Franzosi v. Santa Monica College

• Decision Date: 26 April 2004
• Docket Number: No. B168749.,B168749.
• Court: California Court of Appeals Court of Appeals
• Parties: Ricardo FRANZOSI, Plaintiff and Appellant, v. SANTA MONICA COMMUNITY COLLEGE DISTRICT et al., Defendants and Appellants.

13 Cal.Rptr.3d 25

118 Cal.App.4th 442

Ricardo FRANZOSI, Plaintiff and Appellant, v. SANTA MONICA COMMUNITY COLLEGE DISTRICT et al., Defendants and Appellants.

No. B168749.

Court of Appeal, Second District, Division 8.

April 26, 2004.

Lawrence Rosenzweig for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Mary L. Dowell, Los Angeles, and Adrianna E. Guzman, Pasadena, for Defendants and Respondents.

FLIER, J.

Appellant Ricardo Franzosi appeals from a judgment for respondents after the trial court denied his petition for a writ of mandate seeking an order to reinstate him as a full-time professor at Santa Monica College (College).¹ The trial court ruled that Franzosi had 39 months from the effective date of his disability retirement to request reinstatement under Education Code section 87789.² Franzosi contends that he had 39 months from the date he was determined to be eligible for disability retirement, giving him an additional eight months, to request reinstatement. We agree with the trial court and affirm.

STATEMENT OF FACTS

Franzosi started working for the District in 1980 as a part-time instructor in computer science at the College. He became a full-time instructor in 1984 and obtained tenure in 1986.

Franzosi worked full time from 1984 to Spring 1995, but he did not work during the summer session in 1995. Before the Fall semester in 1995, Franzosi notified the District that he would not be able to teach that term because of a medical condition. Franzosi used his accrued sick leave for that semester. In 1996, Franzosi was diagnosed with clinical depression.

Before the start of the Spring 1996 semester, Franzosi notified the District that he was still unable to teach because of his medical condition. On April 1, 1996, the Board approved Franzosi for a medical leave of absence for the period February 12, 1996, to June 11, 1996, the last day of the Spring semester.

On August 7, 1996, Franzosi informed the District that his medical condition prevented his returning to teach in the Fall 1996 semester. On September 17, 1996, Dr. Dorothy Gelvin, the District's dean of personnel services, advised Franzosi in writing that he had two options: (1) apply for disability retirement benefits from the State Teachers' Retirement System (STRS) or (2) apply for an unpaid verified medical leave of absence. Gelvin forwarded application forms for both options to Franzosi and asked that he advise her of his decision.

On October 1, 1996, Franzosi submitted to the STRS an application for an "unmodified disability retirement allowance." The STRS received Franzosi's application on October 3, 1996. The STRS informed Franzosi in its acknowledgement of receipt that the STRS "will notify you and your employer of the decision regarding your application."

On January 16, 1997, Gelvin advised Franzosi that if his application for disability retirement had been approved he needed to complete the retirement process for the College. On January 22, 1997, Franzosi responded that his disability retirement application was still being processed.

Subsequently, in a letter dated May 6, 1997, the STRS notified Franzosi that his application for disability retirement benefits had been approved, effective October 1, 1996. Franzosi began receiving his disability retirement allowance retroactive to October 1, 1996. On June 1, 1997, Franzosi informed Gelvin that his disability retirement application had been approved.

On July 7, 1997, the Board approved Franzosi's retirement disability leave of absence, effective October 1, 1996. The Board's consent agenda, as discussed post, indicated the STRS granted Franzosi disability benefits on May 16, 1997, and that the District received confirmation from the STRS on June 13, 1997.

The STRS assigned a certified rehabilitation counselor, Robert Liebman, to assist Franzosi in returning to his former full-time employment with the District. Franzosi began participating in an STRS-approved vocational rehabilitation program on November 30, 1999.

On April 28, 2000, Liebman called Gelvin and informed her that he wished to discuss Franzosi's return to employment with the District. According to Liebman, Gelvin told Liebman that Franzosi had tenure rights. Liebman and Gelvin agreed that Liebman would get into contact with her again after Memorial Day. In a progress report to STRS dated April 30, 2000, Liebman noted that he will "[c]ontinue to provide vocational rehabilitation counseling and assist the member [Franzosi] toward reaching his expressed goal of returning to his former teaching position by January 2001."

