ROBERT A. BARTOSH — SBN 159383 BRETT B. McMURDO — SBN 293050 HATHAWAY, PERRETT, WEBSTER, POWERS, CHRISMAN & GUTIERREZ A Professional Corporation 5450 Telegraph Road, Suite 200 Ventura, CA 93003-4120 I3 17JUN 14 rit 2426 71 I P 251 L•IA Telephone: (805) 644-7111 (805) 644-8296 Facsimile: Attorneys for Plaintiff/Petitioner DANIELLE CLARK SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO — CENTRAL DIVISION CASE NO. 37-2017-00005908-CU-WM-CTL Action Filed: February 16, 2017 Hon. John S. Meyer — Dept. C-61 DANIELLE CLARK, an individual, Plaintiff/Petitioner, vs. SAN YSIDRO SCHOOL DISTRICT; and DOES 1 through 20, inclusive, FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF (C.C.P. § 1085) Defendants/Respondents. Plaintiff/Petitioner DANIELLE CLARK petitions this Court for a writ of mandate under Code of Civil Procedure section 1085, directed to Respondent SAN YSIDRO SCHOOL DISTRICT, and seeks incidental damages and costs as provided for in Code of Civil Procedure section 1095, and by this verified petition alleges as follows: THE PARTIES 1. Plaintiff/Petitioner DANIELLE CLARK (hereinafter "Petitioner," "Plaintiff' or "Ms. Clark") was a certificated employee of the SAN YSIDRO SCHOOL DISTRICT ("Respondent," "Defendant" or "District") from June 1, 2016 to October 24, 2016. She was a probationary employee of the District, serving as Director of Special Education from her June 1, 2016 date of hire to her alleged October 24, 2016 date of termination. FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF 2. 1 The District is, and at all times herein mentioned was, a public school district, 2 and subdivision of the State, duly organized and existing under the laws of the State of 3 California. 3. 4 Plaintiff/Petitioner is ignorant of the true names and capacities of Defendants/ 5 Respondents sued as DOES 1 through 20, inclusive, and therefore sues those Defendants/ 6 Respondents by such fictitious names. Plaintiff/Petitioner will amend this Petition to allege 7 their true names and capacities when ascertained. 4. 8 Plaintiff/Petitioner is informed and believes, and based thereon alleges, that the 9 District is located in San Ysidro, California, a city in the County of San Diego, California, and 10 that Plaintiff/Petitioner's employment with the District occurred in the County of San Diego, 11 State of California. Thus, venue is proper in the County of San Diego. GENERAL ALLEGATIONS 12 5. 13 On or about May 26, 2016, at a regular meeting, the District's Governing Board 14 approved Plaintiff/Petitioner as a District administrator. The District approved Plaintiff/ 15 Petitioner as the new Director of Special Education, and minutes from that meeting set forth 16 • her approval under "PERSONNEL — MANAGEMENT — EMPLOYMENT." She was 17 provided management salary. The District never provided a written contract to Plaintiff/ 18 Petitioner. 19 6. From June 1, 2016 to October 24, 2016, Plaintiff/Petitioner served as Director 20 of Special Education at the District. On October 13, 2016, Ms. Clark was awarded a 21 certificate of excellence in "appreciation of [her] hard work and dedication to the students, 22 staff, and community of San Ysidro District." 23 7. On or about October 24, 2016, without prior notice, Plaintiff/Petitioner received 24 a letter from the District stating that she was "being released from [her] probationary position 25 with the District effective immediately." This letter is attached hereto as Exhibit A and 26 incorporated herein by reference. She was told to leave the premises and remove all her 27 belongings by the end of that day. No reason was given for her termination. The same day, 28 her position was posted on education job-search site EdJoin. ,.. 2 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF 8. To date, Plaintiff/Petitioner has received no notice of cause for her termination. 2 The October 24, 2016 letter to her from the District cites no Education Code section 3 applicable to her dismissal, and provides no grounds for the immediate termination of her 4 employment. S . 9. Counsel for Plaintiff/Petitioner and counsel for the District have sent several 6 meet and confer letters to each other regarding Plaintiff/Petitioner's immediate non-noticed 7 dismissal. The District has stated in these letters that "No cause was given, or required, for 8 [Petitioner's] dismissal." These meet and confer letters are attached collectively hereto as 9 Exhibit B and incorporated by reference. 10 10. The District's decision to terminate Plaintiff/Petitioner's employment with the 11 District is invalid because (a) the District failed to provide notice to Plaintiff/Petitioner of her 12 dismissal in advance of the dismissal; and (b) the District terminated Plaintiff/Petitioner 13 without cause. *14 11. Education Code section 44929.21(b) allows a• district to terminate a 15 probationary employee at the end of a school year with a simple "notice of non-reelection." 16 The notice must be provided by March 15th of the school year in which the notice of non- 17 reelection is to be provided. "Non-reelection" does not equate to "termination." "The notion 18 that the term 'dismissal' historically encompasses procedures for a decision against reelection 19 is not supported by the statutory changes. The post-1983 modifications to the Education Code 20 specifically distinguish between a dismissal for cause (see, e.g., §§ 44932 et seq., 44941 et 21 seq., 44948) and a decision against reelection pursuant to section 44929.21(b)." Board of 22 Education v. Round Valley Teachers Assn. (1996) 13 Ca1.4th 269, 283. The District has 23 informed Plaintiff/Petitioner post-termination that it relied upon section 44929.21 in 24 terminating her employment. This section applies solely to non-reelection. The probationary 25 employee status does not unconditionally allow for mid-year, no-notice termination. 26 12. The District's October 24, 2016 letter to Plaintiff/Petitioner informing her of her 27 immediate termination does not cite any Education Code section or provide any authority for 28 terminating her employment without cause and without notice. In meet and confer _ 3 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF correspondence following termination, however, the District has stated that "Probationary 2. certificated employees serving at the pleasure of the Board may be non-reelected (terminated) 3 pursuant to EC 44929.21, without any showing of cause, without any statement of reasons, 4 and without any right of appeal or administrative redress." The District cited several cases, 5 including Sunnyvale USD v. Jacobs (2009) 171 Cal.App.4th 168. None of the cases cited by 6 the District equate non-reelection to immediate termination. 