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

H. Pat BALEN, Plaintiff and Appellant, v. PERALTA JUNIOR COLLEGE DISTRICT, Defendant and Respondent.

Civ. 31198.

Decided: December 17, 1973

Dan W. Lacy, Law Offices of Strauss & Neibauer, Modesto, for appellant. Richard J. Moore, County Counsel, County of Alameda, Kelvin H. Booty, Jr., Deputy County Counsel, County or Alameda, Oakland, for respondents.

Plaintiff H. Pat Balen appeals from the judgment entered upon the trial court's order granting respondent's motion for summary judgment.

The relevant facts disclose that appellant, a certificated public school teacher, was employed by respondent for the 1965–1966 school year as an hourly instructor to teach speech in the evening program at Laney College. He was reappointed to the same position for the school years 1966–1967, 1967–1968, 1968–1969, and the first semester of 1969–1970. In December 1969 appellant was verbally notified that the course he had taught in the previous years had been phased out and accordingly his contract would not be renewed for the next semester. It is undisputed that appellant had been considered by respondent as a temporary employee throughout his employment, and toward the close of each school year his employment was terminated by a written notice and resolution of the governing board. Ti is also without dispute that appellant was discharged as a temporary employee without the benefit of a hearing.

Based upon the foregoing facts, appellant brought this action against respondent. In his petition for a writ of mandate and complaint for damages appellant purported to state two causes of action. In the first cause of action appellant asserted that he had been employed by respondent district as a teacher and was dismissed as of February 1970 as a temporary employee notwithstanding the fact that he should have been classified as a probationary employee in the school years of 1965–1966, 1966–1967 and 1967–1968, and as a permanent employee from the 1968–1969 school year on. In the body of the first cause of action appellant asked for lost salary and in the prayer he sought reinstatement as a permanent employee and related related relief. In the second cause of action appellant alleged that his employment was terminated because of his political beliefs and participation in the activities of the Republican Party. He complained that as a result of his discharge he suffered personal injuries, lost salary, and incurred medical expenses; and in his prayer he asked for general damages, medical expenses and lost wages. In the second cause of action of the amended petition appellant additionally asserted deprivation of his First and Fourteenth Amendment rights.

On October 1, 1971, respondent moved for summary judgment, contending that there were no triable issues of fact because appellant, who in the interim had been elected as a member of the board of trustees of respondent district, could not lawfully be reinstated as an employee of the district, and that appellant, as a temporary employee, was dischargeable at will. The trial court granted respondent's motion upon the latter ground, and the present appeal followed.

Appellant argues on appeal that his case presented triable issues of fact and that therefore the granting of motion for summary judgment was erroneous as a matter of law. In essence, appellant contends he qualified as a permanent, or at least as a probationary employee, and could have been discharged only for cause and after notice and hearing (Ed. Code,1 §§ 13442, 13443; Lunderville v. Emery Unified Sch.Dist. (1968) 262 Cal.App.2d 459, 68 Cal.Rptr. 768). In addition, appellant maintains that even if classified as a temporary employee he was entitled to relief because section 13446, providing that the governing boards of school districts may dismiss temporary employees at the pleasure of the board, is unconstitutional, and that since he alleged political motivation behind his firing, he became entitled to a hearing as a matter of constitutional law. We find no merit to any of appellant's contentions.


Appellant's first claim that pursuant to section 13304 he became a permanent employee by operation of law when he was rehired by respondent for his fourth consecutive school year in 1968–1969 is patently mistaken. Section 13304 provides that ‘Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for three complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.’ (Emphasis added.)

The cases under this section, along with sections 13328 and 13328.5, make it unerringly clear that in order to qualify as a permanent employee the certificated teacher must fulfill two requirements: first, he must serve three consecutive school years as a probationary employee (Baldwin v. Fresno City, etc., School District (1954) 125 Cal.App.2d 44, 269 P.2d 942; Hogsett v. Berverly Hills School District (1936) 11 Cal.App.2d 328, 53 P.2d 1009); second, the consecutive school years must be complete within the meaning of sections 13328 and/or 13328.52

The record at hand conclusively shows that appellant failed to comply with either of these requirements. As will be discussed below, appellant did not qualify as a probationary employee during the term of his service, which failure by itself is fatal to his claim. Furthermore, it is likewise established that appellant did not carry the workload required under sections 13328 and/or 13328.5, and, therefore, did not serve complete school years within the meaning of the statute. The record reveals that while the full-time assignment of permanent teachers having similar duties was 15 hours per week in the district, instead of the requisite ‘75 percent’ appellant taught merely 20 percent (three hours) of the full-time teaching load per week in 1965–1966 and 1966–1967, and 40 percent (six hours) per week in 1967–1968. For this latter reason appellant was also precluded as a matter of law from being classified as a permanent employee under section 13304.

