Filed 3/1/16 Ortolano v. Los Angeles Unified School Dist. CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


RALPH J. ORTOLANO, JR.,                                              B258305

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC491637)
         v.

LOS ANGELES UNIFIED SCHOOL
DISTRICT,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Joanne O’Donnell, Judge. Reversed and remanded.

         Ralph J. Ortolano, Jr., in pro. per., for Plaintiff and Appellant.

         Holguin, Garfield, Martinez & Quinonez, Jesus Quinonez and Michael Plank for
United Teachers Los Angeles as Amici Curiae on behalf of Plaintiff and Appellant.

         Los Angeles Unified School District Office of General Counsel, Anthony J.
Bejarano, Assistant General Counsel, and Marcos F. Hernandez, Associate General
Counsel, for Defendant and Respondent.


                                  ________________________________
       Ralph J. Ortolano, Jr., a captain in the United States Navy Reserve, filed petition
for writ of traditional mandamus, joined with causes of action for declaratory and
injunctive relief, against his former employer, the Los Angeles Unified School District
(hereafter the District). Ortolano alleged he qualified for statutory classification as a
“permanent” teacher (see Educ. Code, § 44000 et seq.) on a date before the District
terminated him. Further, Ortolano alleged that the District violated the Uniformed
Services Employment and Reemployment Rights Act of 19994 (USERRA; 38 U.S.C.
§ 4301 et seq.) in connection with his employment.1 He sought a judgment compelling
the District to restore him to employment, “as a certificated permanent employee with a
full-time assignment.” The trial court denied Ortolano’s claims and entered judgment in
favor of the District. Ortolano appealed.2 We reverse the judgment and remand with
directions to the trial court to enter a finding that Ortolano attained permanent teacher
status at the conclusion of the 2009-2010 school year, and for such other proceedings as
are necessary to determine his claims for wages and benefits for the period during which
he was denied such status.
                                           FACTS
Background
       In 2002, the District hired Ortolano as an adult education teacher in its Division of
Adult and Career Education (DACE). At all relevant times thereafter, Ortolano worked
as an adult education teacher in the DACE system at various facilities operated by the
District. Under Ortolano’s accounting of his teaching duties over a course of years, he
accepts that the District properly classified him as a “temporary” teacher, largely without
protections afforded to “probationary” or “permanent” teachers, under the applicable
Education Code provisions up to the start of fall term of the 2006-2007 school year.


1
       All undesignated section references hereafter are to the Education Code, and all
references to USERRA sections are to title 38 of the United States Code.
2
      Ortolano was represented by counsel in the trial court; he is now self-represented
on appeal. He has advised us that he is a member of the state bar.

                                              2
The Teaching Service and Military Service at Issue
       During the first half of the 2006-2007 school year, the District assigned Ortolano
to work 13 hours per week. This schedule placed Ortolano on track to remain classified
for the 2006-2007 school year as a temporary teacher under the third paragraph of section
44929.25, As we develop below, the number of hours that a teacher works factors into
his or her classification under the Education Code.
       However, starting in late January 2007, the District increased Ortolano’s assigned
hours to 20 hours per week. This work schedule included 18 hours of regular assigned
teaching duties, plus an additional two hours of teaching duties that were ostensibly
assigned pursuant to a written contract signed by Ortolano. The written contract stated
that the two additional assigned hours were offered through a “categorically funded
program” –– identified on the face of the contract as the “WIA.” In papers submitted for
trial of Ortolano’s current writ action, the District presented evidence establishing that
the WIA referred to the Workplace Investment Act under which the federal government
funds education programs, including English as a Second Language (ESL) services.
(See U.S.C. § 2801 et. seq.)
       Further, the January 2007 contract signed by Ortolano stated that the two hours of
teaching which were the subject of the contract were “offer[ed] . . . under the provisions
of section 44909.” As we explain more fully below, section 44909 authorizes school
districts to employ teachers for a “categorically funded program,” on an as-needed basis,
without those teaching hours being credited toward obtaining status as a “permanent”
teacher. Ortolano’s January 2007 contract included language indicating that it would
terminate on a specific date, June 23, 2007. For ease of discussion, and without crediting
any legal conclusions to the term, we hereafter refer to the two additional hours of
teaching that the District assigned to Ortolano pursuant to the January 2007 contract as
“section 44909 hours.”
       The category into which all or any part of the number of assigned teaching hours
worked by Ortolano beginning in January 2007 are placed is a subject of significant
import in Ortolano’s current action. As we discuss below, total teaching duties of more

                                              3
than 18 hours per week may have qualified Ortolano for classification as a probationary
teacher, with certain accompanying employment rights and benefits. Conversely, total
teaching duties of 18 hours or less per week may have left him classified as a temporary
teacher. Stated in other words, the question is whether Ortolano worked a total of 20
hours per week of regular District teaching hours starting in January 2007, or,
alternatively, whether he worked 18 hours of regular District teaching hours, and two
section 44909 hours severable from his regular District service hours, the latter of which
would not be counted in determining his status as a probationary teacher.3
       For both semesters of the 2007-2008 school year, the District employed Ortolano
to work 20 hours per week, which again included 18 hours of regular teaching duties, and
two hours of additional teaching duties that were ostensibly assigned through a WIA
categorically funded program. Ortolano signed a written contract for the two additional
hours in the 2007-2008 school year as he did for the year before. The contract, as the one
noted above, provided that the two additional hours were offered under the provisions of
section 44909. So, again, there is a question as to whether Ortolano worked a total of 20
hours per week of regular District duties during the 2007-2008 school year, or whether he
worked 18 hours of regular District teaching hours, and two section 44909 hours of
teaching hours which would be viewed a separate from his District service hours and
which would not be counted in determining his status as a probationary teacher.
       In August 2008, just prior to the start of the 2008-2009 school year, Ortolano
deployed overseas. A short time before he deployed, the District had assigned Ortolano
to work a schedule for the 2008-2009 school year as in the prior school year, namely,
18 hours per week regular teaching duties, and an additional two hours per week

3
       Ortolano’s operative pleading in his current writ proceeding did not affirmatively
seek a ruling that his two additional hours of teaching under the section 44909 contracts
should be counted as regular District teaching hours; he merely alleged that he had
worked 20 hours during certain school years. The District raised the issue of the
categorization of Ortolano’s two additional teaching hours under section 44909 in the
course of the writ proceedings as a defense. In short, the District maintained that
Ortolano never worked more than 18 hours of regular teaching duties because the two
additional hours were worked under section 44909 contracts.