7 FIRST CAUSE OF ACTION FOR PETITION FOR WRIT OF MANDATE 8' (As Against All Defendants/Respondents) 13. 10, 11 Petitioner incorporates by reference each and every allegation set forth in the preceding paragraphs. 14. California Education Code section 44929.21(b) states: "Every employee of a 12 school district of any type or class having an average daily attendance of 250 or more who, 13 after having been employed by the district for two complete consecutive school years in a )4 position or positions requiring certification qualifications, is reelected for the next succeeding 15 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 17 district...." 18 15. Section 44929.21(b) further states: "The governing board shall notify the 19 employee, on or before March 15 of the employee's second complete consecutive school year 20 of employment by the district in a position or positions requiring certification qualcations, 21 of the decision to reelect or not reelect the employee for the next succeeding school year to 22 the position. In the event that the governing board does not give notice pursuant to this section 23 on or before March 15, the employee shall be deemed reelected for the next succeeding school 24 year...." (Emphasis added.) 25 16. Pursuant to Cousins v. Weaverville Elementary School Dist (1994) 24 26 Cal.App.4th 1846, and other case law, immediate termination of a probationary employee's 27 employment during the school year can only be effectuated for cause or unsatisfactory 28 performance. (Id. at 1849; Vaszuez v. Happy Valley Union School Dist (2008) 159 4 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF Cal.App.4th 969, 980; Sunnyvale Unified School Dist. v. Jacobs (2009) 171 Cal.App.4th 168; 176-177; Petersil v. Santa Monica-Malibu Unified School District (2013) 219 Cal.App.4th 3 529, 534-35.) 17. 4 Respondents have failed to adhere to California Education Code section 44929.21(b) and the cases cited in paragraph 16, supra, by terminating Petitioner's 6 employment without cause and without notice. 18. 7 In failing to adhere to California Education Code section 44929.21(b) and the 8 cases cited in paragraph 16, supra, Respondents have left Petitioner without a due process 9 remedy as required by the California Education Code. 19. 10 11 Petitioner has no plain, speedy or adequate remedy in the ordinary course of law other than the relief sought in this Petition. 20. 12 Petitioner has exhausted the available administrative remedies required to be 13 pursued by her and has performed all conditions precedent to the filing of this Petition, or is 14 otherwise excused from the doctrine of exhaustion of administrative remedies. 21. 15 16 Respondents' decision was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof. 17 SECOND CAUSE OF ACTION FOR DECLARATORY RELIEF 18 (As Against All Defendants/Respondents) 22. 19 20 Plaintiff incorporates by reference each and every allegation set forth in the preceding paragraphs. 23. 21 An actual controversy has arisen and now exists between Plaintiff and 22 Defendants concerning their respective rights and duties, in that Plaintiff contends: (1) 23 Plaintiff is entitled to immediate reinstatement to the position of Special Education Director at 24 the District; (2) Plaintiff is entitled to reimbursement for any and all wages lost during the 25 period of October 24, 2016 to the date of Plaintiff's reinstatement as Special Education 26 Director, said unemployment being no fault of her own; (3) Plaintiff is entitled to immediate 27 reimbursement of any benefits lost as a result of her termination; (4) the District has acted 28 /// 5 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF 1 beyond the scope of the Education Code and the District's authority by terminating Plaintiff's employment without prior notice and without cause. 3 4 5 24. Plaintiff desires a judicial determination of her rights and duties, and a declaration as to whether the District is satisfying its statutory requirements. 25. A judicial determination is necessary and appropriate at this time under the 6 circumstances in order that Plaintiff may ascertain the rights and duties of the parties under 7 the relevant statutes. The practical effect of such declaratory relief includes, but is not 8 necessary limited to: (1) Plaintiffs right to reinstatement to her position as Special Education 9 Director; (2) Plaintiff's right to reimbursement for wages lost as a result of her termination; 10 (3) Plaintiffs right to reimbursement for benefits lost as a result of her termination. 11 12 13 14 15 16 WHEREFORE, Petitioner/Plaintiff prays as follows: On the First Cause of Action: 1. The Court issue a peremptory writ of mandate commanding Respondents to re- instate Petitioner as Special Education Director at the District. 2. The Court issue a peremptory writ of mandate commanding Respondents to 17 reimburse Petitioner for wages lost as a result of her termination, from the date of termination 18 to the date of Petitioner's reinstatement. 19 3. The Court issue a peremptory writ of mandate commanding Respondents to 20 reimburse Petitioner for benefits lost as a result of Petitioner's termination, from the date of 21 termination to the date of Petitioner's reinstatement. 22 23 4. Respondents be ordered to appear thirty days after the date of issuance of the writ and demonstrate that they have complied with the terms of the writ; 24 5. Petitioner to recover damages pursuant to Code of Civil Procedure section 1095; 25 6. Petitioner to recover costs pursuant to Code of Civil Procedure section 1095; 26 7. Petitioner to recover attorney fees pursuant to Government Code section 800 27 28 and Code of Civil Procedure section 1021.5; and 8. Such other and further relief as the Court deems proper. 6 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF On the Second Cause of Action: 1. The Court declare that Plaintiff is entitled to reinstatement to her position as Special Education Director of the District. 2. The Court declare that Plaintiff is entitled to reimbursement for wages lost by 5 Plaintiff from the date of her termination to the date of her reinstatement as Special Education 6 Director. 7 3. The Court declare that Plaintiff is entitled to reimbursement for benefits lost by 8 Plaintiff from the date of her termination to the date of her reinstatement as Special Education 9 Director; and 10 4. Plaintiff to recover costs; and 11 5. Such other and further relief as the Court deems proper. •12 13 14 DATED: June 'V- , 2017 HATHAWAY, PERRETT, WEBSTER, POWERS, CHRISIVLA GUTIERREZ, APC 15 16 17 18 19 By: TA. BARTOSH •BRE.' TB McMURDO Attorneys for Plaintiff/Petitioner DANIELLE CLARK 20 21 22 23 24 25 26 27 28 7 FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF Governing Board Marcos A. Diu. President Rodollo Linares. V iee,President San Ysidro School District Steven. Kinney, Clerk Antoine Martinez, Member Rosati:all Pallosigue, Member "Quality educalion and opportunity for all . . . students to succeed." Daniel Zummo Julio Fonseca, Ed.D. Director of Human Resources Superintendent October 24, 2016 yiA RECIISTEjtED tt.S.