Judge Robert B. Broadbelt, Case 19STCP02391 2023-04-03 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 19STCP02391, Date: 2023-04-03 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

Plaintiff Eduardo Villarreal (“Plaintiff”) filed the operative Second Amended Petition for Writ of Mandate and Complaint in this action on April 5, 2022, against defendants Los Angeles Unified School District and Austin Beutner, in his official capacity as Superintendent of Schools for the Los Angeles Unified School District.[1]

Plaintiff alleges five causes of action for (1) denial of procedural due process of law pursuant to the First and Fourteenth Amendments of the United States Constitution; (2) whistleblower retaliation; (3) racial discrimination; (4) age discrimination; and (5) intentional infliction of emotional distress.

Defendant Los Angeles Unified School District (“Defendant”) moves the court for an order sustaining its demurrer to each cause of action alleged by Plaintiff in his Second Amended Petition.

The court grants Defendant’s request for judicial notice as to Exhibits 1 through 6. (Evid. Code, § 452, subd. (d).)

The court overrules Defendant’s demurrer to Plaintiff’s first cause of action for denial of procedural due process of law pursuant to the Fifth and Fourteenth Amendments of the United States Constitution because it states facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

Defendant contends that this cause of action fails because (1) Plaintiff did not plead that he exhausted all administrative remedies before filing this action; (2) this action falls within the exclusive jurisdiction of the Public Employment Relations Board (“PERB”); (3) Education Code section 44938 does not apply to this cause of action; and (4) even if Education Code section 44938 did apply, Defendant has complied with all requirements thereunder.

First, the court finds that the face of the Second Amended Petition and Complaint, including the exhibits attached thereto, and the matters to be judicially noticed do not establish that Plaintiff failed to exhaust all administrative remedies by failing to adhere to the grievance process set forth in Article VIII of the parties’ Collective Bargaining Agreement (“CBA”).

Plaintiff alleges that he fully engaged in the grievance process with the Associated Administrators of Los Angeles (“AALA”) pursuant to the parties’ CBA following receipt of the “Notice of Unsatisfactory Act(s) of Administrative/Supervisory Certificated Employee” and the “Notice of Suspension of Certificated Employee—Administrative/Supervisory” (collectively, the “Notices”). (SAC ¶¶ 16, 19, 20, 22, 25, 27.) Defendant argues that, although Plaintiff pleaded that he exercised his due process rights under Article VII of the CBA, he did not plead facts showing that he triggered the Article VIII process, which Defendant contends applies to the circumstances presented here.

The parties’ CBA, as attached to Plaintiff’s Second Amended Petition and Complaint, sets forth various procedures, including (1) procedures to govern demotions and dismissals, including specified procedural due process rights (Article VII—Evaluation and Due Process), and (2) procedures governing grievances filed by an employee (Article VIII—Grievance and Arbitration Procedures). (SAC Ex. A, Arts. VII, VIII.) Article VIII sets forth a three-step grievance process that culminates in the employee’s ability to “submit the matter to arbitration by a written notice to the Office of Staff Relations within five (5) days after termination of the last Step” of the Article VIII process. (SAC Ex. A, p. 27, Art. VIII, § 11.0.)

Defendant concedes that Plaintiff “has pleaded that he sought to exercise his due-process rights under Article VII,” but contends that he has not pleaded “that he triggered the Article VIII process” or any facts showing that he initiated arbitration of his claims. (Demurrer, p. 8:4-6.) However, the court finds that (1) Plaintiff has sufficiently pleaded that he was engaged in the grievance process, and (2) the face of the Second Amended Petition and Complaint, including the CBA, does not establish that Plaintiff was required to use the Article VIII grievance process because a grievance pursuant to that article “is defined as a claim that there has been a violation of one of the above referenced Articles and Sections[,]” and, here, Plaintiff has not pleaded a violation of the parties’ CBA, but has instead pleaded a denial of his due process rights based on Defendant’s failure to apply Education Code section 44938. (SAC ¶¶ 16-25, 45; SAC Ex. A, p. 24, Art. VIII, § 1.1.)

