L.A. Unified School Dist. v. Office of Admin. Hearings

Filed 5/5/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LOS ANGELES UNIFIED B317353
SCHOOL DISTRICT,
Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BS172398
v.
OFFICE OF ADMINISTRATIVE
HEARINGS,
Defendant and Respondent;
BEATRICE ESSAH,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mary H. Strobel, Judge. Affirmed.
Kelly Kim and Michael Voigt for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
No appearance for Real Party in Interest and Respondent.
_________________________
After years of what the Los Angeles Unified School District
(LAUSD) viewed as unsatisfactory teaching performance by
certificated teacher Beatrice Essah, LAUSD served Essah with a
Notice of Intent to Dismiss and Statement of Charges, which
included notice that Essah was suspended without pay. Essah
brought and prevailed on a motion for immediate reversal of
suspension (MIRS), and thus received pay during the pendency of
the dismissal proceedings. LAUSD ultimately prevailed in those
proceedings. LAUSD then sought a writ of administrative
mandamus in the superior court seeking to set aside the order
granting the MIRS and to recoup the salary payments it had
made to Essah during the pendency of the proceedings. The trial
court denied the writ, holding that the MIRS order is not
reviewable. The court also ruled (1) LAUSD cannot recover the
payments to Essah under its cause of action for money had and
received and (2) LAUSD’s cause of action for declaratory
judgment is derivative of its other claims. The trial court entered
judgment against LAUSD and in favor of Essah. We affirm the
trial court’s judgment.
BACKGROUND
In a letter dated April 13, 2016, the Board of Education
sent Essah a Notice of Intention to Dismiss and Statement of
Charges and Placement on Immediate Suspension. The Notice
stated the Board had considered “written charges, duly signed
and verified, . . . that there exist cause(s) for your dismissal. A
copy of those charges is enclosed. Please also take notice that you
have been suspended without pay. [¶] Pursuant to the action of
the Board of Education at said meeting, you are hereby notified
that it is the intention of the Board of Education to dismiss
you[.]”
2
In the attached statement of charges, LAUSD’s chief
human resources officer alleged problems with Essah beginning
in October 2012. 1 LAUSD “ask[ed] for her immediate suspension
without pay and dismissal.” Specifically, the statement alleged
five statutory grounds for termination: unprofessional conduct;
unsatisfactory performance; evident unfitness for service;
persistent violation of or refusal to obey school laws of the state
or reasonable regulations for the government of schools (Ed.
Code, § 44932, subd. (a)(2), (5), (6) & (8)); and willful refusal
without reasonable cause to perform regular assignments as
prescribed by reasonable rules and regulations of the employing
district (Ed. Code, § 44939, subd. (b)). 2
Immediate suspension of a permanent employee is
authorized by section 44939, subdivision (b), when a permanent
employee is charged with “immoral conduct, conviction of a felony
or of any crime involving moral turpitude, with incompetency due
to mental disability, with willful refusal to perform regular
assignments without reasonable cause, as prescribed by
reasonable rules and regulations of the employing school district,
or a violation of Section 51530.” 3 (§ 44939, subd. (b).) In
LAUSD’s view, “these causes for dismissal generally revolve
1 Charges are limited to “matters occurring [no] more than
four years before the filing of the notice.” (Ed. Code, § 44944,
subd. (b)(2)(B).)
2 Further undesignated statutory references are to the
Education Code.
3 Section 51530 prohibits “advocat[ing] or teach[ing]
communism with the intent to indoctrinate or to inculcate in the
mind of any pupil a preference for communism.”
3
around the school district’s responsibility to provide a safe school
environment for their students.”
