Filed 7/23/13 Certified for publication 8/21/13 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                            DIVISION THREE



ERICA COX,                                                         B239693

         Plaintiff and Appellant,                                  (Los Angeles County
                                                                   Super. Ct. No. BS128454)
         v.

LOS ANGELES UNIFIED SCHOOL
DISTRICT,

         Defendant and Respondent.




         APPEAL from an order of the Superior Court of Los Angeles County,

Ann I. Jones, Judge. Affirmed.

         Trygstad, Schwab & Trygstad, Lawrence B. Trygstad and Richard J. Schwab for

Plaintiff and Appellant.

         Office of General Counsel, Los Angeles Unified School District and

Marcos F. Hernandez for Defendant and Respondent.


                         _______________________________________
                                   INTRODUCTION

       Petitioner and appellant Erica Cox appeals an order denying her petition for writ

of mandate. She sought to compel respondent Los Angeles Unified School District

(LAUSD) to classify her as one of its permanent employees, effective July 1, 2009, and

to provide her with appropriate pay and benefits. We agree with the trial court’s analysis

and ruling. We therefore will affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       With a seniority date of March 12, 2009, Cox became a probationary counselor

at Crenshaw High School (Crenshaw), with a normal workday of six hours. After

successfully completing the 2007-2008 school year, Cox continued her probationary

status the next school year.

       LAUSD paid Cox maternity leave from September 2, 2008 through October 31,

2008. The next month, she returned to Crenshaw, her first time on a normal basis for the

2008-2009 school year. That school year had 182 work days.

       For the school year of 2009-2010, Cox was classified as a second year

probationary employee. LAUSD took the position that Cox did not complete her

probationary status for the 2008-2009 school year because she did not satisfy Education

Code section 44908’s “complete school year” requirement of “at least 75 percent of the

number of days” for that year.

       On March 8, 2010, LAUSD notified Cox that she was not selected for

a certificated position for the next school year. On March 10, Cox received a layoff

notice, and on June 24, 2011, LAUSD issued her a final layoff notice.

                                            2
       In September, 2011, Cox filed a petition for relief under Code of Civil Procedure

section 1085. She argued that 30 more hours should be added to her work record to

satisfy the “complete school year” requirement for 2008-2009. In support of her claim,

Cox submitted declarations stating, in effect, that during her maternity leave she had

expended those hours in preparing a grant application on behalf of LAUSD. The trial

court, however, held that those declarations were inadmissible.

       Cox’s declaration dated November 7, 2011, was stricken on the ground that it

contained information contrary to her prior deposition testimony. As the trial court

noted, Cox “clearly testified that she had no additional documentary evidence in support

of her claims at her deposition.” In addition, the trial court sustained LAUSD’s written

objections to Cox’s evidence on the ground of lack of foundation. At the hearing on

Cox’s petition, the trial court also sustained oral objections “to the declarations of Erica

Cox, Krystal O’Leary and Dwyna Blackmon as lacking in foundation regarding when

[Cox] worked on the grant application.” As a result, the trial court concluded that “the

state of the record is that there is no competent evidence in the record to support [Cox’s]

allegation that she worked for [LAUSD] during her maternity leave.”

       The trial court also rejected Cox’s alternative argument that, when her “partial

day” was added to the given 135 days, she actually worked 74.7% of the 2008-2009

school year; that percentage, when rounded up, satisfied the “complete school year”

requirement. In support of her “rounding up” and using “hours” assertions, Cox relied

on Vittal v. Long Beach Unified Sch. Dist. (1970) 8 Cal.App.3d 112 (Vittal), and Griego

v. Los Angeles Unified School Dist. (1994) 28 Cal.App.4th 515 (Griego). Cox argued

                                             3
that those two decisions rejected a “literal construction” of Education Code

sections 44908 and 44929.21(b).

                             CONTENTIONS ON APPEAL

       Cox contends that (1) LAUSD failed to properly credit her with the total number

of hours that she worked and (2) the trial court erroneously excluded admissible

evidence that, if received, would have established that she had worked the required

number of hours.

                                      DISCUSSION

       1.     Standard of Review

       On review of a trial court’s denial of a section 1085 mandate petition, “[o]ur task

is to determine whether substantial evidence in the administrative record supports the

trial court’s ruling [citation], except when the appellate issue is a pure question of law.

The question presented in this case -- whether the trial court applied the correct standard

of review -- is a question of law. We review questions of law de novo.” (Alberda v.

