Edward Behrens vs Santa Barbara Unified School District
Case No: 18CV02536
Hearing Date: Wed Aug 21, 2019 9:30

Nature of Proceedings: Motion: Judgment on the Pleadings

TENTATIVE RULING: Defendant’s motion for judgment on the pleadings as to plaintiff’s only remaining cause of action for violation of due process rights under 42 U.S.C. Section 1983 is granted without leave to amend.

BACKGROUND:

Plaintiff Edward Behrens is the former principal of San Marco High School (“SMHS”) in Santa Barbara. On February 12, 2018, plaintiff was demoted by defendant Santa Barbara Unified School District (“District”) from his position as principal of SMHS to classroom social studies teacher. Plaintiff alleges that his demotion was in retaliation for the way he responded to a student threat incident. On May 21, 2018, plaintiff filed his complaint asserting causes of action for (1) writ of mandate, (2) violation of his constitutional right to due process (42 U.S.C. §1983) and (3) unlawful retaliation in violation of California Labor Code Section 1102.05, subdivision (c). Plaintiff sought reinstatement to his position as principal and all back pay and benefits that were lost due to his reassignment, plus attorney’s fees.

On May 9, 2019, the court denied plaintiff’s petition for writ of mandate, finding that District did not have a ministerial duty to reinstate him as principal of SMHS and that it did not abuse its discretion in removing him from that position and reassigning him to a classroom teaching position. On August 9, 2019, pursuant to a stipulation and order, plaintiff’s third cause of action for retaliation was dismissed with prejudice. District now moves for judgment on the pleadings as to the sole remaining cause of action in plaintiff’s complaint – the second cause of action for violation of constitutional due process. Plaintiff opposes the motion.

ANALYSIS:

Requests for Judicial Notice

District requests that the court take judicial notice of Section 1 of Senate Bill 777 (2003) concerning whistleblowers, located at 2003 Cal. Legis. Serv. Ch. 484 (S.B. 777). Judicial notice shall be taken of the “decisional, constitutional, and public statutory law of this state . . . .” Evid. Code §451, subd. (a). Section 1 of SB 777 (2003) is the uncodified part of the bill which lists the legislative findings and intent. “[The] uncodified portion of a statute is fully part of the statutory law of this state.” Barbee v. Household Automotive Finance Corporation (2003) 113 Cal.App.4th 525, 534. Judicial notice will be taken of the requested item.

In his opposition, plaintiff requests that the court take judicial notice of (1) California Department of Education webpage titled “Local Control Funding Formula Overview,” accessible at http://www.cde.ca.gov/fg/aa/lc/lcoffoverview.asp and (2) School District LCFF Transition Calculation report, accessible at http://www.cde.ca.gov/fg/aa/pa. Judicial notice may be taken of the “[o]fficial acts of the legislative, executive, and judicial departments” of this state. Evid. Code §452, subd. (c). Statements made in an official state publication or on an official state website are subject to judicial notice. See, Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, 606 (judicial notice taken of statements on California Department of Transportation website); Californians for Fair Representation – No on 77 v. Superior Court (2006) 138 Cal.App.4th 14, 25, fn. 3 (judicial notice taken of statements made in official state publication). Judicial notice will be taken of the requested items.

Evidentiary Objections

District objects to plaintiff’s evidence submitted in opposition to the motion for judgment on the pleadings. The evidence includes a declaration from plaintiff’s lawyer, a declaration from plaintiff’s lawyer’s paralegal, and twelve exhibits consisting of emails, including seven emails potentially protected by this court’s September 12, 2018 Protective Order, and deposition excerpts.

The objections will be sustained. “The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” Code Civ. Proc. §438, subd. (d). The presentation of extrinsic evidence is not proper on a motion for judgment on the pleadings. Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063.

Motion for Judgment on the Pleadings

A motion for judgment on the pleadings may be made by a defendant at any time after the time to demur has expired and an answer has been filed if it is contended that the complaint “does not state facts sufficient to constitute a cause of action against that defendant.” Code Civ. Proc. §438, subd. (c)(1)(B)(ii). A motion for judgment on the pleadings is akin to a general demurrer and can be directed at either the entire complaint or any individual cause of action. Code Civ. Proc. §438, subd. (c)(2)(A). Like a general demurrer, the grounds for the motion must appear on the face of the complaint or in matters subject to judicial notice. Code Civ. Proc. §438, subd. (d). Because a motion for judgment on the pleadings serves the same purpose as a general demurrer, in considering the motion, the court must accept as true all material facts properly pleaded in the complaint, giving them a liberal construction. Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.

Plaintiff’s second cause of action is for violation of constitutional due process under 42 U.S.C. Section 1983, which provides.

“Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

In his second cause of action, plaintiff alleges:

● Plaintiff has a constitutionally protected right (“liberty interest”) to follow his chosen profession of high school administrator.

● District, acting under the color of California law, deprived plaintiff of his liberty interest without due process of law by demoting him from principal of SMHS to classroom teacher without affording sufficient notice or a name-clearing hearing regarding the allegations made against him.

● Plaintiff has a liberty interest in his reputation cultivated over a twenty-year career at SMHS.

● District’s meritless criticisms and retaliatory demotion of plaintiff caused substantial damage to his reputation and negatively affected his prospects for future employment in his chosen profession in violation of his due process rights as he was not afforded proper notice or a meaningful opportunity to clear his name.

(Verified Petition, p. 25:5-26:4.)

District contends that plaintiff’s Section 1983 liberty interest cause of action fails as a matter of law because District is an instrumentality of the State of California and, therefore, not a “person” within the meaning of the statute. Section 1983 of the United States Code gives a plaintiff a right of action against every “person” who, under the color of state law, deprives the plaintiff of constitutional rights, privileges, or immunities. While local governmental entities, such as cities and counties, are considered “persons” subject to suit under Section 1983, states and their instrumentalities are not because of sovereign immunity. Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 653-654; see also, McAllister v. Los Angeles Unified School District (2013) 216 Cal.App.4th 1198, 1207, (“a state, an entity acting as an ‘arm of the state,’ or a state official sued in his official capacity may not be considered a ‘person’ who may be liable under section 1983”). California school districts are considered instrumentalities of the state and are immune from suit under Section 1983. Kirchmann v. Lake Elsinor Unified School District (2000) 83 Cal.App.4th 1098, 1115.

In Kirchmann, a school district employee brought an action against the school district for civil rights violations under 42 U.S.C. Section 1983 after she was suspended from her position for 30 days because she had communicated with bidders on a district contract. The trial court sustained the district’s demurrer without leave to amend on the ground that the district was an arm of the state and thus could not be sued under Section 1983. The court of appeal affirmed. The court held that local governmental bodies are considered persons subject to suit under Section 1983, but states and their instrumentalities are not because of the principle of sovereign immunity found in the Eleventh Amendment to the United States Constitution. Id., at 1101. The court reasoned that if an entity is entitled to Eleventh Amendment immunity, it is also immune from suit under Section 1983. Id., at 1104. Under California law, the state has extensive control over the fiscal affairs of school districts and consequently school districts are instrumentalities of the state and are not liable under Section 1983. Id., at 1115.

Plaintiff contends that the reasoning in Kirchmann is no longer valid because the funding formula for California school districts has changed. At the time of Kirchmann, school districts received their funding primarily from the state based on a per-pupil formula. In 2013, after Kirchmann was decided, the funding mechanism was changed by AB 97 which makes school districts less dependent on state revenues. The former funding mechanism was replaced by a Local Control Funding Formula (“LCFF”) under which the state guarantees a minimum amount of funds to school districts, but if a school district’s property tax base equals or exceeds the minimum funding amount, the school district (called a “basic-aid district”) does not receive any state funds. See, Ed. Code §42238.02, subd. (o). Given this new funding formula, plaintiff contends that school districts are more like counties than an arm of the state and should not enjoy immunity from suit under Section 1983.

This same argument was considered and rejected by the court in Sato v. Orange County Department of Education (9th Cir. 2017) 861 F.3d 923, cert. denied, (2017) 138 S.Ct. 459. There, a former employee brought an action against his former employer, a local school district, alleging that his civil rights were violated under 42 U.S.C. Section 1983 when he was terminated. The trial court granted the school district’s motion to dismiss the Section 1983 claim on the ground that the district was an arm of the state and was immune from suit. On appeal, the employee argued that the enactment of AB 97 decentralized state control over school funding and therefore the school district was no longer an instrumentality of the state for immunity purposes. The court of appeals disagreed and affirmed the judgment of dismissal. The court held that the school district was immune from suit under Section 1983 notwithstanding that under AB 97 school districts receive revenue from both the state and local tax dollars. Id., at 932. As the court explained:

“While the passage of AB 97 provided districts . . . with additional flexibility in their budgets, we note . . . that AB 97 did not eliminate the centralized system of strict state control over local districts’ funding . . . .”

Ibid. (internal quotations omitted).

Apart from school funding, the court in Kirchmann held that California school districts are immune from 1983 suits because of the pervasive control the state exercises over the affairs of school districts. Specifically, the court stated:

“There can be little dispute that the function performed by school districts, the education of the public, is a matter of central governmental concern. [Citation.] ‘Public education is an obligation which the State assumed by the adoption of the Constitution. . . . [M]anagement and control of the public schools [is] a matter of state [not local] care and supervision. . . . Local districts are the State’s agents for local operation of the common school system . . . .’ [Citation.] The Constitution has always vested ‘plenary’ power over education not in the districts, but in the State, through its Legislature, which may create, dissolve, combine, modify, and regulate local districts at pleasure.’”

Id., at 1113.

Examples of state regulation of school affairs include:

“[S]uch matters as county and district organization, elections, and governance; educational programs, instructional materials, and proficiency testing; sex discrimination and affirmative action; admission standards; compulsory attendance; school facilities; rights and responsibilities of students and parents; holidays; school health, safety, and nutrition; teacher credentialing and certification; rights and duties of public school employees; and the pension system for public school teachers.”

Ibid. (internal quotations and ellipses omitted).

Thus, the change in funding is irrelevant as school districts are fundamentally still an arm of the state and cannot be sued under Section 1983.

District contends that plaintiff’s Section 1983 claim fails for the additional reason that plaintiff does not have a “liberty interest” in his former job as principal. California has a comprehensive statutory scheme governing the employment rights of public school teachers and administrators and under this scheme school principals are permanent employees only as to a teaching position. Thompson v. Modesto City High School District (1977) 19 Cal.3d 620, 624; Jefferson v. Compton Unified School District (1993) 14 Cal.App.4th 32, 38-39. They have no statutory or constitutional rights to their administrative position and can be removed from this position at will. Barthuli v. Board of Trustees of Jefferson Elementary School District (1977) 19 Cal.3d 717, 721-722; Gilliam v. Moreno Valley Unified School District (1996) 48 Cal.App.4th 518, 521. Accordingly, a principal’s expectation of continued employment in his administrative position “is not a constitutionally protected property or liberty interest.” Grant v. Adams (1977) 69 Cal.App.3d 127, 136, fn. 6.

Plaintiff argues that Grant is distinguishable because the plaintiff in that case merely alleged that his demotion from principal to classroom teacher in-and-of-itself infringed on his liberty interest, whereas here plaintiff alleges that District made stigmatizing statements that impacted his ability to pursue his chosen profession. (Verified Petition, p. 25:22-28.) But this argument ignores the case law on this point. In Blantz v. California Department of Corrections and Rehabilitation (9th Cir. 2013) 727 F.3d 917, 925, the court stated:

“[T]he liberty interests protected by the Fourteenth Amendment are implicated only when the government’s stigmatizing statements effectively exclude the employee completely from her chosen profession. Stigmatizing statements that merely cause ‘reduced economic returns and diminished prestige, but not permanent exclusion from, or protracted interruption of, gainful employment within the trade or profession’ do not constitute a deprivation of liberty. [Citations.] Thus, stigmatizing statements do not deprive a worker of liberty unless they effectively bar her from all employment in her field.”

Here, as in Grant, plaintiff was reassigned to a teaching position. Because plaintiff still works in the education field, he was not deprived of a liberty interest and he has no Section 1983 claim.

Based on the foregoing, the court will grant District’s motion for judgment on the pleadings without leave to amend. “If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended.” Hendy v. Losse (1991) 54 Cal.3d 723, 742; see also, McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 792 (“the plaintiff [has the burden] to show what facts he or she could plead to cure the existing defects in the complaint”). In this case, plaintiff has not made any attempt to explain how he might amend his verified petition to state a cause of action against District.