Appellant nonetheless contends that even if he was not entitled to the classification of a permanent employee, he should have been classified as a probationary employee because he was hired in 1965–1966, and thereafter for a school year (§ 133343 ), and/or because his duties continued beyond the first three school months (§§ 133374 , 134465 ). Appellant's contention, however, is directly contradicted by section 13337.5, which provides in express terms that notwithstanding any other provision to the contrary, any person who is employed to teach adult or junior 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. Since appellant taught junior college classes and his workload at no time reached 60 percent of the full-time assignment of permanent teachers having comparable duties in the district, he did not qualify as a probationary employee under the statute.

While appellant admits, as he must, that section 13337.5 would constitute a valid bar to his statutory classification as a probationary employee, he insists that said section is inapplicable to his case. In essence, appellant, relying mainly on the opinion of the Legislative Counsel,6 argues that section 13337.5, enacted in 1967, has no retroactive effect, and that therefore his right to the probationary status which had been acquired under the previous saw in 1965–1966 remained unaffected. We are unable to accept appellant's reasoning.

First of all, it must be emphasized that the overriding policy consideration permeating the statute is that school districts should be given a free hand in classifying newly hired teachers (Rutley v. Belmont Elementary Sch. Dist. (1973) 31 Cal.App.3d 702, 707 Cal.Rptr. 671). Secondly, the statutory scheme regulating the tenure of public school teachers makes it abundantly clear that the probationary classification is not a l'art pour l'art status but rather an intermediate step created for the purpose of achieving permanency and providing a testing ground to determine the newly hired teacher's capabilities. As the court put it in Wood v. Los Angeles City School Dist. (1935) 6 Cal.App.2d 400, 402–403, 44 P.2d 644, 645: ‘The probationary plan was provided so that the school board would gave an opportunity to determine, before a teacher should be given a lifetime position in teaching children in the district, whether or not that teacher would be thoroughly satisfactory. Her ability to impart instruction, her power to hold the attention of the pupils and to maintain order, her power to inculcate principles of righteousness and loyalty and to fill the children with a sense of their obligations to society and to country, all these and other qualifications must be carefully investigated and determined, before the district is obliged to decide and to take the important step of employing her permanently. For such purpose the probationary classification is created.’ (See also: Rutley v. Belmont Elementary School Dist., supra, 31 Cal.App.3d at p. 706, 107 Cal.Rptr. 671.) The teacher who comes into a classroom for a short period of time is, of course, not exposed to the aforementioned task, and by the nature of the job performed he is more like a substitute teacher. Thus, the conclusion is inescapable that the pre-1967 statutory provisions which required that a teacher who was employed for a school year (§ 13334) or whose employment exceeded three months (§§ 13337, 13446) be classified as a probationary employee necessarily implied that such teacher be employed on a full-time rather than an inconsiderable part-time basis. Hence if follows that section 13337.5 was not intended to bring about in the law, but rather to clarify the existing law; therefore, under well recognized principles, it must be afforded retroactive effect (Martin v. California Mut. B. & L. Assn. (1941) 18 Cal.2d 478, 484, 116 P.2d 71; Vittal v. Long Beach Unified Sch. Dist. (1970) 8 Cal.App.3d 112, 120–121, 87 Cal.Rptr. 319).

Right to Hearing

The foregoing discussion makes it plain that appellant was properly classified as a temporary employee. The additional issues awaiting determination are, therefore, whether or not section 13446, which empowers the school board to fire a temporary employee at will, is unconstitutional, and whether or not a temporary employee who alleges political motivation for his discharge is entitled to a hearing under the Fourteenth and/or the First Amendments quite apart from the constitutionality of the statute.

The issue of the constitutionality of section 13446 can be summarily disposed of. It is far too well established to dispute that a public employee serving at the pleasure of the appointing authority can be removed without judicially cognizable good cause and the statute authorizing the same is constitutional (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 782–783, 97 Cal.Rptr. 657, 489 P.2d 537; Ball v. City Council (1967) 252 Cal.App.2d 136, 141, 60 Cal.Rptr. 139).

Addressing the second question, we refer to Perry v. Sindermann (1972) 408 U.S 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570, where the United States Supreme Court pointed out that the Fourteenth Amendment does not require an opportunity for a hearing before the renewal of a nontenured teacher's contract unless he can show that the decision not to hire him somehow deprived him of an interest in ‘liberty’ or that he had a ‘property’ interest in continued employment. Such deprivation of liberty is shown when the employer makes charges against the employee that might seriously damage his standing and associations in the community or when in declining to reemploy him, the employer imposes on the employee a stigma or other disability that forecloses his freedom to take advantage of other employment opportunities (Board of Regents v. Roth (1972) 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548). Deprivation of property interest in continued employment, on the other hand, is demonstrated only when the employee claims a formal or de facto tenure (Zumwalt v. Trustees of Cal. State Colleges (1973) 33 Cal.App.3d 665, 678, 109 Cal.Rptr. 344).

