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Filed 12/29/04





CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CALIFORNIA SCHOOL EMPLOYEES

ASSOCIATION et al.,


G032195
Plaintiffs and Appellants,


(Super. Ct. No. 01CC13679)
v.


ORDER MODIFYING OPINION
GOVERNING BOARD OF THE SOUTH
AND DENYING PETITION FOR
ORANGE COUNTY COMMUNITY
REHEARING; NO CHANGE IN
COLLEGE DISTRICT,
JUDGMENT


Defendant and Respondent.


The petition for rehearing is DENIED. It is ordered that the opinion filed
on November 30, 2004, as modified by the order filed herein on December 10, 2004, be
further modified as follows:

On page 5, delete the entire first two paragraphs beginning with "The
District claims Schwab's lawsuit" and "Laches is ordinarily a question of fact" and
replace with the following:

The District contends Schwab's claims for reinstatement and
backpay are barred by the doctrine of laches because he unreasonably
delayed filing his grievance, potentially forcing the District to provide both



backpay to Schwab and wages to the employee hired to replace him.1 We
are not persuaded.

A review of the hearing transcript and the detailed minute order
setting forth the trial court's findings and conclusions regarding the writ
petition reveals nothing to indicate the trial court considered the issue of
laches in denying the petition. Nonetheless, our task is to review the
correctness of the trial court's judgment, not its reasoning. (Ladas v.
California State Auto Assn. (1993) 19 Cal.App.4th 761, 769.) Accordingly,
if the trial court's denial of the writ petition is correct on any ground, the
decision must be upheld. (Warmington Old Town Associates v. Tustin
Unified School Dist. (2002) 101 Cal.App.4th 840, 864.) Laches is
ordinarily a question of fact to be determined by the trial court. (Chang v.
City of Palos Verdes Estates (1979) 98 Cal.App.3d 557, 563). But if the
underlying facts are undisputed, as here, the issue of laches may be decided
as a matter of law.2 (Heavenly Valley v. El Dorado County Bd. of
Equalization (2000) 84 Cal.App.4th 1323, 1334; San Bernardino Valley
Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 605.)

In the present case, Schwab worked in excess of 195 days for the
first time during the 1996-1997 academic year. Thus, as the District points
out, under petitioners' interpretation of section 88003, Schwab first became
entitled to status as a regular classified employee sometime in the spring of


1
Although the District contends Hamblen and Osuna's claims also are barred
by laches, it fails to make any substantive argument regarding their actions. We therefore
decline to address laches as it pertains to these two claimants.


2
We acknowledge there exists an apparent dispute as to whether Schwab
was "discharged" at the time he ceased performing duties for the District. This dispute,
however, has no bearing on our determination.

2


1997. Schwab, however, did not challenge his nonclassified status until his
employment ceased with the District in July 1999, when he and the other
petitioners filed their grievance. Petitioners did not file their writ petition
until October 2001, more than 17 months after the Arbitrator's Decision
and Award. Finally, Schwab and the other petitioners did not obtain a
hearing on their writ petition until February 2003. Unquestionably, Schwab
delayed pursuing his remedies against the District.

Nevertheless, "[d]elay alone ordinarily does not constitute laches, as
lapse of time is separately embodied in statutes of limitation. [Citation.]
What makes the delay unreasonable in the case of laches is that it results in
prejudice." (Lam v. Bureau of Security & Investigative Services (1995)
34 Cal.App.4th 29, 36, citing Brown v. State Personnel Bd. (1985)
166 Cal.App.3d 1151, 1159.) The California Supreme Court has stated the
basic rule for applying the defense of laches as follows: "The doctrine of
laches bars a cause of action when the plaintiff unreasonably delays in
asserting or diligently pursuing the cause and the plaintiff has acquiesced in
the act about which the plaintiff complains, or the delay has prejudiced
defendant." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77;
accord, Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1048
(Piscioneri).) The District, as the party asserting laches, has the burden of
proving the elements of that defense. (Mt. San Antonio Community College
Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 188.)
"`Prejudice is never presumed; rather it must be affirmatively demonstrated
by the defendant in order to sustain his burdens of proof and the production
of evidence on the issue.'" (Piscioneri, supra, 95 Cal.App.4th at p. 1050.)

In support of its claim of prejudice, the District provided evidence it
had replaced Schwab with another employee immediately upon his

3


departure from the District in the spring of 1999. Arguing this evidence is
sufficient to demonstrate prejudice, the District cites Conti v. Board of Civil
Service Commissioners (1969) 1 Cal.3d 351 (Conti) for the proposition that
delay resulting in the hiring of a replacement worker may prejudice the
employer "because reinstatement would require discharge of a substitute
employee or because the employing agency, might be compelled to incur a
double payment consisting of back pay to the discharged employee and
salary to his replacement." (Id. at p. 360.) The District's reliance in Conti
is misplaced.

