PERALTA FEDERATION OF TEACHERS LOCAL 1603 v. PERALTA COMMUNITY COLLEGE DISTRICT (1977)

Twelve teachers who had been employed by Peralta Community College District (supported by plaintiff federation of which they are members) sought writ of mandate to compel the district and its governing board 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 relates to pay. The district appeals from that portion of the judgment which has to do with classification and the teachers cross-appeal from the part which concerns compensation.

1. Preliminary Explanation

The district employs between 1200 and 1300 instructors at its five campuses. There are three classes of instructors: regular (‘permanent’ or ‘tenured’), contract (‘probationary’) and temporary.¹ Some regular and contract teachers are employed part time, and these are paid a salary prorated to the salary of a full-time teacher. Temporary teachers are paid a flat hourly rate which is less than the rate which the salaried employee receives; they do not receive certain fringe benefits which are accorded those of the two higher classes; they may be dismissed without notice or hearing.

Plaintiffs all work less than 60 percent of full time. They receive a written letter of notification from the district regarding their employment for the coming academic year. The letter states the instructor's potential assignment and specifies that his position is a temporary one. They are hired from quarter to quarter or from semester to semester, as the case may be. They are uniformly dismissed at the end of each year.

Because different questions of law are applicable to teachers hired at different times, it is necessary to divide the twelve individual plaintiffs into two categories and to consider each category separately. (This is not a class action.)

2. Teachers Employed Before November 8, 1967

Three of the plaintiffs have been employed year after year, but as temporary employees, annually discharged and rehired, commencing at dates earlier than the statutory changes (described below) of November 8, 1967. The trial judge ordered that the three plaintiffs be classified as part-time regular employees.

In order to become a regular (permanent) employee, one must first become a contract (probationary) employee. Prior to September 1, 1972, three years' service as a contract (probationary) employee was needed as a basis for permanent (tenured) status.

Two questions, then, are before us at this point: (1) Did these three plaintiffs become contract (probationary) employees? and (2) did they attain tenure as regular employees? The district argues that the teachers may rightly claim neither status, although probably the denial of probationary status is based only on asserted procedural deficiencies in the manner of asserting their rights.

Prescinding from the procedural matters, which are discussed below, we deem the first question to have been answered by the decision in Balen v. Peralta Junior College District, 11 Cal.3d 821, 114 Cal.Rptr. 589, 523 P.2d 629. Balen had been employed for four successive years since 1965 by the district as a temporary instructor. Then he was informed that his contract would not be renewed. It was held that under Education Code section 13334, which 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', Balen met the statutory prerequisites for probationary employment, although he was a part-time instructor. (At p. 829, 114 Cal.Rptr. 589, 523 P.2d 629.) Plaintiffs meet the same prerequisites. Section 13337.5 of the Education Code, enacted in 1967, which gives authority to a district to employ temporary teachers under certain conditions without conferring probationary status on them, was held to be nonretroactive; it could not divest plaintiff of his previously acquired status.² The three pre-1967 employees became contract (probationary) employees prior to the enactment of section 13337.5.

The second question is whether they acquired regular (permanent) status. Pursuant to section 13304 each such employee would be entitled to regular status if he had served three complete consecutive school years. A ‘complete school year’ was defined for community college employees as ‘75 percent of the number of hours considered as a full-time assignment for permanent employees'. (§ 13328.5.) It was found by the trial court that none of the above named employees met the 75 percent requirement. In 1972, major revisions in the Education Code were made with respect to community college instructors (the ‘Rodda Act’). The teachers contend that by virtue of the new provisions, the 75 percent rule set forth in section 13328.5 has no further application.

