Opinion
H050873 H050947
03-15-2024
DAVID M. KISSNER, Petitioner and Appellant, v. LOMA PRIETA JOINT UNION SCHOOL DISTRICT, Respondent.
NOT TO BE PUBLISHED
Order Filed Date: 4/8/24
(Santa Clara County Super. Ct. No. 21-CV-383749)
ORDER MODYIFING OPINION AND DENYING REHEARING
THE COURT: It is ordered that the opinion filed herein on February 28, 2024, be modified as follows:
1. On page 3, line 6, the sentence starting with "Because a multiple-subject" and ending with "eighth grades" is deleted and the following sentence is inserted in its place: Because a multiple-subject or standard elementary teaching credential is needed to teach multiple subjects in a core program, the District decided to use teachers with multiple-subject credentials in the sixth grade and move those with single-subject credentials to the seventh and eighth grades.
2. On page 16, lines 10-17, the sentences starting with "Teachers with multiple-subject teaching credentials" and ending with "and below."].)" are deleted and the following sentences are inserted in their places:
Multiple-subject teaching credentials authorize teachers holding them "to teach in any self-contained classroom" (§ 44258) and also to "[t]each core classes to students grades five through eight." (5 Cal. Code Regs., § 80003, subd. (c).) By contrast, single-subject teaching credentials authorize their holders only to teach a "subject in [their] authorized field." (§ 44258; see also 5 Cal. Code Regs., § 80004, subd. (a) ["The Single Subject Teaching Credential authorizes the holder to teach the content area(s) listed on the document in grades twelve and below."].)
3. On page 17, lines 9-17, the sentences starting with "While that is true" and ending with "by law."].)" are deleted and the following sentence is inserted in their places:
While that is true, such assignments are temporary because school boards are expressly barred from hiring or permanently retaining teachers for positions that they lack the certifications to hold. (§ 44830, subd. (a) ["The governing board of a district shall employ for positions requiring certification qualifications, only persons who possess the qualifications for those positions prescribed by law."].)
4. On page 18, lines 9-17, the sentences starting with "However, Kissner does not suggest" and ending with "Nor could he." are deleted and the following sentence is inserted in their places:
However, section 44258.2 does not state that credentials "shall be deemed qualifying" for core programs or "broaden[] the list of qualified teachers" for such programs.
5. On page 19, the first sentence in footnote 4 is replaced with the following sentence:
In addition, because Kissner lacks the credential needed to teach multiple subjects in a core program, his reliance on the prohibition in Chambers v. Board of Trustees of City of Madera School Dist. (1940) 38 Cal.App.2d 561 against firing a permanent employee to hire another with more desirable qualifications is misplaced.
6. On page 21, lines, the sentence starting "While the District's citations" and ending with "evidence." is replaced with the following sentence:
While the District's citations to the record are sparse, the District cites the findings in the trial court's opinion.
There is no change in judgment.
Appellant's petition for rehearing is denied.
BROMBERG, J.
In early 2021, facing declining enrollment and a persistent budget deficit, the board of trustees of respondent Loma Prieta Joint Union School District Board of Trustees (District) decided to reduce its work force pursuant to Education Code section 44955 (Section 44955). Appellant David Kissner was one of the teachers selected for a layoff in this reduction. He challenged his layoff, but an administrative law judge upheld it, and the trial court denied Kissner's subsequent petition for a writ of administrative mandamus. Kissner now appeals this denial. He also separately appeals a subsequent order requiring him to pay the District's costs. We affirm in both appeals.
Subsequent undesignated statutory references are to the Education Code.
I. Background
A. Kissner's Credentials and Experience
The District operates two schools: an elementary school serving students in kindergarten through the fifth grade and a middle school serving students in the sixth through eighth grades.
Kissner began teaching in the District's middle school in 2012. Kissner has a single-subject teaching credential in math. However, for most of his time in the District, Kissner taught science as well as math classes. Because Kissner is not credentialed to teach science, he did so under a "consent to teach" waiver from the County Office of Education, which authorized the District to assign him, with his consent, to teach outside of his credentialed area for each school year.
Because Kissner has only a single-subject teaching credential, he is not credentialed to teach in a core program in which more than one subject is taught.
B. District's Reduction in Force
During the 2020-2021 school year, based on declining enrollment and an ongoing budget deficit exacerbated by failure of a tax proposal, the District decided to reduce its work force. Accordingly, on March 10, 2021, the Board adopted a resolution to "reduce or eliminate particular kinds of service(s) . . . no later than the beginning of the 2021-2022 school year." In particular, the Board decided to reduce or eliminate "4.0 FTE [full-time equivalent] grades K-8 Classroom Teaching," but to retain, among other others, "Multiple Subject Teaching Credential." The District also reduced the number of classified staff members (who provide support in the classroom), the salaries of administrators and confidential staff, and the consulting, supplies, and operating expense budgets.