The brief passage from Conti relied upon by the District merely
recognized an agency employer might suffer prejudice if the agency were
required to discharge a replacement employee, or if the agency were
required to make a double payment. Conti's point was not that such
prejudice would inevitably follow from the agency's hiring of a
replacement employee, but that any potential prejudice must be
demonstrated; it will not be presumed. The court made this unmistakably
clear in the portion of its opinion immediately following that quoted by the
District: "But . . . such matters, if true, are easily provable by the
employing agency. [] Many public agencies employ thousands of
persons; vacant positions suitable for reinstatement of a discharged
employee may occur with regularity. If a suitable vacancy exists, the
discharged employee, by waiving his claim to back salary and other
benefits, can often eliminate the last vestige of prejudice." (Conti, supra,
1 Cal.3d at p. 360.)

The District has provided no evidence demonstrating that
reinstatement of Schwab would require the termination of the worker hired
to replace him, or would cause the District to pay for two employees where

4


only one is needed. As Conti noted, "such matters, if true, are easily
provable." Moreover, our affirmance of the trial court's denial of backpay
to petitioners (see part IV, post) eliminates any potential prejudice of a
"double payment" consisting of backpay to Schwab and the wages of his
replacement.

The District argues even if it did not suffer prejudice from Schwab's
delay in seeking redress, Schwab's acquiescence in the District's actions
provides an alternate basis for invoking the doctrine of laches. In support
of its argument, the District cites evidence that Schwab signed a monthly
"Substitute Time Card" during his employment, accepted payment as a
substitute, and was utilized as a substitute worker in place of permanent
employees on leave. The District also argues Schwab implicitly
acknowledged his continuing status as a nonclassified substitute worker
when he applied for several permanent positions during the time he claims
he was entitled to classified worker status.

Although cases interpreting the "prejudice" requirement for laches
are legion, those interpreting the "acquiescence" requirement are few. On
this subject, the District cites as its sole authority the case of American
Federation of Teachers v. Board of Education (1977) 77 Cal.App.3d 100
(AFT). AFT, however, did not purport to interpret the acquiescence
requirement, but centered its laches analysis on prejudice.
In AFT, a teacher entered into a written employment contract
specifying she would be a temporary employee pursuant to a specific
Education Code statute. Several months after her employment term
expired, she learned her employment contract had specified the wrong
statute to authorize her temporary employment, and filed suit to obtain
probationary status for a permanent teaching position. AFT upheld the trial

5


court's conclusion the teacher's claim was barred by the doctrines of laches
and estoppel. (Id. at pp. 103-104.)

The Court of Appeal recognized the school district suffered
prejudice when it detrimentally relied upon both the teacher's execution of
a written contract confirming her temporary status and her delay in filing a
claim. As a consequence, the school district could no longer provide the
statutory required notice of termination given to probationary employees
the district no longer wished to retain. (Aft, supra, 77 Cal.3d at p. 109.)
Nothing in AFT suggests the court would have found the teacher's claims
barred by laches simply by virtue of the teacher's execution of the
employment contract and the delay in pursuing her claims.

Even assuming, arguendo, the court's finding of prejudice was not
necessary to the court's finding of laches in AFT, the present case is
factually distinguishable. Unlike the teacher in AFT, Schwab filed his
grievance almost immediately after he left the District's employ in July
1999. In AFT, the teacher's status was designated by an employment
contract that did not provide for any change in employment status;
Schwab's execution of a monthly "Substitute Time Card," however, was
not intended to memorialize any agreement on how he would be treated in
the future, but was simply a means for him to be paid. More importantly,
unlike AFT, there exists in the present case a statute mandating the
District's treatment of substitute workers who work over 75 percent of any
given college year. (See part III, post.)

The notion that Schwab "acquiesced" in the District's treatment of
him merely by continuing to work in a capacity as a substitute worker,
signing time cards, and accepting his wages, cannot be accepted in the face
of a statute expressly dictating the manner in which his employment was to

6


be handled. A contrary conclusion would undermine the various laws
specifically tailored to protect employee rights. In an analogous context,
the court in California School Employees Assn. v. Santee School Dist.
(1982) 129 Cal.App.3d 785, 788-789, recognized that a worker's voluntary
acceptance of employment under terms in conflict with a statutory mandate
"certainly is not a waiver of any statutory rights and to hold otherwise
would be to open the door to possible loss of a myriad of employee rights."

Finally, Schwab's quest for a permanent position during the time he
worked as a substitute worker is not evidence of his acquiescence in the
District's treatment of him. Instead, it simply disclosed a continuing
interest in becoming a permanent employee and a desire to achieve this goal
without the necessity of filing a grievance or lawsuit.
Accordingly, we conclude, the District has not met its burden of
proof to establish the defense of laches.


These modifications do not change the judgment.





ARONSON,
J.


WE CONCUR:



O'LEARY, ACTING P. J.



FYBEL, J.

7

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