Section 13346.25, effective in 1972, provides that if a contract (probationary) employee is employed under his second consecutive contract, the governing board has two options: to employ him as a regular employee for all subsequent academic years or not to employ him as a regular employee. But in the case of a contract (probationary) employee, the district's right to do this is limited by the requirement of section 13443 that notice of nonemployment be given with the reasons stated. It would not be sufficient reason, under Balen, to declare that the employment had been temporary only, no matter what the teacher's contract might say (Campbell v. Graham-Armstrong, 9 Cal.3d 482, 486–487, 107 Cal.Rptr. 777, 509 P.2d 689) because these teachers had attained contract status before 13337.5 was enacted. In the case of contract (probationary) teachers, the decision not to reemploy must be based on ‘thoughtful, deliberate, and individual consideration’. (Balen v. Peralta Junior College Dist., supra, 11 Cal.3d at p. 830, fn. 10, 114 Cal.Rptr. at p. 595, 523 P.2d at p. 635.) These teachers were simply regarded as ‘temporaries' and were not afforded the prescribed decision.

But was it still required that a part-time pre-1967 contract employee serve 75 percent of the hours under section 13328.5 in order to qualify for reemployment under the new (1972) section 13346.25 as a regular part-time employee in the absence of a decision of the board, supported by a valid reason, not to reemploy? It is concluded that the 75 percent requirement of 13328.5 does not apply to these pre-1967 employees; that the provisions of the later section 13346.25 take precedence. We agree with an opinion of the Attorney General to the effect that, although section 13328.5 remains on the books, it has been rendered meaningless, at least insofar as the acquisition of tenure is concerned. (58 Ops.Cal.Atty.Gen. 703 (1975).) The pre-1967 teachers must be classified as part-time regular employees as of July 1, 1974 (this date is in accordance with section 25490.20(b)).

3. Post-November 8, 1967

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 trial court held these teachers to be classified as part-time contract (probationary) employees. Section 13337.5 is set forth below.³

The effect of the first two paragraphs of section 13337.5 is to expand the classification of temporary employees under the described circumstances by allowing hiring for a complete school year instead of the former maximum of three months as provided by section 13337. But plaintiffs contend that, although the district has hired many instructors in compliance with 13337.5, because their employment was to fill needs for higher enrollment, or to fill vacancies caused by leaves or by long-term illness, these plaintiffs were not hired for any of these purposes, but were hired for the general educational process. This fact, plaintiffs contend (the district admits the factual contention), removes them from the category of temporary employees and placed them first in the class of contract (probationary) employees, and later, in the class of regular (permanent) employees.

A second reason offered by plaintiffs for this position is that their employment has exceeded the time limit imposed by section 13337.5. All temporary employees hired under section 13337.5 are subject to a time limit of two semesters within any three consecutive years, as set forth in the third paragraph of section 13337.5. 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 fulltime 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 District, 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 vearly 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. at p. 593, 523 P.2d at p. 633.)

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. (§ 13337.5, para. 1.) These employees ‘so employed’ are subject to a time limitation. (§ 13337.5, para. 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 provision to the contrary,’ it reads. But whatever may be the statute or provision under which these teachers claim contract (probationary) or regular (permanent) status, that statute or provision must be ‘to the contrary.’ Being to the contrary, it is ineffectual.

It appears that the last paragraph's reference to ‘any other provision to the contrary’ is not directed particularly toward anything contained in the preceding parts of section 13337.5 itself but rather toward any statutory provision elsewhere to be found or to any inference to be drawn therefrom. The beginning words of section 13337.5, ‘Notwithstanding the provisions of Section 13337,’ show that if application of the last paragraph were limited to 13337.5 itself, there, also, the Legislature would have used specific designation of what was being circumscribed.⁴ Moreover, there is nothing in the preceding paragraphs of section 13337.5 which is to the contrary; the teachers employed under its terms are temporary teachers. The last paragraph operates beyond the boundaries of its own section; it operates against any contrary provision which would affect a ‘60 percent or under’ employee. On the other hand, it operates positively, giving authority to the district to employ persons with relatively low workload and it does not restrict the duration of the employment. The limit to two semesters or quarters in the third paragraph is directed toward persons ‘so employed,’ i. e., under the first paragraph. No similar provision follows the last paragraph.

There is further internal evidence that the last paragraph of 13337.5 is not designed to be read only in connection with the preceding paragraphs. Thus, the second paragraph of the section, relating to salary, speaks of ‘such employment’—that is, employment authorized by the first paragraph, in cases of higher enrollments, leaves of absence or long-term illnesses. The last paragraph makes no reference to ‘such employment’; in striking contrast, it annuls anything to the contrary with its terms. The third paragraph refers to ‘so employed,’ again a reference to that authorized by the first.

Besides, the last paragraph covers the ‘under 60 percent’ employees in adult as well as in community college classes. There is no other reference to adult classes in 13337.5. Wherefore, the last paragraph has a vitality of its own; it operates beyond the rest of section 13337.5 to exclude the gaining of probationary status.

Finally, if the last paragraph of section 13337.5 does not mean to limit the ‘under 60 percent’ employees to temporary status, it lacks meaning. Those who are employed under the conditions described in 13337.5 are designated temporary employees by the first paragraph; this is so whether they work 100 percent of the full-time assignment or 5 percent thereof. If the last paragraph were to apply superfluously to these only, it would be better if the legislative committee had not met to propose it. Statutes should be so constructed as to make every part significant. (Cal. Pacific Collections, Inc. v. Powers, 70 Cal.2d 135, 139, 74 Cal.Rptr. 289, 449 P.2d 225; Azusa Western, Inc. v. City of West Covina, 45 Cal.App.3d 259, 266, 119 Cal.Rptr. 434.) Particularly is this so when the statute in question is so emphatic in abjuring ‘anything to the contrary’ and in employing twice the word ‘shall’ which is mandatory (Ed.Code, § 36), saying: these employees shall be classified as temporary and shall not become probationary under 13446.

There is good reason for construing the section as we have done; we say this, not by way of showing our preference as against arguments for policy to the contrary, but by way of supporting, by reference to its reasonableness, what appears to be a positive declaration of the Legislature. There was testimony of the district's Vice Chancellor that temporary teachers are engaged mainly in vocational courses, staffed largely by persons holding full-time jobs in technical or business situations and general education, either for students who will transfer to universities or who seek satisfaction in one or another art or science; but the demand, especially in the vocational field, changes constantly and considerably. The Vice Chancellor stressed that flexibility is essential in order to terminate temporary instructors who are not currently needed and to employ those whose specialties are commanding present interest.

Indeed, to hold with plaintiffs, it would be necessary for us to generate a ‘notwithstanding’ clause of our own, to the effect that ‘Notwithstanding the provisions of Section 13337.5 that notwithstanding any other provision employees carrying a less than 60 percent workload shall be classified as temporary employees, they shall be classified as contract (probationary) employees if there is any other available provision.’

Plaintiffs rely to a large extent on Balen v. Peralta Junior College District, supra, and on Ferner v. Harris, 45 Cal.App.3d 363, 119 Cal.Rptr. 385. The Balen case was one in which summary judgment for the defendant district was reversed. Balen had acquired probationary status before section 13337.5 was enacted. The essence of the decision by the Supreme Court (1) that part-time employment may confer contract (probationary) status and (2) that a teacher who has attained that status cannot be deprived of it by the last paragraph of section 13337.5. Nor could that paragraph be made to operate ‘prospectively’ by firing Balen and rehiring all other teachers who had made contracts for yearly employment even though many had equal to or better than contract (probationary) status each year after the date of the enactment. This practice was held to be a circumvention of the rights of a contract (probationary) or a permanent employee—Balen's status as between these two had not been made clear.

But does Balen hold, or imply by language which we surely should respect,⁵ that section 13337.5 is of no effect even as to an employee who, unlike Balen, had not attained probationary status? Plaintiffs say that it does; we do not read it thus. The very fact that so much emphasis is placed on the nonretroactivity of the section gives some evidence that an employment subsequent to the effective date of the statute would be decided differently.

But plaintiffs point to this language in Balen, 11 Cal.3d at page 829, 114 Cal.Rptr. at page 594, 523 P.2d at page 634:

The paragraph of section 13337.5 which the district cites to justify its classification of Balen was not part of the original bill submitted to the Legislature, but was added in committee. (1 Sen. J. (1967 Reg. Sess.) p. 863.) The principal portion of the original bill created a long-term temporary status, a classification within which the district urges Balen falls. That part of the statute, however, specifically limits such a classification to persons employed for not more than ‘two semesters or quarters within any period of three consecutive years.’ Failing to consider this limitation, the district selectively relies on the last paragraph of the statute alone. Because Balen held his position for over four years, he could not be classified under section 13337.5 for more than two of those years, a circumstance which would leave him unclassified the remainder of the time. (4) Such an anomalous result is additional indication that the statute should not be applied retroactively.

The above passage expressly says that it is an additional reason for holding 13337.5 to be nonretroactive; the court had already held so on other more fundamental grounds. This is the essence of the passage: Nonretroactivity. The reference to the last paragraph of 13337.5 in the first sentence of the passage appears to be introductory. The next sentence says that the district urges that plaintiff Balen falls within the principal portion (the first paragraph) of 13337.5, and the succeeding sentences reject that proposition. But in the present case, the district does not rely on the ‘principal portion’ of 13337.5 (quasi-emergency situations with a two-year limitation); it relies on the last paragraph of 13337.5 in cases wherein there is no question of retroactivity; in cases wherein the employees with lesser workloads have been employed since the statute expressly mandating their classification as temporary went into effect.

But, say plaintiffs, any doubt must be dispelled by Ferner v. Harris, supra, 45 Cal.App.3d 363, 119 Cal.Rptr. 385. Here again, however, the teacher had attained advanced status, in fact, regular (permanent) status independently of section 13337.5. Therefore, the fourth paragraph of section 13337.5, which provides that an ‘under 60 percent’ employee shall not become a probationary employee, would not apply to Ferner, who was not a merely probationary but a regular employee. The court did say, correctly, that Ferner could not have become a temporary employee under 13337.5 because he was not engaged under the first paragraph thereof. But we do not regard this additional holding as negating the application of the last paragraph of 13337.5 to employees who had not attained at least probationary status and whose workload was under 60 percent.

Plaintiffs say that even if, arguendo, Balen and Ferner are not controlling, the last paragraph does no more than to prevent the ‘60 percent or under’ persons from attaining probationary status under section 13446, which section refers (besides employees of migratory schools) only to persons who, having been employed in classes intended to last not longer than three months, were protracted beyond that time. This is too narrow a reading. The paragraph says that any ‘under 60 percent’ shall be classified as temporary employees. (Section 13337.5 has been renumbered in the Reorganized Education Code, operative April 30, 1977, as section 87482. The last paragraph contains the same imperative that the under 60 percent employee shall be classified as a temporary employee, but goes on to state that he shall not become a contract employee under the provisions of section 87604. Section 87604 reads: ‘The governing board of a community college district shall employ each certificated person as one of the following: contract employee, regular employee, or temporary employee.’ We regard the change as a clarification enacted in order to make it plain that under no circumstances shall such employee attain preferred status.)

The yearly letter of dismissal of the ‘under 60 percent’ employees no doubt is unnecessary, because, as we conclude, they are temporary employees and their contracts simply lapse. (See Balen v. Peralta Junior College Dist., supra, 11 Cal.3d at p. 831, fn. 10, 114 Cal.Rptr. 589, 523 P.2d 629.) But they should not have had an expectancy, although many may have had the desire, for reemployment. Their position is different from that of contract (probationary) employees who rightly do have the expectancy because of their right to notice, and because blanket dismissal would circumvent their proper classification. No classification procedure is circumbented by the following of the last paragraph of 13337.5.

4. The Subject of Salaries Considered Substantively (Apart from Procedural Defenses) (Set Forth in Full Below)

Section 13503.1 declares that its provisions for pro rata compensation of part-time employees (that is, a percentage of the pay of full-time employees, rather than the lesser established hourly wage) do not apply to any person classified as a temporary employee under section 13337 or 13337.5. Therefore, under our decision that those ‘under 60 percent’ who were employed after November 8, 1967 are to be classified as temporary teachers, the nine plaintiffs so employed are not entitled to pro rata pay.

But the same section requires pro rata pay for part-time, regular or contract employees. Thus, apart from the defenses of the statute of limitations, laches and failure to seek administrative relief, the three pre-1967 plaintiffs are entitled to prorated wages as back pay. Against this conclusion, the district argues that section 13503.1 applies only to elementary and secondary schools and schools for the handicapped by its reference to sections 11003 to 11008, inclusive, and to 11052. But this reference merely points out the places where a minimum school day is defined. Section 13503.1 refers to ‘[a]ny person employed by a district’. (Emphasis added.) Further, the reference to 13337 and 13337.5, in excluding temporary employees classified under these sections, clearly implies that section 13503.1 does embrace community college districts in its positive part, otherwise the specific exclusion would be unnecessary.

The district contends that the instructors are bound by the terms of their employment contracts. This is so when there is no statutory provision to the contrary. But it is not so in the face of statutory specification. (Campbell v. Graham-Armstrong, supra, 9 Cal.3d 482, 486–487, 107 Cal.Rptr. 777, 509 P.2d 689.) In Campbell, the teachers had contracted to teach one session of kindergarten at part-time salary at a rate of pay below the minimum salary set by statute for full-time employees. On the issue of a contractual waiver, it was held that pursuant to section 13338.1, the teachers' contractual agreement did not preclude their entitlement to full-time salary.

The part-time employee who has attained regular or contract status ‘generally serves under conditions comparable to those of his full-time counterpart’. (Balen v. Peralta Junior College Dist., supra, 11 Cal.3d at p. 829, 114 Cal.Rptr. at p. 594, 523 P.2d at p. 634.) The three regular teachers are entitled, under substantive law, section 13503.1, to pro rata pay.

5. Statute of Limitations

A mandamus proceeding by teachers seeking proper classification and salary is subject to Code of Civil Procedure section 338, subdivision (1), the three-year statute, because it is upon a liability created by statute. (Vittal v. Long Beach Unified Sch. Dist., 8 Cal.App.3d 112, 87 Cal.Rptr. 319; Ingram v. Board of Education, 36 Cal.App.2d 737, 739, 98 P.2d 527; Baldwin v. Fresno City etc. School Dist., 125 Cal.App.2d 44, 51, 269 P.2d 942.) The petition was filed on May 2, 1974, so it relates back to May 2, 1971. Those plaintiffs who are declared herein to have temporary status do not have rights that are affected by the statute of limitations. The three pre-1967 employees' status as probationary employees was acquired before May 2, 1971; their right to pro rata compensation commences July 1, 1971, and not earlier, because of the statute of limitations.

6. Laches

The trial judge did not make a finding on the subject of laches as related to the three employees who, under our decision, are entitled to probationary status and to pro rata pay. But we decide that, as a matter of law, these employees' rights are not barred by laches, because of the rather bewildering array of statutory changes which confronted them, so that, as was said in Balen: ‘[I]t is understandably difficult for an individual teacher to define conclusively his status at a particular time.’ (11 Cal.3d at p. 827, 114 Cal.Rptr. at p. 592, 523 P.2d at p. 632.) How and when to proceed toward judicial determination was not a simple matter. Indeed, Balen's case, which is similar to that of our three pre-1967 employees, filed December 4, 1970, was decided against him in the superior court by summary judgment and this judgment was sustained by the Court of Appeal (Balen v. Peralta Junior College Dist., 36 Cal.App.3d 34, 111 Cal.Rptr. 343), though it was reversed by the Supreme Court June 28, 1974. But these plaintiffs commenced this proceeding even before the Supreme Court's decision. They should not be charged with unreasonable delay, in view of the complexity and duration of the comparable Balen litigation and of the district's uncompromising position (also understandable conduct in the circumstances).

7. Failure to Exhaust Administrative Remedies

The district argues that no writ of mandate can be issued because the plaintiffs have not exhausted their administrative remedies.

Prior to the enactment of the Rodda Act, there was no statutory procedure for an administrative review of an instructor's classification or salary. Accordingly, it was held that no application need be made to the college by the employee for acquisition of his proper status; no affirmative action was required by the governing board. The attainment of the proper classification was automatic. (Vittal v. Long Beach Unified Sch. Dist., supra; Holbrook v. Board of Education, 37 Cal.2d 316, 333–334, 231 P.2d 853; 43 Cal.Jur.2d, Schools, § 461, p. 847.)

Since 1972, under the Rodda Act, a second-year contract employee has been entitled to a hearing upon objection to the governing board's decision not to employ him as a regular employee. (§ 13346.32.)

However, this statutory remedy presupposes that a decision is made by the board not to employ the second-year contract employee as a regular employee. In the case at bar, the district made no such decision with respect to plaintiffs, because the district considered plaintiffs to be temporary employees. Accordingly, plaintiffs received no notice of the board's decision pursuant to section 13346.30.

Moreover, it has been held that the rule requiring exhaustion of administrative remedies is subject to exception if the petitioner knows what the agency's determination will be. (Ogo Associates v. City of Torrance, 37 Cal.App.3d 830, 834, 112 Cal.Rptr. 761.) In the present case, the board refused to discuss the matter because the issues were in other litigation.

The district's contention is rejected.

The judgment is reversed with directions to the superior court to issue a writ of mandate ordering defendants to classify those employees who were employed prior to November 8, 1967 as part-time probationary certificated employees as of July 1, 1971, and as part-time regular certificated employees as of July 1, 1974, and to award them back pay from July 1, 1971, prorated according to their classifications; and to classify those employees who were employed subsequent to November 8, 1967, as temporary employees. Each side will bear its own costs of appeal.

FOOTNOTES

FOOTNOTE.  

1.  There are three classes of certificated persons: regular, contract and temporary. Formerly, regular employees were named ‘permanent’ by statute, but were often referred to as ‘tenured’; contract employees were ‘probationary.’ (See Ed.Code, § 13345.10.)

2.  Section 13337.5 has been reenacted substantially, with one change noted later in this opinion, by section 87482 of the Reorganized Education Code, to become effective April 30, 1977. All other references to sections of the Education Code in this opinion are to the sections as numbered prior to April 30, 1977.

3.  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 longterm 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.

4.  A like differentiation is to be found in sections 13337.6 and 13337.7; the former says, ‘Notwithstanding the provisions of Section 13337’; the latter, ‘Notwithstanding any other provision,’ although even this is not as strong as that in the last paragraph of 13337.5.

5.  In Coffey v. Governing Board of the San Francisco Community College District, 66 Cal.App.3d 279, at pages 292–293, 135 Cal.Rptr. 881, there is an impressive statement of the reasons, including the legislative history of 13337.5 and the analysis made by the Legislative Council, why the last paragraph should be interpreted as we have done. But the court deemed itself bound by Balen. We share the respect for the author of Balen, which the Coffey author expressed, as we respect the author of Coffey; we simply do not read Balen has having decided the point where the issue of retroactivity is not involved.

DEVINE,* Associate Justice (Assigned). FN* Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

DRAPER, P. J., and SCOTT, J., concur.