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Court of Appeal, First District, Division 3, California.

Barbara CAMPBELL et al., Plaintiffs, Appellants and Respondents, v. Vernon I. ARMSTRONG et al., Defendants, Respondents and Appellants.

Civ. 27729.

Decided: June 13, 1972

William M. Siegel, County Counsel, by Leland D. Stephenson, Deputy County Counsel, San Jose, for appellants and respondents. LaCroix & Schumb, by Joseph G. Schumb, Jr., San Jose, for respondents and appellants.

The individual defendants are the trustees and superintendent of Campbell Union High School District, which is the real party defendant.

Plaintiffs are kindergarten teachers, each teaching a ‘one-session’ class, requiring 3 hours of class time per day. Until the 1962–3 school year, defendant district had only ‘two-session’ kindergarten classes. A surplus of students in that year required the addition of one ‘one-session’ class, and others were added in later years. Teachers conducting two sessions daily were required to arrive at school at 8:30 a. m. and remain until 3:45 p. m. District regulations required full-time teachers to be at school from 8:30 a. m. to 3:45 p. m. Plaintiffs, teaching but one session per day, were required to arrive at 8:30 a. m. and remain until 12 noon, conducting a class for three hours of that time. Each agreed to be paid for the one-session employment at a rate which provided at least half the annual pay of two-session kindergarten teachers. On December 4, 1967, they filed their petition for writ of mandate to compel the district to pay them the same compensation it paid to those who taught two sessions daily. The district's pleading of the defense of waiver was repeatedly struck by the trial court, and the case went to trial upon other issues. Peremptory writ directed payment to plaintiffs of the full salary of two-session teachers for the academic year 1964–5, but denied recovery for earlier years they had taught. (The pay of one-session kindergarten teachers had been fixed at full time by district action for the 1965–6 year and those following.) The district appeals from the judgment as a whole. Plaintiffs appeal from that portion of the judgment ruling that the statute of limitations bars recovery for years preceding 1964–5.

Absent the defense of waiver, the decision is correct. The Education Code provides (§ 13503) that every person employed by ‘the district * * * for not less than the minimum schoolday for each day * * * during the school year is a full-time employee and his compensation shall be fixed accordingly.’ Section 11003 specifies that the ‘minimum schoolday for pupils of kindergartens, * * * is 180 minutes inclusive of recesses.’ Section 13525 requires each school board to pay not less than a fixed minimum annual salary to each person employed ‘for full time,’ and for less than full time an annual salary proportionate to that paid for full time. The penultimate paragraph of section 13525 provides that “[f]ull time' means not less than the minimum schoolday for each day the schools of the district are maintained during the school year.'

In sum, these statutory provisions appear to authorize part-time employment of school teachers, but reach the result, somewhat odd to laymen, that one required to be at the kindergarten but 3 1/2 hours per day shall be paid the same salary as is paid to one present 7 1/4 hours per day. This, however, is the clear dictate of the Education Code, and thus is the applicable law.

There remains, however, the question whether the district was improperly denied the right to assert waiver of the statutory benefits by plaintiffs. But one case (Heckley v. Board of Education, 53 Cal.2d 218, 1 Cal.Rptr. 4, 347 P.2d 4) is directly in point. Plaintiff there was also a kindergarten teacher. She had refused a full-time position teaching two classes per day (8:45 a. m. to 3:30 p. m.), but accepted appointment to teach one session (9 a. m. to 12 n.). The code then, as now, provided that “full time' means not less than the minimum schoolday,' and fixed the ‘minimum schoolday’ for kindergarten at 180 minutes. The court held that ‘by accepting her part-time contract,’ the teacher ‘waived the provision of * * * the Education Code, fixing the schoolday at 180 minutes and * * * [the provision] fixing the minimum salary * * *. By her agreement she became a part-time teacher and entitled only to * * * one half of the district's full time salary.’ (Id. p. 221, 1 Cal.Rptr. p. 6, 347 P.2d p. 6.)

Plaintiffs-respondents, however, point out that waiver is the intentional relinquishment of a known right. In this they are entirely correct (Roesch v. De Mota, 24 Cal.2d 563, 572, 150 P.2d 422). But, they say, the district's pleading of waiver was defective in that it failed to allege that they knew of their right under the statutes to receive full-time salary for 180 minutes teaching per day. Heckley, however, fails to require such subjective knowledge of the statutory right. Although the teacher there had been offered and had refused appointment as a two-session teacher, the opinion in no way suggests that she had, when she entered upon the one-session employment, any knowledge of the 180-minute full-time rule of the statutes. Hence we cannot hold that such direct subjective knowledge of the statutory scheme is essential to the waiver. Under Heckley, the waiver issue was properly raised by the district, which should have been permitted to try it.

But, appellants argue, waiver is now barred by a specific statute (Ed.Code, § 13338.1), adopted in 1961. That section provides ‘* * * any contract or agreement, express or implied, made by any employee to waive the benefits of this chapter or any part thereof is null and void.