                                             4
ostensibly assigned through a WIA categorically funded program. Ortolano again signed
a written contract which provided that the two additional hours were offered under the
provisions of section 44909. The contract specified a termination date of March 27,
2009. In summary, the District assigned Ortolano to teach a certain number of hours just
before the start of the 2008-2009 school year, but he never actually taught during the first
part of the school year because he was away for military service. The facts here also
became a subject of Ortolano’s current action as it implicates the USERRA.
       Ortolano remained deployed for military service through late November 2008.
Upon his return, Ortolano informed the District that he would be ready to return to work
on December 1, 2008, and that he “expect[ed] to return to work . . . with [his] full
complement of hours.” Had Ortolano returned to work as scheduled prior to his
deployment, his work hours would have consisted of the 18 hours per week regular
teaching duties, and an additional two hours per week ostensibly assigned through a
categorically funded program, pursuant to the written contract he signed just before the
start of the 2008-2009 school year. Instead, the District told Ortolano to report to work
on December 8, 2008 for an assignment that consisted of roughly 12 hours per week.
On December 15, 2008, the District assigned Ortolano an additional 8 hours per week.
These two assignments terminated on June 18, 2009, at the end of the 2008-2009 school
year. Apart from the section 44909 contract that Ortolano had signed before the start of
the 2008-2009 school year, which the District apparently disregarded when he left for
military service, Ortolano did not sign a new section 44909 contract for any assigned
hours in the 2008-2009 school year that he worked after he returned from his military
service.
       For the start of the 2009-2010 school year, the District assigned Ortolano to work
10 hours per week. In October 2009, Ortolano received another assignment totaling five
hours per week. In January 2010, Ortolano received an additional assignment teaching
ESL. His total hours were 18 hours per week from January 2010 through the end of the
2009-2010 school year. It appears to be an undisputed fact that Ortolano did not sign a



                                             5
section 44909 contract for any part of the 2009-2010 school year. The average number of
hours that Ortolano worked during the 2009-2010 totaled less than 18 hours per week.
       For the 2010-2011 school year, Ortolano was assigned to work 18 hours per week.
During the spring 2011 semester, the District assigned Ortolano to work 24 hours per
week from February 28, 2011 through June 9, 2011, with 6 of the 24 hours offered
through a categorically funded program to teach ESL. Ortolano signed a section 44909
contract for the period from February 2011 to June 2011 which provided that the six
hours were offered under the provisions of section 44909.
       For the start of the 2011-2012 school year, Ortolano was assigned to work 18
hours per week. In February 2012, the District assigned Ortolano to work an additional
two hours per week, offered through a categorically funded program to teach ESL. As he
had before, Ortolano signed a written contract which provided that the two hours were
offered under the provisions of section 44909.
       In March 2012, the District served Ortolano with a “Reduction in Force” (RIF)
notice, advising him that he would not be re-elected, or hired back, for the 2012-2013
school year.4 In July 2012, the District published a list of teachers whose “layoffs”
would be rescinded. The District did not rescind Ortolano’s layoff, and did not provide
him with an administrative hearing or other process to challenge these determinations.
The Litigation
       In September 2012, Ortolano commenced his current action against the District.
In January 2013, Ortolano filed his operative first amended petition for writ of traditional
mandate pursuant to Code of Civil Procedure section 1085, joined with causes of action
for declaratory and injunctive relief. The operative pleading sought a judgment and writ
commanding the District to “acknowledge and enforce” Ortolano’s “right[] . . . to re-
employment as a full-time certificated teacher” based upon 11 separate causes of action

4
      At the time Ortolano received his RIF notice, section 1296, subdivision (b),
mandated that a school district serve such notice on a teacher by March 15 of the
employee’s second complete consecutive year of employment. In the event such a notice
was not given, the employee was “deemed reelected for the next succeeding school year”
by operation of law. (§ 1296, subd. (b); see also § 44929.21, subd. (b).)

                                             6
seeking a declaration of rights under, and commanding abidance with, multiple sections
of the USERRA and the Education Code.
       Ortolano’s pleading alleged that, as of “September 9, 2009, or such other date as
the court should determine proper,” the District had “failed to properly classify” him as
a “permanent status certificated employee.” Ortolano alleged he had satisfied the
statutory definition of a probationary teacher during the 2007-2008 and 2008-2009 school
years, taking into account as to the latter school year the time that he had spent away
from teaching during that year while serving in the military, and that he therefore
qualified for permanent teacher status under section 44929.21, subdivision (b). Section
4429.21, subdivision (b) provides: “Every employee of a school district . . . who, after
having been employed by the district for two complete consecutive school years in a
position or positions requiring certification qualifications, is reelected for the next
succeeding 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 district.”
       Ortolano tried his action to the trial court in June 2013. The trial briefs and
evidence demonstrate that the case was presented along the following lines. Ortolano
asserted that he worked as a probationary teacher during the 2007-2008 school year, and
during the 2008-2009 school year provided he was given credit for his military service
under the USERRA for the 2008-2009 school year. This meant, he concluded, that he
qualified as a permanent teacher at the beginning of the 2009-2010 school pursuant to
section 44929.21, subdivision (b), because he had worked for two consecutive years as a
probationary teacher. Specifically, Ortolano claimed he became a permanent teacher on
September 8, 2009. The District asserted that Ortolano’s time away for military service
could not substitute under the USERRA for actual probationary teaching time in the
classroom during the 2008-2009 school year. Further, the District argued that Ortolano
never taught as a probationary teacher during any school year because he never worked
the threshold of more than 18 hours per week. This position was based on the section
44909 contracts that Ortolano signed at various times during his employment.

                                               7
       The court denied Ortolano’s claims, based on a series of interpretations of
different Education Code sections. The court interpreted section 44929.25 to provide that
adult educators such as Ortolano, who do not work more than an average of 18 hours per
week, are statutorily defined as temporary employees. Further, that when section
44929.25 is read in conjuction with section 44915, the statutory scheme means, as
summarized by the court: “To the extent that an adult educator works more than [the
threshold of 18 hours per week], he does not fit the definition of a temporary employee,
and must be considered a probationary employee.”
       As to the District’s position under section 44909, the court explained the
relationship between section 44929.25 and 44909 as follows: “[T]he hours worked under
[a] specially funded contract are not credited towards the attainment of permanent
tenured status [under section 44909.] However, section 44909’s prohibition of crediting
special contract hours concerns the accumulation of service time for tenure, [i.e.,
permanent teacher status,] while the temporary/probationary threshold under [section]
44929.25 concerns total hours worked during the relevant period. It does not appear that
the former restriction applies to the latter [subject matter]. See Haase v. San Diego
Community College District (1980) 113 Cal.App.3d 913, 918 (temporary classifications
are strictly construed and generally are read to defeat attempts to subvert the protections
provided by the tenure system).” The court then found that Ortolano had worked 20
hours per week during the 2007-2008 school year, “18 are regular and 2 hours . . . are
designated ‘specially funded programs. . . .’”5
       The court then viewed its task to be to determine whether Ortolano’s workload
exceeded 18 hours per week during any or all of the school years he worked, rendering
him a probationary teacher accordingly. The court reached the following conclusions.




5
       Here, we interpret the trial court’s ruling to include a finding that Ortolano did
work pursuant to validly entered and implemented section 44909 contracts with the
District. We discuss this finding below in addressing Ortolano’s arguments on appeal.

                                             8
           For the 2007-2008 school year, Ortolano was a probationary teacher
              because his average workload was 20 hours per week.
           For the 2008-2009 school year, Ortolano was a probationary teacher
              because his average workload was 20 hours per week, taking into account
              his military service.
           For the 2009-2010 school year, Ortolano was a temporary teacher because
              his average workload was less than 20 hours per week.
           For the 2010-2011 school year, Ortolano was a probationary teacher
              because his average workload was 20.211 hours per week.
           For the 2011-2012 school year, Ortolano was a probationary teacher
              because his average workload was 18.976 hours per week.


