record evidence is much more scant.

*6 PETITION FOR WRIT OF SUPERSEDEAS

TO THE COURT OF APPEAL, SECOND APPELLATE DISTRICT:

1. Petitioner and Appellant/Defendant United Teachers Los Angeles (“UTLA”) petitions this Court to stay en-forcement of the Judgment and Order Granting Final Approval of Settlement entered by the Superior Court of

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California, County of Los Angeles on February 8, 2011, until determination by this Court of UTLA's pendingappeal. UTLA's appeal challenges the entry of judgment and approval of a non-consensual “Settlement Agree-ment” between Plaintiffs and Defendants Los Angeles Unified School District and Partnership for Los AngelesSchools (“the settling parties”), to which Defendant UTLA did not consent, and which abrogates the contractualand statutory seniority rights of UTLA's teacher members without due process. True and correct copies of theSuperior Court's February 8, 2011 Judgment and Findings of Fact, Conclusions of Law, and Order Granting Fi-nal Approval of Settlement are included at Pet. Ex. 1 and 2.

2. The Notice of Appeal of the Superior Court's Judgment and Order was filed by UTLA on February 9, 2011.Pet. Ex. 3. Despite this appeal, Los Angeles Unified School District (“LAUSD” or “the District”) has movedforward to implement the Court's Judgment, and will send Reduction in Force notices consistent with the plan inthe Settlement Agreement by the statutory deadline of March 15, 2011. See Petitioner's Request for Judicial No-tice (“RJN”), Ex. 1. As a result of the trial court's approval of this Settlement Agreement abrogating teachers'contractual and statutory rights, hundreds of teachers will be laid off during the upcoming 2011 Reduction inForce who would not otherwise have been let go.

*7 A. OVERVIEW OF THE LITIGATION

3. Plaintiffs brought this case in 2010 as a class action on behalf of a proposed class of students at three schools(Gompers, Markham, and Liechty Middle Schools), asserting that LAUSD's teacher layoffs were depriving stu-dents at those schools of “the basic educational opportunity guaranteed them by the California Constitution.”Pet. Ex. 10 (Third Amended Complaint). Plaintiffs' Complaint contended that the three identified schoolssuffered drastically greater teacher turnover than other schools within the District, and were therefore more ad-versely affected by Reductions in Force. Plaintiffs alleged no constitutional violations beyond these threeschools.

4. In addition to LAUSD, plaintiffs originally sued the State of California, former Governor Arnold Schwar-zenegger, Jack O'Connell (the State Superintendent of Public Instruction), the State Board of Education, and theState Department of Education. Pet. Ex. 10 (Third Amended Complaint).

5. UTLA is the exclusive collective bargaining representative of teachers employed by LAUSD. UTLA andLAUSD are parties to a collective bargaining agreement that is effective through 2011.

6. Ruling on LAUSD's demurrer, the Superior Court ordered plaintiffs to amend their complaint to add UTLAand the Partnership for Los Angeles Schools (“Partnership”) as necessary parties:It may well be that the current seniority system, which is a contractual obligation as between LAUS[D] andUTLA, will have to be abrogated or modified if the plaintiffs show that they are otherwise entitled to relief. Italso appears that non-party Partnership has primary responsibility for the day-to-day management of at least twoof the three schools in question.*8 Any number of other possible alternatives to protecting the educational experience of the students in questionmay need to be considered in lieu of a simple “Don't Lay Off These Teachers” mandate to LAUSD. Perhaps theEducation Code provides a legal basis to abrogate LAUSD's contractual obligations with UTLA (which are sep-arate from and cumulative to its obligations to teachers under statutes), but UTLA should have proper notice andan opportunity to be heard before any such action is taken by this Court....

Pet. Ex. 9 (Notice of Ruling, April 30, 2010).

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7. The Court also expressly encouraged all the affected parties to reach a settlement:These kinds of public policy issues are generally best resolved by reasonable compromise by all interestedparties, and the Court would hope that plaintiffs, the state-related defendants, LAUSD, UTLA and the Partner-ship will all promptly engage in serious discussions about alternatives to further litigation.

Pet. Ex. 9 (Notice of Ruling, April 30, 2010).

8. Plaintiffs then sought a preliminary injunction prohibiting the District from laying off teachers for the2010-2011 school year at Gompers, Markham, and Liechty. Plaintiffs submitted evidence in support of their ap-plication for a preliminary injunction demonstrating that each of those three schools was in the lowest 10% ofschools in the state in terms of students' academic performance; that each of the three schools was hit with a dis-proportionately high percentage of teacher layoffs in the 2009-10 school year as compared to other LAUSDschools; that 2010 layoffs again * threatened to affect those three schools disproportionately; and that the lack ofpermanent teachers contributed to the poor quality of education at those three schools. In light of this evidence,the Superior Court granted a preliminary injunction prohibiting teacher layoffs for the 2010-2011 school *9 yearat Gompers, Markham, and Liechty. Pet. Ex. 11 (Revised Findings & Order on Plfs' Motion for Preliminary In-junction). No party appealed the preliminary injunction.

9. Again, the court urged the parties to engage in settlement negotiations. Pet. Ex. 2 (Order Granting Final Ap-proval) at 6:23-7:1.

10. After the preliminary injunction was granted, plaintiffs engaged in settlement discussions with LAUSD andthe Partnership.

11. In October 2010, plaintiffs, LAUSD, and the Partnership reached a settlement, which they memorialized inan unsigned document entitled “Intervention Program for Targeted Schools.” See Pet. Ex. 2, Exhibit A (hereafter“Settlement Agreement”).

12. Although petitioner UTLA participated in some early settlement discussions with the settling parties, it wasexcluded from those discussions after August 2010. Defendant UTLA never consented to the settling parties'Agreement.

13. The Settlement Agreement was negotiated against the backdrop of a substantial anticipated RIF for the2011-2012 school year, based on ever-worsening state and local budget conditions. By December 2010, it wasapparent that the District intended to lay off 4,000 or more teachers in the 2011-2012 school year.

B. THE SETTLEMENT AGREEMENT ABROGATED TEACHERS' STATUTORY AND CONTRACTUALSENIORITY RIGHTS

14. Both the Education Code and UTLA's current collective bargaining agreement (“CBA”) with LAUSD re-quire any teacher layoffs to proceed on the basis of employee seniority.

15. Education Code §44955(b) provides that the layoff of *10 permanent teachers (i.e., teachers with more thantwo years of experience) shall proceed on the basis of teacher seniority within the school district:Except as otherwise provided by statute, the services of no permanent employee may be terminated under theprovisions of this section while any probationary employee, or any other employee with less seniority, is re-tained to render a service which said permanent employee is certificated and competent to render.

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16. UTLA's CBA with LAUSD governs LAUSD's layoffs of probationary teachers, who have not yet achievedpermanent status. The CBA requires that probationary teachers be laid off in order of district-wide seniority:The order of termination within a teaching or service field in which a Reduction in Force is effected, in whole orin part, shall be based on seniority within status, beginning with provisional employees, then temporary con-tracts, then University/Individualized Interns, then District Interns, then Conditional employees, then Probation-ary 1 employees, then Probationary 2 employees then Probationary 3 employees and finally Probationary 4 em-ployees.

Pet. Ex. 7 at P00144-145 (UTLA Collective Bargaining Agreement (2006-2009), Art. XIII, §3.0(b)). The2006-2009 agreement has been extended through the 2010-2011 school year. Id: at P00117 (Ekchian Decl., ¶4).

17. The Settling Parties used the Settlement Agreement to empower the District to bypass teacher seniorityrights not just at the three schools that were the subject of the lawsuit and the Court's preliminary injunction, butalso at up to 45 schools of the District's choosing. The Agreement provides as follows, with respect to the layoffof permanent and probationary teachers:*11 1. Definition of “Targeted Schools”a. The twenty-five API[FN1] rank 1-3 schools with the highest “teacher turnover rate based on a rolling three-year average, which also are demonstrating growth over time based upon multiple measures of school-wideteacher performance and the school's overall academic growth over time, taking into account each statisticallysignificant subgroup under No Child Left Behind (“NCLB”). The District shall, pursuant to the Court order is-sued to enforce this settlement, develop the performance measures needed to carry out this assessment no laterthan February 1st of any year in which a certificated reduction in force may take place, although the Districtmay attempt to negotiate the terms of assessment with United Teachers Los Angeles (“UTLA”) in accordancewith this timeline. Teacher turnover rate shall be defined as the attrition of teachers, year-to-year, including at-trition caused by RIFs, calculated as of September 1 each year.

FN1. “API” stands for Academic Performance Index.

b. Up to twenty “new schools” (schools that were established within two years of September 1 of the currentyear) that the District determines are likely to be negatively and disproportionately affected by teacher turnover.The determination of whether the District shall have discretion to designate a new school as a Targeted Schoolshall be based on the historical retention data and decile performance of feeder schools and the potential current-year RIF impact at the new school. The District may also include schools, in its discretion, that it determines arein intense need of protection in this category.c. Plaintiffs' Schools. For the 2010-2011 school year, the classroom teaching staff at John H. Liechty MiddleSchool, Edwin Markham Middle School, and Gompers Middle School, shall remain as ordered by the SuperiorCourt in the preliminary injunction issued on May 13, 2010, and all other provisions of the preliminary injunc-tion shall remain in place until June 30, 2011. After June 30, 2011, these three schools will be included as tar-geted schools and be subject to *12 all provisions applicable to the targeted schools, at least through June 30,2013, and will remain in the targeted schools thereafter if they satisfy the criteria for the targeted schools.2. Intervention Program for Targeted Schools:a. Protection from RIF. In the event of a RIF, the District will skip teachers at targeted schools. In order to min-imize negative consequences at other schools as a result of skipping the up to 45 schools defined herein, the Dis-trict will ensure that no other school is impacted greater than the District average.

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Pet. Ex. 2 at P00053-54 (Agreement ¶¶1(a)-(c) & 2(a)) (all emphasis in original).

18. The Agreement did not identify the specific schools to be shielded from layoffs except for Gompers,Markham, and Liechty.

C. THE SUPERIOR COURT APPROVED THE NON-CONSENSUAL SETTLEMENT AGREEMENT OVERUTLA'S OBJECTIONS

19. The settling parties moved for preliminary approval of this Settlement Agreement as a class settlement.UTLA objected to approval of this Agreement, to which it had not consented, and which nullified the seniorityrights of its members.

20. On December 15, 2010, the Superior Court granted preliminary approval of the settlement. Although theAgreement by its terms affected students throughout LAUSD, the Superior Court conditionally certified a class,for purposes of settlement, consisting only of students attending Gompers, Markham, or Liechty Middle Schoolsin the *13 2008-09 or 2009-10 school years.

