Santa Ana U. Sch. Dist. v. Com. on
Professional Competence
Filed 2/4/13 Santa Ana U. Sch. Dist. v. Com. on Professional Competence CA4/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
SANTA ANA
UNIFIED SCHOOL DISTRICT,
Plaintiff and Appellant,
v.
COMMISSION ON PROFESSIONAL
COMPETENCE,
Defendant and Respondent;
ANTONIO ESPINOSA,
Real Party in Interest and Respondent.
G046707
(Super. Ct. No. 30-2011-00447709)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Kirk H. Nakamura, Judge. Affirmed; remanded with directions.
Law Offices of Eric
Bathen, Eric J. Bathen, Marcia P. Brady, Richard D. Brady and Jordan C. Meyer
for Plaintiff and Appellant.
No appearance by
Defendant and Respondent.
Reich, Adell &
Cvitan, Marianne Reinhold, Carlos R. Perez, Kent Morizawa and Angela Serranzana
for Real Party in Interest.
In this case, we review
the denial of a petition for writ of
mandate filed by Santa Ana Unified School District (the District), seeking
to overturn the decision of the Commission of Professional Competence regarding
one of the District’s counselors, Anthony Espinosa. The District accused Espinosa, a counselor at
Segerstrom High School,
of immoral behavior with two female students, V. and C., and sought to suspend
and dismiss him under Education Code section 44934.
administrative law judge and two panel
members, both of whom were counselors.
The Commission
unanimously found the District’s charges against Espinosa unproven and ordered
them dismissed. The District then filed
a petition for writ of mandate in the Orange County Superior Court, which
petition was denied. The District has
appealed the denial of its petition to this court, asserting that it did not
get a fair trial before the Commission and that the trial court used the wrong
standard of review when it denied the petition.
It also asserts substantial
evidence did not support the Commission’s decision.
We affirm. The trial court clearly used the correct
standard of review, independent judgment, when it examined the administrative
record, giving due weight to the Commission’s findings. The District has waived its argument
concerning the sufficiency of the evidence – usually a losing proposition on
appeal anyway – by preparing a one-sided recitation of the facts in its opening
brief. And we conclude that the
District’s criticisms of the way the administrative law judge conducted the
hearing lack merit. The trial court
correctly upheld the Commission’s decision.
FACTS
High School is a “fundamentalâ€
school, encompassing grades 9 through 12, with 2,450 students. It has a school-wide program for managing
missed homework assignments, tardy appearances at classes, and dress code
violations. Any student can apply to
attend Segerstrom; enrollment is not limited to those living in a certain
area. Students can also be dismissed
(“non-invitedâ€) if they consistently violate the school policies regarding
homework, tardiness, and dress.
Segerstrom differs from a traditional high school in the commitment of
its staff to enforcing their “card system†(for missed homework, tardiness, and
dress code violations), so students do not get off track without early
intervention.
went to high school and college in Santa Ana. He began his teaching career in Santa
Ana as a student teacher in 1975 at Santa
Ana High School
and coached football and soccer there for four years. He completed a master’s degree in counseling
in 1980, while continuing to teach, and obtained both counselor and school
psychologist credentials. The District
then hired him as a school psychologist during the 1980’s.
In 1989, after obtaining
an administrative credential, Espinosa became assistant principal at Valley
High School, where he remained until 1994.
He then served as principal at two other District schools until, in
2001, he returned to Valley as its principal.
He remained at Valley until the end of 2006, when he was removed from
this position. Espinosa was then put in
charge of a legislatively mandated new program to keep track of nongraduating
students, until they reached the age of 22.
He became a counselor at Segerstrom in July 2007.
Although Segerstrom
counselors are assigned blocks of students from an alphabetical list of the
student body, the counselors do not restrict their services to their assigned
students. The counselors are part of the
discipline system, and they make themselves available to all students, not just
those specifically assigned to them.
Espinosa first came into
contact with V. as her assigned counselor during the 2008-2009 school year,
when she was a freshman. V.’s mother
contacted him to ask for special help for V. with her algebra after the first
grading period in October. Part of the
problem, it appeared, was that V. was not doing her algebra homework. Espinosa developed a plan whereby V. would
stop by his office on the way to her algebra class, and he would check her
homework to see whether she had completed it.
