Kimberlin v. Los Angeles City High School Dist.

Decision Date22 January 1953
Citation252 P.2d 344,115 Cal.App.2d 459
PartiesKIMBERLIN v. LOS ANGELES CITY HIGH SCHOOL DIST. Civ. 19156.
CourtCalifornia Court of Appeals

Tanner, Odell & Taft and Robert A. Odell, Los Angeles, for appellant.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux and Clarence H. Langstaff, Deputies County Counsel, Los Angeles, for respondent.

DRAPEAU, Justice.

By this proceeding in mandamus, petitioner Kimberlin seeks to compel the respondents to reinstate him in a teaching position; classify him as a permanent employee, and pay him alleged accumulated salary.

Petitioner is a certificated teacher of wood shop, and served in that capacity for the school years 1948-1949 and 1949-1950 under the classification of probationary employee.

'The school year begins on the first day of July and ends on the last day of June.' Sec. 8101, Education Code. In the Los Angeles District, the probationary period is two complete consecutive years; hence at the beginning of the third consecutive school year a teacher in this district is entitled to classification as a permanent employee, if reemployed. Sec. 13083, Ed.Code. In the absence of resignation or dismissal, he is automatically reemployed and classified a permanent employee.

In the instant case, respondents claim that petitioner was dismissed at the end of the second year. Petitioner contends that respondents did not comply with the law; that he was not lawfully dismissed, and consequently is entitled to reinstatement and to a permanent classification.

The applicable sections of the Education Code are:

'13581. Dismissal during school year for cause only. Governing boards of school districts shall dismiss probationary employees during the school year for cause only, as in the case of permanent employees.

'13582. Notice of nonrequirement of services during ensuing year. (The for giving.) On or before the fifteenth day of May in any year the governing board may give notice in writing to a probationary employee that his services will not be required for the ensuing year. (Delivery or mailing to employee.) The notice shall be deemed sufficient and complete when delivered in person to the employee by the clerk or secretary of the governing board of the school district or deposited in the United States registered mail with postage prepaid, addressed to the employee at his last known place of address.

'13583. Dismissal for cause in districts with average daily attendance of 60,000 or more. Anything in Section 13582 to the contrary notwithstanding, governing boards of school districts having an average daily attendance of 60,000 or more pupils shall dismiss probationary employees for cause only. The determination of the board as to the sufficiency of the cause for dismissal shall be conclusive, but the cause shall relate solely to the welfare of the schools and the pupils thereof.'

The record discloses that on May 5, 1950, respondent board notified petitioner by letter that 'on May 4, 1950, written charges * * * were filed with the Board of Education * * * charging that there exists a cause or causes for your dismissal. We enclose a copy of said charges.

'You are hereby further notified that it is the intention of said Board of Education to dismiss you upon the 16th day of June, 1950, unless, within fourteen (14) days after the date of service of this notice, you file with the Board of Education a verified answer in writing to these charges and a written request for a hearing upon the same. If you do request a hearing, then the Board of Education will fix a time and place therefor and will notify you accordingly.'

On May 18, 1950, petitioner's then counsel wrote to respondent board to the effect that the procedures adopted for dispensing with Mr. Kimberlin's services did not comply with the Education Code. This for the reason that the hearing on his dismissal should have taken place prior to May 15th, and that any hearing held subsequently would be ineffectual for any purpose.

Respondent board on June 6th notified petitioner that on June 12, 1950 it would hold 'a hearing on the charges filed with the Board of Education May 4, 1950, asking your dismissal from your position as a probationary employee of the Los Angeles City High School District.'

To this, petitioner's counsel replied that petitioner would not participate in the hearing. At its hearing on June 15th, continued from June 12th, the board found the charges against petitioner were true, and on June 16th sent to him by registered mail the following notice:

'In accordance with findings and order adopted by the Board of Education at its continued special meeting on June 15, 1950, you are hereby notified that you are dismissed from your position as Probationary Teacher in the Los Angeles City High School District, effective at the close of business June 30, 1950, and that your services will not be required for the ensuing year.'

On April 26, 1951, petitioner made demand for reinstatement; for classification as a full time permanent employee, and for payment of back salary through the month of March, 1951.

The instant proceeding in mandamus was filed on June 14, 1951. Petitioner appeals from the judgment denying his petition for a peremptory writ of mandate which was based upon findings and conclusions of the trial court that (1) he had been dismissed in the manner required by law; (2) he was guilty of laches for unreasonable delay in commencing this proceeding; and (3) he failed to exhaust his administrative remedies.

This court agrees with the trial court's conclusion that appellant was guilty of laches. This for the reason that, as said in Newbury v. Civil Service Comm., 42 Cal.App.2d 258, 261, 108 P.2d 745, 747: 'The question of laches is in the first instance one for the determination of the trial court and its conclusion will not be set aside by an appellate court if such determination finds substantial support in the evidence. Greenberg v. DuBain Realty Corp., 27 Cal.App.2d 111, 118, 80 P.2d 537.' See, also, Fry v. Board of Education, 17 Cal.2d 753, 761, 112 P.2d 229, Fabian v. Alphonzo E. Bell Corp., 55 Cal.App.2d 413, 415, 130 P.2d 779, and La Shells v. Hench, 98 Cal.App. 6, 15, 276 P. 377, 381, where it is stated: 'Laches is a question of fact on the evidence, and each case becomes largely a law unto itself. In other words, the matter is one which reposes in the sound discretion of the chancellor. * * * Laches in legal significance is not mere delay, but delay that works a disadvantage to another, mere delay alone being...

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  • Conti v. Board of Civil Service Commissioners
    • United States
    • California Supreme Court
    • December 10, 1969
    ...Cal.App.2d 214, 283 P.2d 1046; Jones v. City of Los Angeles (1953) 120 Cal.App.2d 858, 262 P.2d 37; Kimberlin v. Los Angeles City High School Dist. (1953) 115 Cal.App.2d 459, 252 P.2d 344; Campbell v. City of Los Angeles (1941) 47 Cal.App.2d 310, 117 P.2d 901; Pacheco v. Clark (1941) 44 Cal......
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    ...54 Cal.Rptr. 669; Day v. City of Los Angeles (1961) 189 Cal.App.2d 415, 418, 11 Cal.Rptr. 325 and Kimberlin v. L.A. City High School Dist. (1953) 115 Cal.App.2d 459, 464, 252 P.2d 344.) As has already been noted, petitioner's offer of proof concerning comparable rates was properly rejected ......
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