21. Notices regarding the Agreement were distributed to all class members at the three original schools; all otherLAUSD students; and all LAUSD teachers. The Court received approximately 220 objections to the Agreement,mostly from impacted teachers, but also from a student who believed that his school would not be shielded fromlayoff. State Superintendent of Public Instruction Tom Torlakson also objected to the Agreement.

22. From January 18-20, 2011, the Superior Court held a final approval hearing regarding the non-consensualSettlement Agreement.

Again UTLA objected to approval of a settlement and entry of judgment affecting the rights of its members, towhich it had not agreed. Following the hearing, the Superior Court issued an oral ruling granting final approvalto the Agreement. Pet. Ex. 25 (Tr. 64:8-85:10 (Jan. 20, 2011)).

23. The Superior Court subsequently issued Findings of Fact, Conclusions of Law, and an Order Granting FinalApproval. Pet. Ex. 2. In that Order, the Superior Court set forth its reasoning in detail. With respect to the stand-ard of review to be applied to the decree, the Superior Court ruled as follows:California courts favor settlement. Trial courts have broad *14 power to determine whether a proposed settle-ment is fair.... For approval, a settlement must be fair, adequate, and reasonable for class members overall. Aproposed consent decree is presumptively fair where (1) the settlement is reached through arm's-length bargain-ing; (2) investigation and discovery are sufficient to allow counsel and the court to e act intelligently; (3) coun-sel is experienced in similar litigation; and (4) the percentage of objectors is small.If the decree is presumptively valid, an objecting party such as UTLA has the burden of demonstrating that thedecree is unreasonable. As a non-settling party, UTLA bears the burden of demonstrating that the entry of a con-sent decree would adversely affect its legal rights or interests. Because UTLA is a party to this case and particip-ated in settlement negotiations, there is no heightened duty to protect its interests.The Court need only be satisfied that the decree represents a reasonable factual and legal determination, and thatit has sufficient information to permit an intelligent evaluation of its terms.

Pet Ex. 2 at 16:13-17:12 (citations and quotations omitted).

24. Regarding the “presumptive fairness” of the decree, the Superior Court observed that the settling parties ne-

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gotiated at arms' length; they robustly investigated the facts; they were represented by competent counsel; and“not a single class member objected to the Agreement.” Pet. Ex. 2 at 17:13-17.

25. The Superior Court then found that it could enter a decree extending beyond Gompers, Markham, andLiechty, even though the settlement class consisted only of students at those three schools:A court may enter a consent decree even if it provides broader relief than the court could have awarded after tri-al. A court also may enjoin a defendant from committing similar or related unlawful activity. This power ex-tends to future acts that may fairly be anticipated from the defendant's conduct in *15 the past. The Court maythus issue injunctive relief based on evidence of potential injuries beyond those experienced by the particularplaintiffs.

Pet. Ex. 2 at 18:20-19:12 (citations and quotations omitted).

26. The Superior Court then found that the decree was fair and reasonable, recognizing that the Court had evalu-ated the evidence according to legal standards less stringent than it would have applied at trial or on summaryjudgment:As noted in the Final Fairness Hearing, the Court does not approach the evidence introduced by the parties as ifit were adjudicating the case at the end of trial to determine what would be the appropriate judicial remedy.Viewed in the limited posture of a fairness hearing in which the settlement is presumed fair, the evidence showsthat there is in fact a failure to provide an adequate basic public education both as to the three Plaintiffs' schoolsand as to some universe that encompasses 45 schools and more. Based on the evidence described herein, theCourt concludes that there is an adequate factual basis on which the Court can anticipate ... that there are similarconstitutional violations to those of the three schools, which are foreseeable, indeed already extant.

Pet. Ex. 2 at 19:23-20:4 (citations and quotations omitted). The Superior Court then summarized the evidencepresented at the final approval hearing. Id. at 20:13-37:23.

27. The Superior Court then addressed UTLA's objections to the decree. Pet. Ex. 2 at 37:24-45:15. The SuperiorCourt concluded that this agreement could be approved and judgment could be entered without adjudicating themerits of the constitutional violations at any of the additional 42 schools that would be shielded from layoffsbeyond Gompers, Markham, and Liechty. The Court rejected UTLA's arguments that due process requiredUTLA be given the opportunity to fully litigate the *16 underlying claims, before the abrogation of its contrac-tual and statutory rights:UTLA argues that the Court cannot approve the Settlement Agreement without a finding (either after trial or onsummary judgment) that there are in fact constitutional violations at each of the targeted schools. The Courtfinds UTLA's position unpersuasive.First, the situation here is very different from that in W.R. Grace [& Co. v. Local Union 759 (1983) 461 U.S.757] and [United States v. City of] Hialeah [(11th Cir. 1998) 140 F.3d 968]; unlike the union in those cases,UTLA has been an active defendant in this litigation from early on and has had a full opportunity to litigate thefairness of the settlement....Second, UTLA misconstrues the standard for entry of prospective injunctive relief and for the entry of a consentdecree. The Court need not find currently occurring constitutional violations at other schools (although theCourt has already found that, based on the criteria included in the Settlement Agreement, that such violationswill occur at other schools likely to be protected under the Settlement Agreement). Rather, the Court has thepower, in fact the duty, to enjoin a process that may be fairly anticipated to result in constitutional violationssimilar to those experienced at Plaintiffs' schools. Moreover, to approve the Agreement, the Court need not

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make findings on the underlying claims. Rather, the trial court's determination is nothing more than an amalgamof delicate balancing, gross approximations and rough justice. The evidence need only show that the decree rep-resents a reasonable factual and legal determination, and that there is sufficient information to permit an intelli-gent evaluation of the terms. UTLA's protest does not change these standards.Third, the evidence leaves no doubt that imposing layoffs at the targeted schools may fairly be anticipated tocontribute to a constitutional violation.

Pet. Ex. 2 at 39:6-40:20 (citations and quotations omitted; emphasis in original).

*17 28. The Superior Court also concluded that the Settlement Agreement was not inconsistent with teachers'statutory seniority rights because Education Code §44955(d)(2) provided for an exception to seniority to preventan “equal protection violation.” Pet. Ex. 2 at 38:19-27.

29. Finally, the Superior Court concluded that it could enter the decree over UTLA's objection because a consentdecree need only be “reasonable”:Finally, given the evidence that the Settlement Agreement will prevent further constitutional violations at thetargeted schools as well as at schools to which layoffs are redirected, the Court has power to enter the decree. Aconsent decree, even one that affects non-consenting defendants, need only be ‘reasonable.’ ...The Court is fully cognizant of the fact that some more senior teachers may be laid off while more junior teach-ers at the targeted schools are skipped. The evidence shows that because of vacancies created by normalturnover, this is not a one-to-one correspondence, i.e., some of these more senior teachers may be reemployed bythe LAUSD. The evidence also shows that there are constant vacancies at schools targeted by the SettlementAgreement and more senior teachers at other schools chose not to fill these vacancies. But more important, theCourt finds that this consequence was specifically contemplated by the Legislature in enacting section 44955,subdivision (d)(2). “But the Education Code expressly qualifies these seniority rights, allowing deviations forpedagogical needs and constitutional interests. (See, e.g., §§44955(d)(l), 35036). Most important for this case,the Education Code expressly allows a school district to ‘deviate from terminating a certificated employee in or-der of seniority for... purposes of maintaining or achieving compliance with constitutional requirements relatedto equal protection of the laws.’ ” (Rev. P.I. Findings and Order p. 7, quoting §44955(d)(2).) As the Court previ-ously found, the Court has the power to override both statutory and contractual seniority rights to remedy the vi-olation of Plaintiffs' constitutional *18 rights.

Pet. Ex. 2 at 44:3-45:15 (citations and quotations omitted).

30. In sum, even though the Court ordered UTLA be joined as a necessary party to the litigation because of thecase's impact on its rights and those of the teachers it represents, the Superior Court never adjudicated UTLA'srights by summary judgment or trial, and never determined that constitutional violations were caused by teacherturnover at the (unnamed) 42 additional schools granted exemption from layoffs in the Agreement and that ab-rogation was necessary to remedy those specific violations. The Court rejected UTLA's due process argumentsas a non-consenting party, concluding that the “rough justice” provided by a settlement fairness hearing was suf-ficient.

31. The Superior Court granted final approval to the Settlement Agreement over UTLA's objections that theAgreement abrogates the statutory and contractual seniority rights of teachers whom UTLA represents, and thatenforcing such a non-consensual decree over UTLA's objection and without an adjudication of UTLA's and theteachers' rights violates UTLA's and the teachers' constitutional due process rights.

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D. THE UPCOMING 2011-2012 REDUCTION IN FORCE

32. Based on its projected budget shortfall, LAUSD is now preparing substantial teacher layoffs for the upcom-ing 2011-2012 school year. Under Education Code §§44955(c) and 44949, initial reduction in force (“RIF”) no-tices must be mailed to affected teachers no later than March 15, 2011. Teachers who receive notices and objectto losing their jobs must request an administrative hearing within seven days of the notice. Following any ad-ministrative hearings, the District must make final RIF *19 determinations no later than May 15, 2011.

33. Following the Court's entry of Judgment, on February 15, 2011, the LAUSD Board of Education adoptedresolutions pursuant to which it intends to send RIF notices for the 2011-2012 school year to more than 4,500permanent and probationary teachers throughout the District. The resolutions state that the District will conductthe 2011-2012 RIF pursuant to the terms of the non-consensual Settlement Agreement, not the existing senior-ity-based rules in Education Code §44955 and the UTLA' collective bargaining agreement:It is proposed that the Board of Education... [d]eterminee that it is necessary to retain the services of certificatedemployees in the 2011-2012 school year regardless of seniority who are classroom teachers at the schools listedin Attachment 2B, pursuant to judicial orders issued in the matter of Sharail Reed, et al. v. State of California, etal. (Notice of Appeal filed February 9, 2011). RIF notices that would have been sent to skipped teachers atschools listed in Attachment 2B shall be redirected to teachers based on District seniority order at schools thatwould have otherwise received less than the district-wide average (by percentage) of RIF notices, but in no caseshall redirected RIF notices cause a school to exceed the district-wide average of RIF notices, per Court-ap-proved terms in the Reed case.

Pet. RJN, Ex. 1 at 4; see also id. at 10.

34. The Board of Education's resolutions identify 42 schools, in addition to Gompers, Markham, and Liechty,that the District will shield from layoffs under the Court's Judgment. RJN, Ex. 1. For every more junior teachershielded from the RIF at one of these 42 schools, a more experienced teacher at another school will be laid off,despite that teacher's contractual and statutory seniority rights. Before the 42 schools were identified this week,the precise number of such adversely affected teachers *20 could not be specifically determined. UTLA under-stands that several hundred or more experienced teachers' seniority rights will be nullified by the District's des-ignation of these 42 schools as exempt from layoffs.

