Parker v. Board of Trustees of Centinela Valley Union High School Dist. of Los Angeles County

• Decision Date: 02 June 1966
• Citation: 51 Cal.Rptr. 653,242 Cal.App.2d 614
• Court: California Court of Appeals Court of Appeals
• Parties: Anna Madalyn PARKER, Petitioner and Appellant, v. BOARD OF TRUSTEES OF the CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT OF LOS ANGELES COUNTY and the Centinela Valley Union High School District of the County of Los Angeles, State of California, a Public Corporation, Defendants and Respondents. Civ. 29416.

Page 653

51 Cal.Rptr. 653

242 Cal.App.2d 614

Anna Madalyn PARKER, Petitioner and Appellant, v. BOARD OF TRUSTEES OF the CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT OF LOS ANGELES COUNTY and the Centinela Valley Union High School District of the County of Los Angeles, State of California, a Public Corporation, Defendants and Respondents.

Civ. 29416.

District Court of Appeal, Second District,

Division 2, California.

June 2, 1966.

Tanner, Odell & Taft, by Donald W. Odell, Los Angeles, for appellant.

Harold W. Kennedy, County Counsel, and William F. Stewart, Deputy County Counsel, for respondents.

ROTH, Presiding Justice.

Appellant was a probationary teacher of the Centinela Valley Union High School District. Prior to May 15, 1964 she was dismissed under the provisions of Education Code, § 13443. That section, in pertinent part, provides: 'On or before the 15th 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 * * *.'

The school board at its meeting on May 12, 1964, decided not to rehire. Written notice of said decision was mailed to appellant. It was received by her on May 14.

On May 18, appellant requested a further hearing. On July 13, she received a notice of hearing and a list of 'Accusations'. Within five days, appellant filed a Notice of Defense to said accusations.

Hearing was held on July 28, 29, and 30. On August 27, at a meeting of the board, a decision was reached sustaining the prior refusal to hire appellant for the subsequent school year.

On September 4, 1964 appellant received a document entitled 'Findings of Fact, Determination of Issues and Conclusions Thereon', notifying appellant of the final decision of the board.

On October 14, appellant requested the preparation of the record relating to the proceedings against her. In response thereto appellant received a letter from the board acknowledging the request, and calling appellant's attention to the fact that such a record would be prepared only upon payment by her of the estimated costs thereof as required by section 11523 of the Government Code. Appellant insisted that 'the expense of the transcript of the hearing of July 28, 29 and 30, 1964, before respondent Board * * * should be paid for the respondent Board * * * from the funds of the respondent school district.' No record was prepared.

On November 4, 1964, appellant filed in the superior court a petition for writ of mandate, setting out three causes of action, the third being in the nature of a complaint for declaratory relief. The pleading considered as a whole recites the foregoing facts, alleges that she has performed all duties required of her as a teacher, except such as she was wrongfully prevented by respondent from performing; the absence of a material witness which was complained of; the failure to grant a continuance when such absence was called to respondent's attention; irregularity in attendance at hearings by members of respondent Board and various procedural defects in the proceedings. In addition, the pleadings assert lack of substantial evidence to support the findings and conclusions of the Board, allege on information and belief that the decision was based on matters not in evidence and on matters improperly received in evidence at the hearing, and request the court to issue a writ of mandate ordering appellant's immediate reinstatement.

The cause of action for declaratory relief requests a trial De novo in the superior court to determine appellant's status.

Respondent's general demurrer to the petition was sustained without leave to amend on the ground that it was not filed within the time limit required by section 11523 of the Government Code. This appeal is from the judgment of dismissal entered pursuant to the order sustaining the demurrer without leave.

At the time of the ruling below, Education Code, section 13444 provided that hearings for the dismissal of probationary teachers should be held in accordance with the provisions of Government Code, Title 2, Division 3, Part 1, Chapter 5 (entitled 'Administrative Adjudication'). ¹ Section 11523 of the Government Code, one of the sections referred to, provides for a review of administrative decisions by petition for a writ of mandate. Such petition must be filed within 30 days after the last day on which reconsideration can be ordered.

Government Code, § 11521 provides that '(t)he power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to respondent * * *.'

In the case at bench, the petition reveals that appellant received a copy of the decision on September 4, 1964. 30 days therefrom is October 4, a Sunday. Civil Code, § 11 provides that whenever an act is appointed by law to be performed on a holiday (including Sunday; see Civil Code, § 7), it may be performed on the next business day. The last day upon which reconsideration could be ordered, therefore, was Monday, October 5. The time for filing the petition for writ of mandate was 30 days later, or November 4, 1964. Since the petition at bench was filed November 4, the trial court erred in sustaining the demurrer on the ground of the untimeliness.

Appellant's petition was filed within the time set by law. We must therefore examine the merits thereof. A general demurrer will not be sustained if the pleadings, liberally construed, state a cause of action on any theory. (Lloyd v. California Pictures Corporation, 136 Cal.App.2d 638, 642, 289 P.2d 295; Tustin Heights Association v. The Board of Supervisors of Orange County, 170 Cal.App.2d 619, 636, 339 P.2d 914; Maxwell v. Santa Rosa, 53 Cal.2d 274, 279 1 Cal.Rptr. 334, 347 P.2d 678; Helfrich v. Kerley, 192 Cal.App.2d 726, 729, 13 Cal.Rptr. 753.)

At the time of the proceedings below, Education Code, § 13444 ² provided in part: 'The governing board of any school district 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 determination of the board as to the sufficiency of the cause for dismissal shall not be subject to judicial review.'

In Griggs v. Board of Trustees, 61 Cal.2d 93, 37 Cal.Rptr. 194, 389 P.2d 722, the Supreme Court discussed the rights of a probationary teacher dismissed at the end of her third year to obtain judicial review of the local school board by petition for writ of mandate. The court stated at page 96, 37 Cal.Rptr. at page 197, 389 P.2d at page 725: 'The inquiry extends to the questions whether the board had proceeded without or in excess of jurisdiction, whether there was a fair trial, and whether there was any prejudicial abuse of discretion. An abuse of discretion is established if the board has not proceeded in the manner required by law, the order or decision is not supported by the findings, or, with regard to local boards like the one before us, the findings are not supported by substantial evidence in the light of the entire record. (Code (of) Civ.Proc. § 1094.5, subds. (b), (c); Atchison etc. Ry. Co. v. Kings Co. Water Dist., 47 Cal.2d 140, 143-- 144, 302 P.2d 1; Riggins v. Board of Education, 144 Cal.App.2d 232, 237, 300 P.2d 848.) * * *.

'Nothing in the language of section 13444 prevents the reviewing court from determining whether the board has...