Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 61624
Kline, P. J.
Introduction
Ana Petero appeals from the trial court’s denial of her petition for a writ of mandate (Code Civ. Proc., § 1085) against respondents Contra Costa Community College District (district) and its governing board. By that petition, she sought to compel respondents to reinstate her on the grounds that the district failed to provide her a hearing pursuant to Education Code section 87740 following its actions denying her tenure and dismissing her as a full-time probationary academic employee.
All further statutory references are to the Education Code unless otherwise indicated.
The trial court denied the writ petition on two grounds: (1) Under section 87610.1, subdivision (b) and Appendix X to the addendum to the collective bargaining agreement (CBA) between the district and its faculty association, appellant was required to proceed under the negotiated grievance procedure to challenge the denial of tenure and dismissal and was not entitled to a hearing before an administrative law judge pursuant to section 87740; and (2) laches, because appellant had unreasonably delayed her request for a hearing under section 87740 and her claim of a deficiency in the grievance procedure, until the deadline for a hearing under section 87740 had passed.
Appellant contends here, as she did in the court below, that the district failed to comply with the Education Code in terminating her employment and that she is, therefore, entitled to reinstatement as a full-time tenured academic employee and an award of back pay and service credit with the State Teacher’s Retirement System. Specifically, she contends: (1) Pursuant to section 87610.1, subdivision (b), she was entitled to a hearing in accordance with section 87740 to determine if there was cause for not reemploying her for the 2006-2007 academic year; (2) Appendix X to the CBA does not satisfy the requirements of section 87610.1 with regard to a grievance procedure resulting in arbitration of her allegations; (3) the court erred in concluding that she was guilty of laches; (4) respondents have “unclean hands”; and (5) the failure of respondents to provide her with a hearing in accordance with section 87740 requires that she be deemed reemployed as a full-time tenured academic employee for the ensuing academic year. We shall conclude substantial evidence supports the trial court’s laches finding, and so affirm.
Factual and Procedural Background
Appellant was employed by the district as a first year probationary track faculty member (classified as a first year contract employee) for the 2002-2003 academic year. She continued as a contract employee for the 2003-2004, 2004-2005 and 2005-2006 academic years. Because appellant was a probationary faculty member in her fourth year of probationary service during the 2005-2006 academic year, the district was required to either employ her as a tenured faculty member for all subsequent years, or to not employ her as a tenured faculty member. (§ 87609.) On March 6, 2006, the chancellor of the district provided a written recommendation to the board that it give notice to appellant “that her services will not be required for the ensuing academic year as required by . . . sections 87740, 87610.1(b) and Appendix X, Section VI(B)(7) of the Addendum to the District’s Agreement with United Faculty.” The board adopted the recommendation on March 6, 2006.
On March 7, 2006, appellant was notified by certified mail that the board had taken action to terminate her employment for the ensuing 2006-2007 academic year. This letter also advised appellant that the notice was provided pursuant to sections 87740, subdivision (a), 87610.1, subdivision (b), and Appendix X, Section VI (B)(7) of the CBA. It further told appellant that pursuant to section 87610.1, subdivision (b), she was entitled to a hearing and that if she wished to have a hearing, she was required to file a grievance in writing pursuant to the grievance procedure, on or before April 4, 2006. A proposed hearing request form was enclosed with the letter.
On April 3, 2006, using the form provided her by the district, appellant requested a hearing under section 87610.1, subdivision (b) and Article 19 of the CBA. Article 19 of the CBA provides for a grievance procedure resulting in hearing before a three-person factfinding panel (effectively an arbitration). Appellant did not request union representation, but advised the district that she was represented by attorney Donald Selke, Jr. Appellant did not request a hearing under section 87740 or any other provision of the Education Code other than section 87610.1.
The “REQUEST FOR HEARING/GRIEVANCE” submitted by appellant on April 3, 2006, stated: “This will notify you that I, Ana Petero, request a hearing pursuant to Education Code section 87610.1(b), and Article 19 of the United Faculty and District collective bargaining agreement. I believe the following contractual provisions involving procedure have been violated: [¶] Article 5, section 5.3 [¶] Article 17, section 17.1 [¶] Section V(B)(3) of the Addendum to the District’s Agreement with United Faculty. [¶] I was discriminated against based on race, and abused, harassed, and/or intimidated because of my protected freedom of expression. The decision to deny me tenure was not timely, and the negative decision to a reasonable person was unreasonable.”
Article 19.2.1 of the CBA provides that a “Grievant who fails to comply with the established time limits at any step shall forfeit all rights to further application of this grievance procedure relative to the grievance in question.” Article 19.4.3.3.1 provides that “[w]ithin five (5) days after the receipt of the written request, District and United Faculty shall each select one (1) person to serve as a member of the panel.” Respondents’ counsel Marleen Sacks attempted to contact appellant’s counsel Selke by telephone and left several messages regarding the hearing/grievance process. Having received no response, on April 7, 2006, Sacks wrote Selke regarding appellant’s request for hearing/grievance, and enclosed a copy of the grievance procedure contained in the CBA. Sacks advised Selke that the procedure called for each party to select a panel member for the three-member factfinding panel and for the two to select a mutually agreeable third neutral panel member. She urged Selke to contact her as soon as possible to make the necessary panel selections. Having received no response, Sacks sent correspondence on April 14, 2006, regarding the selection of panel members, advising that the district selected Paul Loya as its designated panel member, and setting forth the required timeframe for the parties to select their panel members under the CBA. Sacks advised that if appellant did not respond by April 21, 2006, she would assume appellant was not interested in proceeding to arbitration. Selke contacted Sacks. She briefly explained the process to him and they discussed possible factfinders. They agreed to consider proposed panel members and get back to each other. Sacks contacted the State Mediation and Conciliation Service to request a list of arbitrators to be sent so that the third panel member could be selected.