Section 44939 provides “the governing board of the school
district may, if it deems that action necessary, immediately
suspend the employee from his or her duties and give notice to
him or her of his or her suspension.” (§ 44939, subd. (b), italics
added.) Thus, suspension is not mandatory when an employee is
charged with one of the activities specified in section 44939; it is
not even the presumptively required action. To the contrary, by
permitting suspension if the board deems it necessary, the
statute indicates “no suspension” is the norm. 4
Here, although LAUSD asked for immediate suspension
without pay of Essah in its statement of charges, LAUSD did not
explain why such suspension was necessary. LAUSD did not
raise safety concerns in the charges. The only use of the word
“safe” appears in charge 132, which alleges: “On or about
November 13, 2015, ESSAH did not use effective strategies for
promoting student participation during small group instruction
nor did she foster a classroom environment that was safe and
supportive. [¶] a. On many occasions, she interrupted the
students before they could finish stating their responses to
4 By way of contrast, the Education Code clearly specifies
that suspension is mandatory in some circumstances. It is
mandatory, for example, under section 44940, subdivision (a),
when an employee is “charged by complaint, information, or
indictment filed in a court of competent jurisdiction with the
commission of any sex offense as defined in Section 44010, with a
violation or attempted violation of Section 187 of the Penal Code,
or with the commission of any offense involving aiding or
abetting the unlawful sale, use, or exchange to minors of [certain]
controlled substances.” (§ 44940, subd. (a).)
4
correct their answers, or if they took a long pause to complete
their thought. [¶] b. ESSAH appeared frustrated when the
students did not: (1) pronounce certain words the way she
pronounced them, or if they did not (2) repeat what she said
exactly. On two occasions, two students stopped responding
when her tone was negative as she continued to have them repeat
the same words and sentences multiple times. [¶] i. One student
ignored ESSAH’s request to repeat after her. She then asked,
‘Would you like to practice later?’ He did not answer her, and she
moved on. [¶] ii. A female student turned her back to ESSAH for
the remainder of the time and demonstrated off-task behaviors
such as leaving the group to get her water bottle from her desk
and staring into space.”
Virtually all other charges against Essah involve her
failure to co-plan with other teachers, to prepare required
paperwork, including lesson plans, and to meet with parents,
conduct which had allegedly been going on for years. 5
5 The charges also alleged some other conduct. For example:
In or around October 2013, she regularly and “inappropriately
raised her voice at children” and regularly and “inappropriately
threatened to remove students from [the] classroom.” On October
17, 2013, she interrupted the classroom teacher, told several
students they were being removed from the classroom and gave
“a speech” to the class. During or about the period from
approximately September 9, 2013 to October 21, 2013, she
interrupted the continuity of instruction and undermined the
authority of the classroom teacher, including inappropriately
raising her voice at children and threatening to remove them
from the class. On or about March 7, 2014, she “did not monitor
and respond to student behavior effectively” as shown by Essah
talking over students who were speaking rather than telling
them to stop talking, and allowing students to sit and do nothing.
5
On April 20, 2016, Essah timely demanded a hearing
pursuant to section 44944. LAUSD then began the
administrative action by filing a Request to Set on April 29, 2016.
On May 10, 2016, LAUSD filed its Accusation with the Office of
Administrative Hearings (OAH); the charges in the Accusation
are identical to those in the Statement of Charges.
On May 16, 2016, Essah filed two documents with the
OAH, one entitled “Request to Set: Motion for Immediate
Reversal of Suspension” [MIRS] and another entitled
“Memorandum of Defense and Hearing and Request to Set:
Motion for Immediate Reversal of Suspension.” According to
LAUSD, Essah did not serve the documents on it. LAUSD claims
it learned of the motion and received Essah’s motion from the
OAH. Section 44939 provides: “The motion shall be served upon
the governing board of the school district and filed with the Office
of Administrative Hearings within 30 days after service upon the
employee of the initial pleading in the matter.” (§ 44939,
subd. (c)(2).) May 16, 2016 is more than 30 days from April 13,
2016, the date LAUSD served its Notice.
The OAH assigned the matter to an administrative law
judge (ALJ) and set oral argument on the motion for June 10,
2016. The ALJ assigned the MIRS its own case number and
related that number to the case number in the dismissal
proceedings. LAUSD filed an opposition and Essah a reply brief,
which LAUSD sought to have stricken.
