Rich Kitchens, Attorney at Law           925-338-1858

 



Attorney at Law

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Rich Kitchens
Attorney at Law
4418 Water Oak Ct.
Concord, CA. 94521

(925) 338-1858
Kitchenslaw@gmail.com

The content on this website is intended for educational and informational purposes only. We focus on California law. Nothing on the website shall be construed to create an attorney-client relationship. Readers are responsible for obtaining legal advice from their own legal counsel.

Rowland Unified wins legal case against Walnut Valley in battle for students

[San Gabriel Valley Tribune]

1/28/11: The Rowland Unified School District scored a major legal victory Thursday over Walnut Valley Unified in a case in which Rowland accused Walnut Valley of stealing students. The California 2nd District Court of Appeals ruled that Walnut Valley had already taken the maximum amount of students - 10 percent - from Rowland Unified's boundaries.

http://www.sgvtribune.com/news/ci_17221172

The decision in Walnut Valley USD v. Superior Court (Rowland USD) can be found at:

http://www.courtinfo.ca.gov/opinions/documents/B223891.PDF

 

Court of Appeal Upholds District Classification of Coach as Temp Employee

Neily v. Manhattan Beach Unified School District

[California Court of Appeal, 2nd District]

1/27/11: A certificated teacher was hired as a baseball coach at Mira Costa High School. When relieved of his teaching job, he retained his baseball coach status. A few years later he was relieved of his coach status. He claims that he should be considered a “probationary employee” with more employments rights. The District considers him a “temporary employee,” a “walk-on” coach hired on a “year-to-year” basis. The trial court, and now the Second District Court of Appeal, agrees with the District. Read the decision in Neily v. Manhatten Beach USD:

http://www.courtinfo.ca.gov/opinions/documents/B221102.PDF

 

High Court to Weigh Speech Rights of Public Officials

[School Law Blog]

1/10/11: In a case with implications for school board members nationwide, the U.S. Supreme Court has agreed to decide whether First Amendment free speech concerns are raised when states require local elected officials to recuse themselves from voting on certain issues for ethics reasons.

http://blogs.edweek.org/edweek/school_law/2011/01/high_court_to_weigh_speech_rig.html

The Nevada Supreme Court ruling in Carrigan v. Commission on Ethics for the State of Nevada is at:

http://sblog.s3.amazonaws.com/wp-content/uploads/2010/12/01-07-Nevada-Commission-opinion-below.pdf

Read Charlie Haynes’ (of the First Amendment Center) (“Garcetti would be unwelcome element in Nevada case) take on this issue:

http://www.firstamendmentcenter.org/commentary.aspx?id=23779

California Court of Appeal, in split decision, rules in favor of school district in negligent hiring case involving high school counselor

C.A. v. William S. Hart Union High Sch. Dist. (CA 2nd district)

11/5/10: C.A., a minor student, filed a complaint naming as defendants a public high school, the school district, and an individual guidance counselor. The complaint alleged many causes of action, including negligence, negligent supervision, negligent hiring on behalf of the District and sexual battery, assault, and sexual harassment by the counselor.  The student alleged that the District “knew that [the guidance counselor] had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct, but failed to take reasonable steps to prevent further unlawful sexual conduct by the guidance counselor.  The District demurred, and the trial court agreed with the District that there were no code sections to which the public District could be held responsible as the counselor behavior, as alleged, was outside the scope of her employment. Also, “[o]n the sexual harassment, Civil Code [sections] 51.9 and 52.4 don‘t provide a statutory basis for those kind [sic] of claims against a public entity.

  

C.A. then appealed and the Court of Appeal affirmed the trial court decision. The Court of Appeal ruled that:

1. The facts alleged in the complaint do not support the vicarious liability of the School District.

2. No statute allows a direct action for negligence against the School District.

3. No mandatory duty subjects the School District to liability.

4. C.A.’s other causes of action also fail to state a claim.

 

However, the decision was not unanimous, and in a dissent it was opined that the Court of Appeal should clearly say that “the school district may be liable for breaching its duty to protect students from physical harm.” “Although the school district cannot be held liable for the intentional misconduct of the guidance counselor, it may be liable through respondeat superior for the negligence of other employees who were responsible for hiring, supervising, training, or retaining her.” The dissent argued that “[u]nder the Dailey-Hoyem-Randi W. trilogy, a school employee may be held personally liable for his or her negligence in failing to supervise students adequately, and the school district may be vicariously liable for the employee‘s negligence.”

 

To read the entire decision, go to:

http://www.courtinfo.ca.gov/opinions/documents/B217982.PDF

 


Court of Appeals Applies Barthuli to Deny College Administrator Reinstatement

Agosto v. Bd. of Trustees of Grossmont-Cuyamaca [4th District Court of Appeal]

 

10/18/10: A college administrator requested a writ of mandate to compel reinstatement to his former position. The Court of Appeal concluded “the trial court correctly found Agosto did not have either a statutory right or property right to his position as a community college administrator and therefore was not entitled to a writ of mandate directing District to reinstate him to his former position.” The Court held that Barthuli v. Board of Trustees (1977) 19 Cal.3d 717 is controlling authority and it compared the college district administrator to public school administrators. “[A] community college administrator, like the school district administrator in Barthuli, does not have a right to reinstatement to an administrative position.” For the full opinion, go to:

http://www.courtinfo.ca.gov/opinions/documents/D055470.PDF

 

Three DUIs constitutes "unfitness to teach" under Morrison, says California Court of Appeal

 

5/7/10: The California Court of Appeal interpreted the longstanding Morrison case regarding teacher discipline in reviewing the situation of an elementary school teacher convicted of three DUIs in 15 years. The Commission had moved to suspend the teacher as “unfit to teach,” and the Court of Appeal upheld this interpretation. In so doing, the Court revisited the famous Morrison factors. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 224-225.). Read the decision in Broney v. California Commission on Teacher Credentialing at:

http://www.courtinfo.ca.gov/opinions/documents/C060831.PDF

 

District to appeal ruling on classroom banners

[San Diego Union-Tribune]

3/9/10]: The Poway Unified School District will appeal a federal judge’s ruling that school officials violated the constitutional rights of a high school math teacher when they ordered him to take down classroom banners that referred to God. For the full story, go to:

http://www.signonsandiego.com/news/2010/mar/09/district-to-appeal-ruling-on-classroom-banners/

The case is Johnson v. Poway Unified School District (2010 WL 768856 (S.D. Cal.)).

To read the National School Boards Association page on this case, go to:

http://www.nsba.org/MainMenu/SchoolLaw/LegalClips/Johnson-v-Poway-Unified.aspx

To read the decision by the District Court judge, go to:

http://www.thomasmore.org/downloads/sb_thomasmore/Johnson-PowayOrderGrantingSummaryJudgment.pdf

 

Charter School Not a 'State Actor,' Court Rules

[School Law Blog]

1/6/10: A federal appeals court has ruled that an Arizona charter school is not a "state actor" for purposes of federal civil rights law. The court upheld the dismissal of a lawsuit filed by a former teacher at the school who alleged that the school deprived him of his liberty interest in finding other work. For the full blog posting, go to:

http://blogs.edweek.org/edweek/school_law/2010/01/charter_school_not_a_state_act.html

The case is Caviness v. Horizon Community Learning Center and can be found at:

http://www.ca9.uscourts.gov/datastore/opinions/2010/01/04/08-15245.pdf

 

9th Circuit Rules that Arizona Charter School Not State Actor for Purposes of Employment

[9th Circuit U.S. Court of Appeals]
1/4/10: The United States Court of Appeals for the Ninth Circuit Court recently held in Caviness v. Horizon Community Learning Center, Inc. that a teacher dismissed by an Arizona charter school could not sue his former employer for a violation of 42 U.S.C. section 1983.  The Court found the charter school was not a state actor for purposes of employment decisions, and therefore could not be found liable under section 1983. 
To read the full decision in Caviness, go to:

http://www.ca9.uscourts.gov/datastore/opinions/2010/01/04/08-15245.pdf

 

9th Circuit Finds School Search by Resource Officer and Sheriff to be Violations of Fourth Amendment

Greene v. Camreta (9th Circuit)

12/10/09: The Ninth Circuit Court of Appeals considered whether a social worker’s interview of a student at school about suspected child abuse in the presence of a police officer and without a warrant, court order, exigent circumstances, or parental consent violated the student’s and parent’s Fourth Amendment right to be free from unreasonable search and seizure. The Court held that the investigation conducted by Camreta and Alford and the removal and examination instigated by Camreta all violated Sarah and the girls’ constitutional rights. As to the investigation, however, we conclude that Camreta and Alford cannot be liable in damages because they have qualified immunity. To read the full decision, go to:

http://www.ca9.uscourts.gov/datastore/opinions/2009/12/10/06-35333.pdf

 

California Supreme Court rules (finally) and upholds District in school mailbox case

San Leandro Teachers Association v. Governing Board of the San Leandro Unified School District

6/18/09: Shortly before an election, an employee organization that represents school teachers, and which regularly communicates with its members through school mailboxes, sought to distribute literature through these mailboxes that included endorsements of certain school board candidates. The school district administration refused to permit such political communication. The California Supreme Court upheld the Court of Appeal decision supporting the San Leandro school district’s “reasonable regulation” of school mailboxes. In so doing, the Court discussed what constituted a “service,” and what constitutes “equipment” under Education Code section 7054. In this First Amendment challenge prohibiting political communication via school mailboxes, the denial of the writ of mandate sought by the Plaintiff was affirmed where the mailboxes were a nonpublic forum, and the regulation was content-neutral.  For the full decision, go to:

http://www.courtinfo.ca.gov/opinions/documents/S156961.PDF

To read the story in the Oakland Tribune, go to:

http://www.insidebayarea.com/education/ci_12620198

 

Some of the decision:

“…[A]s the legislative history of section 7054 makes clear, it was designed to avoid the use of public resources to perpetuate an incumbent candidate or his or her chosen successor, or to promote self-serving ballot initiatives, thereby compromising the integrity of the electoral process. The District contends that permitting employee organizations to use the mailboxes to endorse school board candidates will unfairly advantage those organizations and the candidates they endorse, because it allows them, but not other candidates and organizations, to use the mailboxes to communicate with teachers about these endorsements. We agree that this special access to an internal channel of communication to influence elections is a potential abuse that section 7054, and the Stanson [Stanson v. Mott, 1977] decision, were designed to guard against… [W]e conclude, consistent with the purpose of section 7054, that the broad term ?equipment—was intended to encompass mailboxes specially constructed at taxpayer expense to serve as a school‘s internal communication channel, which one group may not use to its exclusive political advantage….We emphasize the narrowness of the decision… We hold only that a rule prohibiting candidate endorsement literature in school mailboxes is a ?reasonable regulation—within the meaning of Government Code section 3543.1, subdivision (b) because it enforces the directive of section 7054.

 

 

California Court of Appeal Agrees Priority in Rehiring Should Extend to Full-time Employees with Less Seniority

Hildebrandt v. St. Helena Unified Sch. Dist.

[California Court of Appeal, 1st District]

3/19/09: When a school district lays off certificated employees because of a reduction of services, pursuant to Education Code section 44955, are part-time employees with greater seniority entitled to “bump” a full-time employee with lesser seniority? The Court of Appeal agreed with the trial court that they are not and, therefore, affirms its judgment denying the writ of mandate sought by part-time certificated employees who were released while the school district retained a similarly credentialed full-time employee with lesser seniority. To read the full decision, go to:

http://www.courtinfo.ca.gov/opinions/documents/A119738.PDF

 

Court upholds District in Terminating Teacher More Less Seniority Than Others

Bledsoe v. Biggs Unified School District

[California Court of Appeal, 3rd District]

1/16/09: In an action arising from defendant's termination of plaintiff-teacher, denial of petition for writ of administrative mandamus is affirmed where: 1) the trial court did not err in concluding defendant properly retained two teachers over whom plaintiff had seniority; and 2) defendant's error in failing to apply a tiebreaking criteria before laying off plaintiff was properly found by the ALJ not to be prejudicial. To read the entire opinion, go to:

http://caselaw.lp.findlaw.com/data2/californiastatecases/c058222.pdf

 

Cal. Teachers Assoc. v. Public Employ. Relations Bd.

[California Court of Appeal, 4th District]

1/5/09: The California Teachers Association (CTA) petitions for review of an order of the Public Employment Relations Board (PERB or the Board) which dismissed its own complaint against real party in interest Journey Charter School (Journey The complaint stemmed from CTA’s charge that Journey had violated the Educational Employment Relations Act (EERA) (Gov. Code, § 3540 et seq.), when it terminated the employment of three teachers: Stephanie Edwards, Paola Schouten and Marlene Nicholas. After an evidentiary hearing before an administrative law judge, and a review of his findings by the Board, PERB issued a decision dismissing the complaint. That dismissal was based upon the Boards factual conclusion the terminations had not been based upon the CTA unionization efforts, but were instead prompted solely by the letter sent to parent  The Board then concluded the letter had not qualified as protected activity under the EERA, and thus the terminations were not actionable. CTA now argues (1) the evidence is insufficient to support the Boas factual determination that the teacher unionizing efforts with the CTA had not been the cause of their terminations; and (2) PERB erred in concluding the letter, which it believed was the cause, did not amount to protected conduct The Court of Appeal concluded the second claim has merit. PERB’s determination the teacher letter did not amount to protected activity cannot be reconciled with its own precedent cited in support of that determination, and thus its decision to dismiss the complaint was clearly erroneous. For the full decision, go to:

http://www.courtinfo.ca.gov/opinions/documents/G040106.PDF

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Rich Kitchens    4418 Water Oak Ct.    Concord, CA. 94521    925-338-1858

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