IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
January 27, 2011
JANE DOE, PLAINTIFF AND RESPONDENT,
LINCOLN UNIFIED SCHOOL DISTRICT ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. 39-2008-00195383-CU-WM-STK)
The opinion of the court was delivered by: Hull ,j.
Doe v. Lincoln Unified School Dist.
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Fictitiously-named plaintiff Jane Doe is a permanent, certificated teacher employed by defendant Lincoln Unified School District (the District). After plaintiff was placed on involuntary medical leave due to concerns over her mental fitness, she brought this action against the District and others to force them to initiate proceedings under Education Code section 44942, which provides a detailed procedure for determining if a teacher is suffering from a mental illness and requires that the teacher be placed on paid administrative leave during the process. (Further undesignated section references are to the Education Code.) Approximately one month later, the District voluntarily initiated such proceedings. The trial court ultimately concluded defendants violated section 44942 and issued a peremptory writ of mandate requiring defendants to pay plaintiff her full salary during the period she was forced to use accrued medical leave credits.
In Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758 (Doe v. Lincoln I), we affirmed the judgment of the trial court, concluding that, under the circumstances, the District was required to initiate proceedings under section 44942 rather than force plaintiff to use accrued medical leave credits.
Plaintiff sought an award of attorney fees under section 44944, subdivision (e)(2), and Code of Civil Procedure section 1021.5. The trial court concluded plaintiff is entitled to attorney fees under the former but not the latter, and awarded her $29,715. Defendants appeal.
We conclude plaintiff is not entitled to attorney fees under section 44944 which, by its express terms, does not apply to proceedings under section 44942. We therefore reverse the order awarding attorney fees.
Facts and Proceedings
The facts of this matter may be briefly stated. A more detailed description can be found in Doe v. Lincoln I.
Plaintiff is a permanent certificated teacher who has been employed by the District for many years. Following an incident in the spring of 2008, plaintiff was placed on paid administrative leave. (Doe v. Lincoln I, supra, 188 Cal.App.4th at p. 763.) On August 13, 2008, the District requested that plaintiff provide a fitness for duty certificate before the start of the upcoming school year. Instead, plaintiff demanded that the District commence proceedings under section 44942. (Ibid.)
At the beginning of the 2008-2009 school year, plaintiff remained on paid administrative leave. However, on September 18, the District notified plaintiff she was being placed on medical leave, thereby requiring her to use accrued medical leave credits. On October 9, plaintiff filed this action against the District, the District's governing board (the Board), and the District's superintendent, seeking a writ of mandate to compel defendants to proceed under section 44942. On November 12, the Board voted to proceed under section 44942 voluntarily. (Doe v. Lincoln I, supra, 188 Cal.App.4th at p. 764.)
The trial court ultimately granted plaintiff's petition for writ of mandate, concluding defendants violated section 44942 by not invoking that section before placing plaintiff on medical leave. The court issued a peremptory writ of mandate requiring defendants to pay plaintiff her full salary during the period she was forced to use accrued medical leave credits. (Doe v. Lincoln I, supra, 188 Cal.App.4th at p. 765.)
We affirmed the underlying judgment of the trial court. (Doe v. Lincoln I, supra, 188 Cal.App.4th at p. 774.) We concluded that, where a certificated teacher is not permitted to return to work due to a suspicion of mental illness, the governing board of the school district must proceed under section 44942. (Id. at p. 771.)
Plaintiff moved for an award of attorney fees in the amount of $29,715. She claimed a right to such fees under both section 44944 and Code of Civil Procedure section 1021.5. Defendants opposed the motion, arguing section 44944, on its face, applies only where there has been a hearing before a Commission on Professional Competence, which did not occur here. Defendants further argued plaintiff is not entitled to attorney fees under Code of Civil Procedure section 1021.5, because her action did not vindicate an important public right. The trial court ultimately granted plaintiff's motion under section 44944 alone.
