Filed 9/6/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

SHANNA PETERSIL,

Petitioner and Appellant,

v.

SANTA MONICA-MALIBU UNIFIED 

SCHOOL DISTRICT,

Defendant and Respondent.

 B240868

 (Los Angeles County

 Super. Ct. No. BS132906)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Anne I. Jones and Joseph R. Kalin, Judges. Affirmed.

Trygstad, Schwab & Trygstad, Shanon Dawn Trygstad, Lawrence B. 

Trygstad, and Richard J. Schwab for Petitioner and Appellant.

Gibeaut, Mahan & Briscoe, Gary R. Gibeaut, Nancy Mahan-Lamb, and John 

W. Allen for Defendant and Respondent.

__________________________________
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INTRODUCTION

Shanna Petersil appeals from a judgment denying her petition for a writ of mandate 

directing respondent Santa Monica-Malibu Unified School District (District) to 

reinstate her as a permanent certificated employee, effective July 1, 2010, and 

award her backpay. On appeal, Petersil contends the superior court erred in 

determining she did not become a permanent employee by operation of law. 

Specifically, she contends the notices of nonreelection she received after her first 

and second years were legally insufficient. We conclude that the notice of 

nonreelection following her first year was legally sufficient to terminate her 

employment for that year. Thus, she was a temporary employee during her second 

year, and her notice of nonreelection following that year was effective as well. 

Accordingly, she did not become a permanent employee. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Appellant began working as a certificated employee for the District on 

August 28, 2008. The next day, appellant signed a written offer of employment,

agreeing to work as a “[t]emporary certificated employee in Elementary 

Education” for the 2008-2009 school year, for the time period August 28, 2008 

through June 19, 2009. She worked more than 75 percent of the 2008-2009 school 

year. 

On March 9, 2009, the District mailed a certified letter to appellant, stating 

that she would not be rehired for the following school year. The letter stated: 

“This letter is to provide you notice that the Governing Board of the Santa MonicaMalibu Unified School District, at its meeting of March 5, 2009, took action not to 

reemploy you for the upcoming 2009-2010 school year. This notice of nonreelection is provided pursuant to the requirements of Education Code section 
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44954. Accordingly, your employment with the District will terminate upon 

conclusion of your regularly scheduled workday for the 20089 school year.” 

Enclosed with the letter was a copy of the Board‟s resolution, which provided that 

“employees serving only pursuant to temporary employment contracts [would] be 

released.” 

On July 29, 2009, the District reemployed appellant, pursuant to a July 29, 

2009 written offer of employment. She was hired as a “[t]emporary certificated 

employee in Elementary Education” for the 2009-2010 school year, for the time 

period September 4, 2009 through June 25, 2010. Appellant worked more than 75 

percent of the 2009-2010 school year. 

On March 5, 2010, the District sent appellant a certified letter, notifying her 

that she would not be rehired for the 2010-2011 school year. In its written notice, 

the District stated: “This letter is to provide you notice that the Governing Board 

of the Santa Monica-Malibu Unified School District, at its meeting of March 4, 

2010, took action not to reemploy you for the upcoming 2010-2011 school year. 

You are considered to be a „temporary‟ employee with the district, and as such 

your employment contract with the district ends no later than June 25, 2010. This 

notice of non-reelection is provided pursuant to the requirements of Education 

Code section 44954. Accordingly, your employment with the District will 

terminate upon the conclusion of your teaching assignment for the 2009-2010 

school year.” Enclosed with the letter was a copy of the Board‟s resolution, which 

provided that “employees serving only pursuant to temporary employment 

contracts [would] be released.” 

Before the beginning of the 2010-2011 school year, the District contacted 

appellant to see if she wished to return for another year as a temporary employee. 

Because appellant had recently had a child, she notified the District she needed a 
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short maternity leave. Because she could not report to work at the beginning of the 

school year, the District declined to offer her a temporary position. In November 

2011, she began working as a part-time employee for the District. 

On July 19, 2011, appellant filed a petition for a writ of mandate pursuant to 

Code of Civil Procedure section 1085. Appellant alleged that she was improperly 

classified as a temporary employee instead of a Probationary I employee for the 

2008-2009 school year, pursuant to Education Code section 44916.1In support of 

her petition, appellant argued she had become a permanent employee pursuant to 

section 44929.21, subdivision (b), which provides that an employee who has been 

employed for two complete consecutive school years and is reelected for the next 

succeeding school year “shall, at the commencement of the succeeding school 

year[,] be classified as and become a permanent employee of the district.” 