At the same time, the District changed its sixth grade from a departmentalized model to a "core program" in which each teacher teaches two subjects-English/history and math/science-"cored" together. This core program has two advantages. First, it eases the transition from elementary school, where classes are taught by a single teacher handling most or all subjects, as well as providing greater social and emotional support to sixth-grade students (because in a core environment teachers get to know their students better). Second, a core program gives the District greater flexibility, allowing it easily to move either to entirely self-contained classrooms or to restore electives.
Because a multiple-subject or standard elementary teaching credential is needed to teach in a core program, the District decided to use teachers with multiple-subject credentials in the sixth grade and move those with single-subject credentials to the seventh and eighth grades. In addition, because of the recent graduation of an unusually large eighth grade, the Board determined that it needed only five sections of math in the seventh and eighth grades, which a single teacher could handle.
C. The Kissner's Identification
The District identified four teachers, including Kissner, for layoffs. Three of these teachers were identified because they were the most recently hired and therefore had the least seniority. Kissner, by contrast, ranked tenth out of the 30 or so teachers on the District's seniority list. He was identified for layoff because only one math teacher was needed for the seventh and eighth grades, and the District's other math teacher had more seniority. In addition, the Board retained several employees more junior than Kissner to teach math in the sixth grade because these employees, unlike Kissner, had the multiple-subject teaching credential needed for the grade's new core program.
D. The Administrative Hearing
Kissner challenged his selection, and in April 2021, a hearing was conducted before an administrative law judge.
In May 2021, the administrative law judge issued a proposed decision. The judge found that the District faced both declining enrollment and a budget shortfall and had adopted a core program for the sixth grade both to give students more support in transitioning to middle school and to give the District additional flexibility. The judge also found that the core program was adopted in good faith and was not a pretext for retaliating against Kissner for his political activities (which included opposing a proposed tax increase for the District). The judge found as well that the District skipped more junior teachers over Kissner because, unlike Kissner, those teachers had multiple-subject teaching credentials authorizing them to teach in the new sixth-grade core program. Finally, the judge concluded that under Section 44955 Kissner had received sufficient notice of the statutory basis for the reduction in force, the District had authority to reduce or eliminate the particular kind of service at issue, and the District had followed Section 44955's "bumping and skipping" rules.
On May 10, 2021, the District adopted the administrative law judge's proposed decision and issued a final layoff notice to Kissner.
E. The Petition
In June 2021, Kissner petitioned for a writ of administrative mandamus directing the District to reinstate him for the following school year. On August 22, 2022, after a hearing, the trial court issued a minute order denying the writ petition. Kissner requested a statement of decision, and in January 2023 the trial court issued one.
In this statement of decision, the trial court upheld the administrative law judge's findings. The court found that the District adopted a core program in the sixth grade to benefit students and provide flexibility in hiring and retaining teachers. It also found the District decided to respond to declining enrollment and a budget deficit by reducing K-8 classroom teaching but retaining instructors with multiple-subject teaching credentials. Finally, the court found that the District selected Kissner for layoff because he had less seniority than another single-subject math instructor who could teach the seventh and eighth grades, and he lacked the multiple-subject credential needed to teach in the new sixth-grade core program.
After noting that Kissner had withdrawn his request for a finding that the District retaliated against him for his political activities, the trial court reached several legal conclusions. First, the District gave adequate preliminary notice of termination. Second, the District properly had identified a "particular kind of service" for reduction under Section 44955 because "[c]lassroom teaching of any subject . . . is recognized as a particular kind of service which can be reduce to the minimum level required by law." Third, the District's decision to reduce these services was neither arbitrary nor capricious. Finally, the District correctly followed Section 44955's skipping rules in retaining more junior employees over Kissner because, as the holder of a single-subject credential, Kissner was not qualified to teach core courses in the sixth grade.
The statement of decision therefore denied Kissner's mandamus petition and stated that it constituted a final judgment. On March 7, 2003, Kissner filed a timely notice of appeal.
F. The Motion to Tax Costs
On January 24, 2023, after prevailing on Kissner's petition, the District filed a memorandum of costs, seeking $3,951.74 in costs under Code of Civil Procedure section 1032. The bulk of the amount sought ($3,291.50) was for transcripts of the hearing before the administrative law judge, which the trial court had directed the District to prepare after Kissner requested a fee waiver based on indigency. In response, Kissner filed a motion to tax costs arguing that, as a litigant in forma pauperis, he is excused from paying costs and, indeed, any cost award against him would be unconstitutional.
The trial court denied Kissner's motion. It reasoned that the fee waiver previously granted Kissner only waived his court costs, not respondent's costs. It also concluded that, absent statutory authority, it had no discretion to deny costs to the prevailing party based on the losing party's inability to pay, and that Kissner had failed to cite any such authority.
Appellant filed a timely notice of appeal from the costs order. Kissner moved to consolidate this appeal with his previous one. Although this court denied the motion, it ordered the appeals considered together for purposes of oral argument and disposition.