Second, the court finds that the face of the Second Amended Petition and Complaint does not establish that Plaintiff’s cause of action is subject to the exclusive jurisdiction of PERB.

Defendant cites Government Code section 3541, subdivision (i), which provides that the board shall have the power and duty “[t]o investigate unfair practice charges or alleged violations of this chapter, and take any action and make any determination in respect of these charges or alleged violations as the board deems necessary to effectuate the policies of this chapter….” However, Plaintiff has not alleged unfair practice charges or a violation of that chapter in the Government Code. Instead, as set forth above, Plaintiff has alleged that he was denied his due process rights based on Defendant’s failure to apply Education Code section 44938. (SAC ¶ 45.)

The court therefore finds that, as pleaded, Plaintiff’s cause of action does not fall within the purview of PERB.

Third, the court finds that Defendant has not shown that Education Code section 44938 does not apply to Plaintiff’s demotion.

Defendant contends that, because Education Code section 44938 is in the article whose heading states that it governs resignations, dismissals, and leaves of absence, it does not apply to Plaintiff’s cause of action since he does not allege facts establishing that he was subjected to resignation, dismissal, or a leave of absence, and instead alleges that he was demoted and returned to the status of teacher. (SAC ¶¶ 33, 38.) The court disagrees. Both Education Code section 44938 and other statutes in Part 25, Chapter 4, Article 3 of the Education Code refer to acts that are not resignations, dismissals, or leaves of absence. (Edu. Code, §§ 44938, subd. (c) [unprofessional conduct specified as a cause for suspension], 44933 [setting forth grounds for suspension].)

Further, the language of section 44938 itself does not limit the types of acts the school board can take. Subdivisions (a) and (b) of the statute provide that “[t]he governing board of any school district shall not act upon any charges of” unprofessional conduct or unsatisfactory performance unless it complies with the requirements set forth by the applicable subdivisions, without limitation as to the types of acts the board can take. The court also notes that the Notices state that they are being provided to Plaintiff pursuant to Education Code section 44938, which is an implicit acknowledgment that section 44938 applies to demotions. (SAC ¶ 13; SAC Ex. B-1, pp. 1, 4, Ex. B-2, p. 4.)

Defendant also argues that it issued the Notices based on more than just unprofessional conduct, including conduct that is not within the scope of section 44938. The Notices do state that Plaintiff’s unsatisfactory acts include, in addition to unprofessional conduct, immoral conduct, willful refusal to perform regular assignments without reasonable cause, and persistent violation of or refusal to obey the school laws or reasonably regulations. (SAC Ex. B-1, p. 2, Ex. B-2, p. 2.) However, Education Code section 44938 expressly applies to charges of unprofessional conduct. Thus, the Notices are—at least in part—governed by this statute. The court cannot sustain the demurrer to this cause of action on the ground that only a portion of the Notices are governed by this statute. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action”].)

Fourth, the court finds that Plaintiff has pleaded facts sufficient to establish that Defendant did not comply with Education Code section 44938.

The governing board of any school district shall not, pursuant to Education Code section 44938, act upon (1) “any charges of unprofessional conduct at least 45 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unprofessional conduct, specifying the nature thereof with such specific instances of behavior and with such particularly as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge[,]” which shall be accompanied by the evaluation made pursuant to Article 11 of Chapter 3 (commencing with section 44660), if applicable, or (2) “any charges of unsatisfactory performance” unless the board has given the employee against whom the charge is filed, at least 90 calendar days prior to the date of the filing, written notice of the unsatisfactory performance, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge, to be accompanied by the evaluation made pursuant to Article 11 of Chapter 3 (commencing with section 44660), if applicable. “The purpose of section 44938 is to give the teacher at least 90 days within which to correct his conduct.” (Governing Board v. Commission on Professional Competence (1985) 171 Cal.App.3d 324, 333.)