This routine lasted about two weeks, until Espinosa discontinued it
because it did not appear to be having any beneficial effect. He also tried to arrange algebra tutoring for
V. but was unsuccessful because of her crowded schedule.
After attending a
presentation on predatory behavior by Juan Lopez, the District’s associate
superintendent of human resources, in the fall of 2008, V.’s mother told Lopez
that she was worried about Espinosa’s conduct with V. Lopez relayed the conversation to Amy Avina,
Segerstrom’s principal, and told her to investigate the charges. After speaking to V., Avina drafted a Conference
Summary Performance Report, which set out allegations V. had made against
Espinosa.
representative on December 17, 2008.
Lopez questioned Espinosa regarding the allegations, and Espinosa denied
each of them. Sometime after the
meeting, Avina handed Espinosa his copy of the report, dated December 18,
2008. The report ordered Espinosa to
keep his office door and blinds open when he was alone with a student, not to
visit students in classrooms, and to discourage students from visiting him
during class time. V. was assigned to another counselor. The report was placed in his personnel file,
and Espinosa did not prepare a response.
During the 2009-2010
school year, Espinosa came into contact with C., a senior. C. knew Espinosa from 2009 summer school,
where he was teaching and she was taking classes. He had helped her to sign up for summer
school classes, and she asked for his help in getting one of her friends into
summer school. Espinosa was not C.’s
assigned counselor, but, as noted, the practice at Segerstrom did not require
counselors to restrict their services to their assigned students. As one of the District’s witnesses, another
Segerstrom counselor, testified, “[C]ounselors have responsibility for all the
students at the school. We make
ourselves available to students whether they are on our caseload or not.†C. sought Espinosa out when she had a tardy
card or a missed homework slip because he had a reputation among the students
for being “chill,†that is, more lenient and less strict about rules than the
other counselors.
C. complained to
Segerstrom’s principal, Avina, that Espinosa was calling her out of class
frequently and that he had asked for her cell phone number. She also claimed he came to one of her
classes and stared at her for a few seconds and that he had called her cell
phone several times on a day when she was absent from school.
Immediately following
these complaints, Espinosa was placed on administrative leave. Pursuant to Lopez’s recommendation, the
District started proceedings to suspend and dismiss Espinosa. The District sought to suspend and dismiss
Espinosa on grounds of “immoral or unprofessional conduct,†(§ 44932, subd.
(a)(1)), “willful refusal to perform regular assignments without reasonable
cause†(§ 44939), and “evident unfitness for service†(§ 44932, subd.
(a)(5)).
As a permanent employee,
Espinosa was entitled to a hearing on the decision to suspend and dismiss
him. The Commission conducted an evidentiary
hearing on the charges between October 11 and October 14, 2010. The three-person panel consisted of an
administrative law judge and two other members, one chosen by the District and
one by Espinosa, both of whom were or had been counselors.
The Commission rendered
its unanimous decision in Espinosa’s favor on December 13, 2010. The Commission explained its reasoning in a
20-page decision, in which it found that the District had failed to establish
any of the charges against Espinosa with respect to either V. or C. “On the contrary, the Commission must
conclude that [Espinosa] is a fit teacher and dedicated counselor who tried to
help two students and make a difference in their academic and school lives . .
. . His conduct and activities were at
all times consistent with his duties as a high school counselor and
demonstrated that he has a caring and giving temperament and is willing to go
the extra mile to help a student when asked.â€
The Commission found Espinosa to be “a credible and persuasive witnessâ€
and held that the District had not met its burden to show that he was engaged
in sexual harassment or predatory conduct.
The District petitioned
the superior court for a writ of mandate.
The grounds cited in the petition were (1) the lack of a fair trial for
the District and (2) lack of substantial evidence to support the Commission’s
findings and its decision. After a
hearing, the trial court denied the petition for writ of mandate. This appeal followed.
DISCUSSION
The District identified
three issues on appeal: first, the
standard of review used by the trial court; second, the sufficiency of the
evidence; and third, the fairness of the trial before the Commission. We address each in turn.
of Review in the Trial Court and on Appeal
A “decision of a
Commission on Professional Competence may be challenged in superior court by
means of a petition for a writ of mandate.
[Citations.] In reviewing a
commission’s decision, the superior court ‘shall exercise its independent judgment
on the evidence.’ [Citation.] Where a superior court is required to make
such an independent judgment upon the record of an administrative proceeding,
the scope of review on appeal is limited.
