Judge: James C. Chalfant, Case: 24STCP03979, Date: 2025-02-25 Tentative Ruling

Case Number: 24STCP03979    Hearing Date: February 25, 2025    Dept: 85

Respondent Alberto Carvalho (“Carvalho”) demurs to the Petition for writ of mandate filed by Petitioner Peter Palacio (“Palacio”).

The court has read and considered the moving papers, opposition, and reply and renders the following tentative decision.

A. Statement of the Case

1. The Petition

Petitioner Palacio filed the Petition on December 9, 2024 seeking administrative mandamus to challenge the Los Angeles Unified School District’s (“LAUSD”) decision to terminate/suspend his employment.  The Petition alleges in pertinent part as follows:

Respondent Carvalho is and was at all relevant times the duly appointed Superintendent of LAUSD and is sued in that capacity.  Pet., ¶2.

Palacio was a 7^th grade English teacher and non-reelect employee of  LAUSD.  Pet., ¶5.  In or about August 2023, Palacio received communications from LAUSD regarding complaints that a few students had made against him, including that he used derogatory terms, engaged in inappropriate physical contact with female students, claimed females who wear revealing clothing are to be blame for sexual violence inflicted upon them, and claimed ungrammatically written poems are works of the black communities.  Pet., ¶¶ 6-7.

Following internal investigations, Palacio was placed on reassignment from his post on or about December 6, 2023.  Pet., ¶8/ 

On or about February 22, 2024, Principal Karen Fattal (“Fattal”) held an inter-office conference presenting the specific charges and factual evidence.  Principal Fattal also presented a memorandum summarizing all discussions, allegations and evidence.  Pet., ¶¶ 9-10, Ex. A.  Palacio attended the hearing and wrote a response to the memorandum that the accusations were false.  Pet., ¶¶ 11-14, Ex. B. The supermajority of students interviewed had nothing but praise for Palacio.  Pet., ¶15, Exs. A-B.

LAUSD refused to change its position and, on or about April 8, 2024,  issued a Notice of Unsatisfactory Acts to Palacio recommending an eight-day suspension for the alleged wrongdoing.  Pet., ¶16, Ex. C.  The suspension became official with the issuance of the Notice of Suspension dated April 29, 2024.  Pet., ¶17, Ex. D.  Palacio, by and through his union representative, initiated an appeal that was conducted on or about May 2, 2024.  Pet., ¶18.

Notwithstanding the appeal, LAUSD issued a final Notice of Non-Reelection on or about May 8, 2024.  Pet., ¶20.  Palacio was on LAUSD’s payroll until at or about the end of June 2024.  Pet., ¶23.  Having exhausted his administrative remedies, Palacio filed this Petition.  Pet., ¶24.

Petitioner prays for a writ of mandamus directing Carvalho to reverse the decision to terminate him and immediately reinstate him to his teaching post, costs of suit, reasonable attorney fees, and other relief as the court considers just and proper.  Pet. at 5-6.

2. Course of Proceedings

A proof of service attached to the Petition shows that Carvalho was served with the Petition via mail on September 24, 2024.

B. Demurrers

            Demurrers are permitted in administrative mandate proceedings.  CCP §§1108, 1109.  A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face. 

            Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings.  CCP §430.30(a); Coyne v. Krempels, (1950) The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading.  CCP §430.10.  A demurrer is timely filed within the 30-day period after service of the complaint.  CCP §430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364. 

            A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP section 411.35 or (i) by CCP section 411.36.  CCP §430.10.  Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.  The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay.  Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.   

            The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief.  Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.  The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court.  Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47.  The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403.  Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.  Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709. 

            For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  CCP §430.41(a).  As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies.  CCP §430.41(a)(1).  The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.  Id.  The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met.  CCP §430.41(a)(3).   

            If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed.  CCP §472a(c).  In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.  CCP §430.41(e)(1).

C. Governing Law

The Education Code[1] specifies four employment classifications for certificated employees of public schools: permanent, probationary, substitute and temporary.  Kavanaugh v. West Sonoma Union High School District, (“Kavanaugh”) (2003) 29 Cal.4th 911, 916.  The “default” employment classification is probationary.  §44915.  This means that a certificated employee must be classified as probationary unless a statute requires or authorizes the school district to classify the teacher as permanent, temporary or substitute.  Bakersfield Elementary Teachers Assn. v. Bakersfield City School District, (2006) 145 Cal.App.4th 1260, 1280; California Teachers Association v. Vallejo City Unified School District, (“Vallejo”) (2007) 149 Cal.App.4th 135, 146.  “School districts have no discretion to deviate from the Code’s classification scheme.”  Vallejo, supra, 149 Cal. App. 4th at 150 (emphasis in original). 

“[A certificated employee’s job classification] governs the level of statutory job protection the teacher enjoys and controls if he or she is not reelected.  In general, permanent employees may not be dismissed unless one or more statutorily enumerated grounds are shown. (§44932.) Probationary employees may not be dismissed during the school year except for cause or unsatisfactory performance (§44948.3), but, on timely notice, “may be nonreelected without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress. [citations] “Substitute and temporary employees, on the other hand, fill the short range needs of a school district and generally may be summarily released.”  Kavanaugh, supra, 29 Cal.4th at 917 (emphasis added).   

