JONATHAN A. PEARL, PEARL, State Bar No. 215413 1 INGRID A. MEYERS, State Bar No. 209399 Dannis Woliver Kelley 2 115 Pine Ave., Suite 500 Long Beach, CA 90802 3 Telephone: 562.366.8500 Facsimile.Facsimile: 562.366.8505 4 Attorneys for Real Party In Interest 5 GROSSMONT UNION HIGH SCHOOL DISTRICT 6 7

8 SUPERIOR COURT OF THE STATE OF

9 FOR THE COUNTY OF SAN DIEGO 10 JOSHUA BARNEY, BARNEY, Case No. 37-2018-00022455-CU-WM-CTL37-2018-00022455-CU-WM-CTL 11 Petitioner, REAL PARTY IN INTEREST 500 12 GROSSMONT UNION HIGH SCHOOL

KELLEY v. DISTRICT'S MEMORANDUM OF POINTS UITE 90802 S 13 AND AUTHORITIES IN SUPPORT OF ,

CA COMMISSION ON PROFESSIONAL TO PETITIONER'S PETITIONER’S , 14 COMPETENCE, AMENDED PETITION FOR OF A WOLIVER EACH ADMINISTRATIVE MANDAMUS B 15 INE Respondent; P

ONG Date: September 7, 2018 L 16 DANNIS 115 GROSSMONT UNION HIGH SCHOOL Time: 8:30 a.m. DISTRICT, Dept: C-74 17 Judge:Hon. Ronald L. Styn Real Party in Interest. 18 Trial: None set Writ Filed: May 4, 2018 19 Exempt from filing fees pursuant to Gov. 20 Code, § 6103. 21 22 23 24 25 26 27 1R28 1 DWK DMS 3271575v 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT TABLE OF CONTENTS 1 Page 2 TABLE OF CONTENTS ...... 2 3 TABLE OF AUTHORITIES ...... 3 4 I. INTRODUCTION...... INTRODUCTION 5 5 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY HISTORY...... 5 6 III. LEGAL ARGUMENT ...... 8 7 A. The Demurrer Should be Sustained Without Leave to Amend Because 8 Petitioner Failed to Name the District as a Party within the Applicable Statute of Limitations Re: of Decisions in a Teacher 9 Dismissal Hearing...... 9 10 B. The Demurrer Should be Sustained Because the District is an Who Cannot be Added to this Action Outside the 60-Day Statute of 11 Limitations...... 11

645 12 1. The District is an Indispensable Party. Party...... 11 ELLEY UITE 95814 K S 13

, 2. Petitioner is Prohibited from Adding an Indispensable Party to this CA

ALL Action Outside the 60-Day Statute of Limitations...... Limitations. 13 , M OLIVER 14 W 3. The Absence of an Indispensable Party to this Action Warrants 15

APITOL Dismissal of the Amended Writ with Prejudice Prejudice...... 13 C ANNIS ACRAMENTO D S 16 IV.W. CONCLUSION ...... 14 555 17 18 19 20 21 22 23 24 25 26 27 28 2 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 TABLE OF AUTHORITIES

2 Page(s)

3 State Cases 4 Blank v. Kirwan 5 (1985) 39 Ca1.3d Cal.3d 311 311...... 8 6 Committee for Green Foothills v. Santa Clara Cnty. Bd. of Supervisors (2010) 48 Ca1.4th Cal.4th 32 32...... 8 7 Fontana Unified School District v. Burman 8 (1988) 45 Ca1.3d Cal.3d 208 208...... 11, 12 9 Geneva Towers Ltd. Partnership v. City and Cnty. of San Francisco 10 (2003) 29 Ca1.4th Cal.4th 769 769...... 8 11 Hansen v. Bd. of Registered Nursing (2012) Cal.App.4th 664, 672-673 ...... 10, 13

645 12

ELLEY Hightower v. Roman Catholic Bishop of Sacramento UITE 95814 K S 13 , (2006) 142 Cal.App.4th 759 759...... 8 CA ALL , M OLIVER 14 Ingram v. Sup. Ct. (Slinkard) W 15 (1979) 98 Cal.App.3d 483 483...... 13 APITOL C ANNIS ACRAMENTO D S 16 Kupka v. Bd. of Administration 555 (1981) 122 Cal.App.3d 791...... 791 9, 10 17 Sierra Club, Inc. v. Cal. Coastal Commission 18 (1979) 95 Cal.App.3d 495 495...... 13, 14