-MA !LAND PERSONA} -DE VERY Danielle Clark 1526 Caminito Sicilia Chula Vista, CA 91915 Ft.E;i Notice of Release 11"0111 PrabationarrASSilitlIllenll Dear Danielle Clark, The purpose of this :letter is to notify you that you, are being released from your probationary position with the District effective immediately. Please accept our sincere appreciation for the services ool District. you have provided to the students of the San Ysidro Schr We ask that you return any District property issued to you, including but not limited to identification badges, keys, District cell phone, and/or other materials, by the close of business on October 24, 2016, Sincerely, Cs( Duniel Zummo, Director of Human Resources Cc: Personnel File Dr. Julio Fonseca Ed.D, 4350 Otay Mon Rd., Son Ysidro. CA 92173-1685 (619)428-4476 Ext. 3021 Fax (619)428 1505 E-mail: - iglipstc_akea.;a..szAkail..clut tlf Iltxcrinununon attaIntit ttinkor Itatasstnelll Q ItttActet entololees and job tipiIii AM, on lilt bil3lh San Witten Soltool Disithrprolsibits volgst.flil mrdieu1" id ittionw oteot)„11nr, marital Minus, pi elniatte , physical or mental 4111.11)1Itty. actual or (tercel% ea race, color, national tifigqi. Scaly, 61110 niultor nem tty " Li OfIlt rztaler or sexual nnentation, .11 autv di sit id. condition. %elelan sin I 'rwir.'"'"vvr Exhibit A —Page 1 of 1 LAW OFFICES OF HATHAWAY, PERRETT, WEBSTER, POWERS, CHRISMAN & GUTIERREZ JWAIA A ACEVEDO ROBERT A SARTOSH JOSEPH C. CHRISMAN STEVEN S. reocn• ALEaN ORO P. GUTIERREZ DANIEL AL, HIGSON .• JUAN M. HIDUERA GREG W. JONES JEANNE PlacCALDEN %VALE BRETT •. MENWROO seTH P SHAPIRO A PFIOFEDISIONAL CORPORATION ZOO HATHAWAY [WILDING POST Orr= SOX 3677 VENTURA, CALIFORNIA 93000 meTABLISMCO15511 MARY E. GAGNE OFFICER/WAGER TELEP140NC woe) a44-vita DEBRA DACEVEO0 rACSIMILC ICICIZIG44-13ESIS • CERTIPIED SPECIALIST ESTATE PLANNING TRUST &PROBATE LAW Daniel Zummo Director of Human Resources San Ysidro School District 4350 Otay Mesa Road San Ysidro, CA 92173-1685 111397, 1 ,1 001 MICHAEL . FEARETT PAULO. POWERS JOHN R. WEBSTER OF COUNSEL 5930 TELEGRAPH ROAD WWW.MEtelsWaylpW5rm.00r11 "CERTIF.:a sPECIAUST • ANPIRupTcv LAW JULiEN 0 HATHAWAY =LEEN De LEON JENNIFER A. ROLLA() D ONNIE P RYAN [FARMS(' AAAAA EDALS October 28, 2016 Via Facsimile and U.S. Mall (619) 428-1505 Re: Danielle Clark Dear Mr. Zummo: This office represents Danielle Clark with respect to her employment at San Ysidro School District ("District"). We have been advised by Ms. Clark that her employment with the District was terminated on October 24, 2016. For the reasons set forth herein, we hereby demand that Ms. Clark bereinstated to her position as Director of Special Education with the District. From June 1, 2016 to October 24, 2016, Ms. Clark sewed as Director of Special Education at the District, an administrative position directing special education teachers and staff. On October 13, 2016, Ms. Clark was awarded a certificate of excellence in "appreciation of [her] hard work and dedication to the students, staff and community of the San Ysidro School District" She is not aware of any issues with her performance during her five-month tenure. On October 24, 2016, without notice, Ms. Clark received a letter from you stating that she was "being released from [her] probationary position with the District effective immediately," She was told to leave the premises and remove all her belongings by the end of that day. No reason was given for her sudden termination. The same day, her position was posted on Edfoin. Ms. Clark was approved as a District administrator on May 26, 2016, at a regular meeting of the San Ysidro School District's Governing Board. The Board approved Ms. Clark as the new Director of Special Education, and minutes from that meeting set forth Exhibit B — Page 1 of 15 Daniel Zummo / San Ysidro School District Re: Danielle Clark October 28, 2016 Page 2 her approval under "PERSONNEL — MANAGEMENT — EMPLOYMENT:" She was hired in an administrative position, with management salary. There is no indication in the minutes that her position was temporary or probationary. The District never provided a written contract to Ms. Clark. As an administrator with the District, Ms. Clark was entitled to advanced notice prior to the termination of her employment. Termination of her employment in the middle of her one-year employment with the District was wholly improper. Pursuant to Education Code section 44951: "Unless a certificated employee holding a position requiring an administrative or supervisory credential is sent written notice deposited in the United States Registered mail with postage prepaid and addressed to his or her last known address by March 15 that he or she may be released from his or her position for the following school year, or unless the signature of the employee is obtained by March 15 on the written notice that he or she may be released from his or her position for the following year, he or she shall be continued in the position...." As a certificated administrative employee, Ms. Clark could not be terminated in the middle of the school year without cause. To date, she has received no notice of cause for her termination. The October 24, 2016 letter to her cites no Education Code section applicable to her dismissal, and provides absolutely no grounds for the immediate termination of her employment. We understand based on your termination letter that the District considers Ms. Clark a probationary employee. We disagree. However, even if she were a probationary employee, she would still be entitled to proper notice. Pursuant to Education Code section 44948.3: "(a) First and second year probationary employees may be dismissed during the school year for unsatisfactory performance determined pursuant to Article 11 (commencing with Section 44660) of Chapter 3, or for cause pursuant to Section 44932. Any dismissal pursuant to this section shall be in accordance with all of the following procedures: (1) The superintendent of the school district or the superintendent's designee shall give 30 days' prior written notice of dismissal, not later than March 15 in the case of second year probationary employees. The Exhibit B — Page 2 of 15 Daniel Zummo / San Ysidro School District Re: Danielle Clark October 28, 2016 Page 3 notice shall include a stateinent of the reasons for the dismissal and notice of the opportunity to appeal. lit the event Of a dismissal for unsatisfactory