Noguera v. North Monterey County Unified Sch. Dist.

• Decision Date: 23 May 1980
• Citation: 164 Cal.Rptr. 808,106 Cal.App.3d 64
• Court: California Court of Appeals Court of Appeals
• Parties: Margarita NOGUERA et al., Plaintiffs and Appellants, v. NORTH MONTEREY COUNTY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. Civ. 44980.

Page 808

164 Cal.Rptr. 808

106 Cal.App.3d 64

Margarita NOGUERA et al., Plaintiffs and Appellants, v. NORTH MONTEREY COUNTY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

Civ. 44980.

Court of Appeal, First District, Division 2, California.

May 23, 1980.

Hearing Denied July 16, 1980.

Stewart Weinberg, Van Bourg, Allen, Weinberg & Roger, San Francisco, for plaintiffs and appellants.

Iver E. Skjeie, County Counsel, Paul R. DeLay, Deputy County Counsel, County of Monterey, Salinas, for defendants and respondents.

TAYLOR, Presiding Justice.

Individually, and as a class, a group of certificated secondary level school teachers (Teachers) appeal from a judgment of dismissal after the court sustained without leave to amend the general demurrer of the North Monterey County Unified School District (Unified District) to the Teachers' petition for a writ of mandate (Code Civ.Proc., § 1085) which alleged that their services were improperly terminated in conjunction with the formation of the Unified District. We agree with the Teachers' contention that Education Code section 44902 compels a reversal of the judgment.

On appeal from a judgment sustaining a demurrer to a complaint, we are confronted with questions of law only and must regard the allegations of the complaint as true (King v. Central Bank, 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857; Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59, 121 Cal.Rptr. 429; Terry v. Bender, 143 Cal.App.2d 198, 300 P.2d 119). We must also assume that the plaintiff can prove all of the facts as alleged (Glaire v. La Lanne-Paris Health Spa, Inc., 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357; Dale v. City of Mountain View, 55 Cal.App.3d 101, 105, 127 Cal.Rptr. 520). The allegations must be liberally construed with a view to attaining substantial justice between the parties (Glaire, supra; Dale, supra). If, upon consideration of all the facts therein stated, it appears that the plaintiff is entitled to any judicial relief against the defendant, the complaint will withstand the demurrer (Glaire, supra; Air Quality Products, Inc. v. State of California, 96 Cal.App.3d 340, 347, 157 Cal.Rptr. 791). Matters outside the complaint must be left for a determination at trial (Favalora v. County of Humboldt, 55 Cal.App.3d 969, 974, 127 Cal.Rptr. 907; Griffith v. Department of Public Works, 141 Cal.App.2d 376, 296 P.2d 838).

The complaint alleged the following: The Teachers are all certificated by the State of California to teach or otherwise perform certificated services at the secondary level of any high school or unified school district. All were probationary employees of the Salinas Union High School District (Salinas) and were among the 50 teachers who received notice on March 10, 1978, that their services with Salinas would be terminated prior to the beginning of the next school year, 1978-1979.

On July 1, 1976, the Unified District began operation as a unified school district for students in grades K through 12. The Unified District was the successor of the North Monterey County Union School District (North Monterey), an elementary school district for students in grades K through 8. North Monterey was a component of Salinas, where its students attended any one of three high schools. As of July 1, 1976, the Unified District assumed responsibility for the high school education of its students. At that time, a three-year agreement was reached between the Unified District and Salinas. Salinas agreed to continue to provide for North Monterey students' high school education until the Unified District's high school facility was completed. It was estimated that approximately 1,400 students would eventually transfer from Salinas to the Unified District.

Near the end of school year 1977-1978, on March 10, 1978, Salinas gave notice to 50 teachers that there had been a decline in the average daily attendance (ADA) which, in the opinion of its governing board, made it necessary to decrease the certificated staff; that particular kinds of services were being reduced no later than the beginning of school year 1978-1979; and that as a result of the above decline and reductions, Salinas would have to eliminate 47.84 full-time equivalent positions (FTE). Meanwhile, the Unified District high school facility was completed and commenced high school instruction in grades 9 through 12 at the beginning of school year 1978-1979.