II. Discussion
A. The Layoff
Although the Education Code protects elementary and secondary school employees against dismissal without statutorily authorized cause (§ 44932, subd. (a) [enumerating causes for dismissing permanent employees]; id., § 44948, subd. (a) [enumerating causes for dismissing probationary employees]), under Section 44955 school boards have authority to reduce their work force through layoffs. (See, e.g., Gassman v. Governing Board (1976) 18 Cal.3d 137, 147; Bledsoe v. Biggs Unified School Distr. (2008) 170 Cal.App.4th 127, 134 (Bledsoe).) In specified circumstances- including "whenever a particular kind of service is to be reduced or discontinued"- school boards may decide "to decrease the number of permanent employees in the district" and "terminate" a corresponding number of employees. (§ 44955, subd. (b).)In so doing, school boards generally must respect seniority and may not terminate a permanent employee "certificated and competent" to render a service in favor of another employee with less seniority. (Ibid.; but see id., § 44955, subd. (d)(1) [creating exception where a junior employee has "special training and experience" needed for a course that more senior employees lack].) In addition, employees selected for termination under Section 44955 must be given notice by the 15th of May in the preceding school year (id., § 44955, subd. (c)) and may request a hearing to challenge the termination (§ 44949, subd. (b)). Finally, for 39 months, employees terminated under Section 44955 enjoy preferential rights to reemployment (id., § 44956, subd. (a))-which effectively turns what Section 44955 describes as a "termination" into a layoff.
Section 44955, subdivision (b) provides in pertinent part: "[1] Whenever in any school year the average daily attendance in all of the schools of a district for the first six months in which school is in session shall have declined below the corresponding period of either of the previous two school years, [2] whenever the governing board determines that attendance in a district will decline in the following year as a result of the termination of an interdistrict tuition agreement as defined in Section 46304, [3] whenever a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, or [4] whenever the amendment of state law requires the modification of curriculum, and when in the opinion of the governing board of the district it shall have become necessary by reason of any of these conditions to decrease the number of permanent employees in the district, the governing board may terminate the services of not more than a corresponding percentage of the certificated employees of the district, permanent as well as probationary, at the close of the school year. Except as otherwise provided by statute, the services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render."
Kissner challenges his layoff on several grounds. In evaluating these challenges, we exercise independent judgment, reviewing the trial court's factual findings for substantial evidence but considering questions of law de novo. (Hildebrandt v. St. Helena Unified School Dist. (2009) 172 Cal.App.4th 334, 339 (Hildebrandt).) We conclude that the District complied with Section 44955 and that Kissner's mandamus petition was correctly denied.
1. Preliminary Notice
Kissner contends that the District failed to give him adequate preliminary notice because the notice he received did not specify the categories of services that would be eliminated. We disagree. Under Section 44955, a preliminary notice need only state the statutory ground or grounds for layoffs, which the notice provided to Kissner did.
The Education Code requires that an employee selected for layoff receive notice that "his or her services will not be required for the ensuing year for the reasons specified in Section 44955." (§ 44949, subd. (a)(1).) This preliminary notice is "not required" to identify "the specific positions to be eliminated," as "those details emerge as the administrative hearing process progresses." (Santa Clara Federation of Teachers v. Governing Board (1981) 116 Cal.App.3d 831, 842 (Santa Clara Federation of Teachers); see also San Jose Teachers Assn. v. Allen (1983) 144 Cal.App.3d 627, 632 (Allen) ["Since the March 15 notice is only the initial step in the termination process it is not required that it specify the precise number of teachers to be terminated or the specific positions to be eliminated."].) Instead, as the First District Court of Appeal recognized in the Allen decision, "[t]he preliminary notice is sufficient if it specifies the statutory grounds set forth in section 44955." (Allen, at p. 632, italics added; see also Santa Clara Federation of Teachers, supra, 116 Cal.App.3d at p. 841 ["It is enough that the Board specify in the March 15 notice the statutory ground set forth in section 13447 [present section 44955] for staff reduction."].)
The notice provided to Kissner satisfied this requirement. It informed Kissner that the District had "approved the reduction of particular kinds of services at the conclusion of the 2020-2021 school year." Reduction of a particular kind of service is one of the grounds for terminating employees authorized by Section 44955. (§ 44955, subd. (b) [permitting elimination or reduction of positions "whenever a particular kind of service is to be reduced or discontinued not later than the beginning of the following year"].) Accordingly, the preliminary notice received by Kissner informed him of the statutory ground for his layoff and therefore was sufficient. (Allen, supra, 144 Cal.App.3d at p. 630.)
Kissner asserts that under Section 44955 a preliminary notice must designate the "categories of services to be affected." Kissner draws this requirement from the summary at the beginning of the Allen decision, which states that a preliminary notice "recommending that a school district terminate certain certificated employees because of a reduction in particular kinds of services is sufficiently specific if it designates the categories of services to be reduced or discontinued." (Allen, supra, 144 Cal.App.3d at p. 630.) It is unclear why Allen summarized its decision in this fashion. As noted above, Allen ruled that the preliminary notice in that case was sufficient because "it specifies the statutory grounds set forth in section 44955," not because it designated categories of services. (Id. at p. 632.) In addition, the authority on which Allen relied in reaching this conclusion similarly held a preliminary notice sufficient because it specified "the statutory grounds," without mentioning any need to designate categories. (Santa Clara Federation of Teachers, supra, 116 Cal.App.3d at p. 841.) As a consequence, there does not appear to be any basis for the requirement of mentioning the categories of services suggested by Allen's summary.