performance, a copy of the evaluation cOncluctedpurauint to Section 44664 shall accompany the written notice, (2) The einpl oyee shall have 15 days frOth reeehn of the notiee dsmissal to submit to the governing board a written request for a hearing; The governing board may establish •prOcedures for the appointment of an achniniStrathie I aw*judge to conduct the heating and Submit a reetnni nen tied decision to the board. The failure of en, employee to request a hearing within 15 days from receipt Of a dismissal notice Shall constitute itWaiver Of the right to a hearing (b) The governing board, pursuant to this section, may suspend a probationary employee for a specified period of time without pay as an alternative tø clisrniasal. . (c) This section applies only to probationary employees whose probationary period commenced .dating the 1983-84 fiscal year Or any fiscal year thereafter, and does not apply to probationary employees in a school district having an average daily attcndartee of less than 250 pupils." Case law is also clear that a probationary employee, just like a permanent employee; cannot be terminated during the school year except for cause or unsatisfactory performance. (California TeachersAss'n v Vallejo City Unified, School District (2007) 149 Cal,Aop.4th 135.) A probatiOnary employed cannot be dismissed summarily until the District proves at an administrative hearing that some cause justifies the dismissal. Because the District has failed to provide proper notice to Ms. Clark, we demand that Ms. Clark be immediately reinstated to her position as Director of Special Education : Regardless of Ms, Clark's employment designation, she was due proper notice and failed to receive it This denial of Ms. Clark's right to a hearing, noticed reasoning for the dismissal and appeals process constitutes a due process violation. We further demand that the District immediately remove the Ecl.Tbirrjob posting thatcurrently lists-MS. Clark's position as vacant Exhibit B — Page 3 of 15 Daniel Zumrno / San Ysidro School District Re: Danielle Clark October 28, 2016 Page 4 We look forward to hearing from you. Very truly yours, HATHAWAY, FERRETTI WEBSTER, POWERS, CHRISMAN & GUTIERREZ, APC ;t • ' L. RoBwr A. BA rrroH 2 . RAB/dlb cc: Client Exhibit B — Page 4 of 15 Transmit Confirmation Report r * Oct 28 2016 10:37an P1 Sandar:GUEST TTII:Hathaway Law Firm TT' Number:8056448296 Tim Page Note Destination Type Mode Start Time 1619d281505 FAX Fine 10/28 10:36an 01'04" 5 LAW OFFICES OF HATHAWAY • PERRETT • WEBSTER POWERS • CHRISMAN & GUTIERREZ A PROFESSIONAL CORPORATION Result Details t0K ADAM A. AcirrE00 ROBERT A,13ARTani JOinti a CrilanzAli nreal t hOER ALB:mm=0P. Munn DANCEL S HICsON WAN IA BIGUISLA GREG W.JONN Mein PacCALDEN %VALI Want HtlfUlt130 lemur. V r2Riurr 'AULD. POWER( MEP. ellAnt0 1011X14. MAMA 91flaibIE FAX COVER SHEET MARY r. GAuNe nuttzusAvo 1:,!so Dm: October 28, 2016 FROM; Robert A. Bartosh OUR FAX NO.: (805) 6444296 OUR PHONE NO.: (805) 644-7111 NO. OF PAGES: 1)11111A II,M1511.0 comasmoos " liseirea A. taw° *I" BON= P. RYAN (Including Fax Cover Sheet) TO: AT: FAX NO.: Daniel Zummo Director of Human Resources San Ysidro School District (619) 428-1505 Hard copy to follow: Yes X No RE: Danielle Clark OUR FILE NO.: 38310 ATTACHMENT: Letter to Daniel Munnut front Robert A. Martina dated October 28, 2016 MESSAGE: if YOU DO NOT RECEIVE ALL PAGES. PLEASE CALL DENA BURTSPIELD AT (SOS) 644-7111. rourmi:Nti kill-N. S. ITI,41 THE INFORMATION CONTAINEII IN 7: Ss ML'S!5 i. I rioviLEom Am) Ti inienfilount. CONFIDENTIAL R ■ FORMATION INTENDED ONLY FORI IIP, 194111 1 Y NA MIII1 ARC II:E., IF THE READER OP 11i1S FAX MESSAGE. IS NOT •E IN rENORD ItIiCiIJIilJr OR I III- EMPLOYEE OR Ais3„:1RESPONSIBLE TO DELIVER IT TO THE INTENDED RECINEN yOu Alt WItI;RY I n,' 1.4(1171:E1 I IAT 11,)11 ADE 1:f OF CONFIDENTIAL AND PRIVILEGED INHAMAtioN: ANV DIRIRIlieuuN COPYING 01T815 COMMUNICATION IS STIUCIILY PROHIIiiTEIX you ARIL ith•ouly.„. its).:/) ImmEol A t H i fi p y TRE SENDER. OF TEES COMtvl UNI CATION BY TELEpHONEOF YOUR INADV I RTEN flOx'Elf ANoto or:sr -lei) This COMMUNICATION, rossessrox 5450 Telegraph Read A Suite 200 A P. 0. Box 3577 A Ventura, California 93006-3577 Exhibit B — Page 5 of 15 LEAL• PEJO ATTORNCY 9 AT LAW 'POP • 1 1 :7 1 A r areseran• November 3, 2016 VIA U.S. MAIL AND FACS1m 0105) 644-82 1)6 Robert A. Bartosh HATHAWAY, PERRETT, WEBSTER, ET AL. 5450 Telegraph Road, Suite 200 Ventura, California 93003 RE: Danielle (lark; San Ysidro School District. Dear Mr. 13artosh, • ... We are in receipt of your letter dated Oefober 28, 2016, regarding the above Matter. This firm represents the San Ysidro School District ("District") as its general counsel. Please direct all future communication and correspondence to this firm, for the attention of the undersigned, I have reviewed your demand and the authority cited in support of your position. For the following reasons, we disagree with your interpretation of the authority and your reliance thereon, As such, the District will not comply with your demand to:feinitate Ms. Clark. Ms. Clark was hired by the District as an administrator and her permanent status within the District was contingent upon her successful completion of her probationary period. To posit that she was hired into the District, having no prior employment history with it, as a permanent and tenured employee With all attendant due process rights is art illogical, unfounded and unreasonable ISSuniption. Absent any express arrangement or agreement otherwise, any new hire to a district iii.govemed by the Education Code, whichstateS an employee does not achicYcjiermanent status until they complete the first day of their third consecutive year of service with the district In this sitnation,,theEditcation Code ("BC's) applies because administrators in the District are unrepresented by collective bargaining. That being said, your reliance on EC 44948.3 and EC 44951 is misplaced ; As you are no doubt aware, a school district administrator has no constitutionally protected property right to their job as an administrator. (Grant v. Adams (I:977) 69 CalApp.3t1 :127, 131; tee alsb,Barilruli V. Board ofRUstees (1977) 19 Cal 3d 711,721 [administrative and supervisory Pertriiinel do not possess a Statutory right to theirpdaitions10 In a &Mon to not having any property right, to an adnunistrative position, school adminiStrators serve at the pleasure ofthe 'appointing power & C.SiltsC114311,. On4(19.13) talAPP..3d 19, 22; see also Grant, (supra) 69 Cal.App.3d at 132 [adn2inistrators serve at the pleasure of the governing Exhibit B — Page 6 of 15 Correspondence Out re Clark November 3, 2016 Page 2 of 3 board.].) Again, Ms. Clark, was a new hire to the District, and had not