Here, Plaintiff alleges that (1) he received the Notices on January 17, 2019; (2) his supervisor, Cisneros, evaluated Plaintiff on May 16, 2019; (3) the evaluation did not include any further instances of unprofessional conduct or unsatisfactory acts and instead repeated the same information and allegations included in the Notices; (4) Defendant undertook the evaluation in an attempt to feign compliance with the Education Code, and it was not conducted pursuant to the required guidelines; (5) he was informed that the Board “would be acting on the recommendation at the June 18, 2019 board meeting at which time they would be voting to suspend and demote him” based on the Notices; (6) the Board voted to demote Plaintiff on September 3, 2019. (SAC ¶¶ 12, 27-28, 31, 33.)

Defendant contends that it complied with section 44938 because Plaintiff alleges that it issued the notices on January 17, 2019, but the Board did not act to demote Plaintiff until June 18, 2019, i.e., more than 90 days after issuing the Notices. In opposition, Plaintiff argues that the January 17, 2019 Notices did not include evaluations pursuant to Education Code 44660 and therefore did not provide him with the opportunity to correct his conduct.

As set forth above, section 44938, subdivisions (a) and (b)(1) prohibit a governing board of any school district from acting upon charges of unprofessional conduct or unsatisfactory performance, respectively, unless giving the employee written notice of the charge, which “shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee[,]” i.e., a “Stull Act evaluation.” (Edu. Code, § 44938, subds. (a), (b)(1).)

The Notices, as attached to the complaint, do not include copies of such an evaluation. The last page of the Notices indicate that they were accompanied by an attachment entitled “Final Stull Evaluation issued on or about May 7, 2014 by Ms. Janet Montoya, Special Education Administrator.” (SAC Ex. B-1, p. 4, Ex. B-2, p. 4.) It does not appear, based on the complaint, whether Plaintiff was also given more recent Stull Act evaluations. Plaintiff alleges that he was given a “hastily-called, alleged evaluation” on May 16, 2019, which “was not conducted pursuant to the required guidelines” and “was conducted and undertaken by the District in an attempt to feign compliance with the requirements of the Education Code and CBA.” (SAC ¶¶ 27-28.) Plaintiff was later informed that the Board would be acting on the recommendation on June 18, 2019, less than 90 days following this evaluation. (SAC ¶ 31.)

The court finds that, on the face of the Second Amended Petition and Complaint, Plaintiff has sufficiently alleged that Defendant did not comply with all requirements set forth by Education Code section 44938 by failing to provide Plaintiff with a recent Stull Act evaluation.

A written notice of the charges of unprofessional conduct and unsatisfactory performance are to be accompanied by a Stull Act evaluation. (Edu. Code, § 44938, subds. (a), (b)(1).) Although the Notices indicate that a Stull Act evaluation from 2014 was included with the Notices, Defendant has not addressed whether the evaluation—apparently conducted four years before Plaintiff engaged in the acts leading to the Notices—complied with this requirement. The court notes that a district has satisfied the requirements of section 44938 and the Stull Act if it has substantially complied with their requirements. “Substantial compliance, as applied to section 44938 and the Stull Act, means the certificated employee has received an evaluation within a time period such that due process is not violated, which gives him or her clear notice of areas needing improvement.” (Governing Board, supra, 171 Cal.App.3d at p. 335.) However, Defendant has not raised the adequacy of this evaluation in the demurrer.

The court also notes that Plaintiff contends that a Stull Act evaluation must be given not more than 60 days prior to issuing a notice. (Opp., p. 25:28.) Section 44660 does not appear to set forth the time in which an evaluation must be issued. (Edu. Code, § 44660.) Instead, Plaintiff cites Education Code section 44896. Pursuant to this statute, when a person employed in a supervisory position requiring certification is transferred to a teaching position, the governing board of the school district shall, “if the reasons [for the transfer] include incompetency,” complete an evaluation of the person pursuant to the Stull Act “not more than 60 days prior to the giving of the notice of the transfer.” (Edu. Code, § 44896.) The court notes that Plaintiff has not pleaded section 44896 in his Second Amended Petition and Complaint.