       In finding that Ortolano’s average workload in the 2007-2008 and 2008-2009
school years totaled 20 hours per week, the trial court included in his teaching hours the
two additional section 44909 hours that he had worked in those years ostensibly under the
written contracts the he had signed which referred to section 44909. The court ruled that
section 44909 only applied to the subject of eligibility for permanent tenured status, and
that, in working a total of 20 hours per week, Ortolano met the statutory definition of a
probationary teacher. In summary, the court rejected the District’s position that section
44909 hours must not be counted in determining a person’s status as a probationary
teacher. The court did not explicitly explain what tenure protections, if any, would inure
to a person who attained probationary teacher status under the court’s interpretation of
the relationship between sections 44909, 44925.25 and 44915.
       Finally, the trial court addressed the ultimate issue whether Ortolano attained the
status of a permanent teacher at any point during his employment with the District. Here,
the court ruled that Ortolano did not attain the status of a permanent teacher at the
conclusion of his 2007-2008 and 2008-2009 school years because, while the time in
military service would be counted to determine his probationary teacher status for the
2008-2009 school year as noted above, that time would not be counted for purposes of

                                              9
transitioning to permanent teacher status because he was not subject to a period of
observation and evaluation during the 2008-2009 school year. In other words, while
Ortolano satisfied the statutory definition for probationary teacher status for the 2008-
2009 school year when taking into account his military service, he did not meet the
qualifications for transitioning to permanent teacher status upon the completion of the
2008-2009 school year because he had not been subject to review and observation in
teaching duties during the whole of the 2008-2009 school year.
       Further, the court found that, while Ortolano was a probationary teacher for the
2010-2011 school year and the 2011-2012 school year, did not attain permanent status at
the end of the 2011-2012 school year because the District had decided not to “re-elect”
him for the 2012-2013 school year, having served him with a RIF in March 2012.
       The court signed and entered a judgment in favor of the District. Ortolano filed a
timely notice of appeal.
                                      DISCUSSION
I.     The District’s Claim that Ortolano Never Qualified for Probationary Teacher
       Status Lacks Merit.
       We begin our discussion with an argument by the District that, if correct,
potentially resolves all of the issues in Ortolano’s current case, which is that Ortolano
never qualified for probationary teacher status during any school year. Specifically, the
District argues that (1) probationary teacher status during any given school year, the
predicate ground for transitioning to permanent teacher status, required Ortolano to work
a teaching schedule averaging more than 18 hours per week over the course of a given
school year , and that (2) he taught less than this threshold every single school year in
which he was employed by the District. Stated in other words, the District proposes that
Ortolano remained a temporary teacher at all times during his employment with the
District, and never attained any probationary teacher rights or protections under the
Education Code. Further, as a consequence of his temporary teacher status, the USERRA
“could never apply” to any material issue in the current case. The District’s proposition



                                             10
that Ortolano never qualified for anything more than temporary teacher status is based on
section 44909. The trial court disagreed with the District on this point, and so do we.
       The District’s argument regarding Ortolano’s status as a temporary teacher is
based on the section 44909 contracts that he signed. The District asserts that Ortolano
worked less than the threshold for probationary teacher status during all of the school
years in which that he signed a section 44909 contract because the hours worked pursuant
to those contract must be excluded from the calculation of total hours with which he may
be credited for purposes of calculating his probationary teaching status. The District
argues that the extra section 44909 hours cannot be added to his underlying regular
District teaching hours, meaning that his status never transformed from that of a
temporary teacher into that of a probationary teacher. Essentially, the District maintains
that the threshold of more than 18 teaching hours per week for purposes probationary
teacher status means more than 18 hours of regular teaching duties, and not some
combination of regular teaching hours plus section 44909 hours which together add up to
more than 18hours.
       For the 2007-2008 school year, the trial court recognized that Ortolano “worked
20.00 hours per week [consisting of] 18.00 regular hours and 2.00 hours.” Further, the
court ruled that 20 hours equals 20 hours when determining probationary teacher status
under section 44929.25. Thus, Ortolano was a probationary teacher during the 2007-
2008 school year.
       We affirm the trial court’s conclusion that Ortolano was a probationary teacher
during the 2007-2008 school year, albeit not completely in line with the trial court’s
reasoning. As we explain, we find Ortolano attained probationary teacher status based on
the specific factual circumstances of his case.
The Education Code
       More than one of the published cases addressing the Education Code’s provisions
governing the classification of teachers has used terms such as “complex and obscure” or
“in internal conflict” with each other. (See, e.g., Santa Barbara Federation of Teachers
v. Santa Barbara High Sch. Dist. (1977) 76 Cal.App.3d 223, 228; California Teachers

                                             11
Assn. v. Vallejo City Unified School Dist. (2007) 149 Cal.App.4th 135, 153.) We agree.
Be this as it is, one basic tenet of the statutes is that teachers are divided into three main
classifications: temporary, probationary, and permanent.6 It is also clear that a
probationary teacher who meets certain qualifications, primarily service for a time period
prescribed by the Education Code, will then attain the status of a permanent teacher.
(See § 44929.21, subd. (b).) Also certain is that the statutory protections afforded a
teacher under the Education Code, e.g., the right to be re-elected to teach for an ensuing
school year, and the right to due process hearings for employment decisions, are
dependent on the teacher’s proper classification. In other words, the critical question is
not how a school district classifies a teacher as a matter of its own record-keeping or its
human resources management, but how that teacher is actually classified under the
Education Code, given the circumstances of his or her employment.
       This brings us to some specific statutory provisions. Section 44915 provides that
a school district “shall classify” any teacher who is not classified as a permanent teacher
as a probationary teacher. (See generally Stockton Teachers Assn. CTA/NEA v. Stockton
Unified School Dist. (2012) 204 Cal.App.4th 446, 455-456 (Stockton).) Thus, it has been
stated that the probationary teacher classification is the “default classification” when the
Education Code does not otherwise specify another teacher classification. (Id. at p. 456.)
That said, the published cases recognize that certain provisions of the Education Code do
authorize school districts to classify teachers as temporary teachers. (Ibid.) At the same
time, however, the published cases indicate that the temporary teacher classification may
be applied only in “‘certain narrowly defined situations,”’ and that any statute concerning
the classification of a teacher as a temporary teacher must be “strictly construed” in favor
of the default classification of probationary teacher. (Id. at pp. 456-457.) Accordingly,
even when an employee agrees in a written contract to be hired as a temporary teacher,
“such a written agreement is not determinative unless the classification is authorized by

6
       The Education Code also includes statutes governing substitute teachers, but those
laws are not involved in this case. Further, as will be developed in this opinion, there are
teachers who contract to work for school districts under categorically funded projects.

