2016-00202650-CU-CR

Brandon Coleman vs. Sacramento City Unified School District

Nature of Proceeding: Hearing on Demurrer to Third Amended Complaint

Filed By: Rice, Stephanie D.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the causes of action that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Defendant Sacramento City Unified School District’s (“District”) demurrer to Plaintiff Brandon Coleman’s third amended complaint (“TAC”) is ruled upon as follows.

This is an action for wrongful discharge and breach of implied covenant of good faith and fair dealing. Plaintiff alleges that he was a student of National University. The District and National University entered into an agreement to provide qualified and competent students as interns to the District. Student interns are classified as probationary employees. Plaintiff began the 2013-2014 school year in the position of substitute teacher and transferred to Intern on November 21, 2014 pursuant to a Memorandum of Understanding between National University and the District. Plaintiff was never subject to a classroom observation or evaluation. On March 11, 2015 Plaintiff was notified that the District would not re-employ him for the 2015-2016 school year.

Gov’t Code §820.2 Immunity

The District demurs on the ground that it is immune pursuant to Gov’t Code §820.2.

Gov’t Code §820.2 provides “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

However, not every discretionary act is subject to Section 820.2 immunity. “‘[A] workable definition’ of immune discretionary acts draws the line between ‘planning’

and ‘operational’ functions of government. (Johnson, supra, 69 Cal. 2d at pp. 793, 794.) Immunity is reserved for those ‘basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government.’” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 [emphasis in original].) “[T]here is no basis for immunizing lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already formulated. (Johnson, supra, 69 Cal. 2d at p. 796.) Moreover. . . immunity applies only to deliberate and considered policy decisions, in which a ‘[conscious] balancing [of] risks and advantages . . . took place. The fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision. [Citations].’” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 [emphasis in original].)

In Caldwell, the court held that “votes by members of a school district’s governing board whether to renew the superintendent’s employment contract qualify as discretionary acts within the meaning of section 820.2.” (Id. at 982.) The Court explained that “the decision about who should serve as superintendent of a school district particularly satisfies the immunity justifications set forth in Johnson, supra, 69 Cal. 2d 782.” (Id.) Additionally, “[t]he superintendent . . .is the district’s foremost appointed official, with primary responsibility for representing, guiding, and administering it. (Ed. Code, § 35035.) The governing board’s choice about who should occupy this crucial post is therefore a peculiarly sensitive and subjective one, with fundamental policy implications.” (Id. at 983 [emphasis added].)

As pled, the Court cannot conclude Gov’t Code §820.2 immunity applies. There are no allegations that the District’s decision not to re-elect or re-new Plaintiff’s contract was a “basic policy decision.” There are no allegations that the District’s decision implicated a fundamental policy or that there was a ‘[conscious] balancing [of] risks and advantages.”

The demurrer is OVERRULED.

Wrongful Termination

The demurrer on the ground that Plaintiff fails to allege that was terminated is SUSTAINED with leave to amend. Here, Plaintiff alleges that he was a probationary employee. As a probationary employee, he was not entitled to continued employment. In opposition, Plaintiff insists that the contract between National University and the District provides that the “direction of the internship is based upon the good standing the Program at University and within the District’s policies and performance standards. If the Intern remained within these guidelines, he/she will be permitted to finish the internship at the District. However, if after appropriate support and advice efforts have been exhausted, the intern may be removed from the District.” (Opposition, 6:18-23.) None of these allegations are within the TAC and Plaintiff has not attached a copy of the contract between the District and National University. Thus, such facts are outside the scope of the complaint.

The demurrer on the ground that Plaintiff fails to identify the public policy violated is also SUSTAINED with leave to amend.

Plaintiff alleges that the District violated the public policy embodied in Education Codes §§44664(a)(1) and 87663(h). Education Code §44644(a)(1) provides “evaluation and assessment of the performance of each certificated employee shall be made on a continuing basis at least once each school year for probationary personnel.” Education Code §87663(h) provides “[a] probationary faculty member shall be accorded the right to be evaluated under clear, fair, and equitable evaluation procedures locally defined through the collective bargaining process where the faculty has chosen to elect an exclusive representative. Those procedures shall ensure good-faith treatment of the probationary faculty member without according him or her de facto tenure rights.” Plaintiff fails to set forth the “public policy” purportedly embodied by these Education Codes. Moreover, there is no allegation that Plaintiff is a “certificated employee” or a “faculty member” for the Education Codes to apply.

Breach of Implied Covenant of Good Faith and Fair Dealing

Plaintiff has not alleged a contractual relationship with the District or attached a copy of the contract between the District and National University. Plaintiff contends that he is a third party beneficiary of the contract between the District and National University.

A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” (Civ. Code § 1559.) However, “it is well settled that Civil Code section 1559 excludes enforcement of a contract by persons who are only incidentally or remotely benefited by it. [Citations.] A third party should not be permitted to enforce covenants made not for his benefit, but rather for others. He is not a contracting party; his right to performance is predicated on the contracting parties’ intent to benefit him . . . .” (California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1137-38) (internal citations and quotation marks omitted) disapproved on other grounds in Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (Cal. Nov. 14, 2016) 2016 Cal. LEXIS 9282 at *33 n.10.)

As a result, “third party beneficiary status is a matter of contract interpretation,” and for purposes of adequately alleging third party beneficiary status, a pleading must plead the specific language of the contract that creates the alleged third-party beneficiary status. (See id. at 1138.)

The demurrer is SUSTAINED with leave to amend. Here, the contract is not attached nor has Plaintiff plead the specific language of the contract that creates the alleged third-party beneficiary status.

The Court grants leave to amend as this is the Court’s first ruling on a challenge to the

complaint.

Where leave to amend is granted, Plaintiff may file and serve a fourth amended complaint (“4AC”) by no later than July 9, 2018, Response to be filed and served within 30 days thereafter, 35 days if the 4AC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the 4AC to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.