On April 21, 2006, Selke contacted Sacks by letter regarding how appellant’s grievance would be conducted under section 87610.1, subdivision (b). Sacks proposed it be commenced at Level III under the CBA (Optional Fact Finding Panel) and Selke indicated he was willing to agree to the optional factfinding panel with proposed modifications. Selke provided a proposed stipulation regarding the factfinding/ arbitration under which the district would pay for chairperson’s expenses and the hearing would be limited to four days. He also advised that appellant’s selection for the factfinding/arbitration panel was K. Thomas Smith, Jr. On April 26, 2006, Sacks replied that the district would equally split the cost of the neutral panel chairperson and would not agree to limit the hearing to four days. She requested a copy of Smith’s résumé. On May 2, 2006, Selke faxed Sacks, advising the district that because it would not agree to appellant’s proposed modifications, appellant elected to bypass Level III and proceed to Level IV of Article 19.4.4, a hearing in executive session before the board. On May 5, 2006, Sacks faxed Selke, informing him that while the CBA permits employees to bypass the factfinding/arbitration procedure and have the board issue a decision on a contractual dispute, she was concerned that allowing the board to issue a decision might not be in compliance with Education Code requirements that a review of the decision be made by either an arbitrator or an administrative law judge. She further opined that because the final decision to deny tenure was made by the board, it would not make sense to have the board review its own decision.
On May 10, 2006, Selke faxed Sacks asserting that Article 19 of the CBA did not comply with the requirements of Education Code section 87610.1 and asserting for the first time that appellant was entitled to a hearing under section 87740, conducted according to Government Code section 11500 et seq. He further asserted that respondents had violated appellant’s statutory rights under sections 87610.1, 87740 and Government Code section 11500.
On May 12, 2006, Sacks spoke with Selke, explaining why the district believed the grievance procedure was appropriate under section 87610.1, subdivision (b). Selke advised he would research the matter further.
On May 15, 2006, Sacks received correspondence from Selke asserting that Article 19 of the CBA did not provide the posttenure denial hearing rights required by section 87610.1, subdivision (b) and that because the district failed to comply with section 87740, appellant was deemed reemployed for the following school year by virtue of subdivision (h) of that statute, requiring the board to provide notice to the contract employee that the employee’s services will not be required for the ensuing year on or before May 15 or the employee “shall be deemed reemployed for the ensuing school year.”
On May 17, 2006, Sacks faxed Selke that Appendix X permitted probationary faculty members being evaluated to file a grievance under Article 19 of the CBA and that the district’s past practice was to interpret the agreement as allowing probationary faculty members to use the grievance procedure to contest tenure decisions. Sacks asserted that appellant had already agreed to use the factfinding/arbitration procedure in the CBA to appeal her rights under section 87610.1, subdivision (b), and that appellant had waived any hearing under section 87740 as she never requested a hearing under that section. Thereafter Selke and Sacks continued to fax each other concerning the respective positions of the parties. On May 31, 2006, Sacks faxed Selke, asserting that appellant had only claimed a right to a hearing before an administrative law judge under section 87740 after all relevant deadlines to proceed under section 87740 had passed and that appellant’s conduct constituted laches.
On June 2, 2006, appellant submitted a settlement demand to the district and filed a Government Tort Claim. The district received no further communication from appellant.
On September 19, 2006, appellant filed a petition for writ of mandate in the superior court. She served the petition on the district on November 16, 2006. On November 30, 2006, she applied for a hearing date and briefing schedule on her writ petition. On February 1, 2007, the district filed its opposition to the petition, together with supporting evidence. Appellant did not submit a reply and did not object to any of the district’s evidence. Hearing on the petition was set for March 22, 2007. On March 22, 2007, there being no opposition to the court’s tentative ruling, the trial court adopted its tentative ruling and denied appellant’s petition for writ of mandate. On April 16, 2007, the court entered its order denying the petition for writ of mandate and damages. Thereafter, judgment was entered on August 7, 2007. On October 11, 2007, appellant filed a notice of appeal.
In a footnote to their respondents’ brief, respondents for the first time suggest that “[i]t appears appellant’s notice of appeal was untimely under [California Rules of Court, rule] 8.104 and [Code of Civil Procedure section] 904.1 . . . .” Respondents argue that because respondents on April 17, 2007, filed and served upon attorney Selke a notice of entry of the final appealable order denying the writ petition, the “judgment” was “repetitious and unnecessary.” Respondents assert the filing of the notice of entry, rather than the “judgment” triggered the period for filing the notice of appeal. However, respondents also acknowledge that Selke’s street address was erroneously identified in the proof of service accompanying the notice of entry of order. The street address was identified as “Mensted Drive” rather than “Hemsted Drive.” Respondents maintain that Selke had received all prior correspondence sent to him at the “Mensted Drive” address over the preceding three months, whether by regular mail or federal express, and never requested a correction of the address. Nevertheless, the address was erroneous and respondents fail to provide any authority that an erroneously addressed notice of entry triggers the jurisdictional time limits for filing of a notice of appeal. We therefore reject respondents’ suggestion that the notice of appeal was not timely filed. We also note that had respondents truly believed the notice of appeal was untimely, they should have filed a motion to dismiss the appeal on that basis before all parties went to the expense and time of preparing the record and filing briefs in the action.
Discussion
A. Standards of Review
In Womack v. San Francisco Community College Dist. (2007) 147 Cal.App.4th 854 (Womack), we described the “several different standards of review applicable to the issues” in this type of case. (Id. at p. 858.) “In the first place, the interpretation of provisions of the Education Code and the review of a denial, based on that interpretation, of a petition for a writ of mandate under Code of Civil Procedure section 1085, is subject to de novo review by this court. [Citations.]
“To the extent, however, that the appeal challenges findings of fact made by the trial court in the course of its denial of such a petition, we review such findings under the substantial evidence standard. [Citations.]