The Education Code prescribes detailed procedures for the dismissal or suspension for cause of a certificated employee, including a hearing before a Commission on Professional Competence pursuant to section 44944. Section 44932, subdivision (a), sets forth 12 statutory grounds for dismissal, including "[p]hysical or mental condition unfitting him or her to instruct or associate with children" (§ 44932, subd. (a)(6)). Following any required notice and opportunity to correct (see § 44938), the process of dismissal or suspension begins in the manner described in section 44934. It reads: "Upon the filing of written charges, duly signed and verified by the person filing them, with the governing board of the school district, or upon a written statement of charges formulated by the governing board, charging that there exists cause, as specified in Section 44932 or 44933 [unprofessional conduct], for the dismissal or suspension of a permanent employee of the district, the governing board may, upon majority vote, . . . give notice to the permanent employee of its intention to dismiss or suspend him or her at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing as provided in this article. . . ."
Any notice of dismissal or suspension pursuant to section 44934 must be in writing and served on the employee. (§ 44936.) "[I]f the employee does not demand a hearing by filing a written request for hearing with the governing board, he or she may be dismissed or suspended without pay for a specific period of time at the expiration of the 30-day period." (§ 44937.) In the event the employee demands a hearing, "the governing board shall have the option either (a) to rescind its action, or (b) schedule a hearing on the matter." (§ 44943.)
If a hearing is requested and the action of the governing board is not rescinded, the hearing must be commenced within 60 days of the employee's demand in accordance with section 44944. (§ 44944, subd. (a).) In particular, the hearing "shall be conducted by a Commission on Professional Competence. One member of the commission shall be selected by the employee, one member shall be selected by the governing board, and one member shall be an administrative law judge . . . ." (§ 44944, subd. (b).)
Subdivision (e) of section 44944 governs the allocation of expenses for the hearing. Subdivision (e)(2) reads: "If the Commission on Professional Competence determines that the employee should not be dismissed or suspended, the governing board shall pay the expenses of the hearing, including the cost of the administrative law judge, any costs incurred under paragraph (2) of subdivision (d), the reasonable expenses, as determined by the administrative law judge, of the member selected by the governing board and the member selected by the employee, including, but not limited to, payments or obligations incurred for travel, meals, and lodging, the cost of the substitute or substitutes, if any, for the member selected by the governing board and the member selected by the employee, and reasonable attorney's fees incurred by the employee." (Italics added.)
By its express terms, section 44944, subdivision (e)(2), applies only where the Commission on Professional Competence has conducted a hearing and has determined that the employee should not be dismissed or suspended. (§ 44944, subd. (e)(2).) Furthermore, section 44944, in general, applies only to "a dismissal or suspension proceeding initiated pursuant to Section 44934." And, as described above, section 44934 concerns the initiation of dismissal or suspension proceedings based on charges as specified in section 44932 or 44933.
Section 44942, on the other hand, sets forth a separate procedure in the case of a certificated employee who is suspected of suffering from mental illness. As we explained in Doe v. Lincoln I: "Upon suspension or transfer under section 44942, the governing board of the school district must provide the employee with 'a written statement of the facts giving rise to the board's belief, and an opportunity to appear before the board within 10 days to explain or refute the charges.' (§ 44942, subd. (b).) If, after such appearance, the board decides to continue the suspension, or if the employee does not appear, the employee is given an opportunity to be examined by a panel of three psychiatrists or psychologists selected by the employee from a list provided by the board. (§ 44942, subd. (c).)
"The panel's examination shall be at the school district's expense and must take place within 15 days of the suspension or transfer. (§ 44942, subd. (d).) A written report must be submitted by the panel to the board within 10 days and shall contain a finding as to 'whether the employee is suffering from mental illness of such a degree as to render him or her incompetent to perform his or her duties.' (Ibid.) During this process, '[t]he employee shall continue to receive his or her regular salary and all other benefits of employment.' (§ 44942, subd. (c).)
