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

Eunice C. JONES, Petitioner, v. SUPERIOR COURT, Riverside County, Respondent, PALM SPRINGS UNIFIED SCHOOL DISTRICT, et al., Real Parties in Interest.


Decided: December 10, 1986

Parker and Covert, Spencer E. Covert, Jr. and Margaret A. Chidester, Santa Ana, for petitioner. No appearance for respondent. Gary Scherotter, Palm Springs, for real parties in interest.

Petitioner Eunice C. Jones seeks a writ of mandate in this court compelling the superior court to vacate an order granting reconsideration of its order directing the issuance of a writ of mandate.   The writ in the superior court would have ordered real parties Palm Springs Unified School District (District) and its board of directors (the board) to rescind its orders terminating petitioner as superintendent of schools for the District.   This petition presents questions of the mootness of extraordinary relief and of a court's discretion to grant reconsideration of an order under Code of Civil Procedure section 1008, subdivision (a).


This matter previously came before this court, on an appeal from a demurrer to a petition for writ of mandate which generated an opinion published as Jones v. Palm Springs Unified School Dist. (1985) 170 Cal.App.3d 518, 216 Cal.Rptr. 75.   We restate those facts where appropriate.

By written contract dated January 12, 1983, the District employed petitioner as superintendent of schools for a term commencing June 1, 1983, and continuing to June 30, 1986.   The contract provided, inter alia, that:

“6. ․ The Superintendent shall perform the duties of her position as prescribed by law․

“7. This contract is subject to all applicable laws of the State of California and to the lawful rules and regulations of [the] California State Board of Education and the Governing Board of the District.   Such laws, rules and regulations are hereby made a part of the terms and conditions of this contract as though herein set forth.”

The contract also provided that it could be changed or terminated by mutual consent of the parties in accordance with Education Code section 35031.

“Board of education policy section 8115 provides in pertinent part as follows:

‘Management/Confidential Employee Evaluation

‘The Management/Confidential employees evaluation procedures of the District are intended to identify, reinforce, and improve skills, attitudes and abilities that result in the achievement of District goals and objectives as one means to insure quality control of district programs.

‘Management/Confidential employees whose performance is less than satisfactory may be terminated or demoted through the evaluation process.’

“Administrative rule 8115(a), provides that ‘The performance of each Management/Confidential employee shall be evaluated, in writing, at least once in each school year.’

“Board policy section 8117 describes the management team policy as follows:

‘Suspension, Dismissal, Demotion of Management/Confidential Employee

‘It is the desire of the Board that no Management/Confidential employee shall be deprived of his/her position without cause.

‘Systematic procedures shall be established for the suspension, dismissal or other change of status of Management employees which entitle Management/Confidential personnel to all the elements of due process.’

“Administrative rule 8117(a) establishes the procedure for suspension, dismissal and demotion of management/confidential employees.

“[Petitioner] performed her employment under the written contract until May 23, 1984.   On that date, without any prior notice, the District's board president [Susan Marx] in a closed session of the board instructed [petitioner] that she had three options:  (1) to take a classroom assignment and work out her contract at the current contract salary ($50,000), (2) resign, or (3) negotiate with the board.

“[Petitioner] advised the board that she considered her performance effective and would not consider the three options.   Three members of the five-member board then voted to retain legal counsel to relieve [petitioner] of her duties.   Following the closed session, [Ms. Marx] announced the action to the public and it was reported in ‘The Desert Sun’ newspaper of May 24, 1984.

“[Petitioner alleged that] no evaluation of [her] performance had ever been prepared as required by board policy section 8115 and administrative rule 8115(a).

“Although [petitioner] sent a written protest to the board members on May 29, 1984, the board adopted [a motion relieving her of her superintendent duties and preparing to assign her to another position].


“On June 4, 1984, the board took further action ordering [petitioner] to remove her personal property from the office by close of business on June 7, 1984, and vacate the premises ‘until such time as she is reassigned or until a court of competent jurisdiction directs the Board of Education to modify its action or the Board of Education shall find petitioner insubordinate and shall immediately terminate her.’

“[Petitioner] complied under protest and filed her petition for writ of mandate on June 7, 1984, seeking reinstatement to her position as superintendent of the District.”  (Jones v. Palm Springs Unified School Dist., supra, 170 Cal.App.3d at pp. 521–523, 216 Cal.Rptr. 75.)   The trial court sustained the District's demurrer, and petitioner appealed.

We filed our opinion in that appeal on July 23, 1985.   We reversed the judgment sustaining the demurrer and held, inter alia, that

“[Petitioner's] employment contract is clearly governed by the Education Code.


“[Petitioner] has a four-year contract which incorporated and expanded [by board policy sections 8115 and 8117 and administrative rules 8115(a) and 8117(a) ] the evaluation provisions [of the Education Code].  Once the board expanded its regulations to require the evaluation prior to demotion and specify the grounds for demotion, and made those regulations part of [petitioner's] contract, she acquired a ‘legitimate claim of entitlement’ to the benefits of that contract, including the rights established by the board rules and regulations.