In any event, the resolution attached to Kissner's notice letter disclosed the category of services to be reduced or eliminated here. Contrary to Kissner's assertions, the letter did not merely say that "4.0 FTE [full time equivalencies]" would be eliminated. It said that "4.0 FTE K-8 Classroom Teaching" would be eliminated and added that the District would retain, among other things, "Multiple Subject Teaching Credential." (Italics added.) As classroom teaching is a particular kind of service under Section 44955 (see Allen, supra, 144 Cal.App.3d at p. 638 ["classroom teaching at the elementary level is a particular kind of service, which is subject to PKS reduction"]), this statement was sufficient to satisfy a requirement of identifying categories of service. Thus, even under the standard asserted by Kissner, the preliminary notice that he received was sufficient.
2. Particular Kind of Service
Kissner argues that his layoff was improper because, while Section 44955 authorizes school boards to reduce or eliminate "a particular kind of service," the District failed to do so here. We disagree.
As noted above, Section 44955 permits school boards to lay off employees whenever "a particular kind of service is to be reduced or discontinued not later than the beginning of the following year." (§ 44955, subd. (b).) This "particular kind of service" provision dates back to the School Code, and "[t]he seminal case on the discontinuation of a particular kind of service is Fuller v. Berkeley School District (1934) 2 Cal.2d 152." (Gallup v. Board of Trustees (1996) 41 Cal.App.4th 1571, 1582.) The school district in Fuller had operated kindergarten classes with three types of teachers: directors, assistant directors, and associate directors. (Fuller, at p. 155.) In 1932, presumably in response to the Great Depression, the district decided to eliminate the assistant and associate directors and have full-fledged directors teach all kindergarten classes, which the district started holding in afternoons as well as mornings. (Id. at p. 157.) An assistant director challenged her termination on the ground that kindergarten teaching was the particular kind of service provided by assistant and associate directors and that service had not been reduced or discontinued. (Id. at p. 159.) The Supreme Court upheld the assistant director's termination, reasoning that "the particular kind of kindergarten service which the plaintiff was employed to render had been discontinued." (Ibid.) The district, the Supreme Court explained, had "discretion to classify the services" in a department and then "to discontinue a particular kind of service in that department, provided the same be done in good faith." (Id. at p. 161; see also Hildebrandt, supra, 172 CalApp.4th at p. 343 ["school districts have discretion to determine the types of services that will be eliminated"].)
Former section 5.710 of the former School Code stated in full: "It is hereby provided that whenever it becomes necessary to decrease the number of permanent employees in a school district on account of a decrease in the number of pupils attending the schools of such district, or on account of the discontinuance of a particular kind of service in such district, the school board may dismiss such employee at the close of the school year." (Italics added.)
Following Fuller and the broad discretion to classify teaching recognized in that decision, subsequent decisions have held that school districts may treat teachers who provide generalized instruction as well as those who provide specialized instruction as providing particular kinds of services and to reduce or eliminate those services. For example, in Davis v. Berkeley School District (1934) 2 Cal.2d 770 (Davis), a companion case to Fuller, a school district eliminated "traveling teachers in the subject of art," who had acted as "experts" going from school to school and giving instruction in the arts. (Id. at p. 770.) Although art continued to be taught "by the regular department teachers and by the supervisor of art," the Supreme Court held that district could treat traveling teachers of art as "a different kind of service." (Ibid.) Other decisions similarly recognize that school districts may treat teaching specific subjects such as mathematics, science, history, and art in high school as particular kinds of service. (California Teachers Assn. v. Board of Trustees (1982) 132 Cal.App.3d 32, 36 (California Teachers Assn).) Conversely, courts have held that school districts may treat teaching multiple subjects to the same elementary school students in the same classroom as "a particular kind of service which is subject to . . . reduction." (Allen, supra 144 Cal.App.3d at pp. 638; see also Zalac v. Governing Board of the Ferndale Unified School District (2002) 98 Cal.App.4th 838, 854 (Zalac) [holding kindergarten teaching "a particular kind of service"]; California Teachers Assn., supra, 132 Cal.App.3d at p. 36 ["elementary grade classes which teach the same offerings, along with a single teacher, are particular kinds of service"].)
The District's actions in this case fit squarely within this precedent. The District decided to shift to a core program for the sixth grade using teachers with multiple-subject credentials to teach combined classes of math and science or English and history, and to eliminate teachers with single-subject credentials from the grade. As a consequence, the District treated single-subject teaching as a particular kind of service distinct from multiple-subject teaching and decided to eliminate the former in the sixth grade. Especially as the Education Code expressly distinguishes "[s]ingle subject instruction" from "[m]ultiple subject instruction" (§ 44256, subd. (a), (b)), we see no reason why the District could not exercise the discretion to classify recognized in Fuller in this manner.