“Regarding laches, also relied on by the trial court as a basis for denying the petition, the law regarding our standard of review is a bit more complex. In some cases, it has been held to be abuse of discretion [citations], but not in all. As our colleagues in the Sixth District wrote in Bono v. Clark (2002) 103 Cal.App.4th 1409, 1417 . . .: ‘As the California Supreme Court recently recognized, there are circumstances in which it is error to review a laches determination “under the deferential abuse of discretion standard.” [Citation.] [¶] “Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence its determination will be sustained. [Citations.]” [Citation.] In other words, appellate courts review such determinations for “manifest injustice” or for “lack of substantial . . . evidence.” [Citation.] [¶] In cases such as this, where the finding of laches is made after trial, the proper appellate focus is the evidence in support of the finding. Even the . . . appellate decisions . . . which employ the deferential abuse of discretion standard, do not disregard the evidence. [Citations.] As the California Supreme Court recently explained: “Generally, a trial court’s laches ruling will be sustained on appeal if there is substantial evidence to support the ruling.” [Citation.] We therefore examine the trial record for evidence in support of the trial court’s finding of laches.’ ” (Womack, supra, 147 Cal.App.4th at pp. 858-859.)
B. The Legislative Scheme and the CBA
We start with a review of the legislative scheme and provisions of the CBA.
(1.) The Education Code.
An academic employee of a community college district is employed “as a contract employee, regular employee, or temporary employee.” (§ 87604.) Because appellant was a probationary faculty member in her fourth year of service during the 2005-2006 academic year, under her third consecutive contract, respondents were required to either employ appellant as a tenured faculty member for all subsequent years, or not to employ her as a tenured faculty member. (See § 87609.) Before the district may exercise its discretion regarding continued employment of a contract employee, the district must evaluate the employee in accordance with the evaluation standards and procedures established in accordance with specified provisions of the Education Code. (§ 87607.) The evaluation must be “conducted in accordance with the standards and procedures established by the rules and regulations of the governing board of the employing district.” (§ 87663, subd. (b).) “The governing board shall give written notice of its decision under Section 87609 and the reasons therefore to the employee on or before March 15 of the last academic year covered by the existing contract. . . . Failure to give the notice as required to a contract employee under his or her third consecutive contract shall be deemed a decision to employ him or her as a regular employee for all subsequent academic years.” (§ 87610, subd. (b).)
Section 87740 , originally enacted in 1976, sets forth a procedure for resolving the employee’s challenge to a board decision not to reemploy him or her. The procedure set forth therein is for “a hearing to determine if there is cause for not reemploying him or her for the ensuring year.” (§ 87740, subd. (b).) The hearing is before an administrative law judge and is conducted in accordance with Government Code section 11500 et seq., except as set forth in section 87740, subdivision (c). The administrative law judge prepares a “proposed decision” “determin[ing] . . . the sufficiency of the cause and a recommendation as to disposition.” (Id., subd. (c)(3).) However, it is clear that the administrative law judge’s decision is advisory. “[T]he governing board shall make the final determination as to the sufficiency of the cause and disposition. None of the findings, recommendations, or determinations contained in the proposed decision prepared by the administrative law judge shall be binding on the governing board or on any court in future litigation.” (Ibid.) Copies of the proposed decision are to be served on the board and the employee “on or before May 7” and the “decision made after the hearing shall be effective on May 15 of the year the proceeding is commenced.” (Id., subd. (d).) “Notice to the contract employee by the governing board that the employee’s service will not be required for the ensuing year shall be given no later than May 15.” (Id., subd. (e).) A failure of the board to give the May 15 notice provided for in subdivision (e) results in the employee being “deemed reemployed for the ensuring school year.” (Id., subd. (h).) Provision is made in the statute for a continuance pursuant to Section 11524 of the Government Code, in which case, the timeline for the proceeding before the administrative law judge and the “dates prescribed in subdivisions (c), (d), (e) and (h) that occur on or after the date of granting the continuance shall be extended for a period of time equal to the continuance.” (§ 87740, subd. (i).)
Section 87740 provides: “(a) No later than March 15 and before an employee is given notice by the governing board that his or her services will not be required for the ensuing year, the governing board and the employee shall be given written notice by the superintendent of the district or his or her designee, or in the case of a district which has no superintendent by the clerk or secretary of the governing board, that it has been recommended that the notice be given to the employee, and stating the reasons therefor.
“The agency may grant continuances.” (Gov. Code, § 11524, subd. (a).) However, once an administrative law judge is assigned, no continuances may be granted except by the administrative law judge or the presiding judge of the appropriate regional office of the Office of Administrative Hearings. (Ibid.)
In 1988, the Legislature enacted section 87610.1, providing that in districts with a contractual grievance procedure resulting in arbitration, the probationary employee’s challenge to the decision denying tenure or refusing to reappoint “shall be classified and procedurally addressed as grievances” where the employee alleges that the tenure decision “to a reasonable person was unreasonable” or that in making the tenure or non-reappointment decision, the district “violated, misinterpreted, or misapplied, any of its policies and procedures concerning the evaluation of probationary employees . . . .” (§ 87610.1, subd. (b).) “If there is no contractual grievance procedure resulting in arbitration, these allegations shall proceed to hearing in accordance with Section 87740.” (§ 87610.1, subd. (b).)
Section 87610.1 provides, in relevant part, as follows: “(b) Allegations that the community college district, in a decision to grant tenure, made a negative decision that to a reasonable person was unreasonable, or violated, misinterpreted, or misapplied, any of its policies and procedures concerning the evaluation of probationary employees shall be classified and procedurally addressed as grievances. Allegations that the community college district in a decision to reappoint a probationary employee violated, misinterpreted, or misapplied any of its policies and procedures concerning the evaluation of probationary employees shall be classified and procedurally addressed as grievances. If there is no contractual grievance procedure resulting in arbitration, these allegations shall proceed to hearing in accordance with Section 87740.
“A final decision reached following a grievance or hearing conducted pursuant to subdivision (b) of Section 87610.1 shall be subject to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.” (§ 87611.)
(2.) The CBA .
As a faculty member and member of United Faculty, appellant was subject to the terms and conditions of employment set forth in the CBA. Article 19 of the CBA provides for a grievance procedure and was included in the CBA in effect in March 2006. CBA section 19.4 sets forth the procedural steps for pursuing and resolving grievances. The procedure for pursuing a grievance through Level III is set forth in CBA section 19.4.3 and involves the employee’s demand for a “Fact-Finding Panel.”