“We conclude that school districts have the authority to grant predemotion rights to administrative employees during the term of their contracts, and that the allegations of [petitioner's] complaint sufficiently allege that the District has granted such rights in this case.   We further conclude that the complaint sufficiently alleges a violation of those rights to state a cause of action in mandamus.

“The judgment sustaining the demurrer without leave to amend is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.”  (Id., at pp. 525, 527–528, 529, 216 Cal.Rptr. 75.)

After the case was remanded to the trial court, on October 16, 1985, the court entered an order overruling the demurrer and granting real parties “20 days to file a Response to the Petition.”   Real parties filed an unverified answer on November 4, 1985.1

Petitioner filed a notice of application for peremptory writ of mandate on November 13, and was assigned a trial date of December 6, 1985.   On November 22, real parties filed their return.   The return contained no declarations by any member of the board.   Real parties' counsel filed a declaration and requested a jury trial pursuant to Code of Civil Procedure section 1090.   Petitioner filed a memorandum of points and authorities in opposition to the jury trial request on December 3.

The petition for the writ came on for hearing on December 6, 1985.   Petitioner submitted her evidence by way of declarations, but real parties objected to the introduction of exhibits, contending they were entitled to a jury trial.   The court deferred a ruling on the motion for a jury trial, took the entire cause under submission and indicated it would probably rule within a week.

Eighty-three days later, on February 27, 1986, the court issued a minute order directing petitioner to prepare a formal order directing issuance of a peremptory writ commanding the rescission of the motion adopted on May 29, 1984, and reinstating petitioner “to the position of Superintendent of the Respondent School District until such time as Respondent Board shall comply with the Board's policies as indicated by the above-cited precedent or expiration of the contract between Petitioner and Respondent Board.”   Counsel for petitioner thereafter filed a proposed order, which order the trial court never signed or caused to be entered on the judgment rolls.

On March 3, 1986, real parties filed a motion for reconsideration and requested a temporary stay.   Accompanying the motion was a declaration by board member Patricia Larson dated April 4, 1983, and an excerpt from the deposition of District employee Gary Knutson, dated March 31, 1983.   Petitioner subsequently filed an opposition to this motion for reconsideration.

On March 19, 1986, real parties filed a supplement to the motion for reconsideration containing the declarations of James Workman and board members Minna Maryanov, Susan Marx, and Michael McCabe.

The court heard the motion for reconsideration on March 21, 1986, and took the matter under submission.

Ninety days later, on June 19, 1986, the court issued a minute order granting the motion to reconsider its previous order granting the writ.   The order stated:  “In view of the new evidence presented to the Court, it appears that there are factual issues which must be resolved at trial.”

Petitioner petitioned this court for a writ of mandate directing the trial court to vacate the order granting reconsideration of the previously-ordered writ, inasmuch as the reconsideration constituted an abuse of discretion.   We issued an alternative writ, and the matter is now before us for disposition.


I. Mootness

 At the outset, the petition for writ of mandate in this court presents an issue of mootness.   Real parties argue that because petitioner's contract for employment expired June 30, 1986, the relief sought, that is, petitioner's reinstatement under the terms of her contract, is no longer possible.

However, we consider the matter to fall within the exception providing consideration on the merits where the cause “presents questions of continuing public interest that are likely to recur․”  (John A. v. San Bernardino City Unified School Dist. (1982) 33 Cal.3d 301, 307, 187 Cal.Rptr. 472, 654 P.2d 242.)   As noted in our previous decision, we determined that the petition presented important questions of predemotion rights;  the statewide importance of these rights and their vindication is underscored by the fact that the Association of California School Administrators filed an amicus brief in the previous appeal.   Moreover, the previously-ordered writ commanded rescission of the board's resolution of May 29, 1984, and the propriety of that resolution is not mooted by the expiration of petitioner's contract.   We therefore turn to the merits.

II. Order for Reconsideration

 Petitioner contends that under the circumstances of this case the trial court abused its discretion in granting an order for reconsideration of it previously-ordered writ of mandate.   For two reasons, we agree.

The order granting the reconsideration states:  “In view of the new evidence presented to the Court, it appears that there are factual issues to be resolved at trial.”   The “evidence” referred to is comprised of the declarations of present and former members of the board, and of deposition testimony of and a declaration by school officials who aided the drafting of board policies 8115 and 8117.   Real parties erroneously argue, and the trial court apparently believed, that the interpretation of these policies and their drafters' intents present questions of fact.

Nevertheless, “The rules of statutory construction are applicable to local ordinances [citations] and the construction of a statute or ordinance is a question of law for the court.”  (Aptos Seascape Corp. v. County of Santa Cruz (1982) 138 Cal.App.3d 484, 497, 188 Cal.Rptr. 191;  accord, Wilson v. County of Santa Clara (1977) 68 Cal.App.3d 78, 84, 137 Cal.Rptr. 78.)   Consequently, the testimony of a school board member, just as the testimony of a legislator with respect to what he or she thought was intended by statute or local regulation, is irrelevant.  “ ‘ “In construing a statute, we do not consider the motives or understandings of individual legislators who cast their votes in favor of it.” ’ ”  (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 863, 191 Cal.Rptr. 800, 663 P.2d 523, emphasis added, citations omitted.)   Similarly, the testimony of an expert witness on a question of law or the interpretation of a statute is improper and inadmissible.  (Communications Satellite Corp. v. Franchise Tax Bd. (1984) 156 Cal.App.3d 726, 747, 203 Cal.Rptr. 779.)