"If the panel concludes the employee should be permitted to return to his or her prior duties, the board must reinstate the employee to his or her position and expunge from the employee's personnel file all references to the suspension and the panel's determination. (§ 44942, subd. (e).) If, on the other hand, the panel determines the employee is suffering from a mental illness sufficient to render him or her incompetent to perform his or her duties, the board may place the employee on mandatory sick leave for a period not to exceed two years. (§ 44942, subd. (f).)
"An employee placed on mandatory sick leave may immediately demand a hearing. If a hearing is demanded, the board must file a complaint in the superior court setting forth the charges against the employee and asking the court to determine if the charges are true and, if so, whether they constitute grounds for placing the employee on mandatory sick leave. (§ 44942, subd. (g).) If the court finds the employee was not incompetent to perform his or [her] duties at the time of the suspension and should not have been placed on mandatory sick leave, the employee must be reinstated to the same or a substantially similar position with full back salary, and any record of the suspension and the panel's report must be destroyed. (§ 44942, subd. (h).)
"If the court instead finds the employee was properly placed on mandatory sick leave, or if the employee fails to demand a hearing, the employee may, between six months and two years after being placed on mandatory sick leave, request a new panel of psychiatrists or psychologists to review the original conclusion. (§ 44942, subd. (i).) If the new panel concludes the employee should be permitted to return to work, the board must 'take immediate action to restore the employee to the position from which he or she was suspended or transferred or to a substantially similar position.' (§ 44942, subd. (j).) If, instead, the new panel confirms the original conclusion, the employee shall be continued on mandatory sick leave. Once the employee's total period of absence exceeds two years, the board must either rescind its action and reinstate the employee or serve the employee with a notice of intention to dismiss." (§ 44942, subd. (i).)" (Doe v. Lincoln I, supra, 188 Cal.App.4th at pp. 768-769.)
As noted above, section 44943 states that where an employee has been served with a notice of cause for dismissal or suspension and the employee requests a hearing, the governing board may either rescind the action or schedule a hearing pursuant to section 44944. Hence, only after all of the procedures described in section 44942 are exhausted may the governing board proceed with the additional procedures required for dismissal or suspension for cause. At that point, the matter is governed by the hearing procedures described above for dismissal or suspension for cause, including the requirement that the governing board pay the employee's attorney fees in the event the Commission on Professional Competence determines the employee should not be dismissed or suspended.
In concluding plaintiff is entitled to attorney fees under section 44944, subdivision (e)(2), despite the fact this matter has proceeded to date under section 44942, the trial court relied on Forker v. Board of Trustees (1984) 160 Cal.App.3d 13 (Forker). In Forker, the plaintiff, a school librarian, was told she would not be rehired for the 1981-1982 school year due to a reduction in library services. However, in August 1981, the board reinstated library services but refused to rehire the plaintiff due to incompetence. The plaintiff requested an evidentiary hearing, but the request was denied. She then filed a petition in the superior court for a writ of mandate compelling reinstatement. The court concluded the board abused its discretion and granted the requested relief, including an award of attorney fees. (Id. at p. 17.)
The Court of Appeal affirmed the award of attorney fees, remanding only for a determination of the reasonable amount. (Forker, supra, 160 Cal.App.3d at p. 21.) Despite the fact there had been no proceedings under section 44944 and no hearing before the Commission on Professional Competence, the court concluded the plaintiff was entitled to attorney fees under section 44944, subdivision (e). The court reasoned that, "[h]ad Forker not been laid-off as a result of a cut-back in librarian service, she could have been dismissed for incompetence only after the board's compliance with the requirements of notice, 90-day period to correct the faults, and hearing on the charges. (§§ 44938, 44944.)" (Id. at p. 19.) As for the fact this matter was resolved by judicial action rather than a hearing before the Commission on Professional Competence, the court explained: "Although  section [44944, subdivision (e),] does not specifically refer to attorney's fees upon a judicial review of the administrative action dismissing the employee, the effect of the judicial decision is to void the administrative action. Thus, an award of attorney's fees is within the literal terms of the statute when the employee prevails and obtains a writ of mandate directing reinstatement." (Id. at p. 21.)
