Cox v. >Los
Angeles Unified School Dist.

 

 

 

 

 

 

 

 

 

 

Filed
7/23/13  Cox v. Los Angeles Unified School Dist. CA2/3

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

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opinion has not been certified for publication or ordered published for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

 

SECOND APPELLATE DISTRICT

 

DIVISION THREE

 

 

 
>

ERICA COX,               Plaintiff and Appellant,               v.   LOS ANGELES UNIFIED SCHOOL DISTRICT,               Defendant and Respondent.

B239693               (Los Angeles County             Super. Ct. No. BS128454)

 

 

 

            APPEAL
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Ann I. Jones, Judge.  Affirmed.

            Trygstad,
Schwab & Trygstad, Lawrence B. Trygstad and Richard J.
Schwab for Plaintiff and Appellant.

            Office
of General Counsel, Los Angeles Unified School District and
Marcos F. Hernandez for Defendant and Respondent.

 

_______________________________________

>INTRODUCTION

            Petitioner and appellant Erica Cox appeals an order
denying her petition for writ of mandate. 
She sought to compel respondent Los Angeles
Unified School District (LAUSD) to classify her as one of its permanent
employees, effective July 1, 2009, and to provide her
with appropriate pay and benefits. We agree with the trial court’s analysis and
ruling.  We therefore will affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

            With a seniority date of March 12, 2009,
Cox became a probationary counselor at Crenshaw High School
(Crenshaw), with a normal workday of six hours. After successfully completing
the 2007-2008 school year, Cox continued her probationary status the next
school year.

            LAUSD paid Cox maternity leave from September 2, 2008
through October 31, 2008. The next month, she
returned to Crenshaw, her first time on a normal basis for the 2008-2009
school year. That school year had 182 work days.

            For the school year of 2009-2010,
Cox was classified as a second year probationary employee. LAUSD took the
position that Cox did not complete her probationary status for the 2008-2009
school year because she did not satisfy Education Code section 44908’s
“complete school year” requirement of “at least 75 percent of the number
of days” for that year.

            On March 8, 2010,
LAUSD notified Cox that she was not selected for a certificated position
for the next school year. On March 10, Cox received a layoff notice, and
on June 24, 2011,
LAUSD issued her a final layoff notice.

            In
September, 2011, Cox filed a petition for relief under Code of Civil Procedure
section 1085.  She argued that 30 more
hours should be added to her work record to satisfy the “complete school year”
requirement for 2008-2009.  In support of
her claim, Cox submitted declarations stating, in effect, that during her
maternity leave she had expended those hours in preparing a grant application
on behalf of LAUSD.  The trial court,
however, held that those declarations were inadmissible.

            Cox’s
declaration dated November 7, 2011, was stricken on the ground
that it contained information contrary to her prior deposition testimony.  As the trial court noted, Cox “clearly
testified that she had no additional documentary evidence in support of her
claims at her deposition.”  In addition,
the trial court sustained LAUSD’s written objections to Cox’s evidence on the
ground of lack of foundation.  At the
hearing on Cox’s petition, the trial court also sustained oral objections “to
the declarations of Erica Cox, Krystal O’Leary and Dwyna Blackmon as lacking in
foundation regarding when [Cox] worked on the grant application.”  As a result, the trial court concluded that
“the state of the record is that there is no competent evidence in the record
to support [Cox’s] allegation that she worked for [LAUSD] during her maternity> leave.”

            The
trial court also rejected Cox’s alternative argument that, when her “partial
day” was added to the given 135 days, she actually worked 74.7% of the 2008‑2009
school year; that percentage, when rounded up, satisfied the “complete school
year” requirement. In support of her “rounding up” and using “hours”
assertions, Cox relied on Vittal v. Long
Beach Unified Sch. Dist. (1970) 8 Cal.App.3d 112 (Vittal), and Griego v. Los
Angeles Unified School Dist. (1994)
28 Cal.App.4th 515 (Griego).  Cox argued that those two decisions rejected
a “literal construction” of Education Code sections 44908 and 44929.21(b).

CONTENTIONS
ON APPEAL

            Cox
contends that (1) LAUSD failed to properly credit her with the total number of
hours that she worked and (2) the trial court erroneously excluded
admissible evidence that, if received, would have established that she had
worked the required number of hours.

discussion

            1.         Standard
of Review

            On
review of a trial court’s denial of a section 1085 mandate petition, “[o]ur
task is to determine whether substantial evidence in the administrative record
supports the trial court’s ruling [citation], except when the appellate issue
is a pure question of law.  The question
presented in this case -- whether the trial court applied the correct standard
of review -- is a question of law.  We
review questions of law de novo.”  (>Alberda v. Board of Retirement of Fresno
County Employees’ Retirement Assn.
(2013) 214 Cal.App.4th 426, 433-434.)

