Jones v. Oxnard School District

eated applicant, ready, willing and available to accept such a teaching position . . .”; (3) the district employed a number of elementary school teachers who were not duly certificated “in violation of law which provides for the hiring of noncertificated teachers upon applications accompanied by a statement of need signed by the District Superintendent of Schools and approved by the County Superintendent of Schools or by the head of the State Board of Education, indicating that no qualified regularly certificated applicant of the type needed is available and that the applicant, if granted the provisional credential applied for, will be employed in a specified position”; and (4) that the individual respondents “wrongfully, falsely, fraudulently, maliciously and unlawfully” executed a number of such statements of need.

The trial court sustained a general demurrer to the first amended complaint with leave to amend. Appellant did not amend, the action was dismissed, and this appeal followed.

We, as required of us by the law, construe the first amended complaint liberally to determine whether, assuming the facts pleaded to be true, a cause of action has been stated. (Gressley v. Williams, 193 Cal.App.2d 636 [ 14 Cal.Rptr. 496 ].) We conclude it has not.

The District

The complaint asserts an obligation upon the district to employ appellant and to refrain from employing provisionally eredentialed or noncertificated teachers^[1] so long as appellant ’s application for employment was on file.

The factual support of that assertion consists solely of the propositions that appellant was a qualified, certificated teacher who had filed an application for employment with the district which, while rejecting her application, took the step of a statement of need which enabled it to employ provisionally eredentialed teachers without certificates.

Appellant does not assert that her certificate gave her a vested right to employment by the district. (Matteson v. Board of Education, 104 Cal.App. 647 , 655 [ 286 P. 482 ].) She does argue that the respondents improperly created competition in the labor market in which she was competing by falsely attesting to documents which permitted other teachers to be provisionally certified by the state board of education

and thus available for employment by the district. That argument is based upon subehapter 3, title 5, of the Administrative Code. The subchapter established the standards for issuance of provisional credentials by the state board of education. During the relevant period, section 611 of that sub-chapter dealt with the issuance of initial provisional certificates for full-time service. It required the submission of letters verifying teaching experience, transcript of college and university training, and a statement by the applicant of intent to undertake no less than a specified amount of further academic training. Section 611 also required, by subparagraph 4, the submission of a statement of need signed by the county or district superintendent of schools which ‘^[1] shall indicate that no qualified, regularly certificated applicant of the type needed is available and that the applicant, if granted the provisional credential applied for, will be employed in a specified position. . . .” It is appellant’s contention that by reason of section 611, she has stated a cause of action against the district when she alleges that the facts were contrary to the content of the statement of need, i.e., that a qualified certificated teacher in the person of appellant was available to the district.

The vice in appellant’s argument is that it calls for judicial review of an administrative action of the district which is not so reviewable. Appellant does not attack the propriety of the action of the state board of education in issuing the provisional credentials, which permitted other persons to be employed in the positions sought by her. She has elected not to make the state board a party to the action. Her attack is against intermediate action by the local district which led to the ultimate decision of that board.

That attack can succeed only if the district refused to exercise a discretion that it was required to exercise or if it failed to act as enjoined by law. Neither situation was present here. There is no contention that respondents failed to éxercise a discretion which the law required of them. Bather, it is appellant’s theory that being certificated she was per se “qualified” so that the district was duty bound not to determine to the contrary or to file the statement of need. If such were the case, mandate or prohibition conceivably might lie.^[2] But so to read section 611 reduced the word “qualified” in that section to surplusage. The fair meaning of the section as

appellant who was both qualified and certificated. The allegation seeks to attach liability to an authorized exercise of discretion by the individual respondents. It cannot do so under the facts alleged.

The case at bar originated before the California Tort Claims Act of 1963. The applicable rule then as now was that “discretionary” action by administrative governmental personnel taken within the scope of their authority is privileged against tort liability. “Discretionary” is, however, to be given a flexible definition which balances the harm that may be caused by inhibition upon the governmental function against the desirability of providing redress for wrong that may have been done. (Johnson v. State of California, 69 Cal.2d 782 [ 73 Cal.Rptr. 240 , 447 P.2d 352 ].) The potential of harm in the judiciary exercising hindsight in the determination of qualification of applicants for employment in the executive branch is great. Analogizing to similar situations in which the Supreme Court has held the doctrine of immunity applicable, we conclude that the potential bars liability here. (See Hardy v. Vial, 48 Cal.2d 577 [ 311 P.2d 494 ]; Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224 [ 11 Cal.Rptr. 97 , 359 P.2d 465 ]^[3] in which discretionary conduct of supervisory personnel leading to the discharge of governmental employees was held privileged against tort liability.)

General Demurrer to Conclusions op Law

Appellant argues that although the complaint may be bereft of factual allegations from which liability upon any of the respondents may be determined, the pleading is sufficient against general demurrer because of the conclusion of law stated in it: that the respondents ’ conduct was unlawful. The argument finds support in isolated language of some decisions. (See San Christiana Inv. Co. v. City & County of San Francisco, 167 Cal. 762 , 769 [ 141 P. 384 , 52 L.R.A. N.S. 676 ].) It does not, however, save the pleading considered here. The applicable principle is that the “conclusion of law—ultimate fact” dichotomy is not an absolute but that the fair import of language used in the pleading must be received to determine whether the adversary has been fairly apprised of the factual basis of the claim against him. (2 Chadbourn, Grossman, and Van Alstyne, California Pleading (1961) § 1227, p. 428.) Here there is nothing in the complaint which tends to

notify respondents of the basis of the claim against them except the allegations with respect to certification. Under the most liberal of tests, such a complaint is vulnerable to general demurrer.^[4]

The judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.