Among the provisions of CBA section 19.4 grievance procedure are the following: The grievant who is not satisfied with the Chancellor’s decision at Level II “may, but only with the concurrence and participation of the United Faculty” give written notice within 15 days demanding a factfinding panel be formed. (CBA § 19.4.3.1.) The grievant may, with or without the concurrence of United Faculty, appeal the Chancellor’s decision directly to “Level IV, Board” bypassing Level III as optional. (CBA § 19.4.3.2.) CBA section 19.4.3.3 through 19.4.3.3.7 set forth timelines and methods for selection of the three members of the factfinding panel, as well as a provision for allocation of costs of the proceeding. The panel is to schedule a hearing within 10 days after its appointment (CBA § 19.4.3.3.5) and submit a written decision regarding the grievance to United Faculty and the board (CBA § 19.4.3.3.6). With the exception of grievances relating to certain provisions of Article 6 of the CBA (“Division/Departments”), “[i]f any other portion of the contract is grieved, the recommendation(s) shall automatically become binding on the parties. In this case, each party will pay its own expenses and the losing party will pay the cost of the third panel member, the panel chairperson.” (CBA § 19.4.3.3.7.)
CBA section 19.4.3.3.8 limits the power of the factfinding panel by providing: “In any event, the ‘Fact-Finding’ panel shall have no power to: [¶] 19.4.3.3.8.1[:] add to, subtract from, discard, alter or modify any of the terms of this agreement; [¶] 19.4.3.3.8.2[:] establish, alter, modify or change the salary structure; [¶] 19.4.3.3.8.3[:] rule on any claim or complaint for which there is another remedial procedure or course established by law, or by regulation having the force of law, and teacher evaluation results; and [¶] 19.4.3.3.8.4[:] change any procedure, policy or rule of the Board, nor, to substitute their judgment for that of the Board as to the reasonableness of any such practice, policy, rule, or action taken by the Board.” (Italics added.)
Section 19.3.1 of the CBA provides: “Member Legal Rights: Nothing contained herein shall deny to any member his/her rights under state or federal constitutions and laws. No probationary member may use this grievance procedure in any way to appeal discharge or a decision by the board not to renew his/her contract. No tenured member shall use this grievance procedure to dispute any action of the board that complies with state law. . . .”
Appendix X to the CBA “Faculty Evaluation Guidelines” was negotiated and entered into in 1994, after Article 19 of the Agreement and after the Legislature’s enactment of section 87610.1. Appendix X provides in pertinent part, in a chapter called “Due Process for Probationary and Regular Faculty,” as follows:
The copy of Appendix X contained in the record contains two dates: April 27, 1994 and July 15, 1994. In relevant part it provides that “The Faculty Evaluation Guidelines (approved by the Governing Board on April 27, 1994) shall be implemented beginning Summer 1994. . . .”
“I. Available Procedures
“[¶] . . . [¶] B. UF/CCCCD Grievance Procedure [¶] The probationary faculty member being evaluated has the right to file a grievance using the UF/CCCCD procedure for violations of procedures delineated in this article at any time during the four year probationary period. Use of the grievance procedure to appeal the content of an evaluation is allowed only in the third and fourth years of the probationary period. A regular faculty member has the right to file a grievance using the UF/CCCCD procedure for violation of this article as it relates to regular faculty members.”
C. Contractual Grievance Procedure Resulting in Arbitration
Respondents argue, as the trial court concluded, that the district had a “contractual grievance procedure resulting in arbitration” (§ 87610.1, subd. (b)) of appellant’s challenge to the denial of tenure and her dismissal. Therefore, respondents urge that in accord with the requirements of section 87610.1, subdivision (b) and Appendix X to the CBA, appellant was required to proceed under the negotiated grievance procedure and was not entitled to a hearing before an administrative law judge pursuant to section 87740.
The CBA does contain a contractual grievance procedure resulting in arbitration in Article 19 of the CBA. Although Article 19 of the CBA does not characterize this process as an arbitration, “the nature and intended effect of the CBA grievance procedure clarify that the parties agreed to arbitrate.” (Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1084.)
However, several problems immediately surface when seeking to apply those provisions to appellant’s claims. For example, as the parties recognize, section 19.3.1 of the CBA expressly states, “No probationary member may use this grievance procedure in any way to appeal discharge or a decision by the Board not to renew his/her contract. . . .” Respondents assert that this language is “outdated”—a holdover reflecting the express application of section 87740 to decisions to “not reemploy” probationary faculty—and predates the enactment of section 87610.1, subdivision (b) in 1988. Respondents argue that the language of CBA section 19.3.1 conflicts with that of the later-adopted Appendix X of the CBA. They assert that Appendix X expressly recognizes the right of a third or fourth year probationary faculty member being evaluated to file a grievance using the CBA Article 19 procedures, including those set forth in CBA section 19.4.3 for requesting and pursuing a Level III grievance resulting in factfinding/arbitration. According to respondents, this conflict between provisions of the CBA rendered the CBA ambiguous. In light of this asserted ambiguity as to whether probationary employees like appellant could use the contractual grievance procedure, respondents contend the trial court properly considered evidence of the district and the faculty association’s “past practice of consistently allowing probationary employees to use the grievance procedure to challenge decisions not to re-employ or to deny tenure.”
The evidence considered by the court was presented in the form of a declaration by Sandi McCray, Principal Human Resources Representative (Employee Relations) for the district, who stated the language of section 19.3.1 of the CBA preventing the probationary employee from using the grievance procedure to appeal his or her discharge or the nonrenewal of a contract has been included in the negotiated agreement since at least the 1977-1978 academic year, and predates the 1988 enactment of section 87610.1, subdivision (b). Also according to McCray’s declaration, the practice of the district and United Faculty is that Appendices to the CBA are valid and binding to the same extent as the CBA and in the event of conflict between the CBA and the Appendix, the later negotiated provision controls. Further, the district “has followed a practice which allows faculty members the opportunity to utilize the grievance procedure in Article 19 and Appendix X to contest tenure denials pursuant to Education Code Section 87610.1(b).” This declaration was unchallenged in the trial court and we shall accept the court’s factual finding that such was and is the practice of the district.
However, past practice cannot trump clear, contrary language of the contract. It is arguable that Appendix X does not conflict with section 19.3.1 of the CBA. Appendix X, entitled “Faculty Evaluation Guidelines,” relates to policies and procedures for evaluating faculty, as well as guidelines for remediation and procedures for challenging the evaluation procedure and content. As pertinent here, section 17.1 of the CBA provides that “All regular and probationary unit members shall be evaluated according to Appendix X.” Respondents rely upon the provisions of subdivision B of section I of the chapter entitled “Due Process Procedure for Probationary and Regular Faculty” of Appendix X to support their argument that Appendix X is in direct conflict with section 19.3.1 of the CBA. That part of Appendix X allows a probationary faculty member being evaluated to file a grievance using the CBA procedure “for violations of procedures delineated in this article at any time during the four year probationary period.” It specifically allows a probationary faculty member in the third or fourth year of the probationary period to use “the grievance procedure to appeal the content of an evaluation.”
The “Due Process Procedure for Probationary and Regular Faculty” also allows the faculty member being evaluated to use an “appeals process” as an alternative “designed to handle expeditiously a complaint of a faculty member being evaluated and/or a member of the TRC/PRC [tenure review committee/the peer review committee].” (Appendix X, “Due Process Procedure for Probationary and Regular Faculty” § I.A.) Part II “Specifics of Appeals Process” of Appendix X, “Due Process Procedure for Probationary and Regular Faculty,” describes limitations on the appeals process, including that it can be “used only when alleging bias” against the evaluator and “[a]ny allegation of bias that will result in an appeal of the content of the evaluation will not be allowed; however, the examination of the content of the evaluation may be used to substantiate alleged bias.” Moreover, allegations of violations of the procedure outlined in this article, “that will result in an appeal of the content of the evaluation will not be allowed . . . .” (Appendix X, “Due Process Procedure for Probationary and Regular Faculty” § II A. 1-2.) However, this “Appeals Process” section specifically charges that “The appeals process is not intended to replace the grievance procedure outlined in [the CBA] or Board Policy 2002 [regarding allegations of bias], both of which the faculty member being evaluated is entitled to use.” (Appendix X “Due Process Procedure for Probationary and Regular Faculty” § I.A., italics added.)
Arguably, Appendix X relates only to challenges to the evaluation process and evaluation content and not to challenges to the ultimate decision on tenure and reemployment. The content of the evaluation and the conduct of the evaluation process doubtless have an impact on ultimate board decision regarding tenure and reemployment. However, the availability of the grievance process to challenge the content of an evaluation or the conduct of the evaluation as allowed by Appendix X, “Due Process Procedures for Probationary and Regular Faculty,” section I.B., does not necessarily conflict with the prohibition of CBA section 19.3.1 upon challenges to the employee’s discharge or decision not to renew his or her contract.
We need not resolve these or other difficult issues regarding the interpretation of the CBA and the effectiveness of the remedies provided there, as the trial court’s finding of laches provides an adequate independent basis for affirming the judgment, were we to assume, for the sake of argument, that appellant was entitled to a hearing under section 87740.
D. Laches
The trial court found that appellant was guilty of laches in that by waiting until the deadline for a hearing under section 87740 had passed to raise the issue of a deficiency in the grievance procedure, appellant caused the district to rely on her conduct to its detriment. (American Federation of Teachers v. Board of Education (1977) 77 Cal.App.3d 100, 108-109 (American Federation of Teachers).) We shall conclude the court’s finding of laches was supported by substantial evidence. (See Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67-68; Womack, supra, 147 Cal.App.4th at p. 858-859; Bono v. Clark, supra, 103 Cal.App.4th at p. 1417.)
The trial court also found appellant had unreasonably delayed in filing her writ petition.
Were we to review the court’s finding under the deferential abuse of discretion standard, we would conclude the court did not abuse its discretion in finding laches.
Appellant argues that this court should determine the laches question de novo, asserting that the facts are undisputed. (See Bakersfield Elementary Teachers Assn. v. Bakersfield City School Dist. (2006) 145 Cal.App.4th 1260, 1274 (Bakersfield.) Not so. Appellant and respondent disagree on several material questions of fact, including whether appellant or her counsel agreed to proceed in accordance with the grievance procedure of the district, whether appellant timely requested a hearing under section 87740, and whether the district knew or should have known by April 21, 2006, that appellant did not agree to a hearing under the grievance procedure. Moreover, appellant specifically challenges the correctness of several of the factual assertions made by Sacks in her declaration.
Appellant contends that the defense of laches is not available because it would nullify public policy enumerated in sections 87610.1 and 87740. The two cases she relies upon do not support her contention. Both cases rely upon the general proposition that laches may not be asserted against a public entity where application of the doctrine would nullify a policy adopted for the protection of the public. (Wells Fargo Bank v. Goldzband (1997) 53 Cal.App.4th 596, 628-629 [“ ‘[W]here application of the doctrine would nullify a policy adopted for the public protection, laches may not be raised against a governmental agency.’ ”]; In re Marriage of Lugo (1985) 170 Cal.App.3d 427, 435 [Laches “is rarely invoked against a public entity to defeat a policy adopted for the protection of the public.”].) There is no public policy adopted for the public’s protection that would preclude the application of laches in the circumstances here, particularly where the defense is being raised by the public entity and not against it.
Appellant did not identify public policy that would be nullified until her reply brief. Even then, beyond citing the statutes, she does not further identify the public policies involved or explain how they would be nullified by application of laches in this case.
“Our Supreme Court has been quite clear that the principle of laches is particularly pertinent in litigation concerning public employment. In Johnson v. City of Loma Linda[, supra, ] 24 Cal.4th 61, 68 . . ., a unanimous court, in an opinion authored by Justice Kennard, held that laches barred a writ petition filed by a municipal employee claiming employment discrimination. Regarding the application of laches in such a case, the court stated: ‘ “The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.” [Citation.] . . . .’ ([Ibid.])” (Womack, supra, 147 Cal.App.4th at pp. 864-865.)
Here, substantial evidence supports the finding that appellant unreasonably delayed in asserting that the grievance procedure was not applicable to her and that she was entitled to a hearing under section 87740, until the timeframe in which the district could hold and complete a hearing under section 87740 had passed. Under that statute, the administrative law judge must prepare a proposed decision and submit copies of it “to the governing board and to the employee on or before May 7 of the year in which the proceeding is commenced.” (§ 87740, subd. (c)(3).) Appellant’s counsel first asserted that the grievance procedure did not apply and that appellant was entitled to a hearing under section 87740 on May 10, 2006. At that point, the district could not comply with the timeline for a hearing established in section 87740. Even assuming the district immediately agreed with appellant and granted a continuance to complete the matter as authorized by section 87740, subdivision (i), the May 7, 2006 deadline for submission of the proposed decision to the board had already passed.
Appellant argues that, contrary to Sack’s declaration, neither appellant nor her counsel had agreed to use the grievance process in the CBA. Appellant relies upon the correspondence between her counsel and the district contained in the record as exhibits to Sack’s declaration. Appellant specifically relies upon her counsel’s letter of April 21, 2006, stating appellant’s willingness to agree to the Level III optional factfinding grievance procedure subject to modifications and upon Sacks’s April 26, 2006, letter refusing to modify the process in the manner sought by appellant. Appellant asserts that under contract principles there was no offer and acceptance and so no agreement to grieve the tenure denial and non-reemployment decision. These contract principles are beside the point here, where substantial evidence supports the finding that appellant requested a hearing under section 87610.1 and in accordance with the district’s grievance procedure. The “REQUEST FOR HEARING/GRIEVANCE” submitted by appellant specifically requested “a hearing pursuant to Education Code section 87610.1(b), and Article 19 of the United Faculty and District collective bargaining agreement” and included allegations of specific violations of the CBA, among other allegations. The claim that appellant had not agreed to use the contractual grievance procedure to challenge the tenure and non-reemployment decisions because the district did not agree to her stipulation transferring costs of the neutral chairperson to the district and limiting the hearing length in a Level III factfinding process is wholly without merit. The terms for conducting the grievance procedure are set forth in Article 19 of the CBA and the district’s unwillingness to modify those terms did not vitiate appellant’s agreement to use the procedure she had requested.
Additional support for the court’s finding that appellant had invoked the grievance procedure is found in her counsel’s May 2, 2006, letter to Sacks in which he invokes section 19.4.3 of the CBA, bypassing Level III factfinding as optional on the part of the grievant, and notifying the district that appellant “hereby elects to proceed to Level IV of Article 19.4.4” a hearing in executive session before the board.
The correspondence between the parties is entirely consistent with the court’s laches finding. The correspondence provides evidence that appellant invoked the grievance procedure pursuant to section 87610.1 for resolution of her claim and that her counsel delayed and deferred moving forward with the grievance process, without challenging either the applicability of the process to appellant’s claims or requesting an alternative process under section 87740, until passage of a critical deadline for proceeding under section 87740. The court could infer from the correspondence that appellant’s counsel, experienced in this area of law, “sandbagged” the district, by appearing to go along with the district’s grievance procedure, albeit at a snail’s pace, until the possibility of the district’s proceeding under section 87740 was lost, and then asserting appellant’s statutory rights had been violated and that such violation resulted not only in voiding the board’s tenure and non-reemployment decisions, but in appellant’s being deemed reemployed for the ensuing school year, not as a probationary employee, but as a regular faculty member with tenure. This factual inference is also buttressed by appellant’s failure in the trial court to present her declaration or other evidence that she was misled in any material respect by the district. Indeed, the argument she advances on appeal that “Appellant’s counsel had no duty to advise Respondents what statutory duties Respondents owed to Appellant under Education Codes sections 87610.1(b) and 87740,” while true, further supports the inference that appellant was not misled by the district regarding her hearing rights. Rather, she intentionally led the district to believe she was participating in the grievance process, remaining silent about her belief that the correct process was that of section 87740, as the district proceeded with the grievance process past the point where it could change course to provide a hearing under section 87740. Although it is true that appellant used the proposed hearing request form supplied by the district to pursue the arbitration remedy, she was at all relevant times represented by counsel and appears to concede that the district acted in good faith in directing her toward the grievance process. Appellant states in her brief, “Apparently, . . . Respondents . . . and Respondents’ counsel erroneously believed that Article 19 and Appendix X contain a grievance procedure resulting in arbitration of Appellant’s allegations within the scope of Education Code section 87610.1(b).”
We take judicial notice that appellant’s attorney has represented parties in the following published cases: Vasquez v. Happy Valley Union School Dist. (2008) 159 Cal.App.4th 969, 973; Praiser v. Biggs Unified School Dist. (2001) 87 Cal.App.4th 398, 400; Cousins v. Weaverville Elementary School Dist. (1994) 24 Cal.App.4th 1846, 1848; Daniels v. Shasta-Tehama-Trinity J. Community College Dist. (1989) 212 Cal.App.3d 909, 912. (Evid. Code §§ 452, subds. (d) & (h), 459.)
With these facts in mind, we believe this case is similar to American Federation of Teachers, supra, 77 Cal.App.3d 100, in which the Court of Appeal affirmed the trial court’s determination that laches estopped a temporary teacher from claiming probationary status where she knew she had been hired as a temporary employee, but had not presented her claim to be a probationary employee until two weeks after the date on which the school district was required to give dismissal notices to probationary employees under the then applicable provision of the Education Code. (Id. at pp. 108-109.) The appellate court rejected the employee’s argument that “ ‘she would not reasonably have known she had any entitlement to probationary status until after she had an opportunity to consult an attorney,’ which she did after receiving her termination notice on March 10, 1976.” (Id. at p. 108.) The appellate court recognized that “[a]lthough the evidence regarding [the employee’s] knowledge of her status as a temporary employee is conflicting, a reviewing court’s task is not to reweigh the evidence, but to determine if substantial evidence supports the findings of the court.” (Id. at pp. 107-108, fn. omotted.) Although contrary to the employee’s declaration, the declaration of the district’s director of certificated personnel provided substantial evidence that the employee knew from the time she entered into her employment contract that she was a temporary employee. (Id. at pp. 107-108 & fn. 5.) The district was found to have “relied in good faith and to its detriment on [her] acceptance of the terms of her contract.” The employee’s failure to object until almost six months later when the district could not comply with the probationary notice requirements, “constituted an unreasonable and unjustifiable delay in asserting appellant’s claims, and it prejudiced the respondent. The court below properly held appellant was guilty of laches and estopped from asserting her claim to probationary status.” (Id. at p. 109.)