                                              12
statute. A school district may not classify a person as a temporary employee unless the
position in which he or she is employed is ‘a position the law defines as temporary.’
[Citation.] If the employee does not satisfy one of the statutory grounds for classification
as a temporary employee, the default provision of section 44915 mandates classification
as a probationary employee. [Citation.]” (Id. at p. 457.)
       Section 44917 prescribes when temporary employment will be deemed to be
probationary employment. The third paragraph of section 44917 provides: “Any person
employed for one complete school year as a temporary employee shall, if reemployed for
the following school year in a position requiring certification qualifications, be classified
by the governing board as a probationary employee and the previous year’s employment
as a temporary employee shall be deemed one year’s employment as a probationary
employee for purposes of acquiring permanent status.”
       Section 44929.25 is a temporary teacher statute. Section 44929.25 governs the
subject of teachers of “adult classes.” It is undisputed that Ortolano taught in the
District’s DACE system for adults and thus fell under the ambit of section 44929.25.
The third paragraph of section 44929.25 reads:
              “Notwithstanding any other provision to the contrary, any person
       who is employed to teach adults for not more than 60 percent of the hours
       per week considered a full-time assignment for permanent employees
       having comparable duties shall be classified as a temporary employee, and
       shall not become a probationary employee under the provisions of Section
       44954.” (Italics added.)7
       The parties in Ortolano’s current case agree that the 60 percent figure prescribed
by section 44929.25 means a threshold of teaching duties of more than 18 hours per week
in the District’s DACE program. (See Kettenring v. Los Angeles Unified School District

7
       The reference to section 44954, here, appears to be a problem with coordinating
section numbers as the Education Code was amended over the years. Former section
44954 explained when a temporary teacher would be considered a probationary teacher.
(See Stats. 1976, ch. 1010, § 2.) The current section 44954 merely explains when a
school district may terminate a temporary teacher.

                                             13
(2008) 167 Cal.App.4th 507, 515-516.) Further, the parties agree that the measure of this
“more than 18 hours per week” threshold is determined by calculating the average
number of hours an employee worked for an entire school year, not by looking to any
given time period during that school year where the employee may have been assigned to
work more than an 18 hours per week. (See Berkeley Federation of Teachers v. Berkeley
Unified School Dist. (1986) 178 Cal.App.3d 775, 779-780.) Accordingly, if Ortolano
worked 18 hours or less per week, then he would be classified properly as a temporary
teacher under the statutory definition set forth in section 44929.25. On the other hand, if
he worked more than 18 hours, he does not fit the definition of a temporary teacher, and
must be considered to have fallen into the default classification of a probationary teacher
pursuant to section 44915.
       The District argues that, in determining if Ortolano worked the threshold of more
than 18 hours to qualify him for probationary teacher status, section 44909 must be
considered. That section has the smell of being another temporary teacher statute,
although it does not use express “temporary employee” language as does section
44929.25. Section 44909 gives a school district the authority to employ a teacher for a
temporally-fixed duration –– specifically, for the time the district is providing educational
services through a “categorically funded program.” When a school district employs a
teacher, as needed, for such a categorically funded program, the hours that a teacher
works are not counted in determining the teacher’s eligibility for permanent status.
Section 44909 reads as follows:
              “The governing board of any school district may employ persons
       possessing an appropriate credential as certificated employees in programs
       and projects to perform services conducted under contract with public or
       private agencies, or categorically funded projects which are not required by
       federal or state statutes. The terms and conditions under which such
       persons are employed shall be mutually agreed upon by the employee and
       the governing board and such agreement shall be reduced to writing.
       Service pursuant to this section shall not be included in computing the

                                             14
       service required as a prerequisite to attainment of, or eligibility to,
       classification as a permanent employee unless (1) such person has served
       pursuant to this section for at least 75 percent of the number of days the
       regular schools of the district by which he is employed are maintained and
       (2) such person is subsequently employed as a probationary employee in a
       position requiring certification qualifications. Such persons may be
       employed for periods which are less than a full school year and may be
       terminated at the expiration of the contract or specially funded project
       without regard to other requirements of this code respecting the
       termination of probationary or permanent employees . . . .
              “[¶]
              “This section shall not be construed to apply to any regularly
       credentialed employee who has been employed in the regular education
       programs of the school district as a probationary teacher before being
       subsequently assigned to any one of these programs.” (Italics added.)


       Section 44909 derives from former section 13329, which existed prior to the
reorganization of the Education Code that became effective in 1977. (Zalac v. Governing
Bd. of Ferndale Unified School Dist. (2002) 98 Cal.App.4th 838, 845 (Zalac).) We have
reviewed the language of former section 13329 (see Stats. 1973, ch. 399, § 2); it is
virtually identical to that found in section 44909. In Winslow v. San Diego Community
College Dist. (1979) 97 Cal.App.3d 30, the court read the language of former section
13329 to embody the Legislature’s “intent . . . to prevent a person from acquiring
probationary status [sic] solely through teaching in a categorically funded program. This
permits the hiring of qualified persons for categorically funded programs . . . without
incurring responsibility [thereafter] to grant tenured status based on such teaching
services alone.” (Id. at p. 38, italics added.) We will have more to say on this subject
below, but note here that former section 13329, and current section 44909, only speak to
the subject of a teacher’s “eligibility to . . . classification as a permanent employee,” and

                                              15
that neither section expressly speaks to the subject of a teacher’s eligibility for
classification as a probationary teacher. Even so, we agree with the general proposition
that former section 13329 was, and current section 44909 is, intended by the Legislature
“‘to give school districts flexibility in the operation of special educational programs
[which] supplement their regular program,’” and to relieve school districts ‘“from having
a surplus of . . . permanent teachers’” when funds for a special educational program are
terminated or cut back. (Zalac, supra, 98 Cal.App.3d at p. 845, italics added, quoting
from Kamin v. Governing Board (1977) 72 Cal.App.3d 1014, 1018 (Kamin).)
       With this statutory framework in place, we address whether the trial court
correctly found that Ortolano was a probationary teacher for the 2007-2008 school year.
Analysis
1.     The Statutory Construction
       The trial court found that Ortolano qualified as a probationary teacher by statutory
definition under sections 44915 and 44929.25 because he worked an average of more
than 18 hours per week. The District agues this is incorrect because certain of Ortolano’s
hours were taught pursuant to a section 44909 contract. In making this argument, the
District necessarily stakes out the position that section 44909 hours categorically should
not be countable as regular teaching hours when it comes to determining a teacher’s
probationary status.8 The trial court construed sections 44915 and 44929.25 on the one
hand, and section 44909 on the other hand, as dealing with distinct subjects. As stated by
the trial court: “[T]he hours worked under the specially funded project are not credited
towards the attainment of permanent tenured status. [Citation.] However, section
44909’s prohibition of crediting special contract hours concerns the accumulation of
service time for tenure, [that is, permanent teacher status,] while the
temporary/probationary threshold under [section] 44929.25 concerns total hours worked

8
       Amicus United teachers of Los Angeles (UTLA) essentially argues in a brief
supporting Ortolano’s appeal that the District’s practice of using section 44909 contracts
is designed to deny proper classification of teachers as having probationary teacher
status. We do not reach this issue because we find it unnecessary to do so to resolve
Ortolano’s appeal.