19 Temescal WaterWater Co. v. Dept. of Public Works (1955) 44 Ca1.2d Cal.2d 90...... 90 8 20 21 Tracy Press, Inc. v. Sup. Ct. (2008) 164 Cal.App.4th 1290 1290...... 12 22 Vaca v. Wachovia Mortg. Corp. 23 (2011) 198 Cal.App.4th 737 737...... 8

24 WashingtonWashington Mut. Bank v. Blechman (2007) 157 Cal.App.4th 662 662...... 11, 12 25 Woo v. Sup. Ct. (Zarabi) 26 Woo v. Sup. Ct. (Zarabi) (1999) 75 Cal.App.4th 169 169...... 13 27 State Statutes 28 Code of § 389(b) ...... 13, 14 3 DWK DMS 3271575v 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 Code of Civil Procedure § 430.10 et seq seq...... 5, 8, 11, 14

2 Code of Civil Procedure § 430.30(a) ...... 8

3 Code of Civil Procedure § 473 473...... 10 4 Education Code § 44944 ...... 5, 6, 9, 12 5 Education Code § 44945 ...... 9 6 Government Code § 11500 et seq...... 9 7 Government Code § 11521(a) ...... 9, 10 8 Government Code § 11523 ...... 9, 10 9 10 11

645 12 ELLEY UITE 95814 K S 13 , CA ALL , M OLIVER 14 W 15 APITOL C ANNIS ACRAMENTO D S 16 555 17 18 19 20 21 22 23 24 25 26 27 28 4 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 I. INTRODUCTION 2 Real Party in Interest Grossmont Union High School District ("District") (“District”) hereby demurs, 3 generally and specially, pursuant to Code of Civil Procedure section 430.10 et seq., to Petitioner 4 Joshua Barney's Barney’s ("Petitioner") (“Petitioner”) Amended Petition for Writ of Administrative Mandamus 5 ("Amended(“Amended Writ") Writ”) on grounds that the Court lacks jurisdiction over this matter and that the 6 Amended Writ fails to state sufficient facts to state a against the District because 7 Petitioner failed to include the District, an indispensable party, to this action within the 8 applicable statute of limitations. 9 Here, Petitioner is a former permanent certificated employee of the District. The District 10 moved to dismiss him from employment and Petitioner exercised his right to a dismissal hearing 11 under Education Code section 44944. A hearing was initiated and conducted by Respondent

645 12 Commission on Professional Competence (“CPC”),("CPC"), and the CPC issued a decision on March 5, ELLEY UITE 95814 K S 13 2018 ("Decision") (“Decision”) ordering Petitioner be dismissed from employment with the District. , CA ALL , M OLIVER 14 The Amended Writ challenges the Decision to dismiss Petitioner from his employment. W 15 However, the Amended Writ is fatally defective on its face because Petitioner failed to properly APITOL C ANNIS ACRAMENTO D S 16 name the District, an indispensable party, as a Real Party in Interest within the applicable statute 555 17 of limitations governing judicial review of the Decision. Moreover, Petitioner is prohibited from 18 adding the District as party to this action outside the applicable statute of limitations. Thus, the 19 Amended Writ is defective, in its entirety, on the ground that it failed to include an indispensable

20 party within the applicable statute of limitations. 21 Accordingly, the District's District’s demurrer should be sustained without leave to amend and 22 should be entered in favor of the District. 23 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY

24 On August 10, 2017, the District adopted a Statement of Charges recommending the 25 dismissal and immediate unpaid suspension of Petitioner from employment with the District and 26 serve the Statement of Charges on Petitioner. (See, Exhibit A to Real Party in Interest 27 Grossmont Union High School District's District’s Request for Judicial Notice in Support of Demurrer to 28 Amended Petition for Writ of Administrative Mandamus ("RJN"), (“RJN”), pp. 3-4, ¶9.) In response, 5 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 Petitioner timely served the District with his request for hearing and raised a number of 2 affirmative defense. (Amended Writ, ¶37, p. 8, line 23; Exh. A to RJN, p. 4, ¶10.) 3 Pursuant to Education Code section 44944, Petitioner's Petitioner’s dismissal hearing was initiated 4 and conducted by Respondent CPC over four (4) days, specifically, on January 29-February 1, 5 2018. (See, Exh. A to RNJ, p. 1; Amended Writ, ¶38, p. 9, lines 14-16.) 6 On March 5, 2018, the CPC issued and delivered via U.S. Mail and Certificated Mail its 7 Decision to the District and Petitioner. (Amended Writ, p. 1, ¶5; Exh. A to RNJ, Proof of 8 Service.) The CPC's CPC’s Decision affirmed the District's District’s Statement of Charges against Petitioner, 9 and ordered he be dismissed as a permanent certificated employee of the District. (See, Exh. A 10 to RNJ, p. 23.) Pursuant to Education Code section 44944(d)(4), the decision of the CPC is the 11 final decision of the District.