The Teachers requested and received hearings by Salinas pursuant to Education Code sections 44949 and 44955. After their terminations were upheld, they filed the instant petition, alleging that: 1) the decline in ADA and decision to reduce or eliminate particular services, leading to the decision to terminate their services as teachers, was caused solely by the unification; 2) the Unified District was in the process of hiring new teachers to staff the new high school and that none of the Teachers had been offered employment. Teachers contend that they were entitled to employment in the Unified District since the unification resulted in the maintenance of places of employment, school services and school programs, previously performed, maintained or provided by Salinas within the meaning of Education Code section 44902, set forth below. ¹ They argue that the express language of the statute applies to the instant implementation of a new high school program as the result of a "unification," as defined by Education Code section 4212, likewise set forth below. ²

The Unified District argues that section 44902 cannot be read literally, as it refers to a "definable component" and, by implication, not to generalized schools services, such as those provided by the Teachers; and that, despite the unification, the Teachers have no right to be employed by the Unified District under section 44902, as no building, place of employment, program or services identifiable as to certificated staff were transferred to or assumed by the Unified District.

Education Code section 44902 provides, in pertinent part, that if a unification of a school district results in the school or other place in which any employee is employed being maintained by another district, then such employee, if a probationary employee, shall be offered employment by the new school district which now maintains the school or other place of employment. The new school district may terminate such probationary employees for cause under sections 44949 and 44955. The phrase "school or other place" is defined by section 44902 as including, but not limited to, school services or school programs which as a result of any unification will be provided by any other district, irrespective or whether any particular building in which these services or programs were conducted, is physically located in the new district.

The pivotal phrase is "school or other place," as defined in section 44902. The Unified District argued below that it was incumbent upon the Teachers to point to a "definable component." The trial court agreed and incorporated the argument in its ruling, which also stated that there was "no discernible intent on the part of the legislature to eliminate the requirement that the 'school,' 'place of employment,' 'school services' or 'school program' constitute a definable component." The Unified District urges that the transfer of North Monterey's students from Salinas was not such a definable component.

The Unified District and the court below ignore the essential purpose of the portion of the statute here in issue, formerly Education Code section 13321. The provision is the specific statutory expression for continuing employment rights of certificated staff upon reorganization of school districts; it was designed to preserve and protect the tenure rights of certificated employees, whether permanent or probationary, affected by a unification of school districts, or any changes in school district boundaries (Branson v. Board of Trustees, 205 Cal.App.2d 680, 687, 23 Cal.Rptr. 288). There is a complete absence of any other specific express legislative intent. The facts here alleged are expressly included as one of the basic changes of circumstances described in section 44902 in which employment rights are protected. ³

Further, the definition of "school or other place" of employment provided in section 44902 is not limited to physical premises. The definition set forth in the fifth sentence of the statute was added by the 1974 amendment to former Education Code section 13321, the predecessor of section 44902 (Stats.1974, ch. 1377, § 1), which also substituted "shall" for "may" in the fourth sentence, and added the phrase beginning with "unless such probationary employee is terminated." The 1974 amendment stated in clear and precise language that it is not necessary that a particular building or buildings in which "such school work or school program (is) conducted (be) physically located in the new district" (emphasis added).

Also, it is logical to include within the definition of "school services" or "school program" the overall instruction of high school students. In the last clause of the 1974 amendment, the Legislature provided that the definition of "the school or other place" applied "irrespective of whether any new district resulting from such division elects to provide for the education of its pupils by contracting with another school district until such time as the new district constructs its own facilities" (emphasis added).

The above language recognized the fact that a new school district could possibly not be ready at its inception to provide all of the education it was mandated to provide to its students. Therefore, some services and programs would have to be provided by another school district until the new school district was ready. Clearly, "school services," as contemplated by the Legislature in enacting section 44902, could mean the entire educational program or any...