Board of Retirement of Fresno County Employees’ Retirement Assn. (2013)

214 Cal.App.4th 426, 433-434.)

       As the trial court’s ruling was based upon an analysis of case law and statutes,

we proceed with a de novo review. However, as summarized above, that court also

made evidentiary rulings with respect to declarations submitted by Cox. We cannot

reverse the trial court’s exclusion of evidence unless Cox satisfies her burden of

showing those rulings both were erroneous and prejudicial. (Zhou v. Unisource

Worldwide (2007) 157 Cal.App.4th 1471, 1480.)

                                             4
       2.     Relevant Statutory Provisions

       Education Code section 44908 defines a “complete school year” as “at least

75 percent of the number of days the regular schools of the district in which he is

employed are maintained . . . . ” A probationary employee, such as Cox, must serve

“two complete consecutive school years in a position or positions requiring certification

qualifications” prior to becoming classified as a permanent employee. (Educ. Code,

§ 44929.21(b).)

       It is undisputed that Cox satisfied the “complete school year” requirement in

2007-2008. For the school year of 2008-2009, the parties acknowledge that requirement

was 136.5 days (182 total days x .75). As LAUSD admits Cox worked 135 days that

year, she must establish that she worked at least 1.5 additional days.

       Cox advances two distinct arguments to support her claim of entitlement to credit

for the necessary additional days: (1) for her work on a grant application, LAUSD paid

her 30 hours, in effect 5 more days; and, (2) LAUSD acknowledges Cox worked an

additional “partial day” of 3 1/2 hours which, she asserts, must be counted and “rounded

up.”

       3.     The Grant Application Claim

       Cox claims that she worked on a grant application for which she was in fact

compensated by LAUSD. Her position seems contradictory. That is, her stricken

declaration and her legal briefs indicate she did that work while on maternity leave; on

the other hand, in oral argument before this court, Cox’s counsel indicated that work




                                              5
occurred during the time period of November 5-9, after her return from maternity leave.

In any event, as explained below, this claim fails.

       The trial court sustained LAUSD’s objections to most, if not all, of her evidence

in support of this claim. Cox now argues that she “had personal knowledge of the facts”

and her rejected declarations were “relevant.” But, as discussed above, those were not

the reasons why the trial court sustained the evidentiary objections of the LAUSD and

struck such proffered evidence. The trial court ruled her evidence asserted claims that

were contrary to her prior deposition and also lacked foundation. Cox has not addressed

those issues on appeal or explained, as she must under Zhou, supra, why the trial court’s

order was erroneous or how she was prejudiced by the ruling.

       Assuming, arguendo, that Cox had submitted proper evidence to the trial court,

this claim still fails. During her maternity leave, as even she acknowledges, LAUSD

paid no compensation to Cox other than “maternity leave pay.” In November 2008, she

was paid for what appears to be “Z-time.” In any event, Cox stresses that, just after her

return to full-time status, LAUSD paid her five additional hours, beyond her normal six

hours, each day on November 5-7 (Wednesday-Friday), another eight hours on

Saturday, November 8, and an additional seven hours on Sunday, November 9. She

argues this shows that she worked on the grant application. While those payments may

infer she worked more hours (e.g., a school rarely pays extra for no work), the question

still remains whether those hours may be counted to satisfy her “complete school year

requirement.” We answer that question in the negative.




                                             6
       As noted above, section 44908 refers just to “days” not “hours.” So, even if Cox

was paid for more than six hours on November 5-7, any additional hours do not yield

another “day.” She asserts that “Section 44908 does not require that a probationary

employee have worked on any particular day.” Yet, the wording of section 44908 (i.e.,

the school year is counted by adding up the “number of days the regular schools of the

district . . . are maintained”) indicates otherwise; that is, by using words such as

“maintained,” only a day in which schools are “open” (e.g., not a Saturday or a Sunday)

count. Moreover, if Cox were correct, the number of “counting” days for the 2008-

2009 school year would not be 182 - but more if, say, a Saturday or a Sunday could also

be added.

       When she was on maternity leave, she was not full-time at Crenshaw. Such

leave, whether or not she then worked on a grant application, therefore cannot count for

section 44908 purposes. (Hunt v. Alum Rock Union Elementary Sch. Dist. (1970)

7 Cal.App.3d 612, 614-615 (prior Educ. Code, §§ 13328 and 13304 “requires 75 percent

attendance by probationary teachers as a condition of achieving permanent status.”). As

the Hunt court observed, physically in attendance equates to “experience.” (Id., at

p. 614.) Furthermore, according to the LAUSD, actual participation during a “school

day” is important for an probationary employee’s experience and simplifies the

LAUSD’s evaluation of that employee; that makes sense to us.