Appellant argues that reliance upon American Federation of Teachers, supra, 77 Cal.App.3d 100 is misplaced, as the decision has been undermined by California Teachers Assn. v. Governing Board (1987) 195 Cal.App.3d 285 (CTA) and Bakersfield, supra, 145 Cal.App.4th 1260. We disagree.
The appellate court in CTA, supra, 195 Cal.App.3d 285, affirmed the decision of the trial court finding that laches did not apply in the circumstances before it. In CTA, the trial court ordered the district to reinstate a teacher, even though he had been hired as a temporary employee in 1982 for less than a school year, since the teacher was then rehired for the entire following 1982-1983 school year. The district had failed to provide a written statement of the temporary nature of the employment at the beginning of the 1982-1983 school year, but had provided evaluations indicating his employee status as “probationary.” When belatedly presented with a contract of temporary employment for the 1982-1983 school year, the teacher refused to sign upon the advice of his union because his status was probationary. When he reported for work for the 1983-1984 school year, he was told he would not be employed for that year. (Id. at pp. 290-291.) The trial court found that the failure of the district to provide a written statement of the temporary nature of employment for the 1982-1983 school year, in violation of the Education Code provision regarding the time for classification of certified employees, triggered the statutory remedy of deeming the employee to be a probationary employee of the school district. (Id. at pp. 290, 298-299.) The Court of Appeal affirmed on the ground that the trial court properly could fashion a remedy or sanction the district where the record reflected that the district’s error was not inadvertent, but was deliberate retaliation against the employee for exercising his rights under the collective bargaining agreement. (Id. at p. 300.) The appellate court also upheld the trial court’s ruling against the district’s affirmative defense of laches. In so doing, it recognized that prejudice must be demonstrated by the defendant and that the existence of laches was “ ‘a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence its determination will be sustained.’ ” (Id. at p. 296.) It distinguished American Federation of Teachers, supra, 77 Cal.App.3d 100, on the grounds that the teacher there had understood and agreed to the terms of a written contract, knowing she was a temporary employee and failing to object to her temporary status until a date when respondent could not comply with statutory notice requirements. (CTA, supra,195 Cal.App.3d at p. 297.) According to CTA, the “primary distinction” between the facts in the case before it and American Federation of Teachers involved the district’s failure in CTA to offer and obtain a signed written employment contract at the beginning of the school year. Therefore, “[u]nlike American Federation of Teachers, no such contract secured [the teacher’s] understanding and acceptance of those terms. This failure is consistent with the district’s failure to administer its employment policies and procedures vis-à-vis [the teacher] both before and after his grievances became known.” (CTA, at p. 297.) The district’s claim to have relied on the employee’s apparent acceptance of the contract “beg[ged] the question,” as it was the absence of the written contract that permitted the ambiguity to arise and the district’s “subsequent inconsistencies and contradictory messages did nothing to dispel” that ambiguity. (Ibid.) Consequently, the appellate court found that substantial evidence supported the trial court’s ruling against the district’s laches defense. (Ibid.)
In the instant case, the trial court found (and the record supports the finding), that appellant requested a hearing in accordance with the grievance provisions of the CBA pursuant to section 87610.1. The district consistently pursued the grievance process and timelines. The district’s conduct and messages to appellant with regard to the applicability of the grievance procedure was neither inconsistent nor ambiguous. There is virtually no support in the record indicating that the district pursued this course of action with anything other than good faith. Moreover, there is substantial evidence that appellant and her counsel were aware of the potential applicability of section 87740 and did not assert her rights thereunder until the time for compliance had passed.
Like CTA, supra, 195 Cal.App.3d 285, the court in Bakersfield, supra, 145 Cal.App.4th 1260, also distinguished American Federation of Teachers, supra, 77 Cal.App.3d 100, characterizing the laches analysis of American Federation of Teachers as “dictum” (Bakersfield,at p. 1276) and finding the circumstances distinguishable because the teacher’s temporary classification in American Federation of Teachers was ultimately found to be correct, whereas in Bakersfield, it was not correct (and the district arguably should have known it was not). (Bakersfield, at p. 1276.) The Bakersfield court emphasized that “nothing in American Federation of Teachers suggests the teacher’s silence as to her classification was induced by any misrepresentations made to her by the district. Here, the [d]istrict cannot be said to have believed in good faith that the teachers’ silence indicated an acceptance of their classification.” (Ibid.)
The appellate court in Bakersfield addressed laches as an issue of law on undisputed facts. (Bakersfield, supra,145 Cal.App.4th at p. 1274.) The district led the employees to believe they had no choice but to acquiesce in their classification as temporary teachers because they had signed contracts requiring each teacher “to acknowledge that as a temporary employee, he or she had none of the rights of, nor any claim to, probationary status.” (Id. at p. 1274, see p. 1276.) Such waiver of statutory protections under the Education Code was void. (Id. at p. 1275.) Therefore, the appellate court concluded that the district could not assert that “the temporary employees waited too long to assert a right the [d]istrict had misled them into believing they had already given up.” (Ibid.) The district had come to court with unclean hands and could not assert the equitable defense of laches. (Ibid.)
The circumstances of the instant case are far different. First, unlike Bakersfield, supra, 145 Cal.App.4th at page 1274, the facts here are not undisputed and the trial court found in favor of the district on its claim of laches. The district’s practice here was to use the grievance procedure under the CBA to afford third and fourth year probationary employees the type of factfinding/arbitration hearing described in section 87610.1. Substantial evidence supports that the district did not mislead appellant regarding the applicability of that process. At a minimum, appellant acquiesced to utilization of the grievance process. (See Womack, supra, 147 Cal.App.4th at pp. 864-865 [laches requires unreasonable delay plus either acquiescence by the plaintiff or prejudice to the defendant].) Indeed, as we have stated above, the court could well determine on the evidence before it that appellant waited until the time had passed for the district to comply with the requirements of a hearing and decision under section 87740 before raising any question as to the applicability or sufficiency of the grievance procedure to resolve her claims. Here, there was more than mere silence on the part of the employee; she invoked the grievance process she now decries and participated in it until May 10.