An appellate court must sustain the superior court’s findings if
substantial evidence supports them.
[Citations.] In reviewing the
evidence, an appellate court must resolve all conflicts in favor of the party
prevailing in the superior court and must give the party the benefit of every
reasonable inference in support of the judgment. When more than one inference can be
reasonably deduced from the facts, the appellate court cannot substitute its
deductions for those of the superior court.
[Citation.]†(
Professional Competence (1977) 20 Cal.3d 309, 314; see also
on Professional Competence (2011) 194 Cal.App.4th 1454, 1461-1462.)
Although the trial court
exercises independent judgment on the
evidence in reviewing the administrative record, it may not simply ignore the
work of the Commission, which, unlike the trial court, has had an opportunity
to evaluate witnesses and their credibility.
The findings of the Commission, a “legislatively mandated professional
body, with experience and expertise in the area of determining fitness to
teach,†are entitled to “substantial weight, even in an ‘independent judgment’
hearing before the superior court.†(
Commission on Professional Competence (1982) 135 Cal.App.3d 278, 288.) “In exercising its independent judgment, a
trial court must afford a strong presumption of correctness concerning
administrative findings, and the party challenging the administrative decision
bears the burden of convincing the court that the administrative findings are
contrary to the weight of the evidence.â€
(Fukuda v. City of Angels
(1999) 20 Cal.4th 805, 817; see also
Bixby v. Pierno (1971) 4 Cal.3d 130, 139; Mason v. Office of Admin.Hearings (2001) 89 Cal.App.4th 1119,
1130-1131.)
The District contends
the trial court did not exercise its independent judgment, but instead simply
adopted the Commission’s findings without further review or reflection. The record does not support this claim. Both its written judgment and its comments at
the hearing attest to the trial court’s recognition of its duty to use its
independent judgment. The District has
seized on a comment made by the judge at the beginning of the hearing – “I don’t
think there is enough here for the court to second guess the trier of fact.†–
and interpreted it to mean the judge had not reviewed the record independently
but had merely deferred to the Commission’s findings. We do not read the comment that way. Given the context of the rest of his remarks,
we believe he was properly affording the “strong presumption of correctness†to
the administrative findings and observing that the District had not met its
“burden of convincing the court that the administrative findings are contrary
to the weight of the evidence.†(
Cal.4th at p. 817.)
The judge had obviously
reviewed the record with care, as evidenced by the remarks from the bench
during oral argument.
name="_ftnref3" title="">[3] He was also acutely aware of what was at
stake: “[T]here is no class of people
other than teenage girls I would think would have the [greater] need to be
protected against sexual predators . . . .â€
The judge also indicated he did not fully agree with the Commission’s
findings, but nevertheless did not believe the District had established
Espinosa’s unfitness.
name="_ftnref4" title="">[4] Nothing in this record supports the
District’s position that the trial court used the wrong standard of review in
ruling on the petition for writ of mandate.
of the Evidence
Section 44932,
subdivision (a), sets out the only grounds upon which a permanent employee may
be dismissed. The District named immoral
conduct, evident unfitness for service, and willful refusal to perform regular
assignments as its grounds for dismissing Espinosa.
“Immoral conduct†(§
44932, subd. (a)(1)) is conduct hostile to the welfare of the general public
and is not confined to sexual matters.
It defines such conduct as that which is “‘“inconsistent with rectitude,
or indicative of corruption, indecency, depravity, dissoluteness; or as
willful, flagrant, or shameless conduct showing moral indifference to the
opinions of respectable members of the community, and as an inconsiderate
attitude toward good order and the public welfare.â€â€˜â€œ (San
Diego Unified School Dist. v. Commission on Professional Competence (2011)
194 Cal.App.4th 1454, 1466.)
“Evident unfitness for
service†(§ 44932, subd. (a)(5)) refers to a “fixed character trait, presumably
not remediable merely on receipt of notice that one’s conduct fails to meet the
expectations of the employing school district.â€
(Woodland Joint Unified School
Dist. v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429,
1444 (Woodland).) It means “‘clearly not fit, not adapted to or
unsuitable . . . ordinarily by reasons of temperamental defects or
inadequacies.’†(Ibid.)