       Another barrier to Cox’s claim is Education Code section 44975, which

prescribes: “No leave of absence when granted to a probationary employee . . . shall not

be considered as employment within the meaning of . . . Sections 44908 to 44919,

                                              7
inclusive.” This section provides that the time period when a probationary employee is

on a “leave of absence” does not count towards the “complete school year” requirement

of section 44908. Cox’s rejoinder is that “if an employee works during her leave and is

later paid for that work, it would be unconscionable to deny her credit for time worked”

and “if an employee works during a leave and is paid, the employee was not on a leave

for the time she worked.” Beyond that rejoinder, however, she offers no authority for

ignoring the force of section 44975. We, however, cannot overlook the clear language

of that section.

       4.      The “Partial Day” Claim

       LAUSD concedes that Cox worked an additional 3 1/2 hours. Yet, continues the

LAUSD, that makes no difference because Cox cannot count those “hours,” or “round

up” those hours into a day, or “round up” her assumed 74.7% to satisfy section 44908.

       It must be stressed that section 44908 states “at least 75 percent of the number of

days . . . . ” There is no reference therein to “hours” or to “rounding up.” We cannot

substitute “hours” for “days” on nothing more than the argument of counsel. The same

applies to “rounding up.” Additionally, the statute itself belies Cox’s claim. The

Legislature expressly said “at least 75 percent of the number of days.” We cannot hold

that it really meant something else (e.g., “hours” or slightly less, i.e.,74.7%).

       Cox relies upon Vittal or Griego, but neither supports her expansive

interpretations or provides a basis for rejecting a “literal” approach in interpreting key

statutes. Indeed, Griego commands: “In construing a statute . . . significance should be

given to every word, phrase, sentence and part; a construction making some words

                                              8
surplusage is to be avoided.” (Griego, supra, 28 Cal.App.4th at pp. 518-519.) In short,

we cannot overlook section 44908’s clear language.

       In Vittal, the school district’s employee was assigned to work at a junior college.

The appellate court evaluated an Education Code section (since repealed, with no

current comparison), providing that a probationary employee in a junior college district

could complete a school year with 75 percent of the number of hours. The use of hours

there, though, applied only from 1956 to 1968 when the plaintiff taught different hours,

sometimes 3 or 4 days a week. (Vittal, supra, 8 Cal.App.3d at p. 117.) We decline to

apply that situation to this dispute. Moreover, in considering why the Legislature did

what it did with respect to the statute in question, Vittal made reference to the “usual

and general prevailing situation in elementary and secondary schools in which teachers

are assigned to classes taught five days a week. Thus, the requirements of the section

[with respect to such teachers] were expressed in terms of days.” (Id., at p. 120.)

       Griego stands for the proposition that Education Code section 44949.21 must be

harmonized with Education Code section 44975. In construing both of those sections,

that court concluded that a leave of absence does not create a break in the continuity of

service required for classifying an employee as permanent. The rule at issue here is not

related to “a break in the continuity of service,” but instead how to satisfy the specific

requirements of section 44908. We see no rationale to extend Griego’s conclusion to

this appeal.




                                             9
                                     CONCLUSION

       We conclude that Cox’s claims find no support in an evidentiary sense or in the

relevant sections of the Education Code. As the trial court observed,”[w]hile it may

appear draconian, [Cox’s] failure to work one and a half additional days during the

2008-2009 school year supports [LAUSD’s] conclusion that the year’s service did not

constitute a complete school year. [Cox] was, therefore, properly classified as

a probationary employee in 2009-2010, and on March 8, 2010, was properly notified

that she was non-reelected effective at the end of that year.”




                                            10
                                DISPOSITION

    The order is affirmed. LAUSD shall recover its costs on appeal.




                                                                HEESEMAN, J.

WE CONCUR:




    CROSKEY, Acting P. J.




    ALDRICH, J.




                                       11
Filed 8/21/13
                           CERTIFIED FOR PUBLICATION



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                   DIVISION THREE



ERICA COX,                                            B239693

        Plaintiff and Appellant,                      (Los Angeles County
                                                      Super. Ct. No. BS128454)
        v.

LOS ANGELES UNIFIED SCHOOL                            ORDER CERTIFYING OPINION
DISTRICT,                                             FOR PUBLICATION
                                                      [NO CHANGE IN JUDGMENT]
        Defendant and Respondent.




THE COURT:

        The opinion in the above-entitled matter filed on July 23, 2013, was not certified

for publication in the Official Reports. For good cause it now appears that the opinion

should be published in the Official Reports and it is so ordered.

        [There is no change in the judgment.]