acquired permanent status nor any of the due process benefits granted by tenure, and she was employed as an administrator serving at the pleasure of the Board. Therefore, as a probationary employee serving at the pleasure of the Board, Ms. Clark was properly noticed pursuant to EC 44929.21 and she was not entitled to notice pursuant to EC 44951. Gilliam v. Moreno Valley USD (1996)48 Cal App 518 addresses this issue on point. In Gilliam, a probationary principal (Who, unlike Ms. Clark, was permanent with the district as aleacher) challenged the notice given to hint regarding his release from the probationary principal position. The district gave him notice pursuant to EC 44929 21 of his non-reelection as principal, and Gilliam argued he should have been noticed pursuant to 44951. The Gilliam Court stated 44929 21 was the appropriate standard for notice because "44929.21 concem[ed] non-reelection (termination) of probationary employees. Section 44951 applies to demotion or reassigiiment cif an adminislrator to a different administrative or to a classroom position. Section 44951 simply does not apply here.P (Id, at 524 Thus, because Ms. Clark was not being demoted or reassigned from her administrative position, she was not entitled to notice pursuant to EC 44951. Probationary certificated employees serving at the pleasure of the board may be non-reelected (terminated), pursuant to EC 44929.21, without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress. (Sunnyvale USD v. Jacobs (2009) 171 CalApp.4 th 168; see also abschter v. Sacramento City USD (2007) 149 Cal App 258) Moreover, "[a] public employee serving at the pleasure of the appointing authority is by terms of his employment subject to removal without judicially cognizable good cause... [citation]" (Miller v. Chico USE) (1979)24 Cal 3d 703, 721; see also Johnston v. 7'rustees of Cal State University & Colleges (1984) 151 CalAppid 1003, 1010 [even if rejection of probationary employee was arbitrary, he could be 'dismissed as probationary employee serving at pleasure of appointing power, without judicially cognizable good cause, without offending Constitutions]) Citing its earlier decision in Bogacki Board of ilupervisirs (1971) 5 Cal 3d 771, the Miller Court affirmed its holding and stated: "We held [in Bogacki] that because plaintiff served at the pleasure of the e mploying authority similar to the instant plaintiffs administrative assignment the fact that the resulting record failed to establish a specific cause tor dismissal did not invalidate The disurissaL 'This wait& be tantamount to saying that a public agency cannot employ persons subject to removal at its pleasure, for ifjudicially cognizable good cause is requisite to removal in all cases there can be no wholly subjective power of removal in the agency. ral Such is not the law in California, nor has it ever been." (Emphasis added.) (Id. At 723.) These decisions affirm that notice to Ms. Clark pursuant to EC 44929.21 was appropriate and also that EC 449483 is inapplicable here. No cause is needed to remove an employee serving at the pleasure Man employing authority, and, in fact, even where the employer's reasons for the employee's removal are erroneous, the Court may still disregard those reasons. (Miller (supra) 24 Ca1.3d at 723.) Had Ms. Clark been dismissed because of unsatisfactory performance or for cause it would appear that, on its face, EC 44948 3 would apply. However, she was not dismissed pursuant to EC 44948.3 as neither of the grounds identified therein were the basis for her dismissal, and for that reason EC 44948.3 is not applicable. Exhibit B — Page 7 of 15 Correspondence Our re Clark November 3, 2016 Page 3 of3 It is highly unlikely that a Court would order that Ms. Clark be reinstated, particularly when she served at the pleasure of the Board and no cause was given, or required, for her dismissal. In this situation, rather than force the District to reinstate an employee whom it has determined is not a fit for the District, the Court will generally defer to the employer's decision. This is because the Courts are reluctant to review the dismissal of an employee who was serving at the pleasure of the employing authority. "Considerations of comity and administrative efficiency counsel the courts to refrain from any attempt to substitute their own judgment for that of the responsible officials. [Citation.] Only when such a public employee can show that his employment has been unjustifiably conditioned on the waiver of his constitutional rights will the courts intervene and give relief." (Bogacici, (supra) 5 Ca1.3d at 783; see also Bar/hull (supra)19 Ca1.3d at 721 [in the absence of a deprivation of a constitutional right (e.g. a property interest), reinstatement to former administrative position is not an available remedy.].) The Court has recognized the public policy goals behind these concepts, stating: "For excellent reason, communities and their school boards are granted great discretion in selecting those who lead their schools. It is unwise to erect procedural harriers to the exercise of that discretion.. .To do so, [we] believe, is to elevate procedure above the welfare of pupils." (Miller, ( supra) 24 Ca1.3d at 724.) The Board has exercised its "great discretion" with regard to Ms. Clark and notified her appropriately pursuant to EC 44929.21. For these reasons, the District will not agree to reinstate herb her former position. If you would like to discuss this matter further, please do not hesitate to contact me by telephone at (213) 628-0808, or by email at wt@leal-law.com . Sincerely, LEAL & TREJO, PC ' William J. Trejo ' Attorneys for San Ysidro School District Cc: Julio Fonseca, Superintendent Arturo Sanchez-Macias, Deputy Superintendent Daniel &me, Director of Human Resources Michael E. Wolfsohn, Sr. Assoc. General Counsel File Exhibit B — Page 8 of 15 LAW OFFICES OF HATHAWAY, PERRETT, WEBSTER, POWERS, CHRISHAN A pROFEasioNAL CORPORATION ADAM A ACEVEDO ROBERT A DART031 -1 acSo HATHAWAY BUILoiNo JOSEPH C, CHIRISMAN 5450 yiELE5R•pH READ STEVEN S. irt0CF0 ALEJANDRO P GUTIERREZ DANIEL A. HICISoN t ' JUAN in HICIUCRA .OT OFFICE SOX 3577 VENTURA, CALIFORNIA 93006 HVALE ONICTT U mcmUR/30 JULIEN 5, HATHAWAP (1807-1035) JOHN M. WEBSTER IRETIRECO MICHAEL r PEPPERY PAUL 0 POWERS Dr EDUNSE.. TELEpHoNc19061 6-4 -711 1 MARY V SAONE orriCC HAMMIER FACSIMILE (503) 844-11296 CERRA 0. ACEvEDo SETH P SHAPIRO WWW RethaWayiftwlInTLCcini COLEEH Cc LEON JENNIFER A ROLLAC 'CERN/ I Ico sato AusT EETAtc •LANNiwo, TRUST L PRORATE LAW •I GUTIERREZ lEsTAR Lis NED 15150 GREG W JONCS JOANN*: macCALOCN St CONNIE p, RYAN CERTirico EARALEGALs CROTIFICO IFECEIALIRT BAIHIRUPTcY LAW November 11., 2016 William J. Trejo Leal & Trejo, PC 3767 Worsham Avenue