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Court of Appeal, Second District, Division 2, California.

CALIFORNIA TEACHERS ASSOCIATION, on behalf of its members, Petitioner and Appellant, v. SANTA MONICA COMMUNITY COLLEGE DISTRICT and Dr. Richard Moore, Superintendent, Santa Monica Community College District, and President, Santa Monica Community College, Respondents and Respondents.

Civ. 51719.

Decided: March 14, 1978

Robert M. Dohrmann, Howard M. Knee, Schwartz, Steinsapir, Dohrmann & Krepack, Los Angeles, for petitioner and appellant. Jones & Matson, Urrea C. Jones, Jr., Pasadena, for respondents and respondents.

Respondent Santa Monica Community College District employes a significant number of teachers whose teaching assignments are limited to 60 percent or less of the hours per week considered a full-time assignment for regular (permanent) employees having comparable duties. Most of the part-time teachers are employed for the full school year and, typically, are hired year after year. They are not substitute teachers whose responsibility is to teach a class where the regularly assigned teacher is absent but instead assume the primary responsibility for one or more classes. They are denominated by respondent as temporary employees under the language of the fourth paragraph of Education Code section 13337.5.1

Appellant California Teachers Association in its representative capacity on behalf of its members who were employed as such temporary teachers by respondent filed its first amended petition for writ of mandate and its motion for peremptory writ of mandate on September 10, 1976. Through its petition and motion, appellant sought directions that respondent classify such teachers as contract or regular employees, depending on their length of service with respondent, that respondent reemploy them as contract or regular employees for the 1976-1977 school year and that they be awarded up to four years back pay, with interest, equal to the difference between their salaries as temporary employees and the salaries to which they would have been entitled as contract or regular employees. An alternate writ of mandamus (in response to appellant's original petition) was issued on August 9, 1976. Respondent filed its return and answer on September 17, 1976. Following trial on October 21 and December 6, 1976, the court made its notice of intended decision and memorandum opinion on December 10, 1976 and its judgment dated February 7, 1977 discharging the alternative writ and denying the petition for peremptory writ. Appellant filed its notice of appeal from the judgment March 28, 1977.

Appellant raises numerous points which it urges establish error in the trial court's judgment. We address them seriatum as they are presented to us in appellant's opening brief.


Appellant, relying on two cases, Balen v. Peralta Junior College Dist. (1974), 11 Cal.3d 821, 114 Cal.Rptr. 589, 523 P.2d 629, and Ferner v. Harris (1975), 45 Cal.App.3d 363, 119 Cal.Rptr. 385, maintains that the provisions of Education Code section 13337.5 and case law interpreting it require us to reverse the trial court's decision. In Balen, Balen was hired in 1965 as an hourly instructor to teach speech in an evening program at a community college and was continuously rehired in the same position for four and one-half years. He was subsequently dismissed on the basis he was a temporary employee, dischargeable at will. On appeal from a summary judgment in favor of the defendant college district in an action brought by Balen to compel the district to set aside its dismissal, the Supreme Court concluded Balen could only be properly classified as a probationary (contract) instructor, since section 13337.5 was not added to the Education Code until 1967, after Balen had by other statutory provisions acquired the probationary status, and could not operate retroactively to divest or impair that status. Other language in the decision relating to the proper construction of section 13337.5 was clearly not essential to nor part of the court's conclusion regarding Balen's status and is not binding on our determinations here.2

In Ferner, Ferner had been employed full-time by a community college for three academic years beginning in 1967. He was subsequently reemployed for the school year 1970-71 on a 13/45ths part-time basis and was terminated at the end of that school year due to a reduction in school services. During the summer of 1972 a full-time position for which he was qualified became vacant and was applied for by him. The college refused a full-time appointment and offered a 13/45ths assignment. Thereafter, Ferner sought and obtained a writ of mandate compelling a full-time appointment.

The Court of Appeal affirmed pointing out that Ferner was a part-time tenured (regular) employee under applicable Code sections based upon his three years of full-time employment followed by his initial 13/45ths reappointment. Under these circumstances and in accordance with the provisions of section 13448, that court held Ferner was entitled to the position which was vacant, i. e., the full-time position, rather than the portion of that position which accorded with his part-time tenure.

Answering appellant's further contention in Ferner, the court briefly set out its understanding of the fourth paragraph of section 13337.5 as that which appellant here urges. But the Ferner court's observation, like that in Balen, was not part of its decision, since it had accepted the conclusion Ferner was a regular tenured employee based upon reappointment after three years of working as a full-time teacher. Clearly under those facts, section 13337.5 could not have been an issue in the case and the discussion concerning it was dictum.

Our position respecting the correct interpretation of section 13337.5 and the effect of the decisions in Balen and Ferner is in accord with that taken in Peralta Federation of Teachers v. Peralta Community College Dist. (1977), 69 Cal.App.3d 281, 138 Cal.Rptr. 144. There, twelve teachers employed by defendant college district sought a writ of mandate compelling defendant to grant them tenured status and to compensate them at a certain rate of pay. The trial court granted the writ to classify some of the teachers as permanent and others as contract employees, but denied the petition as it related to pay. Of the twelve, three teachers were employed prior to November 8, 1967, the date of the statutory change effected by section 13337.5, and nine were employed thereafter. Respecting the post-November 8, 1967 employees, the court reasoned in pertinent part:

“Nine of the twelve individual plaintiffs were hired later than November 8, 1967, the effective date of section 13337.5 and, of course, the nonretroactivity element which entered the Balen case and which we have recognized as to the three pre-1967 employees, is inapplicable.

“The teachers reason that section 13337.5, while expanding the classification of temporary employees, was designed to prevent perpetuation of nontenured status by imposing a limitation of two years during which an employee hired under this section could be classified as temporary.