Kissner asserts that a school district's ability to identify a particular kind of service is constrained and, in particular, that a particular kind of service must be "a specialized educational service or assignment within a school district, such as teaching a specific subject at the elementary school grade level[] or providing instruction to students with particular needs or in a unique program." That is incorrect. A school board may treat teaching a specific subject in an elementary school or providing instruction to students with particular needs as a particular kind of service. (See, e.g., Schwalbach v. Board of Education (1936) 7 Cal.2d 459, 461-462 [permitting school board to treat teaching students with mental disabilities as a particular kind of service].) But, as mentioned above, courts repeatedly have held that a school board also may treat generalists who teach multiple subjects in an elementary school as providing a "different kind of service." (Zalac¸ supra, 98 Cal.App.4th at p. 854; Allen, supra, 144 Cal.App.3d at p. 638; California Teachers Assn., supra, 132 Cal.App.3d at p. 36.) Thus, nothing prevented the District from treating single-subject and multiple-subject instruction as different kinds of services and eliminating the former in the sixth grade.
Kissner also asserts that school boards must identify particular kinds of services based on the subject taught, the kind of school where taught, and the position occupied by the teacher In support of this assertion, he relies primarily on Walsh v. Board of Trustees of Redlands High School District (1934) 2 Cal.App.2d 180 (Walsh). Walsh, however, predated the Supreme Court's decision in Fuller by a month, and in any event Walsh addressed the rights of teachers whose work has been reduced to "bump" more junior teachers, not the ability of school districts to reduce or discontinue particular kinds of services. (Id. at pp. 185-187.) Kissner also cites two other decisions, but, far from supporting the rigid test that Kissner seeks to impose, these decisions recognize that classroom teaching in elementary schools" 'must be recognized as a particular kind of service in order that elementary schools are able to reduce the only services they provide'" (Zalac, supra, 98 Cal.App.4th at p. 854, quoting Allen, supra, 144 Cal.App.3d at p. 637.) Even more important, neither decision disputes that school districts have "broad discretion in defining positions within the district" and corresponding "discretion to determine particular kinds of service that will be eliminated." (Hildebrandt¸ supra, 172 Cal.App.4th at p. 343.)
Finally, Kissner objects that the District made no change in the sixth-grade curriculum or in the method or manner of teaching sixth-grade math or science. Nothing in Section 44955, however, bars a school board from eliminating a particular kind of service without changing its curriculum or teaching methods. To the contrary, starting with Fuller itself, courts repeatedly have held that a school district may eliminate a "different kind of service" even if it continues to provide the same classes and instruction as before. (Fuller, supra, 2 Cal.2d at p. 159 [permitting school board to discontinue a "particular kind of kindergarten service" even though it continued to provide kindergarten teaching]; see also Davis, supra, 2 Cal.2d at p. 770 [permitting school board to eliminate the "different kind of service" provided by traveling arts teachers even though the subject of art continued to be taught]; Campbell Elementary School Teachers Assn., Inc. v. Abbott (1978) 76 Cal.App.3d 796, 812 (Campbell) [" 'even though a service must continue to be performed in a school district, the particular kind of service of the employee may be eliminated' "]; Rutherford v. Board of Trustees (1976) 64 Cal.App.3d 167, 177 (Rutherford) [same].)
3. Abuse of Discretion
Kissner also argues that the District did not actually move to a new core program in the sixth grade and the elimination of single subject teaching in the sixth grade did not reduce the number of teachers or otherwise save any money. As Kissner withdrew his claim the District eliminated single-subject teaching in the sixth grade as a pretext for retaliating against him, we understand him to be arguing that the Board abused its discretion in eliminating single-subject teaching in the sixth grade. We are not persuaded.
Courts have authority to overturn a school district's decision to reduce or eliminate a particular kind of service if the decision was" 'fraudulent, arbitrary, or capricious.'" (Campbell, supra, 76 Cal.App.3d at p. 808; see also Fuller, supra, 2 Cal.2d at p. 161 (conc. opn. of Curtis, J). ["the board is authorized to discontinue particular kinds of service, provided the same be done in good faith"].) However, judicial review of such decisions is deferential. A district's decision to reduce or eliminate a particular kind of service must be upheld if it is" 'reasonable" as "measured by the standard set by reason and reasonable people, bearing in mind that such a standard may permit a difference of opinion on the same subject.'" (Campbell, at p. 808.)
The District's decision to adopt a core program for the sixth grade easily satisfies this standard. The District found that a shift to a core program with multiple-subject teachers in the sixth grade would benefit students by easing the transition from elementary school, where all subjects are taught by a single teacher. It also found that a core program would give the District greater flexibility in the future either in moving to a self-contained classroom or in restoring electives. In addition, unlike teachers with only a single-subject credential, who may refuse to teach another subject, teachers with multiple-subject credentials must teach classes for which they are credentialed As a consequence, a core program using multiple-credential teachers eliminates the danger that a teacher with a single-subject credential will refuse to teach a subject and force the District to hire a new teacher to handle the subject. Thus, it was reasonable for the District to move to a core program in the sixth grade and eliminate single-subject teaching in that grade.