Both unfitness for
service and immorality as grounds for dismissal are subject to an additional
condition. The conduct complained of
must adversely affect students or fellow teachers and indicate that the
employee is unfit to teach (or, in this case, to be a school counselor). (See Morrison
v. State Board of Education (1969)
1
Cal.3d 214, 226, 229 (Morrison); see
also Woodland, supra, 2 Cal.App.4th
at p. 1445 [Morrison analysis applies
to “‘evident unfitness for service’â€].)
The Supreme Court placed this restriction on power of the boards of
education to dismiss employees to counteract the vagueness of such statutory terms as “immoral,†“unprofessional,â€
and “involving moral turpitude,†which otherwise would give the boards license
to dismiss any employee who acted in a way they found disagreeable. (Morrison,
supra, 1 Cal.3d. at pp. 225-226,
229.) The court identified several
factors that could be used to determine unfitness to teach. (Id.
at p. 229.)
Section 44939 permits a
governing board of a school district to immediately suspend a permanent
employee for, among other things, “willful refusal to perform regular
assignments without reasonable cause, as prescribed by reasonable rules and
regulations of the employing school district.â€
Espinosa’s alleged failure to comply with the directives he was given in the
December 18, 2008, Conference Summary Performance Report. Like immorality and evident unfitness to
serve, the alleged insubordination must affect the students. (See Bourland
v. Commission on Professional Competence (1985) 174 Cal.App.3d 317, 321.)
The Commission did not
analyze Espinosa’s conduct using the Morrison
factors, because it determined Espinosa did not commit the offenses with which
the District had charged him. The trial
court found that Espinosa had said and done things showing poor judgment
(without specifying what these things were), but that his conduct did not rise
to the level of unfitness for service.
On appeal, the District disagrees with both the Commission and the trial
court, asserting that the record contains sufficient evidence to warrant
Espinosa’s dismissal.
An appellant challenging the sufficiency of
the evidence on appeal must set forth in its brief “all the material evidence on the point and not merely [its] own evidence.
Unless this is done the error is deemed waived.†(Foreman
& Clark Corp. v. Fallow (1971) 3 Cal.3d 875, 881; see also
206 Cal.App.4th 702, 713-714; Clark v.
Superior Court (2011) 196 Cal.App.4th 37, 52-53; Myers
v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 749;
1246.)
The District’s statement
of facts in its opening brief is entirely one-sided, giving only the District’s
evidence and totally ignoring the evidence presented in Espinosa’s favor. A few examples illustrate this tactic.
The most bizarre episode
in this entire proceeding was V.’s testimony that, during one of her visits to
Espinosa’s office, after her picture had come up on the school computer’s
screen during a grade check, Espinosa said, “The little kitty was full of milkâ€
or “Is the kitty full of milk?†V.
interpreted the remark to be referring to her breasts. V. testified that she told her mother about
the “kitty†comment, and V.’s mother testified that V. swore her to secrecy
before telling her about it. Avina
testified that V. told her about the comment, which came out in Avina’s
testimony as “It looks like the kitty is ready to drink milk.â€
District’s brief.
Espinosa testified that
he never commented at all on V.’s physical appearance. During one counseling session, after V.’s
picture came up on the school computer and V. said she hated the picture, he
told her he thought it was a nice picture.
“kitty†comment until V.’s deposition, on the first day of the hearing. Moreover, Lopez, the District’s HR
representative, had not heard about the “kitty†comment, which he characterized
as “disgusting†and “immoral,†until he testified at the hearing itself. The report placed in Espinosa’s personnel file
did not mention the “kitty†comment, and it never appeared in any written
statement.
District’s statement of facts in the opening brief.
The District recounted
testimony from V. that Espinosa met with her in his office with partially
closed blinds and a closed door. Another
Segerstrom counselor also testified that she had observed a closed door and
closed blinds in Espinosa’s office.
Espinosa testified that during the 2008-2009 school year he never met
with a student while the blinds on his office door were closed. He added that he had become very aware of the
danger of doing so after one of the teachers at a school where he had been a
principal was falsely accused of sexual harassment. As a principal, he had always advised his
male staff to keep the doors open when they were in a room with female
students, and he followed this practice himself as a school counselor.
testimony in its statement of facts.
V. testified that, after
she had returned to school from home during the school day, Espinosa once said,
“Why didn’t you ask me for a ride? I
could have taken you home. I could have
picked you up.†She also testified that,
on another occasion, Espinosa had said, “So if we go to the shoe store, she’s
going to be there?†after V. told him her mother was not home but was at a shoe
store. The District repeated this
testimony in its statement of facts, as evidence of Espinosa’s offering V.
rides in his car. It left out, however,
Espinosa’s testimony that he had never offered V., or any other student, a ride
during the 2008-2009 school year, testimony that the Commission found credible.