Examining the case at bench in the light of these principles, it clearly appears that appellant was employed on the basis of yearly contracts, and his discharge constituted no more than a failure to renew his contract for an additional term. Appellant at the same time failed to show that he had a formal or a de facto tenure and/or that he was tainted with a stigma that affected his good name, reputation, honor or integrity. To the contrary, the record is undisputed that after his dismissal from his employment, appellant was elected a member of the governing body of respondent, a fact strongly negating any suggestion of stigma. Under these circumstances appellant cannot complain that his rights to freedom and property under the Fourteenth Amendment were violated, or that respondent's failure to provide a hearing constituted violation of due process.

Turning to appellant's First Amendment claim, we concede that under generally recognized law the lack of contractual or tenure right to reemployment is immaterial to a free-speech right and the dismissal of a non-tenured employee may not be predicated on his exercise of First Amendment rights. However, it likewise bears emphasis that a non-tenured, temporary employee has the burden of showing that he, in fact, was dismissed for the reason that he exercised his constitutional rights (Perry v. Sindermann, supra; Bogacki v. Board of Supervisors, supra, 5 Cal.3d at pp. 778–779, 97 Cal.Rptr. 657, 489 P.2d 537). In the absence of such showing the courts will not intervene (Rosenfield v. Malcolm (1967) 65 Cal.2d 559, 563–564, 55 Cal.Rptr. 505, 421 P.2d 697).

Since the case at bench concerns an appeal from a summary judgment, appellant's duty to sustain the burden of proof must be viewed within the context of the principles laid down for the summary judgment proceeding. Accordingly, summary judgment is proper if the affidavits in support of the moving party are sufficient to sustain a judgment in his favor and his opponent does not by affidavit present any triable issue of fact. The affidavits of the moving party are strictly construed, those of his opponent are liberally interpreted, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785). However, the cases underline with equal force that since the object of the summary judgment proceeding is to discover proof, the adverse party cannot rely on his verified pleading alone, but must file an affidavit in opposition to the motion which must contain evidentiary statements (Schessler v. Keck (1956) 138 Cal.App.2d 663, 292 P.2d 314; Cowan Oil & Ref. Co. v. Miley Petroleum Corp. (1931) 112 Cal.App.Supp. 773, 780, 295 P. 504). As the court pointed out in Hayward Union, etc. School Dist. v. Madrid (1965) 234 Cal.App.2d 100, 118, 44 Cal.Rptr. 268, 279: “the sufficiency of the allegations of a complaint do not determine the motion for a summary judgment. Rather, it must be determined from the affidavits whether there exists a genuine issue as to any material fact. Often there is no genuine issue of fact, although such an issue is raised by the formal pleadings. Absent a genuine issue of fact as disclosed by the affidavits, a party is not entitled to proceed to trial and the court . . . may render a summary judgment.' (Emphasis added.)

When the affidavits at hand are viewed in light of the foregoing rules, it becomes evident that in its affidavit respondent stated sufficient facts to substantiate that appellant was a temporary employee and, as a consequence, dischargeable at will. At the same time, the counteraffidavit filed by appellant does not contain any allegation, let alone evidentiary fact or facts from which the trial court could conclude that he was a permanent or probationary employee. Likewise, the counteraffidavit is utterly devoid of any showing that appellant was fired for political reasons or that his dismissal was motivated by political considerations. Although appellant alleges in his affidavit that he has been a reasonably active Republican for many years, and one Miss Flora Kirschner, the head of the speech department, told him that his politics would not fit in at Laney College and she was afraid to recommend him for a full-time position because of his politics, there is a complete absence of any evidentiary statement that the governing body of respondent district knew of appellant's political activities, and even less that the act of his dismissal was based upon or motivated by politics.7

We conclude that, in the absence of evidentiary statements in the counteraffidavit, the allegations in appellant's amended petition that the termination of his employment was due to his political beliefs and his active participation in the activities of the Republican Party did not sufficiently raise a triable issue of fact, and the trial court properly granted respondent's motion for summary judgment.

In view of our conclusion, it is unnecessary to decide whether the granting of the motion was justified on the additional grounds that the only remedies sought by appellant were reinstatement as a permanent employee and damages, and/or that by failing to allege compliance with the procedure set forth in section 13443, subdivision (b),8 appellant waived his right to a hearing.