However, because (1) section 44938 requires a Stull Act evaluation to accompany the notices of unprofessional conduct or unsatisfactory performance, (2) substantial compliance with this provision requires the employee to have “received an evaluation within a time period such that due process is not violated,” (3) the Second Amended Petition and Complaint (i) shows that Defendant issued a Stull Act evaluation from 2014 with the Notices, and (ii) alleges that Defendant conducted an evaluation in 2019 that “was not conducted pursuant to the required guidelines[,]” and (4) Defendant has not argued or shown that it complied with the Stull Act evaluation requirement within the requisite time period before acting on the recommendation, (5) the court finds that Plaintiff has sufficiently alleged a cause of action for denial of due process based on Defendant’s failure to comply with Education Code section 44938.

The court sustains Defendant’s demurrer to Plaintiff’s second cause of action for whistleblower retaliation because Plaintiff exceeded the scope of the court’s February 17, 2022 order granting him leave to file a second amended complaint to amend the cause of action for denial of procedural due process by adding this cause of action. (February 17, 2022 Order, p. 3:14-15 [“The court orders that Plaintiff has 45 days leave to file a second amended complaint that amends the third cause of action [for denial of procedural due process”] [emphasis added]; Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order” and may not “add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend”].)

The court sustains Defendant’s demurrer to Plaintiff’s third cause of action for racial discrimination because Plaintiff (1) concedes that this cause of action has no merit, and (2) exceeded the scope of the court’s order granting him leave to amend. (Opp., p. 3:5-6 [Plaintiff “concedes that the causes of action for the Third…cause of action in the SAP should be dismissed”]; Harris, supra, 185 Cal.App.4th at p. 1023.)

The court sustains Defendant’s demurrer to Plaintiff’s fourth cause of action for age discrimination because Plaintiff (1) concedes that this cause of action has no merit, and (2) exceeded the scope of the court’s order granting him leave to amend. (Opp., p. 3:5-6 [Plaintiff “concedes that the causes of action for the…Fourth…cause of action in the SAP should be dismissed”]; Harris, supra, 185 Cal.App.4th at p. 1023.)

The court sustains Defendant’s demurrer to Plaintiff’s fifth cause of action for intentional infliction of emotional distress because Plaintiff (1) concedes that this cause of action has no merit, and (2) exceeded the scope of the court’s order granting him leave to amend. (Opp., p. 3:5-6 [Plaintiff “concedes that the causes of action for the…Fifth…cause of action in the SAP should be dismissed”]; Harris, supra, 185 Cal.App.4th at p. 1023.)

The court overrules defendant Los Angeles Unified School District’s demurrer to plaintiff Eduardo Villarreal’s first cause of action.

The court sustains defendant Los Angeles Unified School District’s demurrer to plaintiff Eduardo Villarreal’s second, third, fourth, and fifth causes of action without leave to amend.

The court orders defendant Los Angeles Unified School District to file an answer to plaintiff Eduardo Villarreal’s Second Amended Petition and Complaint within 10 days of the date of this order.

The courts orders defendant Los Angeles Unified School District to give notice of this ruling.

[1] Plaintiff filed a Request for Dismissal of defendant Austin Beutner in his official capacity as Superintendent of Schools for the Los Angeles Unified School District on December 2, 2022. The clerk entered dismissal of defendant Beutner pursuant to that request on December 5, 2022.

eduardo villarreal ; Plaintiff, vs. los angeles unified school district , et al.; Defendants.	Case No.:	19STCP02391

	Hearing Date:	April 3, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: respondent’s demurrer to second amended verified petition