With respect to C., the
District accused Espinosa of asking for her cell phone number and then calling
her five times on a day when she was absent from school. Although the District referred to some of
Espinosa’s testimony on this issue, it was a very limited and slanted
reference. The District recounted C.’s
testimony that Espinosa entered C.’s cell phone number into his own cell phone;
Espinosa denied doing this. He testified
he simply wrote down the number on a piece of paper. The statement of facts did not include his
denial.
The District also left
out the part about why Espinosa wanted the cell phone number. He testified he had been unsuccessful in his
efforts to contact C.’s mother for three weeks, despite calling the home and
work numbers on file with the school, to schedule a parent conference about
C.’s failing grades and about C.’s brother, who was also a Segerstrom student.
to reach her mother through her.
Espinosa also asked C.
to ask her mother to come to school on a certain day and time, and C. agreed to
tell her mother about the conference.
After making these arrangements, Espinosa learned he had a conflicting
obligation. On the day before the
meeting with C.’s mother was supposed to take place, he testified he called
C.’s cell phone twice, once in the morning and once in the afternoon, to cancel
the meeting, although he had not received any confirmation that C.’s mother
would be attending. He denied calling C.
five times in one day or calling her at all on any other day. He also testified he made the calls regarding
the conference with C.’s mother from his office phone, not his cell phone. The District acknowledged all this testimony
in one sentence: “Mr. Espinosa admitted
he called C.’s cell phone at least twice on December 7, 2009, and that it was
to contact C.’s mother to discuss a homework issue C.’s brother was
having.†This is not a fair summary of
“all the material evidence†on this point, as envisioned by the case law.
C. also accused Espinosa
of following her to a seminar class, during which she was supposed to be
reading silently, and staring at her. A
classmate also testified that Espinosa stared at C. during this class. The District presented this testimony at some
length in its statement of facts as evidence that Espinosa was stalking C.
The District did not
allude to the contrary testimony. For
example, in a statement C.’s classmate gave to Avina, she wrote that Espinosa
stared at C. for “like five minutes.†On
the stand, this period of time was reduced to “a few seconds.†The District also neglected to mention
Espinosa’s testimony that he had visited the seminar class not to see C., but
to confer with the teacher about another student who had been the subject of an
earlier meeting. He denied staring at
C., but stated he had noticed her when he walked into the classroom because,
instead of reading silently, she was talking to her classmate and putting on
makeup. (C. had previously testified she
was reading when Espinosa walked into the seminar class. Her classmate, however, said they were talking.) The classroom teacher also testified she did
not notice Espinosa staring at C., but felt she had to report what C. said to
her.
The District having
failed to present all the evidence relevant to its claim of insufficient
evidence, it has waived this argument.
And, in any event, it is not our function to reweigh evidence. From the examples given, it should be clear
that substantial evidence supported both the trial court’s ruling and the
Commission’s decision. Under those
circumstances, we do not have the option of disagreeing with the trial
court. (See Pasadena Unified Sch. Dist. v. Commission on Professional Competence,
supra, 20 Cal.3d at p. 314; Board of
Trustees v. Metzger (1972) 8 Cal.3d 206, 211.)
Trial
addition to rearguing the evidence, the District claims that the administrative
law judge denied it a fair trial.
Whether an administrative proceeding is fundamentally fair is a question
of law, subject to de novo review. (See
(2009) 175 Cal.App.4th 631, 639.) We deal separately with each of the
District’s complaints regarding the conduct of the trial.
Testimony
The administrative law
judge was prepared to exclude V. as a witness for the District because she had
not been made available for deposition.
Counsel were able to work out a solution to the problem, and V. was
deposed. She then testified at the
second day of the hearing.
Nevertheless, the
District has made an issue of this nonevent.
In the trial court, this was the lead-off instance of the District’s
argument about the unfairness of the trial.
Even after Espinosa pointed out to the trial court that V. did in fact
testify at the hearing, the District continued to harp on this issue. The judge could make no sense of the
District’s argument.
name="_ftnref12" title="">[12] The problem was solved. V. was deposed, and she testified.