Appellant argued she had been employed for two complete school years because 

the District‟s two notices of nonreelection were ineffective, as the notices did not 

comply with section 44929.21, subdivision (b), and the notices referenced an 

Education Code provision applicable only to temporary employees.2

In her declaration supporting the petition, appellant stated the District mailed 

the notice of nonreelection for the 2009-2010 school year on March 9, 2009. As 

for the notice of reelection or nonreelection for the 2010-2011 school year, she 

 

1

All further statutory citations are to the Education Code, unless otherwise 

stated.

“Probationary I” is the term used for probationary employees during their 

first year. “Probationary II” is the term used for probationary employees during 

their second year.

2

Section 44908 provides that a probationary certificated employee who has 

worked more than 75 percent of the school year is deemed to have served one 

complete school year.
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stated that “[o]n March 5, 2010, I received a letter stating that the Governing 

Board, at its March 4, 2010 meeting, took action to release me as a temporary 

employee pursuant to Education Code § 44954.” (Italics omitted.) 

The District filed a memorandum of points and authorities opposing the 

petition. The District conceded that because appellant had started working the day 

before she signed her first contract as a temporary employee, she became, by 

operation of law, a Probationary I employee for the 2008-2009 school year. (See 

Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 

911, 926 (Kavanaugh).) The District contended, however, that the two notices of 

nonreelection were effective because (1) section 44929.21, subdivision (b) does 

not, by its terms, apply to Probationary I employees, and (2) the reference to the 

incorrect statutory provision did not prejudice appellant‟s due process rights. 

Appellant filed a reply, contending she was not properly nonreelected as a 

Probationary I teacher in March 2009, because the notice of nonreelection did not 

reference section 44929.21, and there was no Board resolution authorizing that 

appellant be nonreelected as a probationary employee. 

On March 21, 2012, the superior court denied appellant‟s petition. In its 

written statement of decision, the court (Hon. Ann I. Jones) determined that when 

appellant was first hired, “both she and the District believed that she was a 

temporary certifi[cated] employee.” The court determined that by operation of 

law, appellant was a Probationary I employee, because she started working before 

she received written notification that she was a temporary employee. However, the 

court concluded that her misclassification as a temporary employee did not render 

the subsequent notices of nonreelection ineffective, because (1) section 44929.21, 

subdivision (b) does not apply to Probationary I employees, and (2) the reference 

to the wrong statutory authority did not prejudice appellant. 
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Judgment in favor of the District was entered April 9, 2012. Appellant 

timely appealed. 

DISCUSSION

Appellant contends the trial court erred in denying her petition for a writ of 

mandate. “Ordinary mandamus is an appropriate remedy when challenging a 

school district‟s assignment, classification, or discipline of a teacher. [Citations.] 

In reviewing a trial court‟s judgment on a petition for writ of ordinary mandamus, 

we apply the substantial evidence test to the trial court‟s factual findings. We 

exercise our independent judgment on questions of law. [Citation.]” (Vasquez v. 

Happy Valley Union School Dist. (2008) 159 Cal.App.4th 969, 980 (Vasquez).) 

“The Education Code establishes four possible classifications for certificated 

employees: permanent, probationary, substitute and temporary.” (Taylor v. Board 

of Trustees (1984) 36 Cal.3d 500, 504-505.) “A certificated teacher‟s 

classification . . . governs the level of statutory job protection the teacher enjoys 

and controls the level of procedural protections that apply if he or she is not 

reelected. . . . Probationary employees may not be dismissed during the school 

year except for cause or unsatisfactory performance (§ 44948.3), but, on timely 

notice, „may be nonreelected without any showing of cause, without any statement 

of reasons, and without any right of appeal or administrative redress.‟” 

(Kavanaugh, supra, 29 Cal.4th at p. 917, quoting Bellflower Education Assn. v. 

Bellflower Unified School Dist. (1991) 228 Cal.App.3d 805, 808; see also Board of 

Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 281 [“[S]chool 

districts have the absolute right to decide not to reelect probationary teachers 

without providing cause or other procedural protections to the terminated 

employees, and without regard to contrary provisions in a collective bargaining 
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agreement.”]; California Teachers Assn. v. Mendocino Unified School Dist. (2001) 

92 Cal.App.4th 522, 526-527 [school district can terminate a probationary 

teacher‟s employment effective the end of the teacher's yearly contract without 

cause].) 