            As
the trial court’s ruling was based upon an analysis of case law and statutes,
we proceed with a de novo review. 
However, as summarized above, that court also made evidentiary rulings
with respect to declarations submitted by Cox. 
We cannot reverse the trial court’s exclusion of evidence unless Cox
satisfies her burden of showing those rulings both were erroneous and
prejudicial.  (Zhou v. Unisource Worldwide (2007)
157 Cal.App.4th 1471, 1480.)

            2.         >Relevant Statutory Provisions

            Education Code section 44908 defines a “complete
school year” as “at least 75 percent of the number of days the regular
schools of the district in which he is employed are
maintained . . . . â€ 
A probationary employee, such as Cox, must serve “two complete
consecutive school years in a position or positions requiring certification
qualifications” prior to becoming classified as a permanent employee.  (Educ. Code, § 44929.21(b).)

            It is undisputed that Cox
satisfied the
“complete school year” requirement in 2007‑2008.  For the school year of 2008-2009, the parties
acknowledge that requirement was 136.5 days (182 total days x .75).  As LAUSD admits Cox
worked
135 days that year, she must establish that she worked at least 1.5
additional days.

            Cox
advances two distinct arguments to support her claim of entitlement to credit
for the necessary additional days: 
(1) for her work on a grant application, LAUSD paid her
30 hours, in effect 5 more days; and, (2) LAUSD acknowledges Cox
worked an additional “partial day” of 3 1/2 hours which, she asserts, must be
counted and “rounded up.”

            3.         The
Grant Application Claim

            Cox
claims that she worked on a grant application for which she was in fact
compensated by LAUSD.  Her position
seems contradictory.  That is, her
stricken declaration and her legal briefs indicate she did that work while on
maternity leave; on the other hand, in oral argument before this court, Cox’s
counsel indicated that work occurred during the time period of November 5-9,
after her return from maternity leave. In any event, as explained below, this
claim fails.

            The
trial court sustained LAUSD’s objections to most, if not all, of her evidence in
support of this claim.  Cox now argues
that she “had personal knowledge of the facts” and her rejected declarations
were “relevant.” But, as discussed above, those were not the reasons why the
trial court sustained the evidentiary objections of the LAUSD
and struck such
proffered evidence.  The trial court
ruled her evidence asserted claims that were contrary to her prior deposition
and also lacked foundation.  Cox has not
addressed those issues on appeal or explained, as she must under >Zhou, supra, why the trial court’s order was erroneous or how she was
prejudiced by the ruling.

            Assuming,
arguendo, that Cox
had submitted
proper evidence to the trial court, this claim still fails.  During her maternity leave, as even she
acknowledges, LAUSD
paid no
compensation to Cox other than “maternity leave pay.”  In November 2008, she was paid for what
appears to be “Z-time.” In any event, Cox stresses that, just after
her return to full-time status, LAUSD paid her five additional
hours, beyond her normal six hours, each day on November 5‑7
(Wednesday-Friday), another eight hours on Saturday, November 8, and an
additional seven hours on Sunday, November 9. She argues this shows that
she worked on the grant application. While those payments may infer she worked
more hours (e.g., a school rarely pays extra for no work), the question
still remains whether those hours may be counted to satisfy her “complete
school year requirement.”  We answer that
question in the negative.

            As
noted above, section 44908 refers just to “days” not “hours.”  So, even if Cox was paid for more than six
hours on November 5-7, any additional hours do not yield another “day.”  She asserts that “Section 44908 does not
require that a probationary employee have worked on any particular day.”
Yet, the wording of section 44908 (i.e., the school year is counted by
adding up the “number of days the regular schools of the
district . . . are maintained”) indicates otherwise; that
is, by using words such as “maintained,” only a day in which schools are “open”
(e.g., not a Saturday or a Sunday) count. 
Moreover, if Cox were correct, the number of “counting” days for the
2008-2009 school year would not be 182 - but more if, say, a Saturday
or a Sunday could also be added.