On June 1, 2000, Liebman called Gelvin and asked to schedule a meeting to facilitate Franzosi's return to teaching at the College. On June 15, 2000, Franzosi called Gelvin about returning to work. In his progress report to STRS of June 30, 2000, Liebman reiterated his plan of providing Franzosi counseling to reach his expressed goal of returning to his former teaching position by January 2001.

On July 12, 2000, Liebman talked with Franzosi, and they agreed Franzosi would try to schedule a meeting with the District by July 19, 2000. On July 17, 2000, Franzosi told Liebman he had been unable to reach Gelvin.

On August 7, 2000, Franzosi wrote Gelvin proposing to return to teaching on a part-time basis.

On August 21, 2000, Franzosi and Liebman discussed with Gelvin Franzosi's return on a part-time basis leading to teaching on a full-time basis, but Gelvin stated she needed to review Franzosi's tenure status with the District before making a commitment. On June 1, 2001, the District notified Franzosi's counsel that Franzosi had no right to reinstatement because he had retired from the District on October 1, 1996.

Franzosi returned to teaching on a part-time basis in the Spring 2001 semester and taught until his Spring 2003 assignment was rescinded. He continued to receive disability retirement benefits throughout this time.

PROCEDURAL HISTORY

Franzosi filed a petition for writ on mandate on March 29, 2002, seeking reinstatement to his former full-time position pursuant to section 87789.

The trial court heard the matter on June 13, 2003, and denied Franzosi's petition on July 1, 2003. Respondents gave notice of entry of judgment on July 3, 2003, and Franzosi timely appealed from the judgment on July 11, 2003.

In denying Franzosi's petition for writ of mandate, the trial court ruled the plain language of section 87789 required Franzosi to request reinstatement within 39 months from the start of his disability. The court rejected Franzosi's contention that the period starts to run within 39 months from the date the STRS granted his disability application, May 6, 1997, stating it "would render the `term of disability' language in section 87789 superfluous." The court found that the STRS granted Franzosi's application effective October 1, 1996, and that is when Franzosi's "term of disability" began for purposes of section 87789.

The trial court found January 1, 2000, was the expiration of 39 months from the October 1, 1996, disability effective date. The court further found that since Franzosi admitted the first contact with the District regarding reinstatement was not made until April 28, 2000, the contact was not made within 39 months even assuming it was a proper reinstatement request. The court thus found Franzosi's request was untimely, and he had no further reemployment rights by virtue of his disability. Because Franzosi cited no authority that the District "must continue to employ him beyond 39 months, or into perpetuity," Franzosi had failed to demonstrate the District had a mandatory duty to reemploy him full time or that he had such a right to full-time reemployment.

CONTENTIONS

Franzosi contends that under section 87789 an academic employee who has been granted a disability leave of absence must request reinstatement within only 39 months of the date he or she is determined to be eligible for a disability allowance by the STRS. He also contends that because he applied for reinstatement within 39 months after the STRS determined he was eligible for disability the trial court should have granted his petition for writ of mandate.

DISCUSSION

1. Standard of Review

Code of Civil Procedure section 1085, subdivision (a), provides that a writ of mandate "may be issued by any court ... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded...." To be entitled to writ relief, Franzosi must show that respondents have "a clear, present and ministerial duty to reelect (rehire) [him] and that [he] has a clear, present and beneficial right to performance of that duty entitling [him] to a writ of mandate." (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916, 129 Cal.Rptr.2d 811, 62 P.3d 54 (Kavanaugh).)

In a mandate proceeding, we defer to the trial court's findings of facts if supported by substantial evidence. (Kavanaugh, supra, 29 Cal.4th at p. 916, 129 Cal.Rptr.2d 811, 62 P.3d 54.) Where, as here, the facts are undisputed, the trial court's interpretation of the Education Code is subject to de novo review. (Ibid.)

2. Section 87789

Determination of this case turns on the interpretation of section 87789, which provides that the governing board of a community college district may grant a leave of absence to an academic employee who has applied for disability allowance, not to exceed 30 days beyond final determination of the disability allowance by the STRS. The statute further provides that "[i]f the employee is determined to be eligible for the disability allowance by the system, the leave shall be extended for the term of disability, but not more than 39 months."

Franzosi contends this paragraph creates two types of leaves. The...