Kissner asserts that "the District continued the identical kind of service performed and position held by Petitioner" and assured parents "that there would be no significant changes to the 6th-grade programming." As noted above, however, Section 44955 permits a school district to eliminate a particular kind of service without changing its curriculum or teaching methods. (Fuller, supra, 2 Cal.2d at p. 159; Davis, supra, 2 Cal.2d at p. 770; Campbell, supra, 76 Cal.App.3d at p. 812; Rutherford, supra, 64 Cal.App.3d at p. 177.) Moreover, the District shifted to core programming in which sixth-grade teachers teach multiple classes "cored" together, and the email cited by Kissner recognizes this shift: It states that, while students will still have four academic classes, "these classes will be scheduled as an ELA/Social Studies and Math/Science core class each taught by a multiple subject teacher."
Kissner also contends that the change to core programming in the sixth grade did not reduce the number of teachers or save any money and, indeed, due to unexpected funding the District restored the layoffs that it announced. While that appears to be correct, it does not help Kissner. Whether or not it yielded immediate savings, as shown above, the shift to a core program in the sixth grade was reasonable because it benefited students and gave the District more flexibility. Nor, contrary to Kissner's assertions, did the trial court erroneously find that shifting to a core program would reduce the number of teachers, much less uphold the shift was based on such a finding. Although the court noted that the District's budget advisory committee had proposed the change in order "[t]o accomplish the reduction in teaching staff," it found that the change "allowed for an easier transition to middle school" and "was more flexible for the District in hiring and retaining teachers," and it concluded that the change was not arbitrary and capricious based on these latter considerations rather than cost savings.
4. Skipping
Kissner argues that, even if a reduction in the particular kind of service he provided was justified, the District improperly retained more junior employees over him. Section 44955, however, contains "bumping and skipping" rules that permit school districts to retain, or "skip," junior employees over more senior employees if the junior employees are certificated and competent to teach classes that the more senior employees are not. That is the situation here.
As a general rule, when school districts reduce their work forces under Section 44955, they are required to respect seniority in selecting employees for layoffs, unless junior employees have qualifications that more senior employees lack: "Except as otherwise provided by statute, the services of no permanent employee may be terminated . . . while any probation employee, or another employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render." (§ 44955, subd. (b).) As the Third District Court of Appeal observed in Bledsoe, supra, 170 Cal.App.4th 127, "this language provides' "bumping"' rights for senior certificated and competent employees and' "skipping"' authority for a district to retain "junior employees who are certificated and competent to render services which more senior employees are not.'" (Id. at p. 135.)
The District properly exercised section 44955's bumping and skipping rules in retaining more junior employees over Kissner because, unlike Kissner, these employees are "certificated" to teach in core courses. As Kissner recognizes, in a core program such as the District instituted for its sixth grade, multiple classes are taught to the same group of students. (5 Cal. Code Regs., § 80003, subd. (c) ["Core classes consist of teaching two or more subjects to the same group of students."]). Teachers with multiple-subject teaching credentials are authorized "to teach in any self-contained classroom" (§ 44258) and also to "[t]each core classes to students grades five through eight." (5 Cal. Code Regs., § 80003, subd. (c).) By contrast, teachers with single-subject teaching credentials are authorized only to teach a "subject in [their] authorized field." (§ 44258; see also 5 Cal. Code Regs., § 80004, subd. (a) ["The Single Subject Teaching Credential authorizes the holder to teach the content area(s) listed on the document in grades twelve and below."].) Because Kissner holds only a single-subject teaching credential for math, he is not authorized by that credential-or "certificated"-to teach any subject besides math and thus is not certificated under Section 44955 to teach sixth-grade core courses, which combine two different subjects. By contrast, the sixth-grade teacher whom Kissner contends replaced him holds a multiple-subject instruction credential and therefore is certificated to teach core classes. The two other sixth-grade teachers whom Kissner contends were skipped over him also have multiple-subject teaching credentials. Thus, the District properly skipped these employees over Kissner for the sixth-grade core program.
Kissner objects that he is "qualified" to teach science and in fact did so for nine years. We have no reason to doubt Kissner's ability to teach the science classes that he previously taught. However, Section 44955's bumping and skipping rules require more than the ability or competence to teach a class. They require employees to be both "certificated and competent." (§ 44955, subd. (b), italics added.) Consequently, when a teacher is competent to teach a class but lacks the certification formally authorizing the teacher to do so, under Section 44955 a more junior teacher who is both certificated and competent to teach the class may be skipped over that teacher.