The judgment is affirmed.


FN1. Unless otherwise indicated, all code references will be made to the Education Code..  FN1. Unless otherwise indicated, all code references will be made to the Education Code.

2.  Section 13328 provides that ‘A probationary employee who, in any one school year, has served for at least 75 percent of the number of days the regular schools of the district in in which he is employed are maintained shall be deemed to have served a complete school year. In case of evening schools, 75 percent of the number of days the evening schools of the district are in session shall be deemed a complete school year.’Section 13328.5 set forth that ‘Notwithstanding Section 13328, a probationary employee employed by a junior college district or a junior college maintained by a unified or high school district who, in any school year consisting of two semesters or three quarters, has served more than 75 percent of the number of hours considered as a full-time assignment for permanent employees having similar duties in the junior colleges of the district in which he is employed, shall be deemed to gave served a complete school year.’ (Emphases added.)

3.  Section 13334 provides that ‘Governing boards of school districts shall classify as probationary employees, those persons employed in positions requiring certification qualifications for the school year, who have not been classified as permanent employees or as substitute employees.’ (Emphasis added.)

4.  Section 13337 sets forth in part that ‘Governing boards of school districts shall classify as temporary employees those persons requiring certification qualifications, other than substitute employees, who are employed to serve from day to day during the first three school months of any school term to teach temporary classes not to exist after the first three school months of any school term or to perform any other duties which do not last longer than the first three school months of any school term, or to teach in special day and evening classes for adults or in schools of migratory population for not more than four school months of any school term. If the classes or duties continue beyond the first three school months of any school term or four school months for special day and evening classes for adults, or schools for migratory population, the certificated employee, unless a permanent employee, shall be classified as a probationary employee. The school year may be divided into not more than two school terms for the purposes of this section.’ (Emphasis added.)

5.  Section 13446 reads in pertinent part that ‘A temporary employee who is not dismissed during the first three school months, or in the case of migratory schools during the first four school months of the school term for which he was employed and who has not been classified as a permanent employee shall be deemed to have been classified as a probationary employee from the time his services as a temporary employee commenced.’ (Emphasis added.)

6.  The opinion of the Legislative Council rendered upon special request on November 30, 1971, reads in part as follows: ‘It is our opinion that a court would not apply Section 13337.5 retroactively so as to transmute a teacher's pre-1976 classification from probationary to temporary employment. Such a retroactive application of Section 13337.5 would substantially affect the rights of a teacher who, prior to the enactment of Section 13337.5, was entitled to be classified as a probationary teacher and who could be dismissed for cause only. The is nothing in Section 13337.5 to indicate that it was intended to be applicable to employment rendered prior to its enactment. As a general rule of statutory construction, no statute is to be given retroactive effect unless the Legislature has expressly so declared (DiGenova v. State Board of Education (1962), 57 Cal.2d 167, 174, 18 Cal.Rptr. 396, 367 P.2d 856). This rule is especially true when the new enactment is one affecting substantive rights (State Compensation Insurance Fund v. Workmen's Compensation Appeals Board (1969). 1 Cal.App.3d 812, 820, 82 Cal.Rptr. 102).’

7.  The pertinent portions of appellant's affidavit are set out as follows:‘4. During my employment with the Peralta Community College District it became obvious that I was being passed over, when it came to the hiring of full-time personnel, even though I was qualified and got along well with students and college personnel. In the fall of 1969, I began organizing the part-time instructors in an effort to protect their and my interests in the District. I have been a reasonably active Republican for many years.‘5. On numerous occasions during the time that I was engaged by the District, I discussed the fact that I was not being considered for full-time positions with Miss Flora Kirschner, then head of the Speech Department. On many such occasions, Miss Kirschner told me that my politics would not fit in at Laney and that she was afraid to recommend me for a full-time position because of my polities even though she thought I was an eminently qualified teacher. This fear, she stated, stemmed from the fact that she feared she would not get tenure if she recommended me. . . .‘9. On or about December 17, 1969, I met with Robert Bailey, Ned Averbuck, Flora Kirschner, and Earl Robinson. I was then informed that my services were terminated because I did not fit in, because my services were not needed, and because of insufficient funds.’

8.  Section 13443, subdivision (b), provides that ‘The employee may request a hearing to determine if there is cause for not reemploying him for the ensuing year. A request for a hearing must be in writing and must be delivered to the person who sent the notice pursuant to subdivision (a), on or before a date specified therein, which shall not be less than seven days after the date on which the notice is served upon the employee. If an employee fails to request a hearing on or before the date specified, his failure to do so shall constitute his waiver of his right to a hearing. The notice provided for in subdivision (a) shall advise the employee of the provisions of this subdivision.’

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.

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