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Hernandez v. Palo Verde Unified School District

California Court of Appeals, Fourth District, Second Division
Apr 7, 2011
No. E049593 (Cal. Ct. App. Apr. 7, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIC477082, Dallas Holmes, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).

Law Offices of James DeAguilera and James DeAguilera for Plaintiff and Appellant.

Declues, Burkett & Thompson, Jeffrey P. Thompson and Gregory A. Wille for Defendant and Respondent.


OPINION

McKINSTER, J.

Plaintiff and appellant Alfonso Hernandez was a classified employee of defendant and respondent Palo Verde Unified School District (the District). Plaintiff filed a petition for writ of mandate after he was laid off from his position as director of special projects for the District; he contended that the District failed to comply with Education Code section 45308 when it laid him off, instead of another employee with less time in service. The trial court, finding that the issue was one of “bumping” rather than strict seniority, denied plaintiff’s petition. Plaintiff now appeals. We agree with the trial court; although section 45308 provides for seniority preference in layoffs within a classification, it does not provide bumping rights over employees in another classification. Accordingly, we affirm.

All further statutory references are to the Education Code unless otherwise indicated.

FACTS AND PROCEDURAL HISTORY

The case below was tried on stipulated facts. Plaintiff began working for the District in 1993. He was a classified employee, hired as director of maintenance, operations and transportation. Plaintiff served as director of maintenance, operations and transportation until 2005, a period of over 12 years. On November 7, 2005, the District superintendent reassigned plaintiff to the position of director of special projects. At approximately the same time, in or about November 2005, another employee, Marty Braden, was appointed as the new director of maintenance, operations and transportation. Both positions are classified management positions, and both positions are paid at Class 19 level on the District’s pay scale. Each position does, however, have different titles, different job descriptions, and different duties.

Since November 2005, Braden has continued to serve as director of maintenance, operations and transportation. Braden has served in that position for less time than plaintiff did, and Braden has less overall seniority in the District than plaintiff.

On January 17, 2007, the District notified plaintiff that the position of director of special projects would be eliminated for lack of funds and lack of work. The notice informed plaintiff that the position would end effective March 2, 2007, pursuant to sections 45114, 45115, 45117, 45298 and 45308. The District also notified plaintiff that he would be laid off and placed on the 39-month reemployment list with the same effective date of March 2, 2007.

On January 23, 2007, plaintiff asked the District to bump Braden from the position of director of maintenance, operations and transportation, and to place plaintiff in that position. The District refused plaintiff’s request.

After the District refused plaintiff’s request to bump back into the position of director of maintenance, operations and transportation, plaintiff filed the instant writ petition below. As the parties further stipulated in the trial court, “the sole issue... is whether... section 45308 required [the District] to bump Marty Braden out of the position of director of maintenance, operations and transportation when [plaintiff’s] position was eliminated and [to] place[ plaintiff] in the position of director of maintenance, operations and transportation since [plaintiff] had greater seniority with [the District] than Marty Braden.”

The trial court concluded that, while section 45308 provides seniority rights to classified employees who are laid off, it makes no provision for bumping rights. Accordingly, the trial court denied plaintiff’s petition. Plaintiff appeals, urging that the trial court erred.

ANALYSIS

I. Issue Presented and Standard of Review

A traditional writ of mandate under Code of Civil Procedure section 1085 requires the trial court to review an administrative action to determine whether the agency’s action was arbitrary, capricious or lacking in evidentiary support. (Los Angeles Lincoln Place Investors, Ltd. v. City of Los Angeles (1997) 54 Cal.App.4th 53, 59.) A writ of mandate does not lie to control an agency’s exercise of discretion, i.e., to force its exercise in a particular manner, but it will lie to correct an abuse of discretion. (Manjares v. Newton (1966) 64 Cal.2d 365, 370.) On appellate review of the trial court’s decision on a petition for writ of mandate, we apply the substantial evidence test to the trial court’s factual findings. However, legal issues present a question of law that this court reviews de novo on appeal. (Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 53.)

Here, of course, the matter was presented to the trial court on stipulated facts. The issue is the application of law, section 45308, to the facts as stipulated. We are thus presented with either a legal issue, or a mixed question of law and fact with the legal issues predominating. We review both these kinds of questions independently. (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1623-1624 [a trial court’s interpretation of a statute is reviewed de novo, and the de novo standard of review also applies to mixed questions of law and fact when legal issues predominate].) Again, the sole issue was whether section 45308 required the District to permit plaintiff to bump back into his former position of director of maintenance, operations and transportation, displacing the current occupant, Braden, who had both less seniority in that position, and less seniority within the District, than plaintiff.

II. Section 45308 Does Not Provide Bumping Rights

Section 45308 provides, in relevant part: “Classified employees shall be subject to layoff for lack of work or lack of funds. Whenever a classified employee is laid off, the order of layoff within the class shall be determined by length of service. The employee who has been employed the shortest time in the class, plus higher classes, shall be laid off first. Reemployment shall be in the reverse order of layoff.”

Plaintiff contended that section 45308 required the District to lay Braden off first, because Braden’s length of service within the District, and his service in the particular position, was shorter than plaintiff’s. What plaintiff sought was not strictly an issue of “layoff within the class, ” but rather of bumping into a position already occupied by an incumbent employee. Section 45308 does not, however, provide for bumping rights.