                                              16
during the relevant period. It does not appear that the former restriction applies to the
latter scenario. . . .”
        We have read nothing in the briefs to persuade us to reject the trial court’s plain
language reading of the statutes, although we recognize that it does set up the potential
for a conflict between section 44909, which disallows section 44909 hours from being
credited toward eligibility for permanent teacher status, and section 44929.21,
subdivision (b), which provides that a probationary teacher transitions to a permanent
teacher after two consecutive years of service as a probationary teacher. If a teacher is
given probationary status under section 44929.25 under the trial court’s interpretation,
and works for two years as such, he or she would transition to a permanent teacher under
section 44929.21, subdivision (b). This could be a conflict in the event that part of the
hours credited for probationary status under the trial court’s interpretation of section
44929.25 are section 44909 hours, which should not be credited for attaining permanent
teacher status. The trial court avoided this conflict by finding other reasons, apart from
section 44909, for why Ortolano did not transition from a probationary teacher to
permanent teacher. All of this being as it may, we agree with the trial court that sections
449915 and 44929.25 mean what they say –– a teacher who works more than 18 hours
per week is a probationary teacher by statutory definition. This conforms with the
general rule that probationary teacher status is favored, whereas temporary teacher status
is disfavored, and to be strictly construed.
2.      The Factual Examination
        But even assuming we accepted that section 44909 must be considered in the
probationary teacher determination, when it facially applies because a teacher has signed
a section 44909 contract, we would still affirm the trial court’s ruling on Ortolano’s
probationary teacher status. Here, we find the trial court’s finding that Ortolano did, in
fact, work pursuant to validly entered and implemented section 44909 contracts with the
District (see footnote 5, ante) is not supported by the record.




                                               17
       The published cases make clear that the question of a teacher’s status under the
Education Code is largely dependent upon the history and the circumstances of his or her
teaching duties, and how the facts of that teaching history fit within the Code’s provisions
governing teacher classifications. As such, a trial court’s determination of a teacher’s
status is reviewed for substantial evidence. (See, e.g., American Federation of Teachers
v. Board of Education (1977) 77 Cal.App.3d 100, 106-108 [“substantial evidence”
supported the trial court’s finding on teacher’s status]; see also Stockton, supra, 204
Cal.App.4th at pp. 464-465 [discussing teachers’ status as shown by the evidence and
concluding that there was “no proof” they were temporary employees]; California
Teachers Assn. v. Vallejo City Unified School Dist., supra, 149 Cal.App.4th at pp. 148-
152 [reviewing contested factual claims]; and see also Kamin, supra, 72 Cal.App.3d at
p. 1017 [where the evidence establishes that the “statutory requirements are met, a
teacher’s rights are automatically vested independently of any action by the governing
board”].) Here, the record does not contain substantial evidence establishing that
Ortolano did actually teach pursuant to a validly entered and implemented section 44909
contract. In other words, because the District did not prove that Ortolano taught pursuant
to a validly entered and implemented section 44909 contract, we are left with a record
showing that he worked more than 18 hours per week on average, notwithstanding that he
signed a section 44909 contract.
       Stockton, supra, 204 Cal.App.4th is instructive. In Stockton, a school district
classified nine teachers who had been hired pursuant to written temporary teacher
contracts as temporary teachers, and issued them notices that they were being laid off for
the upcoming school year. Notwithstanding that a true temporary teacher is not entitled
to an administrative hearing to contest a lay off decision, the school district offered such a
hearing to the teachers out of concern whether it had inappropriately classified them as
temporary teachers. An administrative law judge ruled that the school district was not
prohibited from entering into temporary contracts with employees working in categorical
funded programs under section 44909. The teachers union, in turn, filed a petition for
writ of administrative mandate to challenge that decision. (Stockton, supra, 204

                                             18
Cal.App.4th at pp. 451-453.) The trial court denied the union’s petition. The Court of
Appeal reversed the trial court’s judgment. It reasoned:
       “Section 44909 employees are thus treated like probationary or temporary
employees depending on the duration of their employment. A person employed under
section 44909 is to be treated like a temporary employee, provided the person is
employed for the duration of the contract with a public or private agency or categorically
funded project. In other words, a person may be hired for the particular project (or
contract) term and be terminated at the end of that term without the notice that would be
required for a probationary or permanent employee. . . .
       “What a district may not do is hire a person for more or less than the entire or
remaining term of the contract or project, and treat such a person as a temporary
employee. . . . Because an employee who is terminated before the end of the contract or
project, or who is hired for a period less than the entire or remaining term of the contract
or project is not a person hired ‘pursuant to this section’ such an employee must be
treated as a probationary employee — the default classification. [Citation.] Said
employee accrues service time as a probationary employee. In terms of seniority and
reemployment rights, employees hired for less than the entire or remaining term of the
project or contract and employees terminated before the end of the contract or project are
entitled to be treated like probationary employees.
       “This interpretation of the section satisfies the competing interests the Legislature
sought to balance in enacting the classification provisions of the Education Code and in
enacting section 44909. Specifically, this interpretation allows school districts the
flexibility to operate special programs without having a surplus of probationary or
permanent teachers when the special program is terminated. [Citation.] It also protects
employees by preventing a district from hiring temporary employees for a term that has
no relation to the term of the program for which they are hired.” (Stockton, supra, 204
Cal.App.4th at pp. 463-464, fn. omitted.)




                                             19
       The Stockton court then applied the facts to the statutory scheme: “Turning to the
particular employees that are the subject of this action, there is no evidence that the
employees were terminated at the expiration of a categorically funded program. [¶] The
administrative record contains the employment agreements of all the affected employees
except Rebecca Hardison, Susheela Nath and Adrian Nickols. The agreements in the
record indicate they all began employment after July 1, 2008, for a term ending May 29,
2009. None of the agreements indicates the particular categorical program for which
each was being hired.
       “The only evidence regarding the particular categorical program for which the
employees were hired was presented not by District, but by the employees themselves.
Thus, Annette Albertoni testified that she was told there were positions open because of
QEIA, the Quality Education Investment Act of 2006 [Citation.]. Gloria Gonzalez
testified that she was told her position was through special QEIA funds. Adriana Solis
testified that she was never told about any special funding for her position when she was
hired, but after she was hired she was sent to QEIA training. That was how she became
aware that she was in a QEIA funded position. No evidence was presented that QEIA
funding was eliminated.
       “District asserted that Rebecca Hardison was eliminated because of a reduction in
CAHSEE (California High School Exit Examination) funding. There was no evidence
that CAHSEE was a categorically funded program, or that it was being eliminated.
       “Susheela Nath testified she was hired as a literacy specialist. District presented
evidence that the instructional specialist positions are categorically funded positions.
However, no evidence was presented that the instructional specialist funding was being
eliminated.
       “In the administrative proceeding, District filed an accusation against the teachers
involved in this appeal, alleging that they were temporary employees. Because District
made this affirmative assertion, it had the burden of proof. [Citation.] District concedes
it had the burden of proving compliance with the layoff statutes. To prove that its
employees were temporary under section 44909, District was required (1) to show that