Kissner points out that school districts have authority to assign teachers with single subject credentials to teach classes beyond the scope of their credential. (§ 44258.2-44258.3, 44263.) While that is true, the authority is limited: School Boards are permitted to assign teachers without appropriate certifications only "as a last resort" and only with approval of the Commission on Teacher Credentialing (or, apparently, its delegatees). (§ 44225.7, subd. (a), (b).) Moreover, such assignments are temporary because school boards are expressly barred from hiring or permanently retaining teachers for positions that they lack the certifications to hold. (§ 44830, subd. (a) ["The governing board of a district shall employ for positions requiring certification qualifications, only persons who possess the qualifications for those positions prescribed by law."].) As retaining an employee during a reduction in force is more akin to a hiring decision than a temporary assignment, it is not surprising that Section 44955 permits school boards to skip junior employees who have the credentials needed for a position over more senior employees who do not.
Bledsoe does not suggest otherwise. In Bledsoe, a school board skipped a junior employee with a multiple-subject credential over a more senior employee with a single-subject credential for a position teaching multiple subjects in a community day school, which was reserved for students who had been expelled or had behavioral problems. (Bledsoe, supra, 170 Cal.App.4th at pp. 131-132.) The Third District Court of Appeal concluded that the more senior employee was certificated and competent to teach in the community day school. (Id. at p. 137.) However, in doing so, the Bledsoe court relied upon section 44865. That section-which deals with community day schools, juvenile court schools, and other schools that are difficult to staff (California Teachers Assn. v. Governing Board of Central Union High School (1983) 141 Cal.App.3d 606, 611, fn. 7)-states that "[a] valid teaching credential . . . shall be deemed qualifying for assignment as a teacher" in difficult-to-staff places such as community day schools. (§ 44865.) Concluding that section 44865 "broadens the list of qualified teachers from which a district can choose to fill a position at a community day school," Bledsoe ruled that a teacher with a single-subject credential should be considered "qualified, that is certificated and competent to render service . . . at the community day school." (Bledsoe, supra, 170 Cal.App.4th at pp. 136-137.)
This case is readily distinguishable. Kissner does not contend that section 44865 applies here; instead, he relies upon section 44258.2. However, Kissner does not suggest that section 44258.2 states that credentials "shall be deemed qualifying" for core programs or "broadens the list of qualified teachers" for such programs. Nor could he. Unlike section 44865, section 44258.2 merely provides that "[t]he holder of a single subject teaching credential . . . may, with the credentialholder's consent, be assigned by action of the government board to teach classes in grades 5 to 8." (§ 44258.2.) Thus, nothing that led Bledsoe to conclude that under section 44865 the employee in that case should be treated as qualified to teach in a community day school suggests that Kissner should be treated as credentialed to teach in core programs under section 44258.2.
At oral argument, Kissner noted that, according to his employment offers, he was hired to serve as a "6th Grade Core Math/Science Teacher." By itself, this description might suggest that Kissner was hired to work in a core program as a math and science teacher. But, as the District points out, this offer also may be interpreted to mean that Kissner was hired to teach subjects that are part of a core curriculum. Even more important, far from treating Kissner as credentialed to teach in a core classroom setting, the Board passed annual resolutions authorizing Kissner to teach science "in a departmentalized setting" with a "Single Subject Math Credential." (Italics added.) Thus, Kissner's evidence shows only that he could be authorized to teach math and science in a departmentalized setting, not that he has the credential needed to teach those subjects in a core classroom setting and to avoid skipping under Section 44955.
This distinction may appear somewhat technical, which lends plausibility to Kissner's assertion that the sixth-grade core program was adopted to single him out. However, we are obliged to defer to the District in matters within its area of expertise such as educational policy. (See, e.g., Shapell Indus., Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 230.) In addition, an administrative law judge considered and rejected Kissner's claim that his layoff was a pretext for retaliation, and in the trial court he abandoned his pretext claim. As a consequence, the pretext issue is not before us, and therefore we do not consider the District's motives in moving from a departmentalized to a core model for the sixth grade.
Finally, Kissner argues that the trial court erred in finding that the District demonstrated a special need to hire multiple-subject credentialed teachers for sixth grade math and science or that Kissner lacked the training and experience needed to teach those classes. This is a straw man. Where skipping is not permitted, Section 44955 has an exception that permits a school district to "deviate from terminating a certificated employee in order of seniority" by demonstrating that it has a special need for a specific course and that a "certificated employee has special training and experience to teach that class, which those with more seniority do not possess." (§ 44955, subd. (d).) Here, however, Section 4495 permitted the District to skip more junior employees over Kissner, and therefore the District did not need to rely on this exception.
In addition, because Kissner lacks the credential needed to teach in a core program, his reliance on the prohibition in Chambers v. Board of Trustees of City of Madera School Dist. (1940) 38 Cal.App.2d 561 against firing a permanent employee to hire another with more desirable qualifications is misplaced. Similarly, because we do not rely on any materials from Commission on Teacher Credentialing in construing Section 44955, Kissner's objections to the trial court's consideration of those materials are moot, and we decline to address them. For similar reasons, we decline to address Kissner's contention that the District was not required to seek annual waivers for him.