Tucker v. Grossmont Union High School Dist. (2008) 168 Cal.App.4th 640 (Tucker) provides helpful guidance. There, an employee was hired as a maintenance worker in the school district. Eventually, he rose to supervisor. He left the school district to pursue an educational opportunity, and later returned as director of maintenance and operations. He later took on additional responsibilities, including duties in constructing a new high school, while other responsibilities of the position were delegated to other employees. The employee’s job title became director of operations, safety and special projects. A fiscal and management survey recommended eliminating the employee’s position and redistributing his duties to other positions. In January 2005, the school district notified the employee that his position would be eliminated because of lack of work and lack of funds. He was laid off effective April 2005. In April 2005, the employee applied for a different position (maintenance manager) with the school district. This position was of a lower class and had different job duties than the employee’s former position. The employee was qualified for the position, but the school district hired someone else, a person who had never worked for the school district before. The employee petitioned for a writ of mandate, alleging the school district had illegally laid him off and had failed to comply with his bumping rights, which he claimed gave him the right to move into a position held by a current employee. He further contended that the school district had violated his reemployment rights under section 45298, which gives laid-off workers preference over new applicants. (Tucker, at pp. 643-644.)

The trial court granted the petition in part, and denied it in part. It found that the school district had legitimately laid off the employee, and that the employee had no bumping rights. However, the employee did have a right to reemployment in preference to new applicants, and section 45298 did not limit the reemployment right to a job only within a certain classification. The employee did have to apply for, and meet the qualifications for the position. (Tucker, supra, 168 Cal.App.4th at p. 644.)

The school district appealed, contending that section 45298 had to be read together with section 45308, and that the right to reemployment was limited to positions only within the same class from which an employee was laid off. (Tucker, supra, 168 Cal.App.4th at p. 644.) “Section 45298 provides: ‘Persons laid off because of lack of work or lack of funds are eligible to reemployment for a period of 39 months and shall be reemployed in preference to new applicants.’ [¶] Section 45308 provides in part: ‘Classified employees shall be subject to layoff for lack of work or lack of funds. Whenever a classified employee is laid off, the order of layoffs within the class shall be determined by length of service. The employee who has been employed the shortest time in the class, plus higher classes, shall be laid off first. Reemployment shall be in the reverse order of layoff.’ [¶] [The school district] assert[ed] because sections 45298 and 45308 must be read together and section 45308 refers to classes of classified employees and designates the orders for laying off and reemploying members of a class, an employee’s rights to preference for reemployment are for reemployment only within the class in which he or she was formerly employed. [The school district] argue[d] the rights do not include any preference for reemployment in a lower or different class even if the laid-off employee is qualified for the position.” (Id. at p. 645.)

The appellate court found the school district’s argument unpersuasive. Section 45308 referred to the order in which members within a class must be laid off and rehired. “The language of section 45308 is relevant to the rights of the individual members of a class vis-à-vis each other. It is not relevant to the rights of laid-off employees versus new applicants. To take the language of section 45308 regarding the rights of class members in relation to each other and interject it into the language of section 45298 that describes the reemployment rights of laid-off employees versus new applicants would change the plain meaning of section 45298. [¶] If the Legislature had intended to limit a laid-off employee’s right to reemployment, it easily could have stated the former employee ‘shall be reemployed within the same class from which the employee was laid off in preference to new applicants.’ It did not do so....” (Tucker, supra, 168 Cal.App.4th at pp. 645-646.) Otherwise, the school district’s “contrived reading of sections 45298 and 45303 together could eliminate any advantage for the laid-off employee versus a new applicant.” (Id. at p. 647.)

The appellate court also addressed the school district’s fears that “an employee laid off for lack of work and/or lack of funds will have inappropriate priority over other employees....” (Tucker, supra, 168 Cal.App.4th at p. 648.) Such fears were, in the court’s word, “unfounded, ” because “[n]othing in the statutory provisions gives the laid-off employee the right to a position currently held by another employee.” (Ibid.) In other words, the statutory scheme does not confer bumping rights. This discussion in Tucker also indicates that the “class” referred to in section 45308 means the qualifications required to perform the duties of a position, and not merely all positions with the same pay grade.

The conclusion that bumping rights are not conferred is bolstered by other sections of the Education Code, which apply to certificated (not merely classified) employees. Section 44955, subdivisions (b) and (c), does specifically provide bumping rights to certificated employees, and skipping rights to school districts. Had the Legislature wished to provide bumping rights to classified employees, as well as certificated employees, it certainly knew how to do so. The conspicuous absence of any provision for bumping in the layoff and reemployment sections applicable to classified employees leads to the conclusion that no bumping rights are provided in section 45308. (Cf. Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 410 [“‘Under the familiar rule of construction, expressio unius est exclusio alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.’”].)

Plaintiff had no right under section 45308 to bump an incumbent employee, Braden, who already occupied the position plaintiff sought. Because plaintiff cannot show that the District failed to comply with section 45308, his claim necessarily fails. Accordingly, the judgment is affirmed.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent.

We concur: HOLLENHORST, Acting P.J., RICHLI, J.


Summaries of

Hernandez v. Palo Verde Unified School District

California Court of Appeals, Fourth District, Second Division
Apr 7, 2011
No. E049593 (Cal. Ct. App. Apr. 7, 2011)
Case details for

Hernandez v. Palo Verde Unified School District

Case Details

Full title:ALFONSO HERNANDEZ, Plaintiff and Appellant, v. PALO VERDE UNIFIED SCHOOL…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 7, 2011

Citations

No. E049593 (Cal. Ct. App. Apr. 7, 2011)