The governing board of every school district shall: (a) Certify or attest to actions taken by the governing board whenever such certification or attestation is required for any purpose. (b) Keep an accurate account of the receipts and expenditures of school moneys. (c) Make an annual report, on or before the first day of July, to the county superintendent of schools in the manner and form and on the blanks prescribed by the Superintendent of Public Instruction. (d) Make or maintain such other records or reports as are required by law.  §35250.

The governing board of any school district employing eight or more teachers may employ a district superintendent for one or more schools and may delegate to the district superintendent any of the duties provided for in Section 35250.  §35026.  The specific duties and powers of the superintendent of a school district include the ability to assign all employees of the school district employed in positions requiring certification qualifications to the positions in which they are to serve (subject to the approval of the school district’s governing board) and the ability to transfer teachers within the school district (upon adoption by the school district board of a transfer policy).  §35035.

Section 44831 of the Education Code states as follows:

“The governing board of a school district shall employ persons in public school service requiring certification qualifications as provided in this code, except that the governing board or a county office of education may contract with or employ an individual who holds a license issued by the Speech-Language Pathology and Audiology Board and has earned a masters degree in communication disorders to provide speech and language services if that individual meets the requirements of Section 44332.6 before employment or execution of the contract.”  (emphasis added).

D. Analysis

Alberto Carvalho demurs to the Petition[2] on the grounds that (1) Carvalho is the wrong Respondent because he has no authority to reinstate Palacio and (2) the Petition does not state facts sufficient to constitute a cause of action that Palacio’s non-reelection was erroneous.

1. Palacio Sued the Wrong Party

Carvalho argues that he does not possess the authority to reinstate Palacio, only the governing board has that power.  Therefore, he is the wrong Respondent.  Dem. at 2-3.

Palacio responds that Carvalho has been sued in his official capacity, which is the equivalent of LAUSD.  In fact, the Petition alleges that he was a non-reelect employee of LAUSD.  Pet., ¶5.  Opp. at 2.  In any event, Palacio can amend to sue DOE 1 as LAUSD.

Palacio is incorrect.  Under section 44831, LAUSD’s governing board employees certificated employees and non-reelects probationary employees.  A district may delegate to the superintendent any of its statutory duties (§35026), but Palacio fails to allege that it has done so.  LAUSD’s governing board is the proper Respondent.  The demurrer must be sustained on this ground.

2. Palacio Has Not Alleged a Ground on Which He Can Be Reinstated

Respondent also argues that Palacio fails to state a cause of action because he has not alleged a legal ground on which he can be reinstated.

Probationary employees may not be dismissed during the school year except for cause or unsatisfactory performance but, on timely notice, “may be nonreelected without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress.  §44948.3; Kavanaugh, supra, 29 Cal.4th at 917 (emphasis added).   

Palacio was employed by LAUSD as a certificated employee (probationary status).  Pet., ¶¶ 5, 14, 20, and 23; Exs. C and D.   On or about May 8, 2024, LAUSD issued the final Notice of Non-Reelection to him.  Pet., ¶20; Ex. F.  Palacio remained employed by LAUSD until the end of June 2024 when the 2023-2024 school year ended.  Pet., ¶23. 

These facts are entirely consistent with LAUSD’s obligations under 44948.3.  The final determination of non-reelection of a probationary employee lies in the district’s discretion and tenure can be denied for any lawful reason.  McFarland Unified School District v. Public Employment Relations Board, (1991) 228 Cal.App.3d 166, 169.

Palacio argues that the issue is whether his non-reelection occurred for a lawful reason.  Termination of a teacher for his sexual preference or in spite of overwhelming student support may show the decision to terminate him was unlawful.  Opp. at 2-3. 

Respondent is correct that the Petition fails to allege an unlawful reason for his non-reelection.  It specifically makes no nexus between Palacio’s sexual orientation and non-reelection.  Reply at 2. 

Moreover, Palacio provides no authority that the remedy for non-reelection due to an unlawful reason such as discrimination would be reinstatement.  It would be odd if a former probationary employee should get reinstated as a probationary employee as a result of unlawful discrimination in non-reelection.  No matter what discrimination occurred, or how heinous it is, it seems unlikely that Palacio can compel LAUSD to reemploy him.  There are tort claims available to a wrongly terminated employee.  The common law provides a remedy of damages for wrongful termination in violation of public policy (Tameny claim).  Rojo v. Kliger, (1990) 52 Cal.3d 65, 80-81.  FEHA provides a statutory remedy of damages for discrimination in employment.  But the court is unaware of any tort remedy providing for reinstatement of a non-reelected teacher.  In any event, Palacio fails to address this issue.

E. Conclusion

             The demurrer is sustained on both grounds.  While Palacio could amend to name the governing board of LAUSD as the correct Respondent, he does not appear to be able to state a claim for reinstatement based on unlawful non-reelection.  Therefore, the demurrer is sustained without leave to amend.  An order to show cause re: dismissal is set for March 11, 2025 at 9:30 a.m.