Judge James C. Chalfant, Case Number: 24STCP02684, Date: 2025-01-30 Tentative Ruling

El Monte Elementary Teachers Association, et al. v. El Monte City School District; 24STCP02684

Tentative decision on motion to strike: denied

Respondent El Monte City School District (“District”) moves to strike portions of the First Amended Petition filed by Petitioners El Monte Elementary Teachers Association (“EMETA”), Heidi Huettner (“Huettner”), Joshua James (“James”), Nhat Duy Nguyen (“Nguyen”), Betty Rivera (“Rivera”), Lorraine Rodriguez (“Rodriguez”), Chloe Thill (“Thill”), and James Tsai (“Tsai”).

The court has read and considered the moving papers and opposition (no reply was filed), and renders the following tentative decision.

Petitioners commenced this action on August 22, 2024. The operative pleading is the First Amended Petition (“FAP”) filed on October 17, 2024. The FAP alleges in pertinent part as follows.

School districts have a duty to properly classify their certificated employees into one of four classifications: (1) substitute; (2) temporary; (3) probationary; or (4) permanent. FAP ¶2. Under the Education Code, the default employment classification for certificated school district employees is probationary. FAP ¶2. A school district has broad latitude when releasing substitute and temporary employees who fill the short-term needs of a school district but its power to terminate employment of permanent and probationary employees is restricted by statute. FAP ¶3.

The use of temporary classification only is allowed: (1) if the teacher teaches temporary classes for less than three or four months; (2) serves in a type of limited, emergency, or temporary assignment; (3) is employed for up to one year to replace a certificated employee who is on leave or has a lengthy illness; or (4) is employed in a categorically funded program. FAP ¶4. The number of temporary teachers classified as temporary under Education Code section 44920 may not exceed the total number of probationary and permanent employees on leave at any one time. FAP ¶5. The failure to comply with this ration is a violation of Education Code section 44920. FAP ¶5.

For at least 15 years, the District has employed permanent and probationary employees as Teachers on Special Assignment (“TOSAs”) who regularly serve as a resource for professional development and/or provide English learner support and assessment, among other duties. FAP ¶12. The District has characterized TOSAs as teachers out on leave or “out of the classroom.” FAP ¶12. The TOSA classification is included in the EMETA bargaining unit at the District. FAP ¶13. The terms of employment and working conditions of the TOSA position have been negotiated in successive collective bargaining agreements between EMETA and the District, including its salary and benefit schedules, work schedules, and a formal evaluation applicable to TOSAs. FAP ¶13.

From at least the 2019-2020 through the 2023-2024 school years, the District has had a steady cadre of TOSAs and has employed at least 12 TOSAs in each of those school years. FAP ¶14. The District has claimed the TOSAs were teachers on leave from their regular assignment and that it was entitled to “backfill” or replace their regular position with a temporary employee. FAP ¶15.

Because the employment of teachers as TOSAs does not fall into one of the limited circumstances in which the District can hire a temporary replacement, the District wrongfully classified those replacement employees as temporary when they should have been classified as probationary. FAP ¶16. Due to the District’s improper mischaracterization of TOSAs, the District had more temporary employees than permanent or probationary employees on leave from their regular assignment from at least the 2021-2022 through the 2023-2024 school years in violation of Education Code section 44920. FAP ¶17. As such, individual Petitioners and other affected certificated employees were wrongfully classified as temporary. FAP ¶¶17, 22-36.

Petitioners have no administrative remedy to compel the District to comply with the requirements of the Education Code by properly classifying the individual Petitioners and other temporary employees as probationary. FAP ¶46. Petitioners presented a government tort claim to the District on July 30, 2024 and August 19, 2024. FAP ¶47. Petitioners subsequently submitted amended claims on August 5, 2024 and August 19, 2024. FAP ¶47. The District sent a letter to each Petitioner dated September 11, 2024 rejecting his or her claim. FAP ¶47.

Petitioners seek a writ of mandate compelling the District to: (a) classify Petitioner Huettner as a permanent certificated employee with a seniority date from her first date of paid service from at least the 2021-2022 school year; (b) reinstate Petitioner James (permanent certificated employee) with a seniority date from her first date of paid service from at least the 2021-2022 school year, Petitioner Nguyen (permanent certificated employee), Petitioner Rodriguez (second probationary certificated employee), and Petitioner Thill (permanent certificated employee) with a seniority date from her first date of paid service from at least the 2022-2023 school year; (c) reclassify Petitioner Rivera (permanent certificated employee) with a seniority date from her first date of paid service from at least the 2022-2023 school year, Petitioner Tsai (permanent certificated employee) with a seniority date from her first date of paid service from at least the 2022-2023 school year, and similarly situated EMETA bargaining unit members as permanent or probationary employees pursuant to the Education Code; and d) provide compensation to those individual Petitioners and other similarly situated EMETA bargaining unit members who lost wages and benefits including retirement contributions and service credit, as a result of the District’s actions with interest on any such restitution ordered. FAP at Prayer 1.