                                             20
the employees were hired to perform services conducted under contract with public or
private agencies or categorically funded projects which are not required by federal or
state statutes; (2) to identify the particular contract or project for which services were
performed; (3) to show that the particular contract or project expired; and (4) to show that
the employee was hired for the term of the contract or project. Because District failed to
prove some or all of these facts, the employees must be treated as probationary.”
(Stockton, supra, 204 Cal.App.4th at pp. 464-465.)
       In Ortolano’s case, the District raised the claim that Ortolano was a temporary
employee. Because the District made this affirmative assertion, it had the burden of
proof. (Stockton, supra, 204 Cal.App.4th at p. 465.) We find the District’s evidence fell
short in proving up Ortolano’s status as a true section 44909 teacher in a fashion similar
to the school district’s evidence in Stockton. The evidence presented by the District to
prove Ortolano’s status as a temporary teacher primarily came from two declarations, the
first from the DACE system’s Human Resources Coordinator, Alonzo Cienfuegos, and
the second from Laura Chardiet, the District’s “Workforce Investment Act (WIA)
Specialist.”
       In his declaration, Cienfuegos presented evidence showing that Ortolano had
signed a series of section 44909 contracts, a fact not really contested by Ortolano.
Chardiet’s declaration explained that the WIA provides federal grant funding to promote
adult literacy, and that, “[b]ecause of the WIA grant funds, the District is able to offer
additional instructional time for adults.” Further: “[T]he ability to offer such additional
instructional time hinges upon the amounts of the grants that are awarded on a yearly
basis. Each year, the Adult Education Division of the District has to apply for the WIA
grant. The amount of funds awarded each year varies, depending on a number of factors,
including: previous year performance of the program, the number of agencies applying
for the funds statewide, and the amount of the grants offered by the [WIA]. As such, it is
difficult to project from year to year how much WIA funding will be provided to the
District for the purpose of supplemental instructional time for adults.”



                                              21
       We find, in accord with Stockton, that the District’s evidence failed to prove that
Ortolano did in fact teach pursuant to a validly entered and implemented section 44909
contract. While the District’s evidence generally explained the annual timing and
fluctuations of the federal funding for WIA programs, the evidence did not show that
WIA funds were distinctly accounted for by the District to a specific program during
Ortolano’s employment with the District; and that Ortolano was paid with WIA funds for
a distinct period of time and for a specific WIA-funded program during the school years
in which he signed the section 44909 contracts. Because the District wanted to avoid the
“default classification” of probationary teacher, the District needed to put on sufficient
evidence to support a finding that the District had truly employed Ortolano through a
categorically funded program under section 44909. Accordingly, Ortolano’s signing of
two section 44909 employment contracts during the 2007-2008 school year that facially
might have had the effect of rendering him a temporary employee did not necessarily
prove that he was, in fact, working as a section 44909 employee. (Stockton, supra, 204
Cal.App.4th at p. 457.)
       In summary, because the District’s evidence did not prove that Ortolano truly
worked section 44909 hours during the 2007-2008 school year, we are left with the
showing that he worked a total of 20 hours per week. As the trial court found, this took
him outside the definition of a temporary teacher under section 44929.25, and, by default,
placed him into the classification of a probationary teacher pursuant to section 44915.
       Nothing in this opinion is intended to suggest that the Districts’ practice of using
section 44909 contracts is inherently suspect. We hold only that, as to Ortolano, the
District did not prove that he truly worked hours distinctly segragable as being worked
pursuant to section 44909 contracts for a categorically funded program. The only person
affected by this opinion is Ortolano.
II.    The 2008-2009 School Year: Ortolano’s Claim for Permanent Teacher Status
       as of September 2009 –– the Main USERRA Issues
       Having agreed with the trial court’s finding that Ortolano qualified as a
probationary teacher based on the total number of hours worked, it follows that, had

                                             22
Ortolano not been called away to military, he would have qualified as a probationary
teacher during the 2008-2009 school year as well. The District had scheduled him to
work more than an average of 18 hours per week, and, for the reasons explained above,
the fact that he signed a section 44909 contract do not change this calculation. We turn
now to the effect of his military service and the time his military service had on his
teaching career.
       Section 44929.21, subdivision (b), provides: “Every employee of a school
district . . . who, after having been employed by the district for two complete consecutive
school years in a position or positions requiring certification qualifications, is reelected
for the next succeeding 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 district.” Ortolano contends that because he taught for the
District as a statutorily-defined probationary teacher for two consecutive years, namely,
the 2007-2008 and 2008-2009 school years, and was re-elected for the ensuing 2009-
2010 school year, he qualified for classification as a permanent teacher at the start of the
2009-2010 school year, specifically, as of September 9, 2009. Ortolano argues the trial
court erred in ruling that the USEERA did not apply to make his 2008-2009 school year a
probationary teacher year for purposes of determining his statutory right to transition to
the classification of a permanent teacher. We find no such error.
       The USERRA is a federal law that prescribes legal rights and responsibilities for
members of the military services and their civilian employers. Generally speaking, the
USERRA is intended to ensure that persons who perform military service do not suffer
disadvantages in their civilian careers due to their military service.
       Ortolano is correct that, if he had been classified as a permanent teacher on the
date that he left for military service, then the USERRA would mandate that the District
credit his time away from the classroom as the equivalent of time spent working in the
classroom, but only for certain purposes. For example, in determining seniority as
against other teachers, the District would be required to credit Ortolano’s time in military
service as being the equivalent to time in service as a teacher. This is the essence of what

                                              23
the parties both refer to as the “escalator principle.” Paraphrasing Ortolano’s argument:
when an employee steps off the workplace escalator to the sideline for military service,
he does not step back onto the escalator taking a position behind those who travelled past
while he was on the sideline in military service. Instead, an employee steps back onto the
escalator at the point where he would have been had he never stepped off the escalator.
That is, again standing in front of those whom were behind him when he stepped off the
escalator.
       However, the issue in Ortolano’s case is not so straightforward as an examination
of where he steps back onto the seniority escalator. Instead, the issue is more nuanced
and complicated. It involves the USERRA’s effect, if any, on the subject of a teacher’s
“time in the classroom” where such time is a required element for transitioning a
probationary teacher into a permanent teacher. As noted above, the Education Code
requires that a probationary teacher serve for “two complete consecutive school years”
before the transition to permanent teacher status occurs. This plainly is intended to
provide a school district with two-year time period of observation and evaluation before a
teacher attains permanent teacher status. Further, this period allows for the development
of a record which serves as a basis for considering whether a person is capable of
handling the job of being a teacher.
       We find the Education Code’s two-year period of observation requirement is not
subject to accommodation under the USERRA’s escalator principle. The USERRA does
not necessarily entitle an employee to every possible job benefit that he may have
accumulated had he not been called away for military service. For example, an employee
may not be entitled to a job benefit which is dependent upon a work requirement
demanding actual performance on the job. (See, e.g., Aiello v. Detroit Free Press, Inc.
(6th Cir. 1978) 570 F.2d 145.) As another example, where a promotion involves the
exercise of discretion on the part of the employer, as opposed to the mere passage of
time, the promotion is not guaranteed by the USERRA. (See, e.g., Almond v. United
States Steel Corp. (E.D.Pa. 1980) 499 F.Supp. 786.)



                                            24
       Ortolano’s arguments are based on an implied proposition that seniority and tenure
of teachers are subject to equal treatment under the USERRA. We reject this proposition.
“Tenure and seniority are distinct concepts. ‘Tenure has been stated to be a relation
between the teacher and the school district, guaranteeing job security to the teacher,
whereas seniority is basically a relation between teachers inter se, guaranteeing various
privileges . . . to the “elder statesman.” The purpose of a statute giving tenure to teachers
is to insure an efficient permanent staff of teachers whose members are not dependent on
caprice for their positions as long as they conduct themselves properly and perform their
duties efficiently and well. Establishing a test period for teachers to prove themselves
before granting them tenure is essential to a good education system.’” (Bakersfield
Elementary Teachers Assn. v. Bakersfield City School Dist. (2006) 145 Cal.App.4th
1260, 1293, fn. 20.) The Education Code explicitly rejects Ortolano’s premise that tenure
and seniority must be treated equally when it comes to military service. Section 44800
provides that a teacher “shall be entitled to absent himself from his duties as an
employee” of a school district, but further provides in relevant part: “Such absence shall
not affect in any way the classification of such employee. In the case of a probationary
employee, the period of such absence shall not count as part of the service required as a
condition precedent to the classification of such employee as a permanent employee of
the district, but such absence shall not be construed as a break in the continuity of the
service of such employee for any purpose.” (Italics added.)
       In Flores v. Von Kleist (E.D.Cal. 2010) 739 F.Supp.2d 1236, a federal district
court ruled that section 44800 is not trumped by the USERRA. “[U]nder . . . section
44800, a leave of absence for active military service ‘shall not count as part of the service
required as a condition precedent to the classification of such employee as a permanent
employee of the district . . . .’ It is undisputed that [Appellant] left his employment with
the Orland Unified School District to serve in the military from October 15, 2004 to
February 8, 2006. Under section 44800, this time period does not count towards [his]
achievement of permanent teacher status.” (Id. at pp. 1251-1252.)



                                             25
       The rule that probationary observation and review periods are not avoidable by
applying the USERRA as a substitute is not new. As the United States Supreme Court
stated in a case involving the USERRA’s predecessor: “A returning veteran cannot claim
a promotion that depends solely upon satisfactory completion of a prerequisite period of
employment training unless he first works that period.” (Tilton v. Missouri P.R. Co.
(1964) 376 U.S. 169, 180-181.)
       We find no error in the trial court’s ruling that Ortolano did not attain permanent
teacher status at the start of the 2009-2010 school year. The USERRA did not exempt
him from fulfilling the requirement that he teach for a requisite period of observation and
evaluation to attain permanent teacher status.
III.   The 2008-2009 and 2009-2010 School Years –– Ortolano’s Alternative
       USERRA Claim
       Ortolano contends that, in the event it is ruled for purposes of his probationary
observation and evaluation period that the District was not mandated by the USERRA to
credit him as though he had served as a teacher in the classroom during the time he was
away for military service during the 2008-2009 school year, the USERRA still mandated
that he should have been allowed “to complete [his] period of observation and
evaluation” during the following 2009-2010 school year. The brief submitted by the
District does not address Ortolano’s claim, focusing only on the USERRA issue related to
Ortolano’s time away from the classroom in the 2008-2009 school year. We find
Ortolano’s argument persuasive.9




9
        We note that Ortolano did not argue his alternative USERRA claim in the trial
court. Ordinarily, an issue not raised in the trial court is forfeited on appeal, but this rule
may yield in a reviewing court’s discretion when an important question of law is raised
for the first time on appeal. (See generally, Frink v. Prod (1982) 31 Cal.3d 166, 170.)
We are satisfied that Ortolano raises a pure legal question, namely, how to apply the
USERRA to undisputed facts, and that this issue, involving veterans’ rights under the
USERRA of sufficient importance to address here. We also note no objection has been
raised by the District.

                                              26
       The overriding principle of the USERRA is that a person may not be put in a
worse position, should not suffer a disadvantage, because he or she has fulfilled a duty to
serve in the military. In Ortolano’s case, had he not served in the military for part of the
2008-2009 school year, he would have completed his two-year period of observation and
evaluation at the conclusion of that year, and transitioned to permanent teacher status.
Under the District’s position on the USERRA, Ortolano had to start a two-year period of
observation and evaluation from scratch, essentially losing his first year (i.e., the 2007-
2008 school) year. We agree with Ortolano’s contention that the federal USERRA
should not have been subordinated to the state Education Code. He correctly observes
that by looking to the Education Code as primary and then to the USERRA secondarily,
rather than vice versa, a military reservist who is regularly called to active service could
potentially never be able to complete his or her probationary observation and evaluation
period --- being forced to restart from scratch with each deployment. We agree with
Ortolano that this simply does not seem to fit within the USERRA’s mandate that
military personnel shall not be disadvantaged in their private careers. Further, we agree
with Ortolano’s argument that the proper remedy would be to deem him to have finished
his observation and evaluation period during the 2009-2010 school year, rather than, as
occurred, restarting a two-year period of observation and evaluation at the beginning of
the 2009-2010 school year. This would put him as nearly as possible on equal footing
with other teachers who started working at the same time of him, beginning a period of
observation and evaluation together him in the 2007-2008 school year. Thus, unless
another factor is implicated, Ortolano should have been deemed to have completed his
two-year period at the end of the 2009-2010 school year, thus entitling him to transition
to permanent teacher status for the beginning of the 2010-2011 school year.10




10
        As noted above, under Ortolano’s main USERRA claim, he argued that he
transitioned to permanent teacher status at the beginning of the 2009-2010 school year.
Under our analysis on his alternative USERRA claim, he transitions one year later.

                                             27
IV.    The 2009-2010 School Year
       The trial court found that Ortolano was a temporary teacher during the 2009-2010
school year because he worked less than an average of 18 hours per week. In reaching
this conclusion, the court interpreted and applied the third paragraph of section 44929.25,
which reads as follows:
       “Notwithstanding any other provision to the contrary, any person who is
       employed to teach adults for not more than 60 percent of the hours per
       week considered a full-time assignment for permanent employees having
       comparable duties [meaning not more than 18 hours per week] shall be
       classified as a temporary employee, and shall not become a probationary
       employee . . . .” (Italics added.)
       On appeal, Ortolano contends the court erred in interpreting paragraph three of
section 44929.25. He argues that having attained probationary status prior to the 2009-
2010 school year, he could not lose that status except in accord with prescribed statutory
procedures afforded to him as a probationary teacher under the Education Code. The
respondent’s brief submitted by the District does not directly address this argument.
Instead, as discussed above, the District’s predominant argument on appeal relies on its
position that Ortolano never attained probationary teacher status because he never
worked more than 18 hours per week of regular teaching duties, his additional hours per
week in dispute being what we have called section 44909 hours. We agree with Ortolano
that the trial court erred in finding he was a temporary teacher during the 2009-2010
school year. Having attained probationer teacher status during the 2007-2008 and 2008-
2009 school years, he could not lose that status merely as a result of the reduced schedule
of teaching hours that he worked during the 2009-2010 school year.
       The Education Code prescribes detailed requirements for notice and due process
hearings for a probationary teacher to be dismissed during a school year. (See §§ 44948-
44949). For want of a better description, probationary teachers are not the equivalent of
“at will” employees. We agree with Ortolano that a school district may not negate these