Long Beach, CA 90808-1774 Via Email and U.S. Mall ,.1;11 'It:al-law nun Re: Danielle Clark / San Ysidro School District Dear Mr. Trejo: We received your November 3, 2016 letter concerning Danielle Clark's employment with the San Ysidro School District ("District"). This letter is our attempt to further meet and confer. Your letter focuses on your contention that the authority cited in our October 28, 2016 letter is misplaced. You contend that Education Code sections 44948.3 and 44951 do .not apply, and that section 44929.21 governs Ma. Clark's employnient with the District It appears that the primary basis for Mir dispute is the term "non-reelection." You believe the tent' allows for immediate termination of an 'administrative employee. We disagree. To simplify the issues in this dispute, we will agree for purposes of this letter only that Ms. Clark served as a "probational,' employee." Case law is clear that probationary public school employees may not be dismissed during the school year -except for cause or unsatisfactory performance. (Kavanaugh v. Welt Sonoma County Union High School District (2003) 29 CalAth 911; Aching v. Pierce Joint Unified School Dist. (2009) 176 CalAppAth 757.) "[0]n timely notice, [a probationary publicachbaemployee] 'may be nonreclected without any 'showing of cause, without any statement of reasons, and without any. administrative redress.'" (Kavanaugh, supra, 29 Ca1.4th at 917; emphasis added) Exhibit B — Page 9 of 15 William J. TreJo Re: Danielle Clark / San Ysidro School District November 11, 2016 Page 2 Case law distinguishes between "non-reelection decisions" and "dismissal decisions." "The notion that the term 'dismissal' historically encompasses procedures for a decision against reelection is not supported by recent statutory phanges. The post-1983 modifications to the Education Code specifically diSdnguish between a. dismissal for cause (See, e.g., §§ 44932 et seq., 44941 et Seq. ; 44948) and a decision against reelection Pursuant to section 44929.21(b)." Weal 'd ofEducation v. Round Valley Teachers Assn. (1996).13 Cal 4th 269, 283.) Your contention that "non-reelection" equates to "termination" is incorrect; Otherwise, why would these different statutes deal with dismissal and non-reelection separately? Your reference is Gilliam v. Moreno Valley (1996)48 Cal.App.4th 518 does not support your position. Tote contrary, it Supports our position that the only appropriate rernetly for the District with respect to Ms. Clark is non-reelection at the end of the school year.. In Gilliam, plaintiff and appellant Edward Gilliam received notice on March H, 1994 that the District had decided not to reelect him for the 1994-1995 school year Be was to be transferred to a new position for the remainder of the 1993-1994 school year His position was terminated At the end Of the .school year, not in the middle of the school year '"Non-reelection' clearly referred to. the termination of his omPloyment at the end of the school year; Gillictni does not provide any Support for your :ygument that the immediate termination of Ms. Clark was appropriate. The other case law you provide is likewise meritless. You state that "Probationary certificated employees serving at the pleasure of the board may be non-reelected (terminated), pursuant to EC 4492911, without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress. (Sunnyvale USD it Jacobs (2009) 171 Cal.App.4th 168 ..." au1 the facts in Sunnyvale are completely different from the matter at hand. In Sungunk, probationary teacher Michael Jacobs WBS notified on March 7, 2005 that he would not be reelected for the following school year Jacobs was not terminated in the middle of the year In fact, the Court provided the following 'Comparison which supports Ms. Clark's position that her immediate termination was improper 'It is helpful to understand that `nonreelection' is different from 'dismissal,' which is the term used when a probationary teacher is terminated during the school year for unsatisfactory performance (Ed. Code, § 44948.3) or when permanent employees are terminated for cause (ids §144032-44041)." The Court in Sunnyvale found only that Mr. Jacobs! "aotireelection at the end of the School year was proper, not that he could be terminated in the middleof the school year without cause. Exhibit B — Page 10 of 15 William J. Trejo Re: Danielle Clark / San Ysidro School District November 11, 2016 Page 3 In Hoschler v. Sacramento CiO) Unified School District (2007) 149 Cal.App.4th 258, the Court of Appeal, Third District, held that Thischieris nomeelection at the end of the school year Was proper. The Court's opinion states, "The central issue in this case is whether the District gave Hoschler timely notice of his nonreelection as a teacher for The 2004-2005 term under Education Code section 44929.21,- Section 44929,21 provides that an employee on probationary status is deemed to have been 'reelected' for thenext succeeding school year unless the District criotif[lasi him by March 15 of its decision not to retain him." You use this case to supposedly show, again, that "Probationary certificated employees serving at the pleasure of the board may be non-reelected (terminated), pursuant to EC 44929.21, without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress." Like Sunnyvale, this case does not Support the immediate termination of a probationary employee but rather allows for the non-reelection of a probationary employee and termination of that employee for the foltoWing year You next cite Miller v. Chico USE) (1979) 24 Ca1.3d 703, 721 to support your position that a plaintiff serves at the pleasure ofthe employing Mithorityand that the fact that a resulting employment record fails to establish a specific cause for dismissal does not invalidate the dismissal. Again, we return to the same issue. Direttly above the paragraph in Miller that you cite, the Supreme Court of California states, "The present case . involves neither a required showing of cause . . nor any allegation the dembtion was retaliation for plaintiffs exercise of a constitutional right. Instead, the correct standard of review is that applied where an employee serves in a position at the pleasure of the employer." (Id at 722; emphasis added.), Miller involved a junior high principal who was reassigned to a teaching pciaition. His employment Was not terminated. This case cannot support an argument that the same-day termination of Ms. Clark, which was conducted without any notice, was proper. Every case cited in your letter relates to an entirely different issue than the matter at hand. Ms. Clark was not terminated through "non-reelection." She was told to leave the premises immediately without proper notice Her employment was