5. Reappointment
Kissner asserts that the trial court committed "gross error" in ruling that his layoff was justified because the District later terminated him for cause. In fact, the court made no such ruling. As Kissner points out, the trial court observed in a footnote that "Kissner was not eligible for rehire because he had been terminated by the District for reasons separate from this matter. (David Kissner v. Commission on Professional Competence, 22CV393046.)" This footnote, however, followed the trial court's discussion of Kissner's objection that no reduction in force occurred because the District received unexpected funding. Accordingly, we understand the footnote as providing an explanation for why Kissner continues to contest his layoff despite the new funding, not as a ruling on the impact of Kissner's dismissal, which was the subject of a separate proceeding in the trial court.
6. The Statement of Decision
Kissner contends that the trial court abused its discretion by failing to rule on his objections to the proposed statement of decision. We disagree. A final statement of decision is sufficient if it"' "fairly discloses the court's determination as to the ultimate facts and material issues in the case." '" (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 500.) The trial court's 17-page statement easily satisfies this standard. Although Kissner asserts that the trial court failed to resolve a long list of controverted issues, none of the issues identified is material, and therefore the trial court was not required to address them. (Id. at p. 500; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 559-560.)
7. Record Citations
Finally, Kissner asks us to disregard the District's brief because it is not supported by any citations to the administrative record. We decline to do so. While the District's citations to the record are sparse, the District cites the findings in the trial court's opinion, and Kissner has not asserted that any of those findings are unsupported by substantial evidence.
B. Motion to Tax Costs
In addition to appealing from the denial of his petition for a writ of administrative mandamus, Kissner appeals from the trial court's order denying his motion to tax costs and requiring him to pay the District's costs. Although the District prevailed in the proceedings below, Kissner contends that the trial court erred in granting it costs because he was granted in forma pauperis status due to indigency. Reviewing the award of costs for abuse of discretion (see, e.g., Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 834), we affirm.
As a general rule, prevailing parties are entitled to recover costs. Under section 1032 of the Code of Civil Procedure, "[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Code Civ. Proc. § 1032, subd. (b).) As no statute authorizes courts to consider a losing party's resources in awarding costs, courts have no discretion to deny costs based on the losing party's lack of resources. (See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129 [concluding that there is no "discretion to consider a party's ability to pay" under section 1032 of the Code of Civil Procedure]; see also Alfaro v. Colgate-Palmolive (LAUD Asbestos Cases) (2018) 25 Cal.App.5th 1116, 1124-1125 [finding "no authority . . . for the court to analyze whether costs are reasonable based on the losing party's ability to pay" under section 1033.5 of the Code of Civil Procedure].)
Kissner argues that in mandamus proceedings section 1094.5 of the Code of Civil Procedure confers authority to reduce or deny costs based on the indigency of the losing party. In fact, the opposite is true. Section 1094.5 states that the petitioner shall bear the costs of preparing an administrative record "[e]xcept when otherwise prescribed by statute." (Code. Civ. Proc. § 1094.5, subd. (a).) However, Code of Civil Procedure section 1094.5 also makes the cost of preparing the record taxable as costs without any exception: "If the expense of preparing all or any part of the record has been borne by the prevailing party, the expense shall be taxable as costs." (Ibid.) If the Legislature had intended to deny respondents recovery when the petitioner was not required to bear the initial costs of preparation, it could have included an exception for that situation or limited recovery to the prevailing petitioner, rather than the prevailing party. As the Legislature did not, it must be assumed that it did not intend to permit an exception to the requirement that losing parties pay costs. (See, e.g., Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725 [" 'when the Legislature has carefully employed a term in one place and has excluded it another, it should not be implied where excluded' "].)
Kissner's constitutional objections are equally unavailing. Citing California Teachers Assn. v. State of California (1999) 20 Cal.4th 327 (CTA), Kissner contends that imposing costs on a teacher who unsuccessfully challenges a layoff violates due process, apparently whether or not the teacher is indigent. However, the CTA case did not address litigation costs. It instead concerned a statute requiring teachers who unsuccessfully challenge a threatened suspension or dismissal to pay one-half the cost of the administrative law judge who presided over that challenge. (Id. at p. 331.) The Supreme Court found the imposition of such costs unconstitutional in large part because imposing the costs conflicted "with the centuries-old common law tradition that the salaries of judges are to be born by the state, and not by the litigants" and failed to advance any legitimate governmental interest. (Ibid.) Moreover, in so doing, the court observed that "[p]revailing parties in civil litigation also may recover from their adversaries various costs of litigation" under, among other things, section 1032 of the Code of Civil Procedure. (Id. at p. 334.) Kissner fails to offer any persuasive reason to extend CTA's holding to the traditional costs awarded here.
III. Disposition
In case No. H050873, the judgment is affirmed. In case No. H050947, the order denying appellant's motion to tax costs is affirmed. In the interest of justice, each party shall bear its own costs on appeal.
WE CONCUR: GROVER, ACTING P.J., DANNER, J.