                                            28
statutory protections merely by reducing a probationary teacher’s work schedule so that it
may be claimed that he is only a temporary teacher without such protections.
       The trial court found that Ortolano taught an average workload of 14.725 hours
per week in the 2009-2010 school year, which was “less than the 18 hour threshold
required for him to be classified as something other than temporary under [paragraph
three of] section 44929.25.” In short, the court interpreted the third paragraph of section
44929.25 to be a stand-alone statute governing classification, meaning that in any given
year in which an adult education teacher is assigned to teach less than 18 hours per week,
the teacher “shall be classified as a temporary employee . . . .” In our view, the “shall be
classified as a temporary employee” language must be read in conjunction with the
immediately following language which states “and shall not become a probationary
employee . . . .” As we harmonize the internal language in the statute, the third paragraph
of section 44929.25 should be construed to apply only to a newly hired employee who
does not work the threshold of 18 hours per week. For those teachers, they are properly
classified as temporary “and “shall not become . . . probationary.” However, for a
teacher who has previously attained probationary teacher status, the third paragraph of
section 44929.25 should not be interpreted so that it opens an avenue for a school district
to remove that probationary status.
       The trial court’s interpretation of paragraph three of section 44929.25 conflicts
with the Education Code’s policy favoring probationary teacher status over the strictly
construed and limited temporary teacher classification. Further, and more importantly,
the court’s interpretation puts paragraph three of section 44929.25 at odds with the
myriad statutes establishing and affording prescribed notice and due process protections
to probationary teachers prior to dismissal. Under the court’s interpretation of paragraph
three of section 44929.25, a school district would have the authority to ignore the due
process procedures established under the Education Code by reducing a teacher’s status
from probationary to temporary merely by reducing his or her assigned teaching hours,




                                             29
and then dismissing the teacher as a temporary teacher. We do not believe that this is the
intended purpose of paragraph three of section 44929.25.11
       Having determined that the trial court erred in finding that Ortolano was a
temporary teacher during the 2009-2010 school year, we are left with the question of the
appropriate remedy. As noted above, it is the general rule that a teacher who works for
“two complete consecutive school years” as a probationary teacher then is transitioned to
permanent teacher status at the end of those two school years, provided he is re-elected to
teach for an ensuing school year. (§ 44929.21, subd. (b).) Given our conclusion that
Ortolano had the status of a probationary teacher during the 2007-2008 school year, and
the 2008-2009 school year (but did not have a qualifying observation period during that
year), and the 2009-2010 school year (at which time he completed his observation
period), and that he was then re-elected to teach for the 2010-2011 school year, he must
have attained permanent teacher status at the conclusion of the 20009-2010 school year.
This means the District improperly served him with the reduction in force during the
2011-2012 school year without affording him the protections prescribed by the Education
Code for a permanent teacher.12


11
        UTLA argues that section 44909 should not be interpreted to allow a school
district to be able to classify a teacher as a temporary teacher through a series of one-year
contracts ad infinitum. In this vein, UTLA appears to urge our court to rule that the
District’s contract practices –– having teachers execute written contracts stating that a
certain number of assigned teaching hours (for Ortolano, two hours) are offered pursuant
to section 44909 and a categorical funded program –– are unlawful because they amount
to an attempt to “subvert the protections provided by the tenure system.” We decline to
declare the District’s practices unlawful. Where a school district satisfies its burden of
proving that a teacher was, in fact, hired pursuant to section 44909, we believe the law
allows such hires.
12
        No argument is presented in any of the briefs to suggest that Ortolano did not
teach for a complete school year during the 2009-2010 school year. Further, it is
undisputed that Ortolano worked for the entire 2009-2010 school year, albeit at a reduced
number of hours per week. (See Cox v. Los Angeles Unified School Dist. (2013) 218
Cal.App.4th 1441 [the determination of whether a teacher taught for a complete school
year is determined by the number of days he or taught, not by the number of hours].)

                                             30
       We leave it for the trial court and the parties on remand to draft the specific,
appropriate language for judgment in favor of Ortolano in accord with this opinion.
V.     Further Analysis of the 2010-2011 and 2011-2012 School Years
       Our analysis in Section I. of the trial court’s finding that Ortolano qualified as a
probationary teacher applies with equal force to the 2010-2010 and 2011-2012 school
years. To reiterate, having worked the threshold 18 hours per week during the 2010-2010
and 2011-2012 school years, Ortolano qualified as a probationary teacher, regardless of
the fact that he signed section 44909 contracts. This conclusion, of course, is rendered
largely moot by our conclusion above that Ortolano attained the status of a permanent
teacher at the conclusion of the 2009-2010 school year.
VI.    Court Filing Fees
       Ortolano contends the USERRA entitles him to reimbursement of his filing fees
and all other court costs incurred in pursuit of his action, both in the trial court and on
appeal. The District’s respondent’s brief on appeal does not address Ortolano’s fee-
reimbursement contention. We agree with Ortolano that he must be reimbursed for any
and all filing fees he has paid in the course of litigating his claims under the USERRA.
       Davis v. Advocate Health Center Patient Care Exp. (7th Cir. 2008) 523 F.3d 681
(Davis) guides our conclusion. In Davis, a plaintiff veteran filed a federal court lawsuit
alleging that he had been terminated from his job because of his prior military service, in
violation of the USERRA. In conjunction with his complaint, the plaintiff filed a motion
to waive the filing fee pursuant to a fee-waiver provisions in the USERRA. The federal
district court denied the fee-waiver motion, and indicated to the plaintiff that his action
would be dismissed within 25 days if he did not pay the filing fee. When the plaintiff did
not pay the fee, the court dismissed the action.13
       The Seventh Circuit Court of Appeals reversed the dismissal order, ruling that the
USERRA permits a plaintiff to initiates a suit to protect his or her rights under the Act
“without prepaying the filing fee.” Specifically, USERRA section 4323(h)(1) provides:

13
       There was no formal order of dismissal, but the federal court’s procedures
effectively resulted in a final order of dismissal. (Davis, supra, 523 F.3d at p. 683.)

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“‘[n]o fees or court costs may be charged or taxed against any person claiming rights
under this chapter.’” The court of appeals remanded the action to the federal district
court to allow the plaintiff to proceed with his case without being required to pay the
filing fee. (Davis, supra, 523 F.3d at pp. 683-685.) Further, the court of appeals stated:
“Because Davis has already paid his filing fee to proceed in this court, we ORDER the
clerk of this court to refund Davis’s appellate filing fee.” (Id. at p. 685.)
       On remand, the trial court shall direct the clerk of the trial court to refund Davis’s
filing fee, if he paid such a fee. We direct the clerk of our court to refund Davis’s filing
fee for his appeal, if he paid such a fee.
                                       DISPOSITION
       The judgment is reversed and the case is remanded to the trial court with
directions to enter a finding that Ortolano attained the status of a permanent teacher at the
conclusion of the 2009-2010 school year, and for such other proceedings as are consistent
with this opinion. The clerk of this court is ordered to refund Ortolano’s filing fee on
appeal, if he paid such a fee. The trial court shall direct the clerk of the trial court to
refund Ortolano’s filing fee, if he paid such a fee. Ortolano is awarded costs on appeal.




                                                           BIGELOW, P.J.
We concur:


                      RUBIN, J.




                      FLIER, J.




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