645 12 With a mailing/service date of March 5, 2018, pursuant to the relevant Education Code ELLEY UITE 95814 K S 13 and Government Code sections, Petitioner had until April 4, 2018 to request a reconsideration of , CA ALL , M OLIVER 14 the Decision. He then had until May 4, 2018 to file a petition for writ of mandate regarding the W 15 Decision. APITOL C ANNIS ACRAMENTO D S 16 On May 4, 2018, Petitioner filed his Petition for Writ of Administrative Mandamus 555 17 ("Original(“Original Writ"). Writ”). In the Original Writ, Petitioner prays for judgment and an order, including 18 but not limited to, that Respondent CPC, "reinstate “reinstate Petitioner to his previous position of 19 employment,"employment,” "restore “restore Petitioner all back pay and benefits," benefits,” "pay “pay Petitioner interest on the back

20 pay,"pay,” and "remove “remove from Petitioner's Petitioner’s personnel file or any other file used for personnel purposes 21 any and all documentation relating to the incident adjudicated in this Petition." Petition.” (Original Writ, 22 "Prayer“," Relief,” p. 32.)

23 On May 8, 2018, the District agreed to accept service of the Original Writ and received a 24 copy from Petitioner via email on that date. (Declaration of Ingrid A. Meyers in Support of Real 25 Party in Interest Grossmont Union High School District's District’s Demurrer to Petitioner's Petitioner’s Amended 26 Petition for Writ of Mandamus ("Meyers (“Meyers Decl."), Decl.”), ¶¶4-5.) Upon review of the Original Writ, the 27 District noticed that the only named party, other other than Petitioner, was_Respondent was Respondent CPC. (Original 28 Writ; Meyers Decl. ¶5.) Nowhere is the District named in the caption on the cover of the 6 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 or in the section titled "II. “II. Parties and Jurisdiction”Jurisdiction" in the Original Writ as a 2 "Respondent,"“Respondent,” "Real “Real Party in Interest,”Interest," or any other party to this action. (Original Writ.) 3 On May 21, 2018, the District informed Petitioner of his failure to name the District in 4 the Original Writ resulting in the District not being a party to this action. (Meyers Decl. ¶6.) 5 The District explained that it is an indispensable party to this action and without naming the 6 District, any remedy Petitioner seeks is unattainable and unenforceable without the District as a 7 party. ((Id.)Id.) Petitioner acknowledged he did not name the District as a party in the Original Writ 8 and that the District should have been named as a Real Party in Interest. (Meyers Decl. ¶¶6-7.) 9 According to Petitioner, his negligence in naming the District as a party in the Original Writ was 10 merely an "oversight" “oversight” and an error he could fix. ((Id.)Id.) The District disagreed further explaining 11 that Petitioner's Petitioner’s failure to name the District as a party within the applicable statute of limitations

645 12 is a fatal error. (Meyers Decl. ¶7.) ELLEY UITE 95814 K S 13 On May 22, 2018, Petitioner filed his Amended Writ adding the District as "Real “Real Party in , CA ALL , M OLIVER 14 Interest.”Interest." (See, Amended Writ.) Even though now naming the District as a party to this action, W 15 Petitioner did nothing in the Amended Writ to change his Prayer for Relief. He continues to only APITOL C ANNIS ACRAMENTO D S 16 seek relief from Respondent CPC in the form of back pay, reinstatement, and removal of 555 17 documents from his personnel file. (Original Writ, "Prayer “Prayer for Relief," Relief,” pp. 32-33.) 18 On May 29, 2018, Petitioner caused to be served via email a copy of the Amended Writ 19 on the District. (Meyers Decl. ¶8.)

20 On June 1, 2018, the CPC filed a "Notice “Notice of Non-Appearance of the Office of 21 Administrative Hearings in Response to Amended Petition for Writ of Administrative 22 Mandamus"Mandamus” explaining "absent “absent court direction otherwise [the CPC/OAH] will not be an active 23 participant in this matter for the reasons set forth below." below.” (See, "Notice “Notice of Non-Appearance," Non-Appearance,” 24 dated June 1, 2018.) 25 In further good faith to resolve this action and avoid filing a demurrer to the completely 26 defective Amended Writ, on June 21, 2018, the District contacted Petitioner again explaining the 27 fatal error in not naming the District within the statute of limitations and requested Petitioner 28 withdraw the Amended Writ. (Meyers Decl. ¶10.) Petitioner's Petitioner’s response was, "No." “No.” (Id.) (Id.) 7 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 III. LEGAL ARGUMENT