Appellant worked for the District under two temporary employment 

contracts. Ordinarily, she would be classified as a temporary employee each year. 

However, because she worked one day before she signed her first contract, she 

was, by operation of law, a Probationary I employee for the 2008-2009 school 

year. (See Kavanaugh, supra, 29 Cal.4th at p. 926.) In addition, she was on track 

to become a permanent employee under section 44929.21, subdivision (b). As 

discussed previously, under that statute, if appellant were employed for two 

complete consecutive school years as a probationary employee and were reelected 

for the next succeeding school year, she would, “at the commencement of the 

succeeding year[,] be classified as and become a permanent employee of the 

district.” (§ 44929.21, subd. (b).) Appellant argues she satisfied the requirements 

to become a permanent employee despite the temporary employment contracts, 

because, by operation of law, she became a Probationary II employee her second 

year and a permanent employee her third year. Appellant‟s argument is based 

upon her contention that the District‟s notices of nonreelection during her first and 

second years were ineffective. For the reasons set forth below, we disagree that 

appellant became a permanent certificated employee of the District. 

Appellant contends that as a Probationary I employee, she was entitled to 

timely notice pursuant to section 44929.21, subdivision (b) in her first year of 

employment. That provision provides in pertinent part:

“The governing board shall notify the employee, on or before March 15 of 

the employee‟s second complete consecutive school year of employment by 

the district in a position or positions requiring certification qualifications, of 
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the decision to reelect or not reelect the employee for the next succeeding 

school year to the position. In the event that the governing board does not 

give notice pursuant to this section on or before March 15, the employee 

shall be deemed reelected for the next succeeding school year.” 

(§ 44929.21, subd. (b).) 

Assuming, without deciding, that section 44929.21, subdivision (b) is 

applicable to a Probationary I certificated employee, that statute permits “notice of 

nonreelection to be given to the probationary teacher any time during the first year, 

i.e., before March 15 of the second year of employment.” (Grimsley v. Board of 

Trustees (1987) 189 Cal.App.3d 1440, 1447 (Grimsley); accord, Vasquez, supra, 

159 Cal.App.4th at p. 975.)3As explained in Vasquez, “[t]o effectuate [a] no-cause 

termination, the school district must give the probationary teacher timely notice of 

its decision not to reemploy the teacher. If the district decides not to reemploy the 

teacher effective the end of the teacher‟s first year of probationary status, the 

district may give notice at any time during the first year of employment. 

[Citation.] If the district decides not to reemploy the teacher effective the end of 

the teacher‟s second year of probationary status, the district must give notice by 

March 15 of that year. (§ 44929.21, subd. (b).)” (Vasquez, supra, 159 Cal.App.4th 

at p. 975, citing Grimsley, supra, at pp. 1447-1448.)

Appellant does not dispute the timeliness of the original notice of 

nonreelection. Rather, she contends that the notice was defective because it 

referred to section 44954, which applies only to temporary employees. However, 

the statutory provision appellant contends controls -- section 44929.21, subdivision 

(b) – prescribes no particular form of notice of nonreelection, and contains no 

 

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If section 44929.21, subdivision (b) does not apply to Probationary I 

certificated employees, there is no statutory right to notice of nonreelection, and 

the District could terminate appellant‟s employment after the first year under basic 

principles of contract law. (Grimsley, supra, 189 Cal.App.3d at p. 1448.) 
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requirement that any statutory provision be cited in the notice. The section 

requires only that the probationary employee be notified of the Board‟s decision to 

reelect or to not reelect before March 15 of the second year of employment. (See 

Hoschler v. Sacramento School District (2007) 149 Cal.App.4th 258, 267 

(Hoschler) [“Since a probationary teacher has no procedural due process rights 

under section 44929.21, notification of [her] non-reelection is the „end of the line‟ 

for that teacher.”].) That occurred here: Appellant acknowledged that the District 

mailed her a notice of nonreelection in March 2009, before the end of her first 

year. She also acknowledged that she was not re-employed by the District until 

July 29, 2009. Thus, she received timely notice of her nonreelection for the 

following school year. 

Similarly, the fact that the Board‟s decision not to reelect appellant was 

made while under a mistaken belief that she was a temporary employee is