Petitioners also seek a declaration that (a) a TOSA is a regular assignment within the District and not a position for which a teacher is on leave from their regular assignment, (b) the District violated Education Code section 44920 by claiming that temporary employees could be employed to replace certificated employees assigned as TOSAs, and (c) the District violated Education Code section 44920 by employing more temporary employees than there were probationary or permanent employees. FAP at Prayer 2.

Petitioners seek an award of reasonable attorney fees and costs under Code of Civil Procedure (“CCP”) section 1021.5 and/or other applicable authorities, pre-judgment and post-judgment interest on all sums awarded, and such other and further relief as the court deems just and proper. FAP at Prayer 3.

A proof of service on file shows that Petitioners served the FAP on the District via mail and acknowledgement of receipt on October 18, 2024.

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. CCP §435(b)(1). CCP section 436 permits the court to strike out any irrelevant, false, or improper matter, as well as any part of any pleading not in conformity with an order of the court. Irrelevant matters are defined as those allegations that are not essential to the statement of a claim or that are neither pertinent nor supported by an otherwise sufficient claim. CCP §431.10(b).

The notice of motion to strike shall be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and shall be noticed for hearing and heard at the same time as the demurrer. CRC 3.1322(b). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. CRC 3.1322(a).

A motion to strike can serve an important function of deleting matter for which a defendant may not be able to demur but for which the defendant should not have to suffer discovery and navigate the thicket of proceedings for summary adjudication. Ph II, Inc. v. Superior Court (1995) 33 Cal.App.4^th 1680, 1682-83. The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. CCP §437(a). Matter to be judicially noticed shall be specified in the notice of motion. CCP §437(b). When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. Perlman v. Municipal Court, (1979) 99 Cal. App. 3d 568, 575.

On November 22, 2024, the District served its motion to strike. Lee Decl., ¶2. The District did not meet and confer with Petitioners prior to filing its motion. Lee Decl., ¶2.

On November 26, 2024, the court held a Trial Setting Conference wherein it noted that the District failed to meet and confer regarding the motion prior to its filing. Lee Decl., ¶3. The parties were ordered to meet and confer and reflect that a meet and confer occurred in Petitioners’ opposition to the motion. Lee Decl., ¶3.

On December 4, 2024, the District’s counsel, Nancy Doumanian, Esq., and Petitioners’ counsel, Shirley A. Lee, Esq., met and conferred telephonically. Lee Decl., ¶4. The parties were able to resolve the issue whether Petitioners pled its timely and proper compliance with the claims presentations requirements under Government Code section 910. Lee Decl., ¶4. The parties were unable to resolve the issue whether Petitioners could request monetary damages for a writ of mandamus. Lee Decl., ¶4.

After the court-ordered meet-and-confer, the District moves to strike FAP Paragraph 1(i), found at page 15, lines 3-6 of the Prayer, that seeks compensatory damages and lost wages and benefits, and Paragraph 3(a)-(c), found at page 15, lines 15-19, that seeks attorney fees. Mot. at 4.

The District argues that CCP section 1060 defines the scope of declaratory relief and that compensatory damages (back pay, lost wages and benefits) are not a proper subject of declaratory relief. Mot. at 4-5.

Aside from the fact that the District cites no legal authority, the District misreads the FAP’s Prayer, which seeks damages for the FAP’s mandamus claim, not declaratory relief, in Paragraph 1(i), found at page 15, lines 3-6. Damages may be an ancillary remedy to mandamus. Holt v. Kelly, (1978) 20 Cal.3d 564-65, n.5. Back pay and lost benefits are just such a remedy. See Cory v. Poway Unified School District, (1983) 147 Cal.App.3d 1158, 1167.

The Prayer also seeks attorney fees for the FAP’s claims under CCP section 1021.5 or other applicable authority at Paragraph 3(a)-(c) found at page 15, lines 15-19. The District actually makes no legal argument on this issue. As Petitioners note (Opp. at 4), attorney fees under CCP section 1021.5 may be awarded in a mandamus case.

The motion to strike is denied. The District is ordered to answer only within 20 days.