2 Demurrer is the appropriate response to the Amended Writ due to the procedural defects 3 discussed herein. (Code Civ. Proc., §§430.10(a), (d) and (e).) Code of Civil Procedure section 4 430.30(a) authorizes a demurrer when any ground for objection to a appears on the 5 face thereof, or from any matter of which the court is required to or may take judicial notice. 6 The sufficiency of a petition in a mandamus proceeding is properly tested by demurrer. 7 ((TemescalTemescal Water Co. v. Dept. of Public Works (1955) 44 Ca1.2d Cal.2d 90, 106-07.) 8 Courts are governed by the following standard relating to : "In “In reviewing the 9 sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We'We 10 treat the demurrer as admitting all material facts properly pleaded, but not contentions, 11 deductions or conclusions of fact or law. [Citation.] We also consider matters which may be

645 12 judicially noticed.' noticed.’ [Citation.]" [Citation.]” (Blank (Blank v. Kirwan (1985) 39 Ca1.3d Cal.3d 311, 318.) The burden to ELLEY UITE 95814 K S 13 demonstrate the ability to cure the defects falls squarely on the plaintiff. ((Id.)Id.) , CA ALL , M OLIVER 14 Here, the issues raised by this demurrer concern the Court's Court’s lack of jurisdiction to hear W 15 this matter and the Amended Writ's Writ’s failure to state a cause of action because this action is time APITOL C ANNIS ACRAMENTO D S 16 barred by the applicable statute of limitations. Petitioner's Petitioner’s failure to include the District, an 555 17 indispensable party, to this action within the applicable statute of limitations is a fatal error. 18 The defense of statute of limitations may be raised by a general demurrer where the 19 complaint on its face, or from matters of which the court may or must take judicial notice, shows

20 that the action is barred by the statute of limitations. ((HightowerHightower v. Roman Catholic Bishop of 21 Sacramento (2006) 142 Cal.App.4th 759, 765; Vaca v. Wachovia Mortg. Corp. (2011) 198 22 Cal.App.4th 737, 746.) The running of the statute must appear "clearly “clearly and affirmatively" affirmatively” from 23 the face of the complaint; it is not enough that the complaint might be time-barred. (Committee (Committee 24 for Green Foothills v. Santa Clara Cnty. Bd. of Supervisors (2010) 48 Ca1.4th Cal.4th 32, 42; Geneva 25 Towers Ltd. Partnership v. City and Cnty. of San Francisco (2003) 29 Ca1.4th Cal.4th 769, 781.) 26 /// 27 /// 28 /// 8 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 A demurrer also lies where it appears from the face of the complaint (or matters judicially 2 noticed) that there is a defect of parties, namely, where a non-party is a "necessary" “necessary” or 3 "indispensable"“indispensable” party, and must be joined before the action may proceed. (Code Civ. Proc., 4 §430.10(d).)

5 A. The Demurrer Should be Sustained Without Leave to Amend Because Petitioner Failed to Name the District as a Party within the Applicable Statute 6 of Limitations Re: Judicial Review of Decisions in a Teacher Dismissal 7 Hearing. 8 Education Code section 44944 governs the procedures for dismissal hearings of 9 permanent certificated employees. Specifically, Education Code section 44944(b)(1)(B) 10 provides that a hearing shall be initiated and conducted, and a decision made, in accordance with 11 the Administrative Procedures Act ("APA"), (“APA”), Government Code section 11500 et seq. Education