‘Notwithstanding provisions of this or any other section of this code, governing boards of school districts may employ persons in positions requiring certification qualifications on less than a full-time basis.’

If only the first paragraph had been enacted, there is no question that the section would bar the defense of waiver. The parties agree that introduction of this bill was sparked by the decision in Heckley.

It appears that, as originally introduced, the bill contained only the first paragraph. The second paragraph was added by amendment before the bill was passed. That added paragraph appears to eliminate application of the first paragraph to the problem here presented, since it sanctions employment ‘on less than a full-time basis.’ Appellants argue that ‘full-time basis' merely means an employment for less than the time fixed as a minimum day by the code—in this instance 180 minutes. But if that be the proper construction of ‘less than full-time basis' in section 13338.1, then that paragraph but restates the previously existing rule (Ed. Code, § 13525). In construing a legislative enactment ‘significance should be given, if possible, to every word, phrase, sentence and part of an act’ (People v. Western Air Lines, Inc., 42 Cal.2d 621, 638, 268 P.2d 723, 733, as quoted in Select Base Materials v. Board of Equalization, 51 Cal.2d 640, 645, 335 P.2d 672). Obviously, such effect will not be given if we construe the second paragraph of section 13338.1 as but a redundant restatement of a statute which had long been in effect at the time § 13338.1 was adopted. The first paragraph bars waiver of the ‘benefits of this chapter’ (Chapter 2 of Division 10 of the Education Code). That chapter covers, in addition to salaries, issuance, revocation and suspension of certificates; resignation, dismissal and leaves of absence; and a number of other subjects of broad and direct interest to teachers. Both paragraphs can be given effect if the bar of waiver is construed to run to all these rights, and the second paragraph excepts from the first only the right to receive full-time pay for teaching less than the full day required of other teachers in the district but still equalling the minimum required by statute (here 180 minutes per day). While this construction doubtless falls short of the desires of the original sponsors of the bill, it does give effect to the act ultimately adopted by the majority.

Plaintiffs, on their appeal, urge that the three-year statute of limitations applied by the trial court (Code Civ.Proc. § 338, subd. 1) is not applicable, but that the action is governed by the statute allowing four years upon an action on a written contract (Code Civ.Proc., § 337, subd. 1) or is barred only three years after discovery of the mistake (Code Civ.Proc. § 338, subd. 4). But, although plaintiffs' contracts incorporated the provisions of the Education Code, it is clear that this action is upon a liability created by statute (Raymond v. Christian, 24 Cal.App.2d 92, 115, 74 P.2d 536). The case upon which plaintiffs most heavily rely (Fry v. Board of Education, 17 Cal.2d 753, 761, 112 P.2d 229) does not aid them, because it does not question applicability of the three-year limitation period. The ‘fraud or mistake’ statute does not apply. No fraud is asserted, and the mistake here, if any, was solely as to construction of the statute, a matter of law and not fact.

The trial court also held that, although the action was filed December 4, 1967, the three-year statute did not bar recovery for the entire school year 1964–5. District, in its appeal, asserts that plaintiffs should not recover for the portion of the school year falling before December 4, 1964. We cannot agree. It is true that teachers in the district were paid monthly. But, by statute, their appointments are for a school year (Ed.Code, § 13258). Salary is an annual compensation but may be paid in 10, 11 or 12 installments, or monthly (Ed.Code, §§ 13517–13519). Under an annual contract for monthly payments, the statute runs from the dates of termination of the last contract preceding the statutory period, and not from that of each monthly payment (Rosborough v. Shasta River Canal Co., 22 Cal. 556, 562). Although this is an old case, and the statement above relied upon is but dictum, the case has recently been cited with approval on the limitations issue by the Supreme Court (Fry v. Board of Education, supra, 17 Cal.2d 753, 761, 112 P.2d 229). Plaintiffs could recover the annual compensation for three years, including the full year 1964–5 for which they were misclassified. A number of cases relied upon by the district on this point (Dillon v. Board of Pension Commissioners, 18 Cal.2d 427, 429, 116 P.2d 37; Skaggs v. City of Los Angeles, 43 Cal.2d 497, 500, 275 P.2d 9; Abbott v. City of Los Angeles, 50 Cal.2d 438, 463, 326 P.2d 484; Henry v. City of Los Angeles, 201 Cal.App.2d 299, 324, 20 Cal.Rptr. 440) are inapplicable because each deals with a pension payable monthly for life. They do not apply to an annual employment calling for periodic payments of the annual compensation. Nor are they aided by the decision they most emphasize (Fry v. Board of Education, supra, 17 Cal.2d 753, 761, 112 P.2d 229). The present point was neither raised nor discussed there. The teachers were respondents. The sole holding is that the three-year statute applied.

The judgment is reversed and the case remanded for trial of the issue of waiver. Defendants to recover costs on appeal.

DRAPER, Presiding Justice.


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