On or about October 22, 2014, she did not create a classroom
environment that promoted respect. She posted an inappropriate
chart which contained a student drawing of a raised middle
finger.
6
Oral argument on MIRS occurred as scheduled on June 10,
2016. On June 21, 2016, the ALJ issued its order. The ALJ
reviewing the motion is “limited to a determination as to whether
the facts as alleged in the statement of charges, if true, are
sufficient to constitute a basis for immediate suspension under
this section.” (§ 44939, subd. (c)(1).) The ALJ ruled in favor of
Essah, as follows: “Having considered the pleadings, written
submissions of the parties, and oral argument, the district failed
to allege facts which, if true, are sufficient to constitute a basis
for immediate suspension under Education Code section 44939,
subdivision (b).”
On July 6, 2016, LAUSD filed a petition for reconsideration
of the MIRS order on the ground the ALJ lacked jurisdiction to
rule on the MIRS because it was not timely filed. The ALJ
denied the petition, noting that although “[i]t appeared Ms.
Essah did not serve the district with her MIRS when she filed at
OAH,” LAUSD thereafter “filed a lengthy Opposition to the MIRS
on May 31, 2016, and vigorously participated in the oral
argument on June 10, 2016.” LAUSD did not request a
continuance of the hearing. The ALJ found LAUSD “did not
establish that it was prejudiced by Ms. Essah not initially serving
her MIRS on the district when she filed it at OAH.”
Although Essah was no longer suspended after the initial
MIRS ruling, LAUSD retained authority to determine her
assignment while the dismissal charges were pending. (§ 44939,
subd. (d) [“A motion for immediate reversal of suspension
pursuant to this section does not affect the authority of a
governing board of a school district to determine the physical
placement and assignment of an employee who is suspended or
placed on administrative leave during the review of the motion or
7
while dismissal charges are pending.”].) LAUSD contends it
assigned her to her home but provides no record citation to
support this factual claim.
Section 44939 specifically provides: “The grant or denial of
the [MIRS] shall be without prejudice to consideration by the
Commission on Professional Competence, based upon the full
evidentiary record before it, of the validity of the grounds for
dismissal. The ruling shall not be considered by the commission
in determining the validity of the grounds for dismissal, and shall
not have any bearing on the commission’s determination
regarding the grounds for dismissal.” (§ 44939, subd. (c)(4).)
Thus, the dismissal proceedings continued after the MIRS was
granted.
Although section 44944 provides that dismissal proceedings
are heard by the Commission on Professional Conduct (CPC), the
parties stipulated to a hearing by an ALJ rather than the CPC.
On July 6, 2017, the ALJ found evidence to substantiate many of
the specific charges in the statement, including charges of willful
refusal to perform regular assignments.
Having prevailed in the administrative action, LAUSD filed
a petition for writ of administrative mandamus and complaint for
declaratory relief and common counts (money had and received)
in the superior court on September 1, 2017. The trial court
denied the writ and this appeal followed.
DISCUSSION
A. LAUSD Has Not Shown That the Legislature Authorized
Judicial Review of a MIRS Order.
“The construction of a statute and its application to a
particular case are questions of law to be determined by a court
subject to independent review on appeal.” (Board of Retirement
8
v. Lewis (1990) 217 Cal.App.3d 956, 964.) “The rules governing
statutory construction are well settled. We begin with the
fundamental premise that the objective of statutory
interpretation is to ascertain and effectuate legislative intent.
[Citations.] To determine legislative intent, we turn first to the
words of the statute, giving them their usual and ordinary
meaning. [Citations.] When the language of a statute is clear,
we need go no further. However, when the language is
susceptible of more than one reasonable interpretation, we look
to a variety of extrinsic aids, including the ostensible objects to be
achieved, the evils to be remedied, the legislative history, public
policy, contemporaneous administrative construction, and the
statutory scheme of which the statute is a part.” (Nolan v. City of
Anaheim (2004) 33 Cal.4th 335, 340.) If we construe a statute,
we must do so, if possible, to achieve harmony among its parts.
(People v. Hull (1991) 1 Cal.4th 266, 272.) We many “ ‘ “neither
insert language which has been omitted nor ignore language
which has been inserted.” ’ ” (See People v. National Automobile
& Casualty Ins. Co. (2002) 98 Cal.App.4th 277, 282.)
Here, it is the meaning of subdivision (c)(6) of section 44939
which is at issue. That subdivision provides: “A motion made
pursuant to this section shall be the exclusive means of obtaining
interlocutory review of suspension pending dismissal. The grant
or denial of the motion is not subject to interlocutory judicial
review.” (§ 44939, subd. (c)(6).) LAUSD contends that because
the statutory language only expressly prohibits interlocutory
review, it permits review after the final decision.
The trial court rejected this contention. The court found
that although section 44939 did not forbid judicial review after a
final decision, neither did it expressly authorize such review. The
9
court concluded that “the words of the statute arguably do not
fully resolve the issue.” We agree with this conclusion.
Like the trial court, we turn to extrinsic aids to interpret
the provision. We note that LAUSD has not identified any
legislative history or contemporaneous administrative
construction it wishes us to consider. LAUSD makes no attempt
to address the statutory scheme of which section 44939 is a part.
LAUSD focuses only on public policy. In its view, review of a
MIRS order is necessary to enable school districts to recover
money paid to employees who prevail on a MIRS but are
subsequently dismissed for willful refusal.
The trial court considered other provisions of the Education
Code and attempted to harmonize them with section 44939. The
court found persuasive the Legislature’s decision to separate the
provisions concerning reversals of suspension pending dismissal
from those applicable to decisions on the merits concerning
dismissal. As the trial court explained, section 44939 gives the
OAH, through an ALJ, the authority to decide a MIRS. The
merits determination in the dismissal proceeding is assigned to
the CPC. The ruling on the MIRS has no bearing at all on the
decision on the merits. (§ 44939, subd. (c)(4) [“The grant or
denial of the motion shall be without prejudice to consideration
by the Commission on Professional Competence, based upon the
full evidentiary record before it, of the validity of the grounds for
dismissal. The ruling shall not be considered by the commission
in determining the validity of the grounds for dismissal, and shall
not have any bearing on the commission’s determination
regarding the grounds for dismissal.”].)
10
As the trial court pointed out, in contrast to section 44939,
“judicial review of a dismissal or a suspension proceeding after a
merits hearing by the CPC is expressly made available pursuant
to Education Code section 44945. That section provides court
review in the same manner as review of a decision made by a
hearing officer under the provision of the Administrative
Procedure Act. (Educ. Code § 44945.) The statute provides that
the court, on review, exercises its independent judgment on the
evidence. (Ibid.) This section does not authorize judicial review
of MIRS decisions—only review of a decision by the governing
body of a school district to dismiss or suspend initiated pursuant
to Section 44934 or 44934.1.”
We agree with this analysis and would add only that the
Legislature has provided specific guidelines for a decision by the
CPC on the merits and those guidelines do not include any
determination of whether a MIRS ruling is correct. In dismissal
proceedings, the CPC is limited to deciding whether the employee
should or should not be dismissed. (§ 44944, subd. (d)(1); see
Kolter v. Commission on Professional Competence of Los Angeles
Unified School Dist. (2009) 170 Cal.App.4th 1346, 1353 [“the
Commission hearing evidence in a dismissal proceeding does not
have the statutory authority to impose discipline other than
dismissal”].) 6 Thus, the final merits decision by the CPC in a
6 Subdivision (d)(1) of section 44944 provides in full: “The
decision of the Commission on Professional Competence shall be
made by a majority vote, and the commission shall prepare a
written decision containing findings of fact, determinations of
issues, and a disposition that shall be, solely, one of the following:
[¶] (A) That the employee should be dismissed. [¶] (B) That the
employee should be suspended for a specific period of time
without pay. [¶] (C) That the employee should not be dismissed or
11
dismissal proceeding cannot properly include review of a MIRS
ruling concerning suspension.
We also agree with the trial court that it is significant
sections 44945 and 44939 are both part of Article 3 (Resignations,
Dismissals and Leaves of Absence). As the trial court pointed
out, section 44945 shows that the Legislature knew how to
provide for court review, and it is noteworthy that nowhere in
Article 3 does it provide for court review of a MIRS order. We
would add only that the Legislature’s failure to expressly provide
for judicial review of one aspect of dismissal (MIRS order) in the
same manner as it did for judicial review of another aspect of
dismissal (final merits decision) suggests the Legislature did not
intend to provide for judicial review of the MIRS order.
LAUSD summarizes but does not directly address the trial
court’s ruling, apart from its focus on the implications of the
interlocutory prohibition. Instead, LAUSD contends that
declaring judicial review unavailable for a MIRS order would
create an absurd application of section 44939.
LAUSD first specifically contends: “[A]lthough the MIRS
was granted, LAUSD was successful with its [s]ection 44939
cause of dismissal when presenting evidence at the dismissal
hearing to prove willful refusal to perform the regular
suspended.” (§ 44944, subd. (d)(1).) In this context, “suspension
for a specific period of time without pay” is a form of ultimate
relief which a school board may seek for unprofessional conduct.
(§ 44932, subd. (b) [“school district may suspend without pay for a
specific period of time on grounds of unprofessional conduct a
permanent certificated employee”].) The other form of ultimate
relief which a school board may seek is dismissal. (§ 44934,
subd. (a).) This was a dismissal proceeding.
12
assignments without reasonable cause. Fundamentally, LASUD
was able to prove something that was not sufficiently alleged in
its pleading. Without judicial review of the MIRS, this
contradictory result remains intact.”
LAUSD is conflating two different things. Suspension is
not mandatory for a charge of willful refusal, and so not all acts
of willful refusal warrant an immediate suspension. If they did,
suspension would be mandatory. It is the ALJ’s task to
determine whether the particular facts of the willful refusal
alleged in the charges, if true “are sufficient to constitute a basis
for immediate suspension.” Subsequent proof that the facts are
true does not contradict a finding in the MIRS order that those
facts are not sufficient to constitute a basis for immediate
suspension.
LAUSD also contends “the MIRS statute leaves school
districts in an untenable situation. After assessing that a
certificated employee should be dismissed and be immediately
suspended to maintain a safe school environment, the granting of
a MIRS potentially requires the school district to place the
certificated employee into an assignment that may threaten a
safe school environment. Because the school district can proceed
to prove-up the causes of dismissal under section 44939 at the
merits hearing, the school district must then argue that the
certificated employee, who happens to be paid and assigned to a
school district position, is a danger to a safe school environment.”
We are baffled by this claim for several reasons. Section
44939 expressly provides: “A motion for immediate reversal of
suspension pursuant to this section does not affect the authority
of a governing board of a school district to determine the physical
placement and assignment of an employee who is suspended or
13
placed on administrative leave during the review of the motion or
while dismissal charges are pending.” (§ 44939, subd. (d).)
Indeed, LAUSD contends it assigned Essah to her home after the
MIRS ruling.
More important, even if LAUSD were correct and school
boards were required to assign an employee to a position which
potentially threatened school safety following the granting of a
MIRS, permitting judicial review of the MIRS decision after a
final merits decision would not solve the problem. An assignment
after a MIRS ruling and pending a final merits decision could be
addressed by interlocutory review only, which section 44939
expressly prohibits.
Finally, LAUSD is not required to argue or prove at the
merits hearing that a certificated employee charged with willful
refusal is a danger to school safety. As set forth in the
background section above, the word “safe” only appears once in
LAUSD’s statement of charges; “safety” does not appear at all.
The word “safety” appears only three times in the decision on the
merits, none in connection with Essah’s behavior. The word
“safe” does not appear at all.
Under the same “Absurd Application” heading in its brief,
LAUSD contends the MIRS ruling forced it to assign Essah to her
home to avoid risking school safety and absent judicial review of
a MIRS decision, “LAUSD is precluded from recovering any
public funds that were used to maintain a safe school
environment. This is such a one-sided scenario. If the teacher is
placed in unpaid status but prevails at their dismissal hearing,
school districts are required to make the employee whole with
retroactive salary, benefits and pension contributions. However,
the reverse is not true. Should the employee remain in paid
14
status and not prevail at the hearing, such as Essah, the school
district is unable to recoup paid salary for the time when the
employee is sitting at home.” 7
This is primarily a public policy argument, specifically that
the need to recover public funds weighs in favor of allowing
judicial review of MIRS orders. Indeed, that would be the only
possible benefit to a school district from review of a MIRS order.
LAUSD, however, has not shown that the Legislature
determined that recovery of MIRS payments was necessary.
LAUSD overlooks the fact that the Legislature was willing in
other circumstances to require school districts to continue to
make salary and other payments to employees during dismissal
proceedings; it was aware it could be difficult to recover such
payments when the outcome of the proceedings warranted; and it
knew how to ensure that the funds were recovered.
As discussed in footnote 3, ante, section 44940 requires that
employees charged with certain criminal offenses be placed on a
compulsory leave of absence. Section 44940.5, subdivision (b)
provides “[a]n employee placed upon compulsory leave of absence
pursuant to this section shall continue to be paid his or her
regular salary during the period of his or her compulsory leave of
absence if and during that time he or she furnishes to the school
7 LAUSD overlooks a third scenario: The employee loses the
MIRS and remains suspended without pay and then loses on the
merits. The employee has no ability to challenge the MIRS
ruling on the ground that his or her immediate suspension was
not a necessity, and thus has no ability to be awarded pay for the
unjustified suspension. The inability to seek review of the MIRS
order affects the party which loses the motion, whether LAUSD
or the employee. This is not one-sided.
15
district a suitable bond, or other security acceptable to the
governing board, as a guarantee that the employee will repay to
the school district the amount of salary so paid to him or her
during the period of the compulsory leave of absence in case the
employee is convicted of the charges, or fails or refuses to return
to service following an acquittal of the offense or dismissal of the
charges.” (§ 44940.5, subd. (d).)
Section 44940.5, like section 44939, is located in Article 3
addressing dismissal proceedings. Yet nowhere in section 44939
does the Legislature mention, let alone provide a clear
mechanism for recovering, payments made as a result of a MIRS
order when the employee is subsequently dismissed on charges
listed in section 44939. The most logical reason for the
Legislature to omit any mention of recovery would be that the
Legislature did not intend there to be any basis for recovery, that
is, because it intended the ALJ’s ruling on the MIRS motion to be
both final and not affected by the merits determination. Put
differently, the Legislature’s failure to mention recovery of funds
undercuts the only real rationale for review of a MIRS order
identified by LAUSD: recovery of funds paid to dismissed
employees.
Making such a choice to preclude judicial review of a MIRS
order would be rational and consistent with the Legislature’s
goals in enacting Assembly Bill No. 215, the bill which added the
MIRS procedure. The Legislature wanted to streamline the
procedures for discipline and dismissal to make them more cost
16
effective. 8 Omitting judicial review would both streamline
proceedings and reduce the costs and delay involved in pursuing
such review.
Judicial review of MIRS orders might enable school
districts to recoup some payments made to employees, as LAUSD
seeks to do here. However, because changing the MIRS
procedure to allow judicial review is a public policy argument, it
should be addressed to the Legislature. Perhaps LAUSD
recognizes this, as it has not fully developed its argument in this
regard. There is nothing in the record to indicate how many
MIRS orders are granted, or how many of the employees who
obtain a grant are ultimately dismissed on substantiated charges
in section 44939. Similarly, there is no evidence of the costs to
the school districts of pursuing such review, which will almost
certainly not be uniformly favorable to the school district or
always result in successful collection of the payments made to the
employees.
8 Subdivision (c) was added to section 44939 by Statutes
2014, chapter 55, section 8, effective January 1, 2015 with the
passing of Assembly Bill No. 215. Section 1 of Assembly Bill No.
215 states: “The Legislature finds and declares both of the
following: [¶] (a) Pupils, educators, school administrators, school
boards, and school district employees need a certificated
employee dismissal process that is both fair and efficient. [¶] (b)
This act is intended to revise existing statutes in a manner that
will update and streamline the procedures for certificated
employee discipline and dismissal, making it more cost effective
and reducing the time necessary to complete the dismissal
process.”
17
In sum, LAUSD has failed to show that in adding the MIRS
procedure, the Legislature intended school districts to be able to
recover payments to subsequently dismissed employees. If
LAUSD believes such recovery should be permitted through
judicial review of MIRS orders or otherwise, it should address the
Legislature.
B. Code of Civil Procedure Section 1094.5 Does Not Authorize
Review of a MIRS Order.
LAUSD contends that review of the MIRS ruling is
available under Code of Civil Procedure section 1094.5, which
provides for limited judicial review “into the validity of any final
administrative order or decision made as the result of a
proceeding in which by law a hearing is required to be given,
evidence is required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal,
corporation, board, or officer[.]” (Code. Civ. Proc., § 1094.5,
subd. (a).) LAUSD made this same claim in the trial court, but
the trial court found LAUSD had provided no discussion of the
section nor any relevant case authority, thereby forfeiting the
claim.
LAUSD does not address the court’s forfeiture argument
and has not remedied the defects identified by the trial court. It
has not provided any reasoned argument or relevant case law.
Specifically, LAUSD has failed to offer any theory as to how Code
of Civil Procedure section 1094.5, subdivision (a), which applies
to any decision in which “evidence [was] required to be taken,”
would apply to a MIRS proceeding, which is expressly limited to
the allegations of the Statement of Charges. Any reliance by
LAUSD on the definitions in Code of Civil Procedure section
1094.6 is misplaced. Subdivision (e) of section 1094.6 defining
18
the subject matter of decisions reviewable under section 1094.5,
does not override the requirement of 1094.5 that the decision be
“made as the result of a proceeding in which . . . evidence [was]
required to be taken.” 9 (§ 1094.5, subd. (a).)
C. LAUSD Has Not Shown an Act in Excess of or Without
Jurisdiction, and So Cannot Obtain Judicial Review on
That Basis.
Although it makes this argument under the heading “The
Merits of LAUSD’s First Amended Petition,” LAUSD contends
that when an ALJ acts in excess of and without jurisdiction, a
court is permitted to grant relief even if administrative remedies
have not been exhausted. LAUSD claims that is the situation
here: the ALJ lacked jurisdiction to hear the MIRS because
Essah did not file and serve the MIRS within 30 days of notice, as
section 44939 specifies. Assuming for the sake of argument that
an otherwise unreviewable act is reviewable if it is made in
excess of or without jurisdiction, we would find that LAUSD has
not shown the ALJ acted in excess of or without jurisdiction.
LAUSD does not discuss section 44939 MIRS procedures in
the context of Article 3 and does not cite any relevant analogous
case law. At most, LAUSD points out that the word “shall” in the
Education Code means “mandatory.” Section 44939, however,
9 Section 1094.6, subdivision (e) of the Code of Civil
Procedure states: “decision means a decision subject to review
pursuant to Section 1094.5, suspending, demoting, or dismissing
an officer or employee, revoking, denying an application for a
permit, license, or other entitlement, imposing a civil or
administrative penalty, fine, charge, or cost, or denying an
application for any retirement benefit or allowance.” (Code Civ.
Proc., § 1094.6, subd. (e).)
19
does not provide any consequences for failing to meet this
“mandatory” deadline. LAUSD has not provided any legislative
history showing the Legislature intended the ALJ to lose
jurisdiction of a late-filed MIRS. Absent such unknown history,
there is no reason to think the Legislature intended that an
employee, for whose benefit the MIRS proceeding exists, would
completely lose her right to a MIRS hearing if she files and serves
the MIRS a few days late, particularly where, as here, the ALJ
finds the delay excusable. Although section 44944 makes clear
that the Legislature intended to require speedy dismissal
proceedings, 10 a MIRS motion is completely separate from the
dismissal proceedings, and the grant or denial of the MIRS has
no effect on the dismissal proceedings. Thus, the draconian
measure LAUSD proposes is not supported by the overall
statutory time requirements for dismissal proceedings.
Contrary to LAUSD’s broad claims, there is no legal
authority supporting the proposition that a party’s failure to
comply with a mandatory filing and service deadline necessarily
deprives a court (or administrative body) of jurisdiction to act on
the motion, or creates a bar to relief. As the cases cited by
LAUSD do show, such a deprivation or bar may occur in some
circumstances. None of those circumstances are relevant here.
In three of the four cases cited by LAUSD, the consequence
of the failure to comply with a statutory deadline was spelled out
in the statute itself. (Silver v. McNamee (1999) 69 Cal.App.4th
269, 272, fn. 2 [considering Code of Civil Procedure section 364,
which provides “[n]o action . . . may be commenced unless the
10 Even so, the statute permits extensions of the required
start and completion times for good cause.
20
defendant [health care provider] has been given at least 90 days
prior notice of the intention to commence the action”]; Douglas v.
Willis (1994) 27 Cal.App.4th 287, 290 [considering court rule
which provided: “After the time has passed for the motion to
strike or tax costs . . . the clerk shall enter costs on the
judgment”]; Sprague v. County of San Diego (2003)
106 Cal.App.4th 119, 130 [considering Government Code section
66499.37 which expressly provided: “Any action or proceeding . . .
shall not be maintained by any person unless the action or
proceeding is commenced and service of summons is effected
within 90 days after the date of the decision. Thereafter all
persons are barred from any action or proceeding or any defense
of invalidity or unreasonableness of the decision or of the
proceedings, acts, or determinations.”].) Similar consequences
are not set out in section 44939.
The fourth case cited by LAUSD is not based on a specific
deadline, although one existed in a court rule. The court in that
case found a judgment of dismissal void because due process
requires notice to a plaintiff before a dismissal, and notice was
not properly given. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th
503, 511.) Notice to the opposing party is not an issue on this
appeal.
LAUSD offers no cogent argument for applying these
disparate and dissimilar cases, involving specific consequences
outlined by statute for specifically delineated proceedings, to the
facts before us in this appeal. Because LAUSD has failed to show
that the ALJ in this case lacked jurisdiction to decide the MIRS,
we need not consider its claim that such a lack of jurisdiction
would be reviewable by writ proceedings.
21
D. Because Judicial Review Is Not Authorized, We Do Not
Consider the Remainder of LAUSD’s Arguments.
Because we find that a MIRS order is not reviewable, we do
not consider LAUSD’s contentions about the merits of the order.
We also do not consider LAUSD’s proposed remedies for what it
claims is error in issuing the MIRS order. To be clear, because
the ALJ reversed the suspension, LAUSD is not entitled to
restitution for the salary and other payments LAUSD made to or
on behalf of Essah in the period between the MIRS ruling and the
final decision on the merits. LAUSD is not entitled to a
declaratory judgment because there is no justiciable controversy
concerning whether a teacher must return money received as a
result of an “erroneous” MIRS order. This is because courts have
not been tasked with reviewing such an order to determine error
and because the Legislature has chosen not to provide a way to
recover payments when an employee is ultimately ordered
dismissed.
22
DISPOSITION
The trial court’s judgment is affirmed. The court awards no
costs on appeal.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
GRIMES, J.
PERLUSS, J. *
* Presiding Justice of the Court of Appeal, Second Appellate
District, Division Seven, assigned to Division Eight by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
23