645 12 Code section 44945 provides that judicial review of a decision in a teacher dismissal hearing is in ELLEY UITE 95814 K the same manner as judicial review of a decision made under the APA. S 13 , CA ALL , The APA provides that a party may seek judicial review of an administrative decision by M OLIVER 14 W 15 filing a petition for writ of mandate within 30 days after the last day on which reconsideration APITOL C ANNIS ACRAMENTO D S 16 can be ordered. (Gov. Code, §11523.) The power for an administrative agency to reconsider its 555 17 decision expires 30 days after the delivery or mailing of the decision to respondent — – not on the 18 date of receipt as Petitioner alleges. (Gov. Code, §11521(a); see also, Amended Writ, p. 2, ¶7.) 19 Government Code section 11523 provides that the statute of limitations may be extended 20 only, "If “If the petitioner, within 10 days after the last day on which reconsideration can be ordered, 21 requests the agency to prepare all or any part of the record, the time within which a petition may 22 be filed shall be extended until 30 days after its delivery to him or her." her.” (Gov. Code, §11523.) 23 Accordingly, there is a 60-day limitations period for filing a petition for writ of mandate 24 after the mailing of a final agency decision, decision, where where reconsideration has not been sought and the 25 petitioner has not requested the record within the 10-day period after reconsideration can be 26 ordered. 27 /// 28 /// 9 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 Courts have consistently interpreted and applied this strict 60-day statute of limitations of 2 final agency decisions arising from the APA, with no exceptions. For example, in Kupka v. Bd. 3 of Administration (1981) 122 Cal.App.3d 791, the Court of held that Government Code 4 section 11523 sets forth a 30-day statute of limitations from the last date that reconsideration can 5 be ordered, and a proceeding for writ of mandate is barred if not commenced within this 6 applicable statute of limitations. Additionally, the Court of Appeal held that Code of Civil 7 Procedure section 473 is not an available relief for statute of limitations purposes. Specifically, 8 the Court of Appeal reasoned that Government Code section 11523 contains no provision 9 extending the filing period on a showing of good cause, and accordingly, the very absence of 10 such a provision must be taken to mean that no such extension may be granted. Moreover, the 11 Court of Appeal held that statutes of limitations, including the one set forth in Government Code

645 12 section 11523, "are, “are, of necessity, adamant rather than flexible in nature," nature,” and are "upheld “upheld and ELLEY UITE 95814 K S 13 enforced regardless of personal hardship." hardship.” ((Kupka,Kupka, supra., 122 Cal.App.3d at pp. 794-795.) , CA ALL , M OLIVER 14 Here, on March 5, 2018, the Decision was mailed to the District and Petitioner. The last W 15 day for Petitioner to request a reconsideration of the Decision was on or before April 4, 2018. APITOL C ANNIS ACRAMENTO D S 16 (Gov. Code, §11521(a).) Petitioner did not request reconsideration. Nor did Petitioner request 555 17 the administrative record within 10 days of April 4, 2018, and thus, the extension of the 60-day 18 statute of limitations does not apply. The 60-day deadline for Petitioner to file his petition for 19 writ of mandate was May 4, 2018; not May 7, 2018 as Petitioner alleges. (Gov. Code, §11523;

20 see also, Amended Writ, p. 2, ¶7.) While Petitioner filed the Original Writ on May 4, 2018, he 21 unambiguously and admits that he did not name the District as a party in the Original Writ and 22 within the statute of limitations. 23 Any argument by Petitioner that his failure to timely name the District was a clerical or 24 technical mistake or excusable neglect and that he can show good cause for not naming the 25 District within the applicable statute of limitations, is without merit. By his own admissions, 26 Petitioner knew at the time of filing the Original Writ that the District was a "real “real party in 27 interest"interest” and therefore, could have and should have, named the District as a party — – but he clearly 28 did not. Not only is there no good cause for Petitioner's Petitioner’s failure to timely name the District as a 10 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 party to this action, but case law and statutes are very clear that arguments for relief for good 2 cause and/or pursuant to Code of Civil Procedure section 473 are not permitted when a party 3 fails to meet deadlines for judicial review of an administrative decision. (See, Hansen v. Bd. of 4 Registered Nursing (2012) Cal.App.4 th 664, 672-673; Kupka, supra., supra., 122 Cal.App.3d at 797.) 5 Therefore, because Petitioner clearly neglected to name the District as a party to this 6 action by May 4, 2018, this action against the District is barred by the statute of limitations. The 7 District'sDistrict’s demurrer must be sustained because the Court lacks jurisdiction over this matter and 8 this action fails to state a cause of action against the District. (Code Civ. Proc., §§430.10(a) and 9 (e).)

10 B. The Demurrer Should be Sustained Because the District is an Indispensable Party Who Cannot be Added to this Action Outside the 60-Day Statute of 11 Limitations. 645 12 Even though Petitioner timely filed the Original Writ, the pleadings are nonetheless ELLEY UITE 95814 K S 13 , defective and the District's District’s demurrer should be sustained. Again, the Original Writ, filed on CA ALL , M OLIVER 14 May 4, 2018, only names Respondent CPC. Nowhere in the caption or the body of the Original W 15 APITOL Writ is the District formally named as a party. It was not until the District notified Petitioner of C ANNIS ACRAMENTO D S 16

555 this fatal error that he moved to amend the Original Writ and add the District as a Real Party in 17 Interest, eighteen (18) days after the statute of limitation had expired. Petitioner is prohibited 18 from adding a party to the action outside the statute of limitations. Moreover, because the 19 District is an indispensable party to this action, its absence is fatal to the Court's Court’s jurisdiction and

