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Michael Sullivan v. Centinela Valley Union High School District

April 7, 2011

MICHAEL SULLIVAN, PLAINTIFF AND APPELLANT,
v.
CENTINELA VALLEY UNION HIGH SCHOOL DISTRICT, DEFENDANT AND RESPONDENT.



Los Angeles County Super. Ct. No. BS116275 APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed.

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

CERTIFIED FOR PUBLICATION

Probationary teacher Michael Sullivan appeals from a judgment denying his petition for writ of mandamus. The petition sought to compel the Centinela Valley Union High School District (the District) to reinstate Sullivan with permanent status (tenure) because he alleged the District was one day late in serving him with notice that he would not be reelected for the following school year.

Education Code section 44929.21*fn1 states a teacher on probationary status is deemed to have been reelected for the next succeeding school year unless notified by March 15 of the decision not to re-elect him or her. If the governing school board does not meet the statutory deadline, a second year probationary teacher, like Sullivan, attains tenure. (§ 44929.21, subd. (b).) Since the statute is silent as to the method to serve notice, Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258, 269 (Hoschler) held the notification requirement of section 44929.21, subdivision (b) "contemplates personal service or some other method equivalent to imparting actual notice." Hoschler, however, did not discuss whether an exception applies for willful evasion of service.

In this case, we hold a probationary teacher may not assert failure of service under section 44929.21, subdivision (b) when the probationary teacher avoids service where, under the circumstances, it reasonably can be inferred the teacher did so with knowledge of the non-retention decision. Based upon substantial evidence in the record, we invoke the exception here, and affirm on those grounds. We also affirm on the alternative grounds that Sullivan had actual notice, as required by Hoschler, before the statutory deadline.*fn2

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

Sullivan was a probationary teacher employed by the District for the 2006-2007 school year, and reemployed for the 2007-2008 school year as a second-year probationary teacher. He taught business at Hawthorne High School.

On March 10, 2008 (all further calendar references are to that year), the District's director of human resources met with Sullivan. She notified him the District had determined not to recommend his re-election to the Board of Education (the Board). Sullivan was informed he had the option to resign.

On March 10, Sullivan told his principal at Hawthorne High School that he learned the District would not re-elect him for the following school year.

Sullivan called in sick on March 11 and 12.

On March 13, Sullivan appeared at the Board meeting. Among the agenda items was the re-election of probationary employees. Sullivan and attorney Milton Kerlan, Jr., addressed the Board on Sullivan's behalf and asked the Board to reconsider and re-elect Sullivan. The minutes reflect Kerlan spoke on Sullivan's behalf as his attorney, but Kerlan later claimed he spoke as Sullivan's "personal friend." Sullivan left the Board meeting when the Board went into its first closed session, and he did not return until after the meeting had adjourned.

After approving the decision not to re-elect Sullivan in the closed session, the Board publicly announced its decision.*fn3 Sullivan, identified by his employee identification number, was one of the probationary employees not reelected. Kerlan was present when the Board announced its decision, while Sullivan stood outside.*fn4

The following day, March 14, Sullivan called in sick. The District sent him a letter via certified mail, return-receipt requested at his address on file with the District. The letter informed Sullivan that the Board ...


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