35. The trial court recognized that its Judgment would drive layoffs deeply into the ranks of experienced teach-ers. Pet. Ex. 2 at 44:8-9 (Feb. 8, 201 1) (“The Court is fully cognizant of the fact that some more senior teachersmay be laid off while more junior teachers at the targeted schools are skipped.”). Based on information the Dis-trict provided before it selected the list of protected schools, layoffs were likely to reach as deeply as to teacherswith eight and nine years of experience (Pet. Ex. 21 (Joseph Decl., ¶5)); however, because the schools had notyet been selected at that time, it is possible that layoffs could reach even deeper into the teacher ranks. Theteachers adversely affected by the Court's approval of this non-consensual settlement - these teachers with sub-stantial experience - are likely the most effective teachers.

36. Among the ranks of teachers who are likely to face layoffs as a result of the layoffs redirected by the court'sJudgment are many highly-qualified professionals who have devoted their careers to teaching in schools thatserve overwhelmingly high-poverty, minority students. For example, Jennifer Lee has taught for seven years atMiddleton Elementary School, whose students are 99% Latino and all receive free meals at school. Ms. Lee notonly has a multiple subject teaching credential, she also has achieved certification through the National Board

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Certification (“NBC”) Program, which is based on a year-long assessment of the teacher's practice, student andcommunity evaluations, and an interview that tests the teacher's knowledge of content and professional practice.Only teachers with at least three years of experience under a full teaching credential can *21 apply for this certi-fication. Pet. Ex. 17 (Lee Decl. ¶3-6)

37. Like Ms. Lee, Donna McInnes is a teacher with eight years of experience at Van Nuys Elementary School,who also holds an NBC certification. She is equally committed to the Van Nuys community of students of par-ents, who are overwhelmingly Latino and high-poverty. Pet. Ex. 18 (McInnes Decl., ¶¶2-5).

38. Leah Simon, a Van Nuys teacher since 2001, was raised in Van Nuys by immigrant parents, is bilingual inSpanish and English, and sees herself as a role model to her students. She runs parent clinics to help her stu-dents' parents take an active role in their children's education. Outside the classroom, she spends countless hoursplanning her lessons, collaborating with other teachers, and writing grant applications. She and Ms. McInneshelped launch the Van Nuys Science Fair, in which every student participates. Ms. Simon turned down an op-portunity to work in a high-API school in more affluent Sherman Oaks to stay at Van Nuys. Ms. Simon sums upher commitment to her students with the words, “I am Van Nuys Elementary.” Pet. Ex. 20 (Simon Decl., ¶¶3-5).

39. Like Ms. Simon, Carlos Tejada, a history teacher at Belvedere Middle School since 2001, is bilingual andsees himself as a role model for his predominantly Latino students. Mr. Tejada chooses to teach at Belvedere, ahigh-poverty school in east Los Angeles, rather than at a more affluent school, because he wants to make a dif-ference in his students' lives. His commitment to his students is reflected in his typical workday, where he is atschool from 6:30 a.m. to 4:00 p.m., and by the countless hours he spends outside the classroom working withstudents and their families, planning lessons, and collaborating with other teachers. Pet. Ex. 19 (Tejada Decl.,¶¶3-7).

*22 E. THE SUPERIOR COURT DECLINED TO CLARIFY THAT ITS ORDER WAS MANDATORY ANDSTAYED PENDING APPEAL, AND DENIED UTLA'S MOTION FOR A DISCRETIONARY STAY

40. UTLA asked the Superior Court on February 4, 2011 to clarify that its order and judgment enforcing thenonconsensual consent decree was in effect a mandatory injunction that would be stayed pending appeal. Pet.Ex. 16, 27. The Superior Court agreed that the order would have the effect of a mandatory injunction:Although negative words are used in the settlement agreement about not laying off certain people, if the real testis whether or not the status quo ante appears to have been changed by the order that the Court is on the cusp ofmaking, I think that in a fair reading of it, the status quo ante is changed. I think it's changed by recognition thatthe law applied to a recognition of the facts mandates that the status quo ante change, but that still can coexist asa conceptual matter with the fact that the status quo ante or pure seniority based layoffs is changed.It's changed in a couple of regards that are non-trivial. Some schools just flat out won't have layoffs. But separ-ate from that, in a way that's non-trivial, the reallocation of those layoffs is to occur in a fashion different fromwhat the status quo ante would have been. We apparently are going to have more layoffs in all likelihood thanwe've had in recent experience, painful as the recent experience has been; but I don't think that changes [the]analysis of whether or not the status quo ante has been changed. If anything it emphasizes how significant theadoption of the settlement is to what otherwise would occur if the status quo ante were whole. So I think theUTLA has the better of the argument, frankly, that this is mandatory in nature.

Pet. Ex. 27 (Tr. 28:2-29:2 (Feb. 4, 2011)). However, despite this correct understanding of the effect of its order,the Superior Court refused to clarify its order to rule that it is mandatory rather than merely prohibitory. Pet. Ex.

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*23 27 (Tr. 64:6-14 (Feb. 4, 2011)). It did so in response to the settling parties' request that the court withholdany ruling on this issue. Pet. Ex. 27 (Tr. 38:5-48:5, 52:27-53:27, 56:13-57:5 (Feb. 4, 2011)).

41. UTLA also moved the Superior Court to stay the effect of its order approving the decree in an exercise of itsdiscretion under C.C.P. §918. The Superior Court denied that request. Pet. Ex. 27 (Tr. 29:3-5, 63:24-64:5 (Feb.4, 2011)).

42. Following the court's oral ruling to grant final approval at the February 4, 2011 hearing, it ordered the set-tling parties to revise their previously proposed findings of fact and conclusions of law supporting final approv-al. The Court held another hearing on February 8, 2011 at which these revised proposed findings were discussed.Pet. Ex. 28 (Declaration of Eileen Goldsmith).[FN2] At this hearing, the Court determined that it would grant fi-nal judgment against Defendants the District, the Partnership, and UTLA, over UTLA's objections. Id. AtPlaintiffs' request, the court dismissed the State defendants from the lawsuit. Id.

FN2. As of the date of this filing, the court reporter has not yet completed the transcript of the Feb. 8,2011 hearing. Petitioner has therefore submitted a declaration pursuant to C.R.C. 8.112(a)(4)B)(iii) and(iv). Petitioner has ordered an expedited copy of that transcript and will submit it to the Court as a sup-plemental exhibit once Petitioner receives it. Pet. Ex. 28 (Goldsmith Dec.).

43. During this February 8 hearing, UTLA renewed its request that the Court either clarify the mandatory effectof its order or enter a stay of its judgment pending UTLA's appeal. Id. The court again denied that request. Id.

44. On February 8, the Superior Court signed the Judgment and Order Granting Final Approval of Settlement.Pet. Ex. 1, 2.

*24 45. On February 8, UTLA wrote to the District to place the District on notice of UTLA's position that theSuperior Court's order enforcing the Agreement is effectively a mandatory injunction that will be stayed auto-matically by the filing of UTLA's appeal of that order. UTLA demanded that the District prepare to conduct thelayoffs consistently with the seniority-based rules in Education Code §44955 and the UTLA collective bargain-ing agreement. The District informed UTLA that it intended to implement the terms of the Settlement Agree-ment. See Pet. RJN, Ex. 1.

46. On February 9, 2011, UTLA filed a Notice of Appeal of the Judgment and Order Granting Final Approval ofSettlement. Pet. Ex. 3.

47. This Court should grant a writ of supersedeas enforcing the mandatory stay of the February 8, 2011 Judg-ment pending appeal, or in the alternative, imposing a stay to prevent the Superior Court's Judgment from beingimplemented, in order to protect this Court's appellate jurisdiction and to ensure that the rights of teachers whomUTLA represents can be vindicated if UTLA prevails on its appeal.

WHEREFORE, Petitioner UTLA prays as follows:

1. That the Court issue an Order or Writ of Supersedeas staying the Judgment and Order Granting Final Approv-al of Settlement pending resolution of UTLA's pending appeal.

2. That Appellant and Defendant UTLA be awarded costs in this proceeding; and

3. That Appellant and Defendant UTLA be awarded such other or further relief as shall be just and equitable un-

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http://www.westlaw.com/Find/Default.wl?rs=FIPI1.0&vr=2.0&DB=1000298&DocName=CASTAPPLLR8.112&FindType=L


der the circumstances.

*27 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF SU-PERSEDEAS

The Superior Court's order and judgment approving the Settlement Agreement between Plaintiffs, the Districtand the Partnership completely remake the statutory and contractual teacher seniority rules that will govern theupcoming 2011 Reduction in Force (“RIF”), without UTLA's consent to this scheme and without regard for thedue process rights of UTLA and the teachers it represents. Longstanding due process precedent holds that gov-ernment entities cannot voluntarily and unilaterally exempt themselves from contractual and statutory obliga-tions by way of settling a lawsuit, over the objection of the party who holds those rights. The settling parties'plan to exempt 42 schools from teacher seniority requirements by way of this settlement agreement, and the trialcourt's approval of that plan - violates the law and should be reversed on appeal.

In the meantime, the District is currently proceeding with the 2011 RIF, during which it will lay off over 4,500teachers in the manner determined by the settlement, hundreds of whom would have been able to keep their jobshad the District not exempted 42 schools from the contractual and statutory seniority rules. By statute, RIF no-tices must be mailed by March 15, 2011. The Court should grant a writ of supersedeas or stay the SuperiorCourt's order pursuant to C.C.P. §923, so that the impending RIF can proceed according to the governing lawwhile UTLA's appeal is heard.

A stay pending appeal should issue here for several reasons. First, as discussed below in Section I, because thecourt's judgment and order is mandatory, it is automatically stayed pending UTLA's appeal, and therefore thiswrit must issue. Second, as discussed below in Section II, even if the *28 order were not mandatory, the harm toteachers who will lose their jobs who would have otherwise been protected from layoff by seniority, and to thoseteachers' students, will be irreparable. Third, as discussed below in Section III, UTLA has a very strong likeli-hood of prevailing on appeal, because the Superior Court's judgment and order approving the Settlement Agree-ment violates statutory, contractual, and constitutional due process rights.[FN3]

FN3. Rather than repeat the facts set forth in the accompanying Petition, Petitioner UTLA incorporatesthose facts into this Memorandum by reference.

