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Court of Appeal, Fifth District, California.

OAKDALE UNION SCHOOL DISTRICT, Plaintiff and Respondent, v. Marie SEAMAN, Defendant and Appellant.

Civ. 1494.

Decided: October 11, 1972

Respondent complains because we did not mention the letter appellant's husband wrote to Senator Teale in July, 1969, after appellant's first application for a leave of absence was denied in June; in the letter Mr. Seaman stated ‘Mrs. Seaman, permission or not, intends to attend the conference.’ Respondent asserts that because Mrs. Seaman was appellant's agent, his words were her words and hence appellant's declared intention to attend the conference, when coupled with her second application for a leave of absence, was ‘unmistakable evidence of ‘persistence’ as defined in Buss v. J. O. Martin Co., 241 Cal.App.2d 123, (50 Cal.Rptr. 206).'

Mr. Seaman did not testify and his statement to Senator Teale, objected to by appellant, was hearsay. Before admitting the letter into evidence the trial judge remarked, ‘I don't think there has been an agency shown’; the judge admitted the letter ‘only for the purpose of impeachment.’ Respondent's argument, therefore, ignores the law and the trial judge's ruling.

Respondent also contends that our opinion is inconsistent with Board of Education v. Swan, 41 Cal.2d 546, 261 P.2d 261.1 The Swan case, overruled by the Supreme Court on another point, holds merely that certain conduct may constitute more than one ground for the dismissal of a permanent teacher. The Supreme Court, however, did not suggest that a single violation of a school board's regulations, unaccompanied by a continuous attitude of insubordination, is persistent conduct within the ambit of subparagraph (g) of section 13403 of the Education Code. On the contrary, the Swan opinion makes it very clear that a single act of disobedience, unless accompanied by a continuous attitude of insubordination, if anything, is unprofessional conduct within the purview of subparagraph (a) of section 13403.

The petition for rehearing is denied.


1.  See Bekiaris v. Board of Education, 6 Cal.3d 575, 588, 100 Cal.Rptr. 16, 493 P.2d 480.


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Docket No: Civ. 1494.

Decided: October 11, 1972

Court: Court of Appeal, Fifth District, California.

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