Moreover, substantial evidence demonstrates that the district was prejudiced by appellant’s unreasonable delay in asserting her rights under section 87740. The district could not then comply with the timeframe set forth in that statute, as the May 7 deadline for completion of the hearing, preparation and submission to the board of the administrative law judges’s proposed decision had already passed. Ample evidence supports the court’s finding that laches applied in these circumstances.
Appellant contends that the district may not invoke the equitable defense of laches because it was guilty of “unclean hands.” “The defense of unclean hands arises from the equitable maxim, ‘ “He who comes into Equity must come with clean hands.” ’ ” (Mattco Forge v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 846 (Mattco Forge).) “Equity will grant relief when a plaintiff’s conduct ‘ “prejudicially affect[s] the rights of the person against whom the relief is sought so that it would be inequitable to grant such relief.” ’ ” (Ibid.) Appellant again asserts that the district knew on April 21, 2006, that there was no agreement between the parties to use the grievance procedure because the district had rejected appellant’s proposed stipulation and that the district knew or should have known that the CBA did not result in arbitration of appellant’s allegations within the scope of section 87610.1, subdivision (b).
We agree with respondents that the assertion that the district acted with “unclean hands” was not raised in the trial court and constitutes a new theory that may not be asserted for the first time on appeal. (Mattco Forge, supra, 52 Cal.App.4th at pp. 845-847; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 8:229, p. 8-135.) This is even more the case here where application of the equitable doctrine necessarily requires evaluation of the facts supporting the claim. (Mattco Forge,at pp. 845-846.) In any event, we have already rejected appellant’s premise that she did not agree to grieve her claims.
We see no reason to disturb the trial court’s finding of laches, supported as it is by substantial evidence.
Disposition
The judgment is affirmed.
We concur: Haerle, J., Richman, J.
“[¶] . . . [¶] (b) The employee may request a hearing to determine if there is cause for not reemploying him or her for the ensuing year. A request for a hearing shall be in writing and shall be delivered to the person who sent the notice pursuant to subdivision (a), on or before a date specified in that subdivision, which shall not be less than seven days after the date on which the notice is served upon the employee. If an employee fails to request a hearing on or before the date specified, this failure to do so shall constitute waiver of his or her right to a hearing. The notice provided for in subdivision (a) shall advise the employee of the provisions of this subdivision.
“(c) In the event a hearing is requested by the employee, the proceeding shall be conducted and a decision made in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code and the governing board shall have all the power granted to an agency in that chapter, except that all of the following shall apply:
“(1) The respondent shall file his or her notice of defense, if any, within five days after service upon him or her of the accusation and he or she shall be notified of this five-day period for filing the accusation.
“(2) The discovery authorized by Section 11507.6 of the Government Code shall be available only if request is made therefor within 15 days after service of the accusation, and the notice required by Section 11505 of the Government Code shall so indicate.
“(3) The hearing shall be conducted by an administrative law judge who shall prepare a proposed decision, containing findings of fact and a determination as to whether the charges sustained by the evidence are related to the welfare of the colleges and the students thereof. The proposed decision shall be prepared for the governing board and shall contain a determination as to the sufficiency of the cause and a recommendation as to disposition. However, the governing board shall make the final determination as to the sufficiency of the cause and disposition. None of the findings, recommendations, or determinations contained in the proposed decision prepared by the administrative law judge shall be binding on the governing board or on any court in future litigation. Copies of the proposed decision shall be submitted to the governing board and to the employee on or before May 7 of the year in which the proceeding is commenced. All expenses of the hearing, including the cost of the administrative law judge, shall be paid by the governing board from the district funds.
“The board may adopt, from time to time, rules and procedures not inconsistent with this section that may be necessary to effectuate this section.
“(d) The governing board's determination not to reemploy a contract employee for the ensuing college year shall be for cause only. The determination of the governing board as to the sufficiency of the cause pursuant to this section shall be conclusive, but the cause shall relate solely to the welfare of the colleges and the students thereof and provided that cause shall include termination of services for the reasons specified in Section 87743. The decision made after the hearing shall be effective on May 15 of the year the proceeding is commenced.
“(e) Notice to the contract employee by the governing board that the employee's service will not be required for the ensuing year shall be given no later than May 15.
“[¶] . . . [¶] (h) If the governing board does not give notice provided for in subdivision (e) on or before May 15, the employee shall be deemed reemployed for the ensuing school year.
“(i) If, after request for hearing pursuant to subdivision (b), any continuance is granted pursuant to Section 11524 of the Government Code, the dates prescribed in subdivisions (c), (d), (e) and (h) that occur on or after the date of granting the continuance shall be extended for a period of time equal to the continuance.”
“ ‘Arbitration,’ as used in this section, refers to advisory arbitration, as well as final and binding arbitration.
“(c) Any grievance brought pursuant to subdivision (b) may be filed by an employee on his or her behalf, or by the exclusive bargaining representative on behalf of an employee . . . . When arbitrations are not initiated by the exclusive representative, the district shall require the employee submitting the grievance to file with the arbitrator or another appropriate party designated in the collective bargaining agreement, adequate security to pay the employee’s share of the cost of arbitration.
“(d) The arbitrator shall be without power to grant tenure, except for failure to give notice on or before March 15 pursuant to subdivision (b) of Section 87610. The arbitrator may issue an appropriate make-whole remedy, which may include, but need not be limited to, backpay and benefits, reemployment in a probationary position, and reconsideration. Procedures for reconsideration of decisions not to grant tenure shall be agreed to by the governing board and the exclusive representative of faculty pursuant to Chapter 10.7 (commencing with Section 3540) of Division 4 of Title 1 of the Government Code.”