DISCUSSION

I. THE SUPERIOR COURT'S JUDGMENT ENFORCING THE SETTLEMENT OPERATES AS A MANDAT-ORY INJUNCTION AND THIS COURT SHOULD ENFORCE THE STAY OF THAT JUDGMENT

PENDING APPEAL

Because the Superior Court's order approving the non-consensual Settlement Agreement will significantly alterthe legal and contractual status quo, it is automatically stayed pending appeal as a “mandatory” injunction. Be-fore seeking this writ of supersedeas from this Court, UTLA asked the Superior Court to clarify that its orderwas mandatory in effect and would therefore be automatically stayed pending appeal, and in the alternativeasked the Superior Court to grant a discretionary stay of its order pursuant to C.C.P. §918. Although the Superi-or Court acknowledged that its order approving the decree is mandatory in effect, it ultimately refused to clarifythe order and further denied UTLA's request for a discretionary stay.

In response to UTLA's request for clarification, the trial court correctly recognized that its order enforcing the

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decree is mandatory:Although negative words are used in the settlement agreement about not laying off certain people, if the real testis whether *29 or not the status quo ante appears to have been changed by the order that the Court is on the cuspof making, I think that in a fair reading of it, the status quo ante is changed ...It's changed in a couple of regards that are non-trivial. Some schools just flat out won't have layoffs. But separ-ate from that, in a way that's non-trivial, the reallocation of those layoffs is to occur in a fashion different fromwhat the status quo ante would have been. We apparently are going to have more layoffs in all likelihood thanwe've had in recent experience, painful as the recent experience has been; but I don't think that changes [the]analysis of whether or not the status quo ante has been changed. If anything it emphasizes how significant theadoption of the settlement is to what otherwise would occur if the status quo ante were whole. So I think theUTLA has the better of the argument, frankly, that this is mandatory in nature.

Pet. Ex. 27 (Tr. 28:2-29:2 (Feb. 4, 2011)). The trial court further recognized that determining whether its decreeis mandatory or prohibitory is a straightforward question of law that does not take into account the court's orparties' views of the respective harms if the decree is stayed. Pet. Ex. 27 (Tr. 48:21-26 (Feb. 4, 2011)). However,despite the trial court's correct legal analysis of its order's effect, largely at the settling parties' request the courtrefused to enter an order clarifying the effect of its decision, preferring instead to leave the issue to this Court toresolve. Pet. Ex. 27 (Tr. 38:5-48:5, 52:27-53:27, 56:13-57:5, 64:6-14 (Feb. 4, 2011)).[FN4]

FN4. The trial court also refused UTLA's request for a discretionary stay of its order pending appeal,pursuant to C.C.P. §918. Pet. Ex. 27 ((Tr. 29:3-5, 63:24-64:5 (Feb. 4, 2011)). UTLA orally renewed itsrequest for a stay when the trial court entered judgment, but the court again refused that request. Pet.Ex. 28 (Goldsmith Dec.).

*30 Lacking clear direction from the trial court as to the effect of its order pending appeal, and over the objec-tions of UTLA, the District is now proceeding to implement the upcoming RIFs consistent with the new layoffregime set forth in the nonconsensual Settlement Agreement challenged in this appeal. Pet. RJN, Ex. 1. The Dis-trict will send RIF notices to teachers on March 15, 2011, including hundreds of teachers whose seniority rightswere nullified by this Settlement Agreement without their consent. Because the trial court refused to do so,UTLA therefore respectfully asks this Court to enter a writ of supersedeas enforcing the mandatory stay. Suchan order is necessary to clarify the District's obligations until UTLA's appeal is decided, so that upcoming RIFsfor the 2011 school year can be conducted in an orderly fashion pursuant to governing law.

A writ of supersedeas must issue when a trial court fails to enforce the required stay of a mandatory injunctionthat has been properly appealed. In re Estate of Dabney (1951) 37 Cal.2d 402, 408 (“It is also established lawthat even where an appeal effects a statutory stay, the writ of supersedeas will issue ‘in a corrective capacity’ incase of a violation or threatened violation of such stay”); Chapala Management Corp. v. Stanton (2010) 186Cal.App.4th 1532, 1542 (“ ‘Supersedeas' is the appropriate remedy for a refusal to acknowledge the applicabilityof statutory provisions automatically staying the judgment while an appeal is pursued.”).

The judgment enforcing the Settlement Agreement in this case is mandatory and should be automatically stayedpursuant to C.C.P. §916. An injunction is “considered to be mandatory where it requires affirmative action andchanges to the status quo.” Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, 727-28.

Courts must look to the order's substantive effect to make this *31 determination, not its form. Feinberg v. OneDoe Co. (1939) 14 Cal.2d 24, 27. Whether an injunction is mandatory therefore turns on whether it compels a

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party to change the status quo that existed at the time the injunction was entered, regardless of the words that areused:An injunction or decree is purely prohibitory, which merely has the effect of preserving the subject of the litiga-tion in status quo, while, in general, an injunction or decree is mandatory if it has the effect of compelling theperformance of a substantive act and necessarily contemplates a change in the relative position or rights of theparties at the time the injunction is granted or the decree entered.

Ambrose v. Alioto (1944) 62 Cal.App.2d 680, 685 (emphasis in original). The “status quo” for purposes of de-termining whether an injunction is mandatory or prohibitory is the status quo with respect to the parties' legalrights. Ambrose, 62 Cal.App.2d at 685; see also Hayworth, 129 Cal.App.3d at 728; United Railroads of SanFrancisco v. City & County of San Francisco (1916) 172 Cal. 80, 83 (status quo is the “last actual peaceable un-contested status which preceded the pending controversy”).

Applying these principles, a court order requiring an employer to hire someone whom it would not otherwisehave hired, or to fire someone it would not otherwise have fired, is mandatory, and therefore stayed pending ap-peal. In Hayworth, the Court of Appeal readily found mandatory an injunction that required the City of Oaklandto promote minority firefighters in a 1:5 ratio to white firefighters. 129 Cal.App.3d at 725, 728. As the court ex-plained, “[t]he promotion ratio ... cannot reasonably be characterized as merely preserving the status quo; itchanged the existing civil service promotion procedures and required different, positive, action.” Id. at 728. Hadthe Hayworth promotion ratio order taken effect immediately, many firefighters might have been passed over forpromotions *32 who would otherwise have been entitled to them under the then-existing civil service rules. Be-cause the trial court's order would have upended that status quo, it was automatically stayed pending appeal - afortuitous result since the Court of Appeal later reversed that order on the merits. Id. at 725-26, 728. See alsoFeinberg, 14 Cal.2d at 26-28 (Superior Court order prohibiting employer from employing a particular incumbentemployee was mandatory, because it effectively required the employer to fire her); ALRB v. Superior Court(1983) 149 Cal.App.3d 709, 712-13 (Agricultural Labor Relations Board order requiring an employer to replacestriker replacements with returning strikers was mandatory, and therefore stayed pending appeal, because whenthe order was entered, the status quo was that the striker replacements were still employed).

Equally to the point, it is well-established that an order is mandatory, and therefore automatically stayed, when itrequires a party to comply with a contract that conflicts with another agreement that was in effect at the time thatthe order was entered - here, Article XIII of the CBA. For instance, in Ambrose, defendant's contract to deliverfish to plaintiffs processing plant had expired, and defendant had entered into a contract to deliver its fish to adifferent processor. Although the trial court ruled that defendant had a duty to continue supplying fish toplaintiff, that order was automatically stayed pending appeal because it would have prevented defendant fromperforming its existing contract with the new processor. 62 Cal.App.2d at 684. As the court explained, “at thetime the decree was entered or the injunction granted,” the status quo to be protected was the contract with thenew processor, not with plaintiff. Id. at 686. Thus, the trial court's order “compel[led] the performance of a sub-stantive act and also contemplate[d] a change in the relative position or rights of the *33 parties,” and could notbe enforced while the appeal was pending. Id.

Under these authorities, the trial court's order approving the decree is, effectively, a mandatory injunction. Thecurrent status quo is that Education Code §44955 and UTLA's CBA provisions govern the order of teacher lay-offs, and require teachers to be laid off by order of seniority. See §44955(b); Pet. Ex. 7 at P00144-145 (UTLACBA Article XIII, §3.0(b)). Thus, an order that upends or reorders those rights necessarily interferes with thatstatus quo. Hayworth, 129 Cal.App.3d at 728.[FN5]

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FN5. To be sure, the trial court ruled in this case that an exception to the seniority provisions in Educa-tion Code §44955(d)(2) applied to permit the District to exempt entire schools from these provisionsbecause the “fundamental rights” of students are at stake. Pet Ex. 25 ((Tr. 81:7-25 (Jan. 20, 2011)); forfurther discussion of the inapplicability of this exception here see infra at Section III (C). However,even if so interpreted, §44955(d)(2) would merely permit what the trial court's judgment mandates, andthus the judgment goes well beyond the requirements of the statutory provision. Moreover, the trialcourt acknowledged that its interpretation of subsection (d)(2) was a question of first impression. SeePet. Ex. 23 ((Tr. 173:24-174:2 (Jan. 18, 2011)). Thus, the trial court's expansion of subsection (d)(2) inthis case cannot be said to reflect the legally cognizable status quo before the controversy arose (UnitedRailroads, 172 Cal. at 87), as the trial court itself understood. See Pet. Ex. 27 ((Tr. 28:9-14 (Feb. 4,2011)) (recognizing that the status quo ante was “pure seniority based layoffs”).

Underscoring the Agreement's departure from the legal status quo, plaintiffs' counsel sought legislationin 2010 that would have “clarified” that it was the Legislature's intent that §44955(d)(2) should be used“to prevent disparate impacts of teacher layoffs on pupils' rights to education,” but that amendmentfailed to pass out of committee. Pet. Ex. 12 (Decl. of Jose Quiñonez (11/23/10), 7-10).

Under the terms of this Judgment, permanent teachers will not be laid off in strict seniority order because teach-ers at 45 schools will be immunized from layoff, and, at the remaining schools, layoffs will be *34 distributedequally by the District “average” (Agreement, ¶2(a)) rather than by seniority. As in Hayworth, complying withthe decree would force the District to favor certain employees over others, in violation of the civil service rulesin existence when the order was entered. And as in Hayworth, untangling the changed status quo that will resultif the decree is implemented now and is later reversed would necessarily lead to chaos for the affected employ-ees. Worse yet, the very kinds of teacher-student relationships that the trial court and the settling parties so ur-gently wish to protect would be unnecessarily disrupted if the Court of Appeal agrees with UTLA on the meritsof UTLA's appeal, compelling the District to rehire laid-off teachers and to lay off teachers who had been shiel-ded from layoff under the Agreement.

It is of no importance that the Settlement Agreement on its face “prohibits” layoffs at certain schools rather than“mandating” layoffs at other schools. To be sure, an injunction may have “incidental” mandatory effects withoutchanging the injunction's essentially prohibitory character. See, e.g., People v. Hill (1977) 66 Cal.App.3d 320(injunction prohibiting unlicensed defendant from advertising himself as an accountant compelled defendant tochange his advertising, but was nevertheless “prohibitory”). But once again, the key to determining whether theinjunction's mandatory effects are more than merely “incidental” is the injunction's effect on the parties' legalrights. See, e.g., People v. Imergent (2009) 170 Cal.App.4th 333, 342 (injunction was prohibitory because it“[did] not compel defendants to violate a contract, nor [did] it compel them to surrender any rights that werelawfully held when the injunction was issued.”). In this case, the trial court's Judgment substantially alters thelegal and contractual *35 status quo. Thus, it is a mandatory injunction that is stayed by UTLA's appeal.

The Judgment and Settlement Agreement also include significant gaps that must be filled before the District candetermine which teachers will be protected from layoffs. The trial court's order compels the settling parties --and possibly UTLA, although it is not a party to and instead opposes the decree -- to take affirmative steps toimplement the terms of that decree by designating the affected schools.

It is therefore overly simplistic for the settling parties to contend, as they did in the trial court, that the decree isessentially prohibitory because it merely prevents layoffs at 45 targeted schools. In reality, the layoff provisions

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of the non-unanimous settlement agreement are expressly predicated on the occurrence of a RIF, which triggersthe reallocation of RIFs throughout LAUSD. Pet. Ex. 2, Ex. A. (“In the event of a RIF...”). The trial court recordwas replete with evidence that 4,000 or more teachers will be. laid off in the coming school year, and indeed fol-lowing Judgment the District has since resolved to issue layoff notices to more than 4,500 permanent and proba-tionary teachers. Pet. RJN, Ex. 1. By shielding 45 schools from any layoffs and distributing layoffs at each otherschool at a rate no higher than the District average, the trial court's order effectively compels the District to layoff hundreds or thousands of teachers who, in the ordinary application of the Education Code and the UTLACBA, would have escaped layoffs based on their seniority, disrupting students' education in those teachers'schools.

In short, the District's compliance with the decree requires it to undertake substantial “affirmative action.” Hay-worth, 129 Cal.App.3d at 727-28. Indeed, this decree remakes the entire legal structure that governs *36 the or-der of RIFs throughout the District.

Adherence to the well-established rule staying mandatory injunctions is necessary if the rights and interests ofthose parties who are negatively affected by the trial court's order - teachers whom UTLA represents, not tomention the students at those teachers' schools - are to be adequately protected.[FN6] If the Court of Appeal ulti-mately affirms the Superior Court (which it should not), granting this writ will only have postponed implementa-tion of the decree for a short time. Moreover, this Court may expedite this appeal so that the parties may receivea decision clarifying their respective rights as obligations as quickly as possible. However, UTLA's appeal rightswould be rendered meaningless if UTLA must forfeit, pending appeal, the very rights it thereby seeks to vindic-ate while the District proceeds to lay off teachers who would not otherwise have lost their jobs.

FN6. Again, to be clear, UTLA does not seek to stay the effect of the existing preliminary injunctionprohibiting layoffs at the original three schools affected by the trial court's preliminary injunction,Gompers, Markham, and Liechty Middle Schools.

II. EVEN IF THE JUDGMENT WERE NOT A MANDATORY INJUNCTION, THIS COURT SHOULDGRANT A STAY PENDING APPEAL IN ORDER TO PREVENT IRREPARABLE HARM TO TEACHERS

AND STUDENTS.

Because UTLA has such a strong case on the merits of its appeal, and because the balance of hardships favorsthose teachers who will lose their jobs who would not have otherwise under the existing legal rules, this Courtshould grant a discretionary stay even if it were to conclude that the trial court's order enforcing the nonconsen-sual Settlement Agreement were prohibitory rather than mandatory. We address the facial validity of *37UTLA's appeal below in Section III.

Without a stay, hundreds of experienced teachers will be laid off who would not otherwise have been laid off atschools other than the 45 protected by the Agreement, with resulting disruption to their schools and their stu-dents. The trial court recognized that its order would drive layoffs deeply into the ranks of more experiencedteachers than the ones protected by the Agreement. Pet. Ex. 2 at 44:8-9 (“The Court is fully cognizant of the factthat some more senior teachers may be laid off while more junior teachers at the targeted schools are skipped.”).In fact, because the trial court's order shields 45 schools from layoff and then spreads the layoffs evenly amongLAUSD's remaining schools, those layoffs are likely to reach as deeply as to teachers with eight and nine yearsof experience or more. Pet. Ex. 21 (Joseph Decl., ¶5). However, these are the most effective teachers, as evenone of plaintiffs' expert witnesses recognized. Pet. Ex. 4 (Fine Decl., ¶119) (“Hanushek et al. (2005) report that

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new teachers do not perform as well as teachers with a few years experience; lower rates of student achievementroutinely characterize schools with higher percentages of first year teachers”).[FN7]

FN7. See also Pet. Ex. 15 (Ingersoll Decl., 4:11-14) (“Recent research has documented that teachers' ef-fectiveness -- as measured by gains in their students' test scores -- increases significantly with each ad-ditional year of experience for the first seven to 10 years of teaching”) (citing studies); Pet. Ex. 23 ((Tr.93:24-94:3 (Jan. 18, 2011)) (Gompers Principal Sonia Miller) (“I'm aware of a study that teachers withfive or seven years of experience, tend to be more effective teachers.”); Pet. Ex. 6 (Miller Decl., ¶5)(discussing advantages to new teachers of working at a school with veteran teachers).

Among the ranks of teachers who are likely to face layoffs if the settlement is implemented are many highly-qualified professionals who *38 have devoted their careers to teaching in schools that serve overwhelminglyhigh-poverty, minority students. Now at risk of layoff are teachers like Leah Simon and Carlos Tejada, whosedevotion to their students cannot be gainsaid; and Donna McInnes and Jennifer Lee, whose skills and profes-sionalism are reflected by their prestigious NBC certifications. See Petition, ¶¶36-39. Depriving children of suchteachers as these serves no one's interests. Rather, it is highly desirable for LAUSD to retain teachers of this ex-perience level, commitment, and quality.

As the record before the trial court showed, moreover, even if some RIF notices are eventually rescinded, andthe positions of devoted teachers like UTLA's declarants can be saved, the damage may already have been done.The purpose of teacher seniority is to attract qualified people to the teaching profession; although earnings maybe lower than a teacher might command in another profession, those teachers who stick with the profession formore than a few years gain sufficient job security to permit them to start families, purchase homes, and build ca-reers. See Pet. Ex. 14 (Sapp Decl., Exh. A (teacher objections to Agreement)). As the U.S. Supreme Court hasexplained:Many of our cases involve union seniority plans with employees who are typically heavily dependent on wagesfor their day-to-day living. Even a temporary layoff may have adverse financial as well as psychological effects.A worker may invest many productive years in one job and one city with the expectation of earning the stabilityand security of seniority. At that point, the rights and expectations surrounding seniority make up what is prob-ably the most valuable capital asset that the worker ‘owns,’ worth even more than the current equity in his home.

Wygant v. Jackson Bd. of Educ. (1986) 476 U.S. 267, 283 (citation omitted) *39 (striking down plan that shiel-ded minority teachers from layoffs because of its effects on more senior teachers). As plaintiffs' witnesseslamented, receiving RIF notices upends veteran teachers' settled expectations for their job security, driving manyto seek jobs in charter schools or to leave the teaching profession altogether even before they learn whether theirRIF notices will be rescinded. Pet. Ex. 23 ((Tr. 118:14-119:2 (Jan. 18, 2011) (Kleger-Heine)); Pet. Ex. 13(Kleger-Heine Decl., ¶6 (Jan. 13, 2011)); Pet. Ex. 5 (Sullivan Decl., ¶¶16, 18, 43-45); Pet. Ex. 6 (Miller Decl.,¶¶12, 15). If the Court of Appeal reverses the trial court's order approving the decree, the damage done to thoseteachers, students, and schools will be impossible to undo.

It is not sufficient protection that teachers who are not now shielded from layoffs might, at some point in the fu-ture, be reinstated with back pay, as the settling parties argued to the trial court. First, highly qualified, experi-enced teachers will be removed from their classrooms now, even if they might someday return. The possibilitythat those teachers may be reinstated in the future is no help to students who will lose their teachers now. Manyteachers who receive RIF notices will immediately seek jobs elsewhere, in other communities. A potential futurereinstatement remedy will benefit students or schools very little if those teachers have long since moved on by

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the time reinstatement is offered.

Second, the teachers who will be laid off now are wage earners who face the immediate loss of their livelihoods,their health insurance, and even their homes. See, e.g., Pet. Exs. 17-20 (Lee Decl., ¶6; Simon Decl., ¶6; McInnesDecl., ¶6; Tejada Decl., ¶8). Such losses cannot adequately be compensated by a potential back pay award a yearor two in the future. See, e.g., *40Univ. of Hawai'i Prof Assembly v. Cayetano (9th Cir. 1999) 183 F.3d 1096,1106 (recognizing that wage earners “have bills, child support obligations, mortgage payments, insurance premi-ums, and other responsibilities,” and “[e]ven a brief delay in getting paid can cause financial embarrassment anddisplacement of varying degrees of magnitude”); see also Wygant, 476 U.S. at 283. Moreover, the loss of one'sjob “does not carry merely monetary consequences; it carries emotional damages and stress, which cannot becompensated by mere back payment of wages.” Nelson v. Nat'I Aeronautics & Space Admin. (9th Cir. 2008) 530F.3d 865, 882, rev'd on unrelated ground, (2011) ___ U.S. ___, 131 S.Ct. 746.

Third, and equally important, reinstatement with back pay is hardly a realistic remedy given the dire financialstraits that now compel the District to prepare to lay off more than 4,500 teachers. The “future back pay is suffi-cient” argument assumes that the District can afford to pay future back pay awards to hundreds or thousands ofteachers who may be laid off unlawfully now; but if the District had the money to pay future back pay awards,the parties would not be facing the current layoffs. This layoff does not permit the District to save money thatcould be tapped later for future back pay awards; rather, the District needs to spend every dollar it saves nowthrough the RIF on current operating expenses. Thus, this is not the ordinary situation where the possibility of afuture monetary recovery is sufficient to protect the teachers' rights should UTLA prevail on its appeal, and thesettling parties' argument to the contrary rings painfully hollow.[FN8]

FN8. Even if this Court were to grant a stay, but later uphold the Superior Court's judgment on appeal,more junior teachers who would be laid off now in the operation of the statutory and contractual senior-ity rules would not be entitled to future back pay awards because those teachers have no contractual orstatutory right to continued employment in a RIF when more senior teachers are available. The risk ofthe District owing large back pay awards arises only if the District lays off teachers now out of seniorityorder.

*41 In contrast to the immediate harm caused to the adversely affected teachers who will receive RIF notices onMarch 15, 2011, the potential harm if the trial court's order is stayed to students at the 42 schools exempted bythe District from layoffs is entirely speculative. Plaintiffs argued to the trial court that the students at thoseschools cannot recover a year of education that they will lose, but the record is devoid of actual evidence thatany of the 42 schools lately designated by the District - other than Gompers, Markham, and Liechty, as to whichUTLA does not request a stay -- actually requires protection from teacher layoffs in order to avoid a violation ofstudents' right to an education. This is, in substantial part, because the Settlement Agreement delegates completediscretion to the District to designate the protected schools, and those schools were not identified before judg-ment was entered, and because the procedures the Superior Court employed did not require Plaintiffs to proveany constitutional violation, but merely to show that the Agreement was reasonable.

Moreover, the only evidence in the record regarding the quality of students' education at any school other thanthe Plaintiffs' three schools was the very general observation that high teacher turnover correlates with poor stu-dent outcomes, a correlation that the trial court's application of the deferential standard of review for a class ac-tion settlement did not permit *42 UTLA adequately to contest.[FN9]

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FN9. Even plaintiffs' expert witnesses were unwilling to opine that high teacher turnover causes poorstudent outcomes. See Pet. Ex. 23 ((Tr. 195:3-10 (Jan. 18, 2011) (Manwaring)) (“Court: Are you awareof any statistical analysis of data showing that turnover causes as opposed to simply correlating withlow performance in schools[?] The Witness: Establishing statistical causality is a very, very difficult []thing to do. So I would have to say no, I don't know of any studies that show a causal link.”); Pet. Ex.24 ((Tr. 57:28-58:8 (Jan. 19, 2011) (Fine)) (“Q: And what is that relationship between teacher stabilityand the delivery of educational opportunity? A: So, as Robert Manwaring indicated yesterday, it's veryhard to make a causal argument, right? One would be irresponsible to simply make a linear argumentbetween high stability and high achievement.” ) (emphasis added); see also Pet. Ex. 23 ((Tr.150:27-151:14, 155:11-156:20 (Jan. 18, 2011) (Kleger-Heine)) (no evidence that teacher turnovercauses lower API).

There is insufficient record evidence regarding the 42 schools that the District has now selected for layoff pro-tection to determine that students' right to an adequate education would have been violated by teacher turnovercaused by the seniority rules (as opposed to general harm caused by the substantial RIFs). There was no recordevidence of investments in new teachers at any school except Gompers, Markham, and Liechty that would belost if teachers at any of those schools were laid off. Cf Pet. Ex. 2 at 34:21-35:4. It is sheer speculation thatshielding those 42 schools from layoffs, and shifting those layoffs to other teachers at other schools, will givechildren at those 42 schools, as to whom there is no record evidence, the year of education they deserve. The tri-al court's speculation cannot outweigh the harm that will occur as a result of a Judgment forcing teachers at oth-er Los Angeles schools (many of which also serve high-poverty, overwhelmingly minority populations) to fore-go their statutory and contractual seniority rights.

*43 Finally, in assessing the balance of hardships, the Court should also consider the other measures that theDistrict could have pursued, and could still pursue, short of abrogating its contractual and statutory senioritysystem to limit the harm caused by this RIF to both teachers and students, District-wide. There are many lawfulsteps the District could take to stabilize its most fragile schools without interfering with teachers' statutory rightsor with UTLA's collective bargaining rights, while enforcement of the decree is stayed pending appeal. For ex-ample:

• Education Code §44955(d)(1) provides a means for skipping layoffs when it is shown that a teacher who wouldotherwise be laid off has demonstrated special skills or training that are needed at his or her school. See Bledsoev. Biggs Unified Sch. Dist. (2008) 170 Cal.App.4th 127.

• The District could lawfully negotiate with UTLA regarding other cost-saving measures to limit layoffs, as itdid to significantly reduce the overall number and impact of teacher layoffs in 2010. Pet. Ex. 21 (Joseph Decl.,•4).

• The District also could negotiate with UTLA regarding procedures to more effectively reassign displacedteachers to ensure that vacancies in the most fragile schools are filled by highly-qualified teachers with a com-mitment to serving high-need students. Such measures would be consistent with the District's voluntary policy,after the 2006 termination of an earlier consent decree, to ensure that all LAUSD schools have teachers with arange of experience levels, so seniority-based layoffs would not fall disproportionately on any single school.

• Pursuant to Gov't Code §3543.2(c), the District could negotiate with UTLA to institute different criteria forlayoffs in place of the strict seniority system set forth in Education Code §44955.

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*44 Finally, no harm will fall on Plaintiffs as a result of the requested stay. UTLA did not object to the exten-sion of the preliminary injunction at Plaintiffs' three schools (as to which there was considerable evidence of theimpact of disproportionately high teacher turnover on students' education, unlike at the other 42 schools), andPlaintiffs will not be impacted by this stay request.

For all these reasons, the balance of hardships favors UTLA and the teachers it represents, not the settlingparties, and the Court should grant a stay pending the resolution of UTLA's appeal.

III. THE TRIAL COURT'S JUDGMENT IS FATALLY FLAWED AS A MATTER OF STATUTE, CON-TRACT, AND CONSTITUTIONAL DUE PROCESS

A. The Judgment Should Be Reversed On Appeal For Failure to Comply With the Strict Statutory Requirementsof C.C.P. §664.6

Under California law, a “judgment” is “the final determination of the rights of the parties' in an action or pro-ceeding.” C.C.P. §577; see also C.C.P. §582 (“judgment shall be rendered on the merits”). In C.C.P. §664.6, theLegislature created a limited exception to this rule to allow parties to efficiently obtain a final judgment in casesthat are resolved by way of settlement. Section 664.6 provides: “If parties to pending litigation stipulate, in awriting signed by the parties outside the presence of the court or orally before the court, for settlement of thecase, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” Be-cause of the “summary nature” of §664.6, “strict compliance with [its] requirements ... is prerequisite to invok-ing the power of the court to impose a settlement agreement.” *45Sully-Miller Contracting Co. v. Gledson/Cashman Constr., Inc. (2002) 103 Cal.App.4th 30, 37; see also Levy v. Superior Court (1995) 10 Cal.4th 578,585. Section 664.6 provides the sole statutory authority for granting judgment without a final resolution on themerits. The requirements of §664.6 were not satisfied in this case.

Here, the trial court entered judgment against the District, the Partnership and UTLA. However, UTLA has nev-er joined in or consented to the terms of the settling parties' agreement, signed any written agreement, or orallystipulated to the settlement in court. The trial court's judgment is therefore facially invalid under C.C.P. §664.6because all parties against which the court entered judgment did not enter into this agreement. See, e.g., Critzerv. Enos (2010) 187 Cal.App.4th 1242 (holding that court exceeded authority by entering judgment when two offive parties did not consent to settlement agreement); Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th299, 306 (court cannot enter judgment pursuant to C.C.P. §664.6 if any party against whom judgment is to beentered has not signed agreement).

Equally to the point, a court may use C.C.P. §664.6 to bypass the usual requirement of a final merits determina-tion only where a settlement agreement is either entered into in writing by the parties or orally stipulated incourt. Levy, 10 Cal.4th at 585 (reversing judgment because attorneys rather than parties signed agreement). TheSupreme Court held that these requirements must be strictly construed in order to ensure that all affected partieshave consented to the judgment, even if other evidence exists of the parties' actual agreement to the settlementterms. Id. Here, the only agreement in the record is an unsigned two-page term sheet. Pet. Ex. 2, Exh. A. Nor isthere any evidence that the parties (as opposed to their *46 counsel) stipulated to the agreement in court. Absenta signed agreement, §664.6's plain terms prevent the court from entering judgment. The trial court's judgment inthis case must be reversed for failure to comply with the basic, but very strict, requirements of the Code of CivilProcedure. Levy, 10 Cal.4th at 585.

B. The Judgment Should Also Be Reversed On Appeal Because Due Process Does Not Permit the Teachers'

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Contractual and Statutory Seniority Rights To Be Abrogated by a Non-Consensual ‘Consent Decree’ Agreed toby Other Parties

Even setting aside the trial court's and settling parties' failure to comply with C.C.P. §664.6, the judgment,which is based on a settlement agreement that alters the contractual and statutory seniority rules for teacher lay-offs, is fatally flawed. The Superior Court did not rule on summary judgment or at trial before entering a judg-ment that exempts 45 schools from applying contractually-and statutorily-required seniority rules during theDistrict's upcoming reduction in force for the 2011-2012 school year. The court made no final determination ofthe merits of Plaintiffs' claim that a seniority-based reduction in force would lead to violations of students' con-stitutional right to education, nor did it conclude that abrogating seniority was necessary to remedy the specificconstitutional violations at each of the 48 schools subject to the court's judgment. Rather, the court only conduc-ted a fairness hearing, during which it placed the burden on UTLA to demonstrate that the settling parties' agree-ment was not “reasonable.” In so doing, the Court committed three errors of law, any of which will compel re-versal on appeal: first, the trial court erred because due process requires the court to reach a final resolution ofthe merits of the Plaintiffs' constitutional claims before entering an order that abrogates *47 teachers' contractualand statutory rights without their consent; second, the trial court erred by concluding that it need only determinethat the requested settlement was “reasonable,” rather than narrowly tailored and necessary to correct specificconstitutional violations; and third, the court erred by ignoring the conflict between its judgment and UTLA'sCBA and by misreading exceptions to the Education Code's seniority provisions so as to permit a blanket ex-emption of 45 schools from those provisions.

1. The Trial Court Erred as a Matter of Law By Concluding that a Class Action Settlement Fairness Hearing,Rather than an Adjudication on the Merits, Was Sufficient Process for a Non-Consenting Party Whose Rights

Were Infringed by the Settlement.

The settlement in this case will result in hundreds of UTLA's teacher members losing their jobs during the up-coming Reduction in Force who would otherwise have been protected by the contractual and statutory senioritysystem. UTLA refused to consent to the settlement and repeatedly objected to court's approval of it, arguing thatPlaintiffs and the District cannot agree to abrogate these contractual and statutory rights of third parties, and thatthe Court cannot approve such an abrogation without fully adjudicating the underlying constitutional claims andmaking a determination that such a remedy was necessary. Rejecting UTLA's arguments and relying on publicpolicy favoring the settlement of disputes, the trial court held that due process required no more than allowingUTLA to fully participate in the final fairness hearing, at which the court need only determine that the settle-ment terms were fair and reasonable, rather than an adjudication of the merits of Plaintiffs' claims.

UTLA does not dispute that under California and federal law, a plaintiff generally can settle its claims againstone or some of the named *48 defendants, without settling claims against other defendants. See, e.g., C.C.P.§§578, 579; Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland (1986) 478 U.S. 501, 529. As theSupreme Court explained in the Local Number 93, non-settling parties may object to the reasonableness of a set-tlement between other parties, but generally may not block the settlement merely by withholding their consent.Id. at 529.

However, where -- as here -- non-settling parties' rights are directly affected by the settlement, due process re-quires the court to do far more than simply assess whether the settlement is reasonable. As the Supreme Courtexplained:Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third

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party, and a fortiori may not impose duties or obligations on a third party, without that party's agreement. Acourt's approval of a consent decree between some of the parties therefore cannot dispose of the valid claims ofnonconsenting intervenors; if properly raised, these claims remain and may be litigated by the intervenor.[citations omitted] And, of course, a court may not enter a consent decree that imposes obligations on a partythat did not consent to the decree.

Id. at 530. Similarly, in W.R. Grace & Co. v. Local Union 759 (1983) 461 U.S. 757, the Court considered wheth-er a settlement between the Equal Employment Opportunity Commission and an employer accused of violatingTitle VII of the Civil Rights Act of 1964 could abrogate the employer's collective bargaining agreement with aunion. The union had arbitrated employee terminations that occurred as a result of the employer's compliancewith the settlement agreement, and the E.E.O.C. and employer sought to block enforcement of that award on theground that the settlement, which had been approved by the District Court, precluded enforcement of the backpay awarded in arbitration. The Supreme Court *49 rejected that argument, explaining:In this case, although the Company and the Commission agreed to nullify the collective bargaining agreement'sseniority provision, the conciliation process did not include the Union. Absent a judicial determination, theCommission, not to mention the Company, cannot alter the collective bargaining agreement without the Union'sconsent.

Id. at 771. As subsequent decisions have borne out, W.R. Grace did not solely turn on the union's non-participation in the settlement, but also on the settlement's abrogation of the union's contractual rights.

In later decisions, federal courts have consistently held that parties to a lawsuit cannot nullify or abrogate col-lective bargaining agreement provisions -- often seniority provisions -- over the objections of the contractingparty (the union) without a judicial determination of liability. For example, in United States v. City of Hialeah(11th Cir. 1998) 140 F.3d 968, the court rejected the government's argument that due process would be satisfiedby permitting the non-consenting party -- like here, a union that objected to the abrogation of its seniority rightsthrough the other parties' settlement -- to present evidence and participate in a fairness hearing. Id. at 976-77.The court instead held that due process requires full adjudication at trial of the underlying claims prior to dispos-ing of non-consenting parties' contractual rights. Id. (“If the existence of a prima facie case were enough to justi-fy abrogating an objecting party's rights via a so-called ‘consent decree,’ City of Miami would have been de-cided differently. Because it was not, we are bound to reject the United States' position .... More than a primafacie case is required.... The more that is required is a trial.”); see also Johnson v. Lodge No. 93 of the FraternalOrder of Police (10th Cir. 2004) 393 F.3d 1096, 1107 (“a nonconsenting intervenor may block *50 approval of aconsent decree only if the decree adversely affects its legal rights or interests”); United States v. City of LosAngeles (9th Cir. 2002) 288 F.3d 391, 400 (“Except as part of court-ordered relief after a judicial determinationof liability, an employer cannot unilaterally change a collective bargaining agreement as a means of settling adispute over whether the employer has engaged in constitutional violations”) (emphasis added); White v.Alabama (1 th Cir. 1996) 74 F.3d 1058, 1073 (“a decree that provides a remedy agreed to by some, but not all,of the parties cannot affect the rights of a dissenting party”); United States v. City of Miami (former 5th Cir.1981) (en banc) 664 F.2d 435 (“We conclude that a decree disposing of some of the issues between some of theparties may be based on the consent of the parties who are affected by it but that, to the extent the decree affectsother parties or other issues, its validity must be tested by the same standards that are applicable in any other ad-versary proceeding.... [B]ecause a part of the decree, entered without a trial, affects the rights of an objectingparty, we limit its effect as to that party and remand for trial.”).

Similarly, in People Who Care v. Rockford Bd. of Educ. School Dist. No. 205 (7th Cir. 1992) 961 F.2d 1335, the

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plaintiff students, parents, and organizations sued a school board seeking to desegregate the public schools.After certifying a class of students throughout the school district, the trial court entered a consent decreebetween the parties and issued an injunction -- over the teachers union's objection -- that altered the teachers'collectively bargained seniority rights. The trial court held what it called a “necessity” hearing, to assess the uni-on's objections to the alteration of its member's rights. Relying on Local Number 93, the Court of Appeals re-versed, holding that contractual and statutory rights could not be abrogated in such a proceeding without“find[ing] the change necessary to *51 an appropriate remedy for a legal wrong.” Id. at 1337. As the Court ofAppeals explained:Many persons bridle at restrictions that state law and their own prior agreements create and sincerely believethat the public would be better off in the absence of these constraints. More than this belief, and more than the‘consent’ of the person seeking liberation from the obligation, is necessary to alter or avoid it.

Id.[FN10]

FN10. The Court more fully explained why the settling parties reached such an agreement at teachers'expense: “Seniority has value, enabling teachers to obtain postings that pay more or return greaterpsychic income. The Board could buy out the teachers' seniority rights. Apparently it attempted to do sobut found the price too steep. It then ‘agreed’ with the plaintiffs to eliminate these rights, for free. Thisis a great deal for the Board, and with the savings it can achieve more of what plaintiffs desire. No sur-prise that the original litigants consented.” 961 F.2d at 1339.

The Superior Court in this case likewise ignored the Supreme Court's admonition in Local Number 93 and theholdings of myriad other federal cases, simply stating that it found UTLA's position that due process requires aliability determination before nullifying contractual and statutory rights “unpersuasive.” Pet. Ex. 2 at 39. Thecourt pointed out that UTLA was permitted to participate in the fairness hearing, and concluded that process wassufficient. The Superior Court cited no California case -- and we are aware of no such case -- that holds thatCalifornia and federal due process requires anything less than a merits adjudication before entering judgmentthat abrogates a party's rights. Moreover, the four cases relied on by the trial court to support its conclusion thatsomething less than a trial on the merits of the underlying claims is required when parties seek to nullify con-tractual rights of a non-consenting party were either mischaracterized or *52 inapposite.

First, the court mischaracterized the Tenth Circuit's decision in Johnson v. Lodge No. 93 as holding that “no trialon the merits is necessary where the objecting union (like UTLA here) participated in settlement negotiationsand had the full opportunity to object to the settlement.” Pet. Ex. 2 at 39. The Johnson court found that due pro-cess in that case required no more than participating in the settlement approval process because there was noconflict between the settlement and the contract: “[The union] has not demonstrated that the December 2002 De-cree adversely affected any of its legal rights.” 393 F.3d at 1107. The Johnson court in no way disagreed thathad the consent decree affected the union's contractual rights, more process would be due, and indeed favorablycited City of Hialeah and City of Miami for the proposition that the court cannot enter a consent decree affectingthe legal rights of a party over its objections and a party “potentially prejudiced by a decree has a right to a judi-cial determination on the merits of its objections.” Id.

Second, the trial court mischaracterized City of Los Angeles as holding that the union has the right only topresent objections to other parties' settlement and “have them fully considered with the district court's decisionto approve the consent decree.” Pet. Ex. 2 at 39. The court lifted this quotation out of context. The issue in Cityof Los Angeles was whether the police union should be allowed to intervene to challenge a consent decree that it

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claimed abrogated its members' contractual rights. The Ninth Circuit concluded that the union should have beenpermitted to intervene as of right. 288 F.3d at 399-400. The City of Los Angeles court in no way concluded -- asthe trial court here claimed -- that if there were such a conflict, a settlement fairness hearing would provide suf-ficient process to *53 permit the court to abrogate contract rights as part of the settlement. Indeed, the court ex-pressly recognized that “[e]xcept as part of court-ordered relief after a judicial determination of liability,” thesettling parties could not alter the collective bargaining agreement. Id. The language quoted by the trial court ad-dressed what would happen if there were a dispute over whether the contract conflicted with the settlement, notwhat process would be required if the court concluded that a conflict existed.

Third, United States v. Oregon (9th Cir. 1990) 913 F.2d 576 (Pet. Ex. 2 at 39), does not support the trial court'sconclusion either. The cited portion of that decision involved a dispute over the extent of evidence generally re-quired at a class action settlement fairness hearing, and that court expressly recognized that “if a remedy issought against a non-consenting party, the matter must be remanded for trial,” citing City of Miami, 664 F.2d at436. Id. at 582. Fourth, EEOC v. AT&T Co. (3d Cir. 1977) 556 F.2d 167, 174 (Pet. Ex. 2 at 39) is inapposite.The Third Circuit described the underlying liability issues as undisputed (unlike here, where UTLA disputeswhether any constitutional violations occurred at schools other than the Plaintiffs' three schools), and concludedthat the objecting union had been given the opportunity to fully litigate the merits of the proper remedy. Id.

Finally, the court cited a handful of cases to support its claim that “[n]umerous courts recognize that consent de-crees that affect third-party rights may be entered without an adjudication of the underlying claims.” Pet. Ex. 2at 39 n. 13. But none of these cases involved settlements that abrogated third party rights over the objection ofthose parties; indeed, most of these cases do not even involve settlements that affected third party interests. See*54Durrett v. Housing Auth. of Providence (1st Cir. 1990) 896 F.2d 600, 604 (holding that trial court abuseddiscretion by refusing to enter consent decree agreed to by all parties on ground that relief was too broad; ex-pressly finding no third party interests affected); Lelsz v. Kavanaugh (N.D. Tex. 1991) 783 F.Supp. 286, 292-93(holding that non-profit permissive intervenor was not entitled to block settlement where only ‘interest’ assertedby intervenor was enforcement of early settlement agreement in same case, to which it was not an originalparty); Williams v. City of New Orleans (E.D.La. 1987) 116 F.R.D. 561, 564 (approving consent decree that re-moved provisions that court earlier held to implicate third party interests). In fact, one of these cases cited by thetrial court directly supports UTLA's position. See Wilder v. Bernstein (S.D.N.Y. 1986) 645 F.Supp. 1292,1343-44 (recognizing the settlement could not be entered if it authorized “illegal conduct” or over objection bydefendant if agreement “altered specific contractual rights,” but concluding that “neither of these circumstancesis present here”).