terminated in its entirety, She was not reassigned, or told not to return for the next school year We believe Ms. Clark is ientitled to immediate teinatatement. As a final note, it has come to my attention that Ms. Clark's final paystub does not include any itemization of her sick time, vacation time, etc. with respect to her final payout In fact, Ms. Clark has informed us that she has never received itemized paystubs as required under the Labor Coda Please have the District send Ms: Clark an amended "final paystub" that shows her why her final payment is not an arbitrary figure Exhibit B — Page 11 of 15 William J. Trejo Re; Danielle Clark / San Ysidro School District November I I, 2016 Page 4 Second, our office has serious concerns that the District has unlawfully distributed incorrect information regarding Ms. Clark's employment status to her home lending company. Ms. Clark is in the middle of a re-finance on her home. She was contacted by her lending company on November 8, 2016, and informed that the District told the lending company that Ms. Clark was currently unemployed as she was "fired." The District has acknowledged in its November 3, 2016 letter that Ms. Clark was not "fired," and was not terminated for cause. Please contact me to let me know that this matter has been properly resolved. We expect the District to contact Ms. Clark's lending company and clarify that she was not "fired for cause." Very truly yours, HATHAWAY, PERRETT, WEBSTER, POWERS, CHRLSMAN & GTJTIERREZ, APC ROBERT A. BARTOSH BRETT B. McMURDO RAJ3/Bl31v1/d1b cc: Client Exhibit B — Page 12 of 15 H. FRANCISCO LEAL LEAL •TREIJ 0 WILLIAM ii, TREJCI SANDRA LI. °ARIDA ATTORNEYS AT LAW A PRCIEERSIONAL CORPORATION DAVID LI, ALVAREZ MICHAEL E. WOLOIONN DENINE A. MARTINEZ TARA C. DOSS 3767 WORSHAM AVENUE LoNa BERGH. CALIFORNIA 21:1002 (213) 823-13BOB FAX (2131 622.13611B WWW.LEAL-LAW,ODM November 17, 2016 VIA U.S. MAIL AND IT.ACS111111.1.: inn5) 641 824)(. - Robert A. Eartosh HATHAWAY, PERRETT, WEBStEE, ET AL. 5450 Telegraph Road, Suite 200 Ventura, California 93003 RE: Danielle Clark 'II.;, l _ /i., School l)qicret Dear Mr. Bartosh, We are in receipt of your letter dated November 11, 2016, regarding the above matter. For the reasons expressed herein, we do not agree with your interpretation and application of the authority cited in your letter. Again, the District declines your request to reinstate Ms. Cladc to her former•position. We appreciate your willingness, albeit if only "for purposes athis letter," to agree with the fact that Ms. Clark was a probationary employee of the District Itwould be helpful for all, however, if we also agreed to certain other facts in this matter. I'm confident We can agree that neither probationary employees nor administrators have a property interest in their positions, that Ms. Clark had not acquired permanent steals as a teacher within the District (hence her probationary status), that she was employed as an administrator, that she was net entitled to notice pursuant to EC 44951, and that she was not dismissed pursuant to EC 44948.3 and thus not subject to the provisions thereto. As there is no dispute with regards to Ms. Clark serving the District as a probationary administrator, it is not appropriate to extend to her protections in the Education Code, and as interpreted by case law, that apply to teachers and permanent employees. Every case and Statute you cited revolved around teachers or permanent employees, not probational)' adMinistrators. Had Mt. Clark been employed as a teacher (either probationary or permanent) within the District, your cited authority might he persuasive: However, your attempt to make an apples-to-apples comparison with those cases in this situation requires us to believe an orange is the tame as an apple, We do not agree to call an **pan apple. Here, Ms, Clark is the orange and the fact of the matter is your teacherkermanent employee:. focused authority does not apply to her. Exhibit B — Page 13 of 15 Correspondence Out re Danielle Clark November 17, 2016 Page 2 of 3 it does not apply to her.for one Very simple reason:. Showna probationmy7adniinistritor with no return rights:to the Classroom. ATI indicetedittnicrP9-10.11:lettert it is well settled and established that a school district administrator has no constitutional right to or OrPPOY interest in their adMinistrative position and that they serve at the pleasure of the appointing authority. As such,, they can ln: nom , reelected at anytime. As you state, there is a distinction between "dismissal" and "non-reelection." Namely, dismissal refit/free causp and due preqess,, and non reelection requires neither. The protections appurtenant to dismissals ate:bilbttle:ata pormattent employees .(ig. EC 44932 et mil l, EC 4'194 I et seq.), but not necessarily to probationary amplOyees; "Titus, in seeder' 44929.21(b),:l1e Legislature haS 'determined thafthe dim process protection enjoyedby.permarient aertitiedemployees should not apply to probationary employees "( lid of Ethic v Round Valley ,ThOckers Aunt, (1996) 13 Cal 4th 269; 28485) The result Of either , dismissal or noM-reelloction, tunvevers is the same- employment With The district ceases, Thus, I don't agree that the basis of our dispute conterS on the term "non-reelection" Instead, I believe we disagree as to what "serving at PJ,Pee,Urn of the 'home means with specific regard*, to probationary administrators. Again, EC 44929.21 is the appropriate standard by which to provide a probationary- administrator notice of their termination (or non reelection) The reference in my earlier letter to the Gilliam case was made to point out your contention that Ms. Clark was entitled to notice pursuant to EG4495 L was incorrect. Thus, I believe we can agree, consistentWith011liam, that Ms Clark Wei not entitled to notice pursuant to EC 44951 given that she was neither trangened nor demoted front her probationary administrative position. However, I disagree with your contention that Gilliam actually supports your client's position. My earlier letter Mischareptertzed status- he was in fact a probationary administatterwith no return fights to the classroom, just Bice Ms, Clark., Yea, in dlliiam; the administrator was given notice Of ,non-reelection by the district and his dismissal tookiffect at the end of the,Sehabl year Vet t there is no language in EC 44929 21 that requires an employee given notice pursuant to 44929 21 be retained Until the end of the school year EC 44929,21(b) requires only thatriati'de.of non reelection be given to the employee on or before March 15, or else the employee is reelected for the next succeeding school year and richioVes:peonartent stable at the beginning of her third consecutive year of employment. Nothing in