            When
she was on maternity leave, she was not full-time at Crenshaw.  Such leave, whether or not she then worked on
a grant application, therefore cannot count for section 44908
purposes.  (Hunt v. Alum Rock Union
Elementary Sch. Dist. (1970) 7 Cal.App.3d 612, 614-615 (prior Educ.
Code, §§ 13328 and 13304 “requires 75 percent attendance by
probationary teachers as a condition of achieving permanent status.”).  As the Hunt
court observed, physically in attendance equates to “experience.”  (Id.,
at p. 614.)  Furthermore, according
to the LAUSD, actual participation during a “school day” is important for an
probationary employee’s experience and simplifies the LAUSD’s evaluation of
that employee; that makes sense to us.

            Another
barrier to Cox’s claim is Education Code section 44975, which
prescribes:  “No leave of absence when
granted to a probationary employee . . . shall not be
considered as employment within the meaning of
 . . . Sections 44908 to 44919, inclusive.”  This section provides that the time period
when a probationary employee is on a “leave of absence” does not count
towards the “complete school year” requirement of section 44908.  Cox’s rejoinder is that “if an
employee works during her leave and is later paid for that work, it would be
unconscionable to deny her credit for time worked” and “if an employee works
during a leave and is paid, the employee was not on a leave for the time
she worked.” Beyond that rejoinder, however, she offers no authority for
ignoring the force of section 44975. 
We, however, cannot overlook the clear language of that section.

            4.>         The
“Partial Day” Claim

            LAUSD
concedes that
Cox worked an additional 3 1/2 hours. Yet, continues the LAUSD, that makes no
difference because Cox cannot count those “hours,” or “round up” those hours
into a day, or “round up” her assumed 74.7% to satisfy section 44908.

            It
must be stressed that section 44908 states “at least 75 percent of the number
of days . . . . â€ 
There is no reference therein to “hours” or to “rounding up.”  We cannot substitute “hours” for “days” on
nothing more than the argument of counsel. 
The same applies to “rounding up.” 
Additionally, the statute itself belies Cox’s claim.  The Legislature expressly said “at least
75 percent of the number of days.” 
We cannot hold that it really meant something else (e.g., “hours” or
slightly less, i.e.,74.7%).

            Cox
relies upon >Vittal or Griego, but neither supports her expansive interpretations or
provides a basis for rejecting a “literal” approach in interpreting key
statutes.  Indeed, Griego commands:  “In
construing a statute . . . significance should be given to
every word, phrase, sentence and part; a construction making some words
surplusage is to be avoided.”  (>Griego, supra, 28 Cal.App.4th at pp. 518-519.)  In short, we cannot overlook section 44908’s
clear language.

            In >Vittal, the school district’s employee
was assigned to work at a junior college. 
The appellate court evaluated an Education Code section (since repealed,
with no current comparison), providing that a probationary employee in a junior
college district could complete a school year with 75 percent of the number of
hours.  The use of hours there, though,
applied only from 1956 to 1968 when the plaintiff taught different hours,
sometimes 3 or 4 days a week.  (>Vittal, supra, 8 Cal.App.3d at
p. 117.)  We decline to apply that
situation to this dispute.  Moreover, in
considering why the Legislature did what it did with respect to the statute in
question, Vittal made reference to
the “usual and general prevailing situation in elementary and secondary schools
in which teachers are assigned to classes taught five days a week.  Thus, the requirements of the section [with
respect to such teachers] were expressed in terms of days.”  (Id.,
at p. 120.)

            >Griego stands for the proposition that
Education Code section 44949.21 must be harmonized with Education Code
section 44975.  In construing both
of those sections, that court concluded that a leave of absence does not create
a break in the continuity of service required for classifying an employee as
permanent.  The rule at issue here is not
related to “a break in the continuity of service,” but instead how to satisfy
the specific requirements of section 44908.  We see no rationale to extend >Griego’s conclusion to this appeal.

CONCLUSION

            We conclude that Cox’s claims find no support in an
evidentiary sense or in the relevant sections of the Education Code.  As the trial court observed,”[w]hile it may
appear draconian, [Cox’s] failure to work one and a half additional
days during the 2008‑2009 school year supports [LAUSD’s] conclusion that the
year’s service did not constitute a complete school year.  [Cox] was, therefore, properly classified as
a probationary employee in 2009‑2010, and on March 8, 2010, was
properly notified that she was non-reelected effective at the end of that
year.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

>DISPOSITION

            The order is affirmed. 
LAUSD shall recover its costs on appeal.

 

            NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

 

 

                                                                                                                        HEESEMAN,
J.

We Concur:

 

 

            CROSKEY, Acting P. J.

 

 

            ALDRICH, J.