20 this action should be dismissed in its entirety. 21 1. The District is an Indispensable Party. 22 An "indispensable “indispensable party" party” is defined as, "Where “Where plaintiff seeks some type of affirmative 23 relief which, if granted, would injure or affect the interest of a third person not joined, that third 24 person is an indispensable party. [Citation.]" [Citation.]” ((WashingtonWashington Mut. Bank v. Blechman (2007) 157 25 Cal.App.4th 662, 668.) The District fits within this definition. 26 /// 27 /// 28 /// 11 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 In Fontana Unified School District v. Burman (1988) 45 Ca1.3d Cal.3d 208, 224, the California 2 Supreme Court addressed the issue of whether the CPC is an indispensable party in an 3 administrative mandamus proceeding where an aggrieved party seeks review of the CPC's CPC’s 4 decision. In Fontana,Fontana, following a teacher dismissal hearing, the CPC determined that the teacher 5 should not be dismissed. The school district timely filed a petition for writ of mandate seeking 6 judicial review and reversal of the CPC's CPC’s decision, and named only the teacher as the 7 respondent. The teacher filed a demurrer to the petition, asserting that the CPC was an unjoined, 8 indispensable party, and the school district’sdistrict's failure to join an indispensable party within the 9 applicable statute of limitations was fatal to the petition. 10 In denying the teacher's teacher’s demurrer, the California Supreme Court explained the "unusual “unusual 11 nature"nature” of the CPC in a teacher dismissal proceeding, as well as its role after a decision is issued:

645 12 It [CPC] is not a standing body; it is an ad hoc group more akin to an arbitration tribunal, ELLEY

UITE two of whose members are named by the parties to the dispute. [Citation] It is a 95814 K S 13

, nominal, transitory body whose residence is immaterial for venue purposes in an CA

ALL administrative mandamus proceeding. [Citation] Its decision, once made, becomes the , M OLIVER 14 decision of the employing school district [Citation], and the commission serves no W identifiable function in the remainder of the review process. [Citation] ((Fontana,Fontana, supra., 15 rd

APITOL 45 Ca1.3r Cal.3 d at 224.) C ANNIS ACRAMENTO D S 16 Thus, because the CPC is a different type of entity than the usual respondent named in a 555 17 mandamus matter, the Court held that the CPC is not an indispensable party. (Id.) (Id.) 18 Thus, it follows that a school district is an indispensable party to a mandamus matter 19 seeking review of a decision made under Education Code section 44944. Education Code

20 section 44944(d)(4) expressly provides that, "The “The decision of the Commission on Professional 21 Competence shall be deemed to be the final decision of the governing board of the school 22 district."district.” (Ed. Code, §44944(b)(4).) Thus, any aggrieved party seeking judicial review of the 23 District'sDistrict’s (governing board's) board’s) final decision under Education Code section 44944 must include 24 the District as a party to the mandamus action. 25 Here, the CPC no longer exists after it issued the Decision on March 5, 2018 and by 26 filing a "Notice “Notice of Non-Appearance" Non-Appearance” it has affirmatively stepped aside from being an active 27 party in this action. Therefore, by operation of law the CPC's CPC’s Decision became the District's District’s 28 final decision for all purposes, including judicial review, and any remedy Petitioner may seek 12 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 must be sought from the District. Moreover, because Petitioner seeks affirmative relief 2 including, but not limited to, that he be reinstated to employment with the District, he receive 3 back pay and benefits, and that documents be removed from his personnel file, these reliefs can 4 only be provided by the District. Without being a party to this action, the District would not be 5 bound by any court order, thus making any order from the court in favor of Petitioner of no 6 effect to the District. ((TracyTracy Press, Inc. v. Sup. Ct. (2008) 164 Cal.App.4 th 1290, 1298; see also, 7 WashingtonWashington Mut., supra., 1557 Cal.App.4 th at 668.) The District is therefore an indispensable 8 party to this action and by not naming the District within the requisite 60-day limitations period, 9 Petitioner is not entitled to any relief as a matter of law against the District. (Hansen, (Hansen, supra. 208 10 Cal.App.4th at 671.)