gc 4492921 or the Qilliam easestateethenon-reeleeted employee shall remain an employee until the end of the school year. The fact that the school district in Garb= extended that courtesy to him is not binding on the San Ysidro School District. That fact dovetails -with the long held proposition that administrators serve at the pleasure of the appointing body To SerVb .at.the pleaSureefIlle al$P 011.4.8 ho4Y Means Sing subject t9 tha "who* subjective not of rime-Val" bytinSoppoiqing 00y. (Ooggcki v 54 ofklupervisors, Ono 5 overarching principle, and whether alp(' 771, 18243.) The onseleited in My earlier letter support pint; The actual point being that those cases dealt With tenehers:PC,administratore is beside probationary oinplayede employed at the Pleasure of the appointing body can be terminated without any Mowing of cause; veilliotit any staternentof reasons, without any right of appeal or administrative redress and; in the criee of probationary administrators, at any time. If we apply your arguments, doing so would completely Undermine the well-established premise that an administrator serves at the pleasure of the appointing bedy, The California Supreme Contt has already addressed the outcome of your position in its liogacki decision: "This would be tantamount to saying that a public agency cannot employ persons subject to removal at its pleasure, for ifjudicially cognizable good cause is requisite to removal in all cases there can be no wholly subjective power of removal in the agency. al Such is not the law in Exhibit B — Page 14 of 15 Correspondence Oat it Danielle Clark November 17, 2016 Page 3 of 3 California, nor has it ever been." (Emphasis added.) (Bogacki v. Bd. of Supervisors, supra, 5 Ca1.3d at 782-83.) That language also explains why EC 449483 does not apply here. If it applied oven when no cause is given, there could be no "wholly subjective power of removal" by the governing board. It cannot be argued that EC 44948 3 applies when no cause is given, for to do so deprives the appointing body of its discretion, however subjective it may be, with these types of employees. "Such is not the law in California, nor has it ever been," (Id.) Again, had Ms, Clark been terminated on the grounds set forth in EC 44948 3 then the District would have subjected itself to the burdens contained therein. It did not do so in this instance. In the case of probationary administrators like Ms. Clark, the above language from Bogacki applies also to your argument that EC 44929.21 requires a non-reelected probationary administrator be retained until the end of the school year. To read that requirement into the Statute Where no such language exists also undermines the ability and discretion of the agency to employ and terminate probationary administrators at its pleasure. If we indulge your arguments, then, by your reasoning, when a district determines to exercise its "wholly subjective poWer of removal" and then terminates that probationary employee, you believe it must retain that employee for the remainder Of the school year To do What, exactly? Obviously, the district no longer wants that employee to continue doing what they were initially hired to de. That means the district is faced with the choice of either hiring someone else to do the job s effectivelypaying two salaries for one position, or forgo hiring another person and let the duties of the position go unfulfilled. I highly doubt the Legislators intended those choices when they drafted the statutes, or that the courts would, in this situation, impose such an onerous burden on the District For all these reasons, we do not agree to reinstate Ms. Clark. Finally, regarding the matters concerning Ms. Clark's paystub and alleged communication to her lending company, I have placed, inquitieSwith appropriate staff at* District tarn waiting fortheir response and I will notify goons the information becomes available : If you wo<3 uldrl the to discuss this matter further, Please do not hesitate to contact me by telephone at (2 . 13) 644808, Or by email at wt(gleal-law.corn. — Sincerely, LEAL. 7 Apy A4 William .T: Trejo Attorneys for San Ysidro School District Cc: Julio Fonseca, Superintendent Arturo Sanchez-Macias, Deputy Superintendent Daniel ammo, Director of Human Resources Michael E. Wolfiohn, Sr. Assoc. General Counsel File Exhibit B — Page 15 of 15 VERIFICATION 3 I, DANIELLE CLARK, am the Plaintiff/Petitioner in the above-entitled action. I have 4 read the foregoing FIRST AMENDED PETITION FOR WRIT OF MANDATE AND 5 COMPLAINT FOR DECLARATORY RELIEF and know the contents thereof. I certify and 6 declare that the same is true of my own knowledge, except as to those matters which are 7 therein stated upon information and belief, and as to those matters, I believe them to be true. 8 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, • 10 Executed this day of June 2017, at San Diego, California It 12 13 LAN- ILE CLARK 14 15 16 17 !A 19 20 21 22 23 24 25 26 27 28 VERIFICATION PROOF OF SERVICE 1 2 Re: Clark v. San Ysidro School District San Diego County Superior Court, Case No. 37-2017-00005908-CU-WM-CIL if Z311 JUN 1 Q P 2: 5 -! STATE OF CALIFORNIA, COUNTY OF VENTURA 5 6 7 8 I am employed in the County of Ventura, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 5450 TelegraphAsiad, Snitd 1, 200, Ventura, CA 93003-4120. On June /3 2017, I served the foregoing document described as FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF on each interested party in this action as follows: 9 Aaron C. Hanes, Esq. Winet Patrick Gayer Creighton & Hanes 1215 W. Vista Way Vista, CA 92083-6227 10 11 12 Attorneys for Defendant/Respondent SAN YSEDRO SCHOOL DISTRICT Telephone: Facsimile: Email: (760) 758-4261 (760) 758-6420 alitilieScybach.corn 13 14 tsi BY MAIL: By placing a true copy (or orig .nal) of the foregoing document in a sealed envelope addressed to the addressee(s) listed above. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same date with postage thereon fully prepaid at Ventura, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. fl BY OVERNIGHT DELIVERY: By sending a true copy (or original) of the foregoing document by overnight delivery service to the addressee(s) listed above. The envelope was deposited in or with a facility regularly maintained by the overnight carrier with delivery fees paid or provided for. 15 16 17 18 19 20 21 22 BY ELECTRONIC SERVICE: By transmitting a true and correct copy of the foregoing document electronically from email address dburtsfield@hathawavlawfirm.com to the addressee(s) listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 23 24 25 26 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 2017, at Ventura, 'California 27 28 Dena L. Burtsfield PROOF OF SERVICE