In sum, the due process protection of existing contractual and statutory rights requires nothing less than a meritsdetermination of Plaintiffs' underlying claims - either by way of summary judgment or trial - before the courtcan turn to the next issue, which is whether a remedy nullifying a third party's rights is necessary to address theconstitutional violations that the court has determined exist. While this due process standard applies to any con-tractual right that litigating parties seek to unilaterally abrogate, it is particularly appropriate for courts to pro-ceed with caution before nullifying collective bargaining agreements. In holding that a memorandum of agree-ment between a local government and employee organization is “indubitably binding” under California law, theCalifornia Supreme Court commented:*55 Why negotiate an agreement if either party can disregard its provisions? What point would there be in redu-cing it to writing, if the terms of the contract were of no legal consequence? Why submit the agreement to thegoverning body for determination, if its approval were without significance? What integrity would be left ingovernment if government itself could attack the integrity of its own agreement? The procedure established by

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the act would be meaningless if the end-product, a labor-management agreement ratified by the governing bodyof the agency, were a document that was itself meaningless.

Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 336. Once signed, such amemorandum of agreement cannot be abrogated by public referendum (see Voters for Responsible Retirement v.Board of Supervisors (1994) 8 Cal.4th 765, 778, 782), and is subject to the constitutional constraints on impair-ment of contracts (see Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d296, 314). Thus, the trial court's resort to “rough justice” in the interest of settlement gave far too little weight tothe important -- indeed, constitutional -- interests favoring the enforcement of collective bargaining agreements.

2. The Superior Court Erred in Abrogating Teachers' Contractual and Statutory Seniority Rights Without a Find-ing that its Order Was Necessary to Remedy Specific Constitutional Violations

In addition to requiring a determination of the merits of the constitutional claim, due process also requires thatthe court determine that infringing existing contractual and statutory rights is necessary to remedy the specificproven constitutional violations, not just that such a remedy would be reasonable. See, e.g., Arthur v. Nyquist(2d Cir. 1983) 712 F.2d 816, 822 (after a finding of constitutional liability, a court “is required to tailor ‘thescope of the remedy’ to fit ‘the nature and extent of the constitutional violation’ [citation omitted]. In particular,when a district *56 court is shaping relief that will infringe upon seniority rights, the court must take care thatthe relief is necessary to correct constitutional violations.”); Oliver v. Kalamazoo Bd. of Educ. (6th Cir. 1983)706 F.2d 757, 763-64 (“to protect the strong expectations in these pervasive and important seniority rights, theremedy must be ‘necessary,’ not merely ‘reasonable,’ to vindicate the constitutional rights of the students”).Here, the trial court incorrectly held that it could approve the settlement based only on a determination whetherthe relief was “reasonable.” Pet. Ex. 2 at 44:5-6 (“A consent decree, even one that affects non-consenting de-fendants, need only be ‘reasonable.’ ”). But that is the wrong analysis. As People Who Care explained,“Changing seniority or other contractual rights would make the remedial job easier, but this does not license acourt to impose these changes on persons who have done no wrong.” 961 F.2d at 1337.

Thus, even if the trial court had concluded, after a fully-litigated determination of the merits of plaintiffs' consti-tutional claims, that students' constitutional rights to an education were being violated in specific schools as aresult of high teacher turn-over at those schools, the parties would still have to demonstrate that nullifying teach-ers' statutory and contractual seniority rights would be necessary to remedy those constitutional violations. Thisis a high bar. The expansion of relief in the (non-consensual) consent decree beyond the three schools addressedin the preliminary injunction, about which a great deal of specific evidence was introduced, to 42 more unnamedschools to be chosen later by the District, about which no evidence of any specific constitutional violation wasintroduced, demonstrates the problem with the trial court's ‘reasonableness' standard. In order to abrogate otherteachers' seniority rights to retain their jobs, the court would need to determine that protecting teachers at eachof *57 those additional 42 schools from layoffs was necessary to avoid a constitutional violation at each of thoseschools.

As the trial court itself recognized, the evidence before it does not come close to meeting this standard: “Theevidence shows that students in Plaintiffs' [three] schools suffer significant constitutional injury from the impos-ition of a Reduction in force. In addition, the evidence shows that other students in other schools are also predis-posed, because of current conditions in their schools, to much greater injury from a Reduction in Force Thisreality must be addressed.” Pet. Ex. 2 at 34:12-15; see also id. at 37 (“the evidence shows that in future senior-ity-based layoffs, constitutional violations may fairly be anticipated at [some, unidentified] LAUSD schools oth-

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er than Plaintiffs' three schools,” and “the Settlement Agreement provides a reasonable means to identify consti-tutionally vulnerable schools”). Whatever the trial court's desire to help the District address what the court sawas unfortunate conditions at LAUSD schools that created a “predisposition” for the RIF to detrimentally affectstudents, the court did not -- and could not on the record before it -- conclude that constitutional violations exis-ted at the 42 then-unidentified schools covered by the Agreement. And even if it had sufficient evidence beforeit to establish actual violations, it could not have concluded that those violations required those schools to be ex-empted from teacher seniority rules during the upcoming RIF.

3. The Settlement Agreement Violates the Contractual and Statutory Seniority Rights of Hundreds of TeachersWho Will Laid Off During the 2011 Reduction in Force Who Would Otherwise Have Kept Their Jobs.

As a result of the Agreement, hundreds of teachers will be laid off at *58 schools outside the 45 targeted schoolsduring the upcoming RIF who would have otherwise been protected by the seniority provisions in the collectivebargaining agreement and in the Education Code.

The Agreement directly conflicts with the seniority provisions in UTLA's collective bargaining agreement. Art-icle XIII of the CBA sets forth the rules according to which layoffs must take place with respect to probationaryteachers, and orders those layoffs “based on seniority status” within various categories of employees. By con-trast, ¶¶1(a)-(c) of the Agreement identify a category of 45 “targeted schools” (including the Plaintiffs' threeschools), and ¶2(a) requires the District to exempt teachers at those 45 schools from the contractual seniorityrules. Moreover, ¶2(a) also provides (in what the trial court termed the “safeguard” provision) that “the Districtwill ensure that no other school is impacted greater than the District average.” All of these aspects of the Agree-ment deviate from and conflict with the CBA's seniority provisions.

The trial court does not even attempt to address the conflict between the CBA and the Agreement, except to ex-plain that the “safeguard provision” is consistent with the “principles” underlying the seniority provisions be-cause the court saw the CBA as being inherently limited by the constitutional interests of students, without anyevidentiary basis for that conclusion. Pet. Ex. 2 at 42. This conflict with UTLA's contract, the resulting nullifica-tion of probationary teachers' contractual rights to maintain their jobs based on seniority, and the court's failureto provide due process required before abrogating those rights, will require reversal of the judgment on appeal.

In addition, by protecting teachers at up to 45 additional targeted *59 schools from layoffs regardless of senior-ity, the judgment also conflicts with the Education Code's seniority provisions for permanent teachers. Specific-ally, Education Code §44955(b) provides that permanent teachers may be laid off only in order of seniority. Thetrial court held that the Agreement does not conflict with §44955 because the exceptions to seniority-based lay-offs set forth in §44955(d)(2) necessarily limit teachers' rights. Subsection (d)(2) permits a school district to“deviate from” the seniority rules set forth in §44955(b) “[f]or purposes of maintaining or achieving compliancewith constitutional requirements related to equal protection of the laws.” Citing no authority, and providing nostatutory analysis, the court concluded that “[p]reventing layoffs that may be fairly anticipated to contribute to aconstitutional violation is consistent with section 44955, subdivision (d)(2), such that no teacher rights are af-fected and UTLA has no grounds to object.”

But subsection (d)(2)'s narrow exception to teacher seniority rights does not permit the District to broadly ex-clude the now-identified 42 schools from the requirements of §44955(b). First, the claim supposedly addressedby the Superior Court's final approval order is that students are being denied their fundamental constitutionalright to “basic equality of educational opportunity,” not “equal protection” based on discrimination as a member

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of a suspect classification. Pet. Ex. 2 at 2-3. Second, the exception in Education Code §44955(d)(2) by its plainterms addresses equal protection rights, not concerns about the quality of education. This conclusion is suppor-ted by (d)(2)'s legislative history, which reveals that the provision was intended to permit school districts to ac-commodate constitutional concerns regarding the race and ethnicity of teachers, not to address minimal educa-tional standards for students. See Pet. Ex. 8 *60 (attaching legislative history, including earlier version of billdescribing “the need for teacher force [to] reflect [] the multicultural population of the state”). Third, subsection(d)(2) should be narrowly construed to permit deviation from the bedrock rule of seniority-based layoffs onlywhen specific constitutional violations have been proven, not on the sweeping basis reflected in the Agreementof “rough justice and gross approximations.”

Finally, the Agreement is also inconsistent with Government Code §3543.2(c), which specifically applies to lay-offs for lack of funds, like those the District currently faces:Notwithstanding Section 44955 of the Education Code, the public school employer and the exclusive represent-ative shall, upon request of either party, meet and negotiate regarding procedures and criteria for the layoff ofcertificated employees for lack of finds. If the public school employer and the exclusive representative do notreach mutual agreement, then the provisions of Section 44955 of the Education Code shall apply.

Gov't Code §3543.2(c) (emphasis added). The Legislature anticipated the potential need for school districts andunions to discuss alternatives to seniority rules in the event of layoffs, but also mandated that unless the unionagrees to deviate from §44955, the statutory seniority provisions “shall apply.” Here, UTLA has not consentedto deviate from §44955.

In sum, there is no basis for the trial court's conclusion that Education Code §44955(d)(2) can be read so expans-ively as to remove all conflict between the Agreement and the Education Code. Because teachers' seniorityrights do conflict with the settling parties' agreement, and because the court failed to provide the due process re-quired before setting aside those rights, the judgment will have to be reversed on appeal. *61 Now, therefore,that judgment should be stayed to protect defendant teachers' rights to secure meaningful relief on appeal.

CONCLUSION

For the foregoing reasons, this Court should issue the writ of supersedeas and the trial court's February 8, 2011Judgment and Order should be stayed pending appeal, except with respect to the Plaintiffs' original threeschools, Gompers, Markham, and Liechty Middle Schools.

Sharail REED, et al., Plaintiffs and Respondents, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Partner-ship for Los Angeles Schools, Defendants, United Teachers Los Angeles, Defendant and Appellant.2011 WL 884580 (Cal.App. 2 Dist. ) (Appellate Petition, Motion and Filing )

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