11 2. Petitioner is Prohibited from Adding an Indispensable Party to this Action Outside the 60-Day Statute of Limitations. 645 12 ELLEY

UITE It is a well-established rule that a new party, who was neither named nor a fictitiously 95814 K S 13 , CA ALL , designated party to the proceeding, cannot be added to the proceeding after the statute of M OLIVER 14 W limitations has run. ((IngramIngram v. Sup. Ct. (Slinkard) (1979) 98 Cal.App.3d 483, 492; WooWoo v. Sup. 15 APITOL C ANNIS ACRAMENTO

D Ct. (Zarabi) (1999) 75 Cal.App.4th 169, 176.) Here, the District was not named as a party in the S 16 555 Original Writ within the statute of limitations of May 4, 2018. Naming the District in the 17 Amended Writ on May 22, 2018 is well outside the 60-day statute of limitations deadline of May 18 4, 2018 — – eighteen (18) days in fact. Petitioner's Petitioner’s error and/or "oversight" “oversight” is not justifiable or 19 permissible per statue and case law. The District cannot be added as a party to this action after 20 the limitations period has run. 21 22 3. The Absence of an Indispensable Party to this Action Warrants Dismissal of the Amended Writ with Prejudice. 23 If an indispensable party is not added, or unable to be added, to an action within the 24 applicable statute of limitations, the entire action must be dismissed. (Sierra (Sierra Club, Inc. v. Cal. 25 Coastal Commission (1979) 95 Cal.App.3d 495.) In Sierra ClubClub,, the Court of Appeal addressed, 26 in relevant part, the issue of whether the omission of an indispensable party within the statute of 27 limitations constituted sufficient basis for dismissal of the entire matter under Code of Civil 28 Procedure section 389(b), which authorizes dismissal of an action where a person determined to 13 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 be indispensable "cannot “cannot be made a party." party.” The Court of Appeal held that an unjoined 2 indispensable party cannot be made a party to the action after the statute of limitations had run as 3 to that party. In reaching this conclusion, the Court of Appeal reasoned that the filing of a 4 complaint stops the running of the statute of limitations only as to those parties that are named as 5 defendants at the time the complaint is filed. The filing of an amended complaint commences a 6 new action as to the new defendants named in the amended complaint. In Sierra Club, the 7 developer was not named as a party until the amended complaint was filed, which was outside 8 the applicable 60-day statute of limitations, and therefore, the amended complaint against the 9 developer was untimely. Because the developer was an indispensable party to the action, and the 10 plaintiff could not subsequently add the developer because any such action against the developer 11 would be untimely, and the developer was unwilling to waive the untimeliness defense, the Court

645 12 dismissed the entire action for failure to join an indispensable party. (Sierra (Sierra Club, supra, supra, 95 ELLEY UITE 95814 K S 13 Cal.App.3d at pp. 502-503.) , CA ALL , M OLIVER 14 Similarly here, and as discussed above, the District is an indispensable party to this W 15 action. Petitioner cannot add the District to this action on May 22, 2018 or even one day after APITOL C ANNIS ACRAMENTO D S 16 the 60-day statute of limitations — – May 4, 2018. This action against the District cannot be 555 17 maintained and must be dismissed. Moreover, like the developer in Sierra ClubClub,, the District at 18 no time waived the defense regarding Petitioner's Petitioner’s failure to include it as indispensable party 19 within the applicable statute of limitations. In fact, the District notified Petitioner of this fatal

20 error on more than one occasion, but in bad faith, Petitioner proceeded with erroneously adding 21 the District as a Real Party in Interest in the Amend Writ well after the limitations period 22 expired. Thus, pursuant to Code of Civil Procedure section 389(b) and Code of Civil Procedure 23 section 430.10(d), the District's District’s demurrer to the Amended Writ should be sustained without 24 leave to amend for Petitioner's Petitioner’s failure to join an indispensable party within the applicable statute 25 of limitations. 26 IV. CONCLUSION 27 For the foregoing reasons, the District respectfully requests that its demurrer be sustained 28 without leave to amend. The Amended Writ is fatally defective, namely, it is time barred by the 14 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 1 statute of limitations. Failing to name the District in the Original Writ as a Real Party in Interest, 2 an indispensable party, within the applicable swine statute of limitations supports granting the 3 demurrer. Petitioner cannot again amend to cure these procedural defects to save his writ. Thus, 4 the Amended Writ must be be dismissed withprejudice with prejudice in its entirety and judgment judgment entered on 5 behalf of the District. 6 DATED: June 27, 27, 2018 DANNIS WOLIVER KELLEY KELLEY 4. 7 ByBy: '46 lf-{Lir JONATHAN A. PEARL 8 INGRID A. MEYERS Attorneys for Defendants 9 GROSSMONT UNION HIGH SCHOOL DISTRICT 10 11

b10645 :1-4 12 co ELLEY UITE 95814 eiJi7IITIK S 13 ,

R45CA ALL , M ogOLIVER 14 W P zLu 15 APITOL C ANNIS ACRAMENTO D S 16

itr 555 17 18 19 20 21 22 23 24 25 26 27 28 15 DWKDWI DMSMIS 3271575v13271575,1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT PROOF OF SERVICE 1 STATE OF CALIFORNIA ) ) OIL ss. 2 COUNTY OF LOS ANGELES )