In this court, the
District first characterized the administrative law judge’s ruling as
“prejudicial because the [judge] had to know granting the motion would prevent
the District from presenting any part of its case because V.’s testimony was
crucial to proving the series of events that led to Mr. Espinosa’s
dismissal. The [judge] should have
looked for alternatives to granting the motion; in particular Mr. Espinosa’s
counsel did not object to the District’s request for continuance, which would
have permitted the deposition to occur.â€
The District then suggested that the administrative law judge made the
ruling in order to bring the case to an early close, so that he “would not have
had to conduct this hearing.â€
It its reply brief, the District shifted
ground. The prejudice was not the ruling
or the administrative law judge’s desire to get rid of the case quickly. It was the fact that the other two members of
the panel heard the argument about excluding the witness. The District made the wholly speculative
argument that hearing the dispute about excluding V. as a witness prejudiced
the other two panel members against the District. The District argued that the two panel
members function as “jurors†in an administrative hearing, and extended
arguments about evidence are usually not conducted in the presence of jurors.
The District offered no
authority for regarding the nonjudicial panel members as jurors. Given the qualifications required to be
selected to serve on a panel, it appears that these members function much more
like experts or special masters than like jurors.
arguments are usually conducted outside the presence of a jury is that if the
evidence is ruled inadmissible, the jury will not have heard it and have to
“unring the bell,†not out of concern about prejudice to the party losing the
argument.
The District also presented
us with no legal authority to support its position that a nonjudicial panel
member should not hear debates about evidence or that hearing them somehow
prejudices this member against the losing party. The administrative law judge made numerous
evidentiary rulings during the hearing, some of which included arguments. Is it the District’s position that the other
panel members should have left the room while the judge was making these
rulings? Was Espinosa prejudiced in
their eyes each time a ruling went against him?
Nothing in the record
suggests that the ruling on the exclusion motion prejudiced the District. The basis for the ruling – V.’s nonappearance
at her deposition – was resolved, and she testified. By the time the Commission got around to finalizing
its decision in early December 2010, the entire panel had probably forgotten
all about the exclusion motion. The
argument borders on the frivolous.
B. Hearsay
Objections
44944, subdivision (a)(1), requires a dismissal or suspension hearing to be
conducted in accordance with Chapter 5 of the Government Code, commencing with
section 11500. Government Code section
11513, subdivision (d), provides:
“Hearsay evidence may be used for the purpose of supplementing or
explaining other evidence but over timely objection shall not be sufficient in
itself to support a finding unless it would be admissible over objection in
civil actions. An objection is timely if
made before the submission of the case or on reconsideration.†Government Code section 11513, subdivision
(c), provides: “The hearing need not be
conducted according to technical rules relating to evidence and witnesses,
except as hereinafter provided. Any
relevant evidence shall be admitted if it is the sort of evidence on which responsible
persons are accustomed to rely in the conduct of serious affairs, regardless of
the existence of any common law or statutory rule which might make improper the
admission of the evidence over objection in civil actions.â€
Government Code section
11513, subdivision (c), relaxes the rules of evidence in administrative
hearings, “except as hereinafter provided.â€
Subdivision (d) provides that hearsay evidence may be used to supplement
or explain other evidence. The
prohibition against hearsay evidence is thus relaxed to a certain extent, but
not entirely.
In this case, the
administrative law judge repeatedly sustained objections to hearsay testimony
that the District sought to elicit before
providing the nonhearsay testimony it was supposed to supplement or
explain. For example, the District’s
counsel asked one of C.’s teachers what C. had said to her regarding Espinosa
grounds, and the judge sustained the objection.
When the District’s counsel protested that hearsay was admissible in an
administrative proceeding to corroborate direct evidence, the judge observed,
“And we haven’t had the direct evidence.â€
“[W]e will have it this afternoon,†counsel promised. “Maybe.
I don’t know,†replied the judge.
The District was
attempting to put the supplemental hearsay cart before the direct evidence
horse. Unless there is direct evidence
already in the record, there is nothing to supplement or explain. (See DeMartini
v. Department of Alcoholic Beverage Control (1963) 215 Cal.App. 2d 787,
809, overruled on other grounds in Harris
v. Alcoholic Bev. etc. Appeals Bd. (1965) 62 Cal.2d 589.) What if the direct evidence never
materializes? If hearsay evidence has
already been admitted on spec, then the panel members have to remember to
disregard it, creating a record almost guaranteed to cause confusion. Clearly, this is a call that relies on the
experience and discretion of the hearing officer.