In light of these rules, no new issue of fact was presented by the motion for reconsideration, and it was therefore an abuse of discretion to grant the motion in reliance on an erroneous understanding of the law.

 Moreover, we conclude that it was an abuse of discretion to grant a reconsideration of the previously-ordered writ in light of real parties' disregard of the procedural rules governing reconsideration of subsequent orders, here a writ of mandate.

The motion for reconsideration was made under Code of Civil Procedure section 1008, subdivision (a).   That subdivision states:  “When an application for an order has been made to a judge, or to the court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within ten (10) days after knowledge of the order and based upon an alleged different state of facts may, make application to the same judge who made the order, to reconsider the matter and modify, amend or revoke the prior order.”  (Emphasis added.)

This court construed this statute in Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1008, 183 Cal.Rptr. 594.  “ ‘ “Public policy requires that pressure be brought upon litigants to use great care in preparing cases for trial and in ascertaining all the facts.   A rule which would permit the re-opening of cases previously decided because of error or ignorance during the trial would in a large measure vitiate the effects of the rules of res judicata.”  (Rest., Judgments, § 126, com. a.)’  [Citation.]  When the requirement of section 1008 that the application for reconsideration be upon an ‘alleged different state of facts' is viewed in light of this public policy, it is evident that the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.   In short, the moving party's burden is the same as that of a party seeking new trial on the ground of ‘newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.’  [Citation.]”  (Blue Mountain Development Co. v. Carville, supra, 132 Cal.App.3d at pp. 1012–1013, 183 Cal.Rptr. 594, emphasis added.)

This rule is subject to two qualifications.  “First, if the original order is an interim rather than a final ruling, it may be corrected at any time up to final judgment․  [Citation.]”  (Ibid.)   The second qualification is that “If a party seeks reconsideration of a final order ․ it would be error to grant the motion in the absence of newly discovered evidence because a trial court has no jurisdiction to correct judicial error in the making of a final order except as provided by statute.  [Citation.]”  (Id.)

As in Blue Mountain, in this case we need not determine whether the order from which the writ was taken was final inasmuch as it is not contested that there was no newly discovered evidence.   The declaration of former board member Patricia Larson was dated April 8, 1983.   Mr. Knutson's deposition was dated March 31, 1983.   This evidence was nearly three years old at the time of its production, and real parties have advanced no satisfactory explanation of its failure to produce this irrelevant evidence at the hearing on December 6, 1985.   The declarations of board members Minna Maryanov, Susan Marx and Mike McCabe all also lack any explanation for not being produced at the December 6, 1985 hearing.2  The closest approach to such explanation appears in the declaration of real parties' counsel that “None of the proceedings which have occurred since the court granted twenty days to file a response called for [real parties] to present evidence to support its position on the issues raised by the Answer.”   However, this statement, under penalty of perjury, impliedly assumes that the hearing on December 6, 1985 was no more than a hearing on the motion for jury trial.   This assumption is false;  real parties therefore wholly failed to meet their burden to demonstrate an “alleged different state of facts.”   Under these circumstances the trial court's reconsideration of its previous order was an abuse of discretion.3


For the foregoing reasons, we conclude that the trial court abused its discretion in granting reconsideration of its previously-ordered writ of mandate compelling petitioner's reinstatement under her contract or the board's rescission of its demotion.

Let a writ of mandate issue compelling the trial court to vacate its order dated June 19, 1986, granting reconsideration of its previous order, and to enter a new and different order denying the motion to reconsider and reinstating its previous order granting a peremptory writ.

The alternative writ is discharged.


1.   See Code of Civil Procedure section 1089 [return to writ to be by demurrer or verified answer].

2.   These later three declarations are also irrelevant to any issue here presented.   Each concerns itself primarily with the declarant's personal criticisms and opinions of petitioner and of petitioner's response to these personal criticisms.   Personal opinions of board members are of no legal significance, inasmuch as Education Code section 35164 provides that a school district's governing board “shall act by majority vote of all the membership constituting the governing board.”  (Emphasis added.)

3.   We also observe with disfavor real parties' noncompliance with California Rules of Court, rule 323, requiring three days' written notice of a motion to present oral evidence at a civil law and motion hearing.   Our disfavor is in perfect harmony with real parties' citation to Mann v. Cracchiolo (1985) 38 Cal.3d 18, 28–29, 210 Cal.Rptr. 762, 694 P.2d 1134.   There the court observed, “ ‘The salutary purpose of such rules regulating the filing of opposing papers is to “․ ensure that ․ meaningful argument can take place and an informed decision rendered at the earliest convenient time.” ’ ”  (Citations omitted, emphasis added.)

CAMPBELL, Presiding Justice.

McDANIEL and RICKLES, JJ., concur.