“The district, on the other hand, contends that the fourth paragraph of section 13337.5, pertaining to employees who undertake less than 60 percent of a full-time workload, creates independent authority, separate and distinct from the first and third paragraphs, for long-term classification of temporary employees. We decide that the district's position is correct.

“By its own language, section 13337.5 authorizes community colleges to employ two types of employees to be designated as temporary: (1) those hired for up to a year to meet certain specified needs, and (2) those hired on a part-time basis at less than 60 percent of a full-time workload. This is recognized in Balen v. Peralta Junior College Dist., supra, wherein the court characterized section 13337.5 as follows: ‘Section 13337.5, however, substantially changes the classification system by expanding the temporary designation to include not only designated yearly employees, but other instructors who do not meet the new minimum workload requirement for attaining probationary status.’ (11 Cal.3d at pp. 828-829, fn. 8 (114 Cal.Rptr. 589, 523 P.2d 629).)

“The first group of employees, then, are those hired to meet unexpected enrollment needs or to fill vacancies caused by an employee's leave of absence or long-term illness. (s 13337.5, par. 1.) These employees ‘so employed’ are subject to a time limitation. (s 13337.5, par. 3.)

“The second group is the one in which the plaintiffs fit. The last paragraph of section 13337.5 commences with a sweeping renunciation of any statutory, contractual or inferential authority to classify these teachers who carry less than the 60 percent workload as other than temporary employees. ‘Notwithstanding any other provisions to the contrary,’ it reads. But whatever may be the statute or provisions under which these teachers claim contract (probationary) or regular (permanent) status, that statute or provisions must be ‘to the contrary.’ Being to the contrary, it is ineffectual.”


Appellant also contends that in any event, Education Code section 13337.5 was repealed by implication through the terms of former section 13346.40, which provided:

“(a) The governing board of a school district may employ temporary employees pursuant to Section 13329 and 13337.5. Substitute employees may be employed pursuant to Section 13336.

“(b) For the purposes of the sections specified in subdivision (a), a ‘probationary employee’ is a ‘contract employee’, and a ‘permanent employee’ is a regular employee.

“(c) This section shall cease to be operative on September 1, 1974, and as of that date is repealed.”

This contention is without support. Section 13346.40 became effective in September 1972. At the same time, the Legislature enacted the so-called “Community College Act,” beginning at section 25490. This Act by its terms includes section 13337.5. Moreover, legislation effective April 30, 1977 creating the reorganized Education Code contains section 87482 which is substantially the same as former section 13337.5. Under these circumstances it is clear to us that while section 13346.40 expired September 1, 1974, section 13337.5 did not.


Appellant urges that applicable sections of the Education Code evidence an intent by the Legislature to recognize and give effect to faithful service by teachers through the status of tenure. While we do not disagree with the philosophical soundness of this general proposition, we hold it can be properly realized only by virtue of the specific provisions of the Education Code. Prior to the Code's reorganization, regular or tenured status was achieved following service for three complete consecutive school years (section 13304). A complete school year for this purpose was defined as probationary or contract service to the extent of 75 percent of the number of days the regular schools of the district in which the teacher was employed were maintained (section 13328) or as 75 percent of the number of hours considered as a full-time assignment for permanent employees (section 13328.5). Under these provisions, teachers situated as are those represented by appellant do not meet the requirements specified and no further requirement appears to us which would compel respondent to alter its classification procedure.


Similarly, we are of the view there is no conflict with state or federal constitutional provisions dealing with equal protection. While it is true classifications may not be created or maintained unless there is a reasonable basis for distinction, it is equally settled a statute need not treat as identical persons or things which are different. Here it was submitted in support of respondent's position there are numerous activities and responsibilities assumed by other employees of respondent which are not shared or undertaken by those represented by appellant. The trial court concluded on the basis of evidence before it that a rational distinction existed which did not offend constitutional requirements and in this we cannot say it erred.


We regard the analysis to this point as determinative also of the question of appellant's right to payment of any particular salary. Having held that section 13337.5 properly establishes the temporary status of the teachers represented by appellant, it follows necessarily that their compensation may be determined accordingly and that such compensation is not subject to revision based on salary schedules of other groups of teachers not classified as temporary. (s 13502.)

The judgment is affirmed.


1.  Section 13337.5 provides as follows:“Notwithstanding the provisions of Section 13337, the governing board of a school district maintaining a community college may employ as a teacher in grade 13 or grade 14, for a complete school year but not less than a complete semester or quarter during a school year, any person holding appropriate certification documents, and may classify such person as a temporary employee. The employment of such persons shall be based upon the need for additional certificated employees for grades 13 and 14 during a particular semester or quarter because of the higher enrollment of students in those grades during that semester or quarter as compared to the other semester or quarter in the academic year, or because a certificated employee has been granted leave for a semester, quarter, or year, or is experiencing long-term illness, and shall be limited, in number of persons so employed, to that need as determined by the governing board.“Such employment may be pursuant to contract fixing a salary for the entire semester or quarter.“No person shall be so employed by any one district for more than two semesters or quarters within any period of three consecutive years.“Notwithstanding any other provision to the contrary, any person who is employed to teach adult or community college classes for not more than 60 percent of the hours per week considered a full-time assignment for permanent employees having comparable duties shall be classified as a temporary employee, and shall not become a probationary employee under the provisions of Section 13446.”

2.  In its footnote 9, the court stated: “Because we have decided the Legislature did not intend that section 13337.5 apply to Balen, we need not reach the question whether procedural due process, once given, is a vested right.” (11 Cal.3d 821, 830, 114 Cal.Rptr. 589, 594, 523 P.2d 629, 634.) (Emphasis added.)

ROTH, Presiding Justice.

COMPTON and BEACH, JJ., concur.

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