Although Government Code
section 11513 eases the rules of evidence in an administrative hearing, the
statute specifically puts conditions on hearsay evidence. It does not countenance the evidentiary
free-for-all for which the District’s counsel argued. The judge correctly required the District to
question C. directly before it allowed someone else to testify about what she
said. As all of the challenged hearsay
rulings followed this pattern, the administrative law judge correctly sustained
these objections as well. (See, e.g.,
(2008) 170 Cal.App.4th 127, 130, 141 [hearsay administrative decision admitted
to support direct evidence of reason for retaining junior teachers over
laid-off senior teacher].) When the
hearsay testimony was truly corroborative, however, the judge overruled the
objection. The rulings seem completely
appropriate to us.
Exclusion
44944, subdivision (a)(5) provides in pertinent part: “No testimony shall be given or evidence
introduced relating to matters that occurred more than four years prior to the
date of the filing of the notice.
Evidence of records regularly kept by the governing board concerning the
employee may be introduced, but no decision relating to the dismissal or
suspension of any employee shall be made based on charges or evidence of any
nature relating to matters occurring more than four years prior to the filing
of the notice.â€
title="">[14] The record does not indicate when the notice
was “filed,†but the District states that the date was February 9, 2010, and we
will accept that date. Testimony or
evidence relating to “matters†that occurred on or before February 9, 2006, is
barred, except for the specified records.
The application of this
code section became an issue when it turned out that V.’s mother had had a
previous encounter with Espinosa when he was the assistant principal of Valley
High School. He recommended her son’s
expulsion, a recommendation with which V.’s mother did not agree. Espinosa’s counsel questioned her about the
incident during cross-examination – as evidence of bias – and the District’s
counsel sought to exclude this line of questioning as being beyond the
four-year window. V.’s mother refused to
answer questions on this topic during her cross-examination. Espinosa also testified regarding the
expulsion, again over objection. The
administrative law judge permitted the testimony for a limited purpose, as
evidence of previous acquaintance. The
District now cites the admission of this testimony as further evidence of the
prejudicial unfairness of the trial.
In Atwater Elementary School Dist. v. California Dept. of General Services
(2007) 41 Cal.4th 227, the California Supreme Court declined to decide whether
section 44944, subdivision (a)(5), represented a statute of limitations, an
evidentiary bar, or a condition on a substantive right. (Id.
at p. 231.) Regardless of what it was,
the ban on evidence more than four years old was subject to equitable
estoppel. (Id. at p. 232.) The Court
previously regarded the ban as “more of a bar against the use of stale
information to buttress a current charge than a true statute of limitations. .
. .†(Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 222,
fn. 15; see also Boliou v. Stockton
Unified School Dist. (2012) 207 Cal.App.4th 170, 178, fn. 3.)
We conclude the
“matters†referred to in the statute – those occurring more than four years
before the date of the notice – are employee
actions that the employer seeks to use to support suspension or dismissal, whether
directly or as instances of other bad behavior.
The code section prohibits the Commission from “basing†a decision on
charges or evidence relating to matters older than four years. The section thus restricts the age of the
information that can be used to support a dismissal, but it does not preclude
introducing other kinds of older relevant evidence. For example, each of the adult witnesses,
including Espinosa, recounted his or her professional background in detail from
the very beginning, clearly exceeding the four-year limit on testimony. Under the District’s interpretation of the
code section, none of this evidence regarding the witnesses’ professional lives
before February 2006 would be admissible.
With respect to the
specific evidence the District is challenging, it hardly seems likely that the
Commission would “base†its decision about dismissing Espinosa on whether V.’s
mother had a grudge against him. And, in
fact, the Commission’s decision does not mention Espinosa’s previous
acquaintance with V.’s mother.
name="_ftnref15" title="">[15]
The admission of the
evidence regarding V.’s mother did not prejudice the District or cause the
trial to be unfair. On the contrary, it
would have been unfair to Espinosa to create the impression in the minds of the
panel members that he and V.’s mother had no prior history. The ruling was entirely proper.
The District also
complains about three comments made by the administrative law judge during the
course of the hearing, claiming they prejudiced its case in the eyes of the two
nonjudicial panel members. One of the
remarks was “Please be polite. You make
me real mad when you keep arguing my rulings.â€
To place the remark in
context, it was made during the fifth time in two days that the administrative
law judge had ruled that the District could not introduce supplemental hearsay
before the direct evidence it was intended to supplement and the fifth time
that the District’s counsel had disputed the ruling at some length, and once at
some volume. While we prefer that
judicial officers keep their cool, we cannot but sympathize with a judge who is
hearing the same argument over and over after making a ruling.
to the District’s case.
The District also singled
out this exchange between a witness and the administrative law judge as
prejudicial:
“[The Witness
(Lopez)]: You know, you can give
somebody the benefit of the doubt one time that you make people uncomfortable
and maybe you didn’t mean it. The second
time it was clear to me that it’s not an accident, you can’t excuse it,
[Espinosa’s] on the prowl of a deeper relationship with a high school girl.
[District counsel]: And that is what you concluded on December
10th?
[The Witness]: I thought that’s what this was leading to,
definitely.
[District counsel]: Why did you come to that conclusion?
[The Witness]: Because [Espinosa] had been warned
specifically about similar behavior a year before, and here he was doing it
again.
The Court: What before, what kind of behavior?
The Witness: Making girls uncomfortable.
The Court: Did you [say] seminal behavior?
The Witness: No. I
like that word, but I didn’t use it.
The Reporter: Similar.
The Court: Similar.
You could use that word next time.
The Witness: I will try.â€
The
District characterizes the exchange between the court and the witness as proof
that the judge “was not paying attention to the proceedings†and that he was
also telling the witness, Lopez, “what words he should use.†This exchange also, in the District’s
opinion, prejudiced its case before the other panel members.
The expression “tempest
in a teapot†comes to mind, except that a teapot is far too spacious an arena
for this particular storm. People are
frequently asked to repeat themselves while testifying; this is not evidence
that the judge is inattentive, but only that he or she did not catch something
the first time. This judge’s remarks
included a futile attempt to introduce a bit of humor into the proceedings and
were hardly prejudicial, except perhaps to his potential career as a
comedian.
Finally, the District
objected to a “sarcastic comment†made during the cross-examination of Avina,
Segerstrom’s principal: “Thank you, God,
for this case.†Once again, context is
everything. Here is the entire exchange:
“[Espinosa’s counsel,
Perez]: Good morning, Dr. Avina.
[The Witness]: Good morning.
[Espinosa’s
counsel]: I want to say you look
fabulous.
[The Witness]: Thank you.
The Court: Especially with the U.H. shirt on. [¶] I
was going to say he’s not wearing the Harvard shirt. Mr. Perez went to Harvard.
Mr. Perez: We discovered we went almost the same year.
The Court: But you didn’t know Mr. Perez?
The Witness: I didn’t.
The Court: Thank you, God, for this case.â€
It
is not clear why the judge was giving thanks to the deity. Perhaps he was expressing relief that he
would not need to explore any bias Avina might have had because she and Perez
had been contemporaries at Harvard. But
whatever the remark meant, it is clear that it was made during banter among the
witness, counsel, and the court. How
this joking exchange could prejudice the District’s case is a complete
mystery. The District does its cause no
favors by elevating these trivial complaints to appellate issues.
The Commission gave the
District a thorough opportunity to present all its evidence of Espinosa’s
claimed misdeeds. The trial court
reviewed the record and agreed with the Commission’s conclusion. We have reviewed the record, and we do not
see anything to indicate an unfair trial or an improper standard of review by
the trial court, issues that we review de novo.
The District waived its argument with respect to the sufficiency of
evidence by giving us a one-sided statement of facts, and in any event our role
in reviewing evidence would be a very limited one. Like the trial court, we are fully aware of
the necessity to protect teenage girls, but, as the trial court observed, “the
evidence just wasn’t there.â€
DISPOSITION
judgment denying the petition for writ of mandate is affirmed. Espinosa shall recover his
attorney fees on appeal (Russell v.
Thermalito Union School Dist. (1981) 115 Cal.App.3d 880, 884; § 44944,
subd. (e)(2)), and we remand the matter to the trial court for this
determination.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
ARONSON, J.
THOMPSON, J.
name="_ftn1" title=""> [1] All further references are to the
Education code unless otherwise indicated.
name="_ftn2" title=""> [2] These included calling her into his
office every day, visiting her health class, making comments about her physical
appearance and breast development, offering to give her rides, and closing his
office door and blinds when alone with female students.