3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not aparty a party to the within action; my business business address is: 115 Pine Avenue, Suite 500, Long Beach, CA 90802. 4 On the date set forth below I served the foregoing document described at as REAL PARTY IN INTEREST 5 CROSSMONTGROSSMONT UNION HIGHlimn scnoor. SCHOOL DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PETITIONER’SPETITIONER'S AMENDED PETITION FOR WRIT OF 6 ADMINISTRATIVE MANDAMUS on interceded interested parties in this action at as follows:

7 SEE ATTACHED SERVICE LIST

8 LI (VIA U.S.US. MAIL) I caused such document to be be placed in the U.S.US. Mail at Long Beach, California with pcetagepostage thereon fally fully prepaid. prepaid. Ir am "readily “readily familiar" familiar” with the firm’sfirm's practice ei of collection and processing 9 correspondence for mailing. It is deposited with the U.S. Petal Postal Service on that same day in the ordinary course of basins:es. business. I am aware that on of party served, service is presumed invalid if petal postal 10 cancellation datedale or postage meter date is more than one day after date of depceit deposit for mailing in affidavit.

11 LI (VIA U.S.US. MAIUREGISTERED/CERmIED) MAIL/REGISTERED/CERTIFIED) I caused such document tob be placed in the U.S. Mail at Long Beach, California with postage thereon fally fully prepaid to cover the cost of certified mailing, attaching a 645 12 registration number for the certified mailing and a poetcard postcard complete with the addressee's addressee’s name and address

ELLEY for a return receipt as requested. I am “readily familiar”familiar" with the practice of collection and processing UITE receipt at requested. I am "readily with the practice of collection and processing 95814 K S 13 correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary , correspondence for mailing. It is deposited with the U.S. Petal Service on that same day in the ordinary

CA course of business. Iam aware that on motion of party served, service is presumed invalid if petal postal ALL r , M OLIVER 14 cancellation datedale or postage meter date is more than one day after date of depoeit deposit for mailing in affidavit. W 15 LI (VIA FACSIMILE) I caused such document to be transmitted via facsimile to the addressee from the APITOL I caused such dccumeed to be transmitted via facsimile to the addresses: from the C ANNIS

ACRAMENTO facsimile machine of DANNIS WOLIVER KELLEY whose phone number is 562366.8505. 562.366.8505. The D S 16 transmission by facsimile was reported as complete and without error. 555

17 LI (BY PERSONAL SERVICE) I caused such envelope tob be &livered delivered by hand to the offices of the addressee.

18 LI (VIA OVERNIGHT MAIL) I caused such envelope to be deposited at an authorized "drop “drop off" off” box box on that same day with delivery fees 6illy fully provided for at 115 Pine Avenue, Suite 500, Long Beach, CA 90802, in the 19 ordinary course of business.

20 Del (VIA ELECTRONIC SERVICE) [Coderode Civ. Proc. Sec. 1010.6; CRC 2.251] by electronic mailing a true and correct copy through DANNIS WOLIVER KELLEY’sKELLEY:as electronic mail system from [email protected] [email protected] to 21 the email addreee(ce) address(es) set forth above, or as stated stated on the attached service list per agreement in accordance with Code of Civil Procedure section 1010,6 1010.6 and CRC Rule 2251. 2.251. The transmission woe was reported asae 22 complete and without error.

23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

24 Executed on June 27, 2018 at Long Beach, California. 25 26 Tiana Silva Silva 27 28 16 DWKDWL DNSDMS 1271575v13271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT Service List 1 John P. Martin Email: [email protected] 2 P.O. Box 333 Telephone: (619) 807-5299 Lakeside, CA 92040 Attorney for Petitioner Joshua Barney 3 Alicia G. Boomer Email: [email protected] 4 Office of Administrative Hearings Telephone: (916) 263-0550 2349 Gateway Oaks Drive, Suite 200 Facsimile: (916) 263-0554 5 Sacramento, CA 95833 Attorney for Office of Administrative Hearings on behalf of Respondent 6 Commission on Professional Competence 7 8 9 10 11

645 12 ELLEY UITE 95814 K S 13 , CA ALL , M OLIVER 14 W 15 APITOL C ANNIS ACRAMENTO D S 16 555 17 18 19 20 21 22 23 24 25 26 27 28 17 DWK DMS 3271575v1 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT