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Mohammad Entezampour v. North Orange County Community College District

December 6, 2010

MOHAMMAD ENTEZAMPOUR, PLAINTIFF AND APPELLANT,
v.
NORTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT, DEFENDANT AND RESPONDENT.



Appeal from a judgment of the Superior Court of Orange County, Janet C. Pesak, Temporary Judge. (Super. Ct. No. 30-2009-00125910)

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

(Pursuant to Cal. Const., art. VI, § 21.) Reversed.

INTRODUCTION

In July 2003, plaintiff Mohammad Entezampour was hired by defendant North Orange County Community College District (the District), as dean of the science, engineering, and mathematics division at Cypress College. In February 2007, Entezampour was notified that the District would not be renewing his employment as dean for the following academic year. He sought to exercise the so-called "retreat rights" provided to certain administrators under Education Code section 87458. (All further statutory references are to the Education Code, unless otherwise specified.) Section 87458 provides that an administrator "shall have the right to become a first-year probationary faculty member once his or her administrative assignment expires or is terminated," upon the satisfaction of statutorily enumerated conditions.

When the District refused to reassign Entezampour to a faculty member position, he filed a first amended verified petition for a writ of mandate (the petition) seeking to compel his reassignment. The trial court sustained the District's demurrer to the petition, without leave to amend, and Entezampour appeals.

We reverse. In order to obtain writ relief, a petitioner is required to show (1) a clear, present, and usually ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right in the petitioner to the performance of that duty. (Code Civ. Proc., §§ 1085, subd. (a), 1086.) Here, the petition alleged facts showing Entezampour was an administrator who had been relieved of his administrative duties and otherwise satisfied the conditions for reassignment to a first-year probationary faculty member position under section 87458 and a policy adopted by the District to implement that section. The petition further alleged the District failed to comply with section 87458 by refusing to so reassign Entezampour. He alleges he was qualified for two open faculty positions and he had submitted an application for each of those positions. The trial court therefore erred by sustaining the District's demurrer to the petition.

BACKGROUND

I.

THE PETITION

The petition alleged the following facts in support of Entezampour's request that the trial court issue a writ of mandate compelling the District to reassign him to a first-year probationary faculty member position pursuant to section 87458. Entezampour was hired by the District in July 2003 to serve as the dean of the science, engineering, and mathematics division at Cypress College, for which the District "is the duly constituted and acting governing board." Entezampour's position constituted an administrative position as defined by section 87002, subdivision (b), and thus was not part of the classified service. He had been hired as an administrator in conformity with the District's policy governing the hiring of administrators, had completed at least two years of satisfactory service for the District, and was not a tenured member of the faculty at the time he was hired. He was also employed by the District as a part-time evening biology instructor at Cypress College.

On February 12, 2007, Entezampour submitted an application package for a general biology instructor position that had become open due to the retirement of an instructor and for a newly created anatomy and physiology instructor position; both positions were at Cypress College. Entezampour alleged he was "exceptionally well qualified" for those positions because he had a master's degree and Ph.D. in biology; he had 24 years of teaching experience in the sciences, including biology; and he had been teaching biology at Cypress College on a part-time basis. The deadline for submitting applications for the two positions was February 13.

On February 14, 2007, Entezampour received a notice that the District would not renew his employment contract as dean of the science, engineering, and mathematics division, effective June 30; the decision not to renew was for reasons other than for cause. Entezampour repeatedly demanded that the District honor his retreat rights under section 87458 and reassign him to a first-year probationary faculty member position. The District did not place Entezampour in either of the open instructor positions and did not otherwise reassign him to a faculty member position. The petition alleged that the person selected for the general biology instructor position was a recent graduate with limited teaching experience which did not include teaching biology, and alleged the person selected for the anatomy and physiology instructor position was also less qualified than Entezampour for that position. The petition stated there were open positions at other college campuses within the District, for which Entezampour was qualified.

The petition alleged that by failing to reassign Entezampour, the District violated not only section 87458 but also its own "Board Policy #2003," which was entitled "Educational Administrators' Retreat Rights," had been adopted by the District in 1993, and was in effect at the time of the District's notice that it would not renew Entezampour's administrative position assignment. The petition expressly incorporated Board Policy #2003.

The petition alleged that, based on the facts alleged, Entezampour had a mandatory right of retreat back to the classroom under section 87458 and Board Policy #2003 and that the District failed to discharge its official duty of reassigning him. The petition alleged Entezampour had no plain, speedy, or adequate remedy, in the ordinary course of law, to address the District's failure to perform its official duty.

II.

THE TRIAL COURT SUSTAINS THE DISTRICT'S DEMURRER TO THE PETITION WITHOUT LEAVE TO AMEND; ENTEZAMPOUR APPEALS.

The District filed a demurrer to the petition on the ground it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer without leave to amend, stating: "In light of the holding in Wong v. Ohlone College (2006) 137 Cal.App.4th 1379, 1[3]83-1[3]84 . . . , petitioner cannot establish entitlement to relief under Code of Civil Procedure ...


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