The present matter is readily distinguishable from Forker. In Forker, the school board effected an end run around the normal procedures for dismissing a certificated employee for cause by first laying off the employee and then refusing to hire her back. Had the board proceeded as mandated, the employee would have been entitled to a hearing under section 44944. And because the employee ultimately prevailed on the merits, she was entitled to attorney fees under section 44944, subdivision (e).
In Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143 (Roybal), three psychologists were laid off due to decreased enrollment and requested a hearing, claiming the district deviated from normal seniority in order to retain board psychologists with advanced Spanish proficiency. After an administrative law judge rejected their claim, the plaintiffs filed a petition for writ of mandate. The trial court found for the plaintiffs, concluding the district was required to follow the normal layoff procedures based on seniority, rather than keeping less senior employees with superior bilingual skills. (Id. at p. 1146.) The plaintiffs then sought attorney fees under section 44944 and Code of Civil Procedure section 1021.5, and the court awarded fees under the latter. (Id. at pp. 1146-1147.)
The Court of Appeal reversed the award of attorney fees, concluding the plaintiffs failed to show they were entitled to fees under Code of Civil Procedure section 1021.5. The court also rejected the plaintiffs' claim under section 44944, specifically finding the matter distinguishable from Forker. The court explained: "Forker was a school librarian whose termination was purportedly based on a reduction in librarian services. Only months later, the school district reestablished the services but refused to rehire Forker because of her incompetence going back four years. The superior court properly found that the board had abused its discretion by refusing Forker's request for an evidentiary hearing, and it awarded her attorney fees under section 44944, subdivision (e). In affirming, the appellate court made it clear that this was not simply a layoff; the board had, in effect, dismissed Forker for cause under Education Code section 44932 without following the mandatory procedures set forth in Education Code sections 44938 and 44944. As the prevailing party Forker was therefore entitled to attorney fees under section 44944, subdivision (e)." (Roybal, supra, 159 Cal.App.4th at p. 1152.) By contrast, Roybal involved a straight layoff under section 44955, and that section contains no provision for the award of attorney fees.
In the present matter, we concluded in Doe v. Lincoln I that defendants were required to proceed under section 44942. As described above, compliance with section 44942 is a prerequisite to proceeding under section 44944. Only after a school board has run the gauntlet set forth in section 44942 for establishing that the employee is suffering from a mental illness of such a degree as to render him or her incompetent to perform his or her duties may the board proceed under section 44944 to dismiss or suspend the employee. In the present matter, based on the record before us, the proceedings have not reached that stage.
Section 44944, subdivision (e)(2), permits an award of attorney fees only where it is ultimately determined the employee should not be dismissed or suspended. Thus, even if section 44944, subdivision (e)(2), was otherwise applicable to the present matter, there has been no ultimate determination that plaintiff should not be dismissed or suspended. In Doe v. Lincoln I, we concluded only that defendants were required to proceed under section 44942, including placing plaintiff on paid administrative leave during the pendency of the proceedings. There has been no ultimate finding in plaintiff's favor, either by the Commission on Professional Competence or, as in Forker, by a court.
A prevailing litigant is entitled to an award of attorney fees only where specifically authorized by agreement, statute or other law. (Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) Here, there is no agreement, and section 44942 does not authorize an award of attorney fees. And under the circumstances presented, plaintiff is not entitled to rely on the attorney fees provision of section 44944. The trial court therefore erred in concluding otherwise.
We note in passing that plaintiff also sought attorney fees under Code of Civil Procedure section 1021.5, the private attorney general provision. That section permits an award of attorney fees to a successful litigant "in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or non-pecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." (Code Civ. Proc., § 1021.5.) The trial court concluded plaintiff did not meet the first requirement for application of that section. Plaintiff does not challenge this conclusion as an alternate basis for upholding the attorney fee award and, hence, we have no occasion to consider the issue.
The order awarding attorney fees to plaintiff is reversed. The matter is remanded to the trial court for entry of a new order denying plaintiff's motion. Defendants are awarded their costs on appeal.
BLEASE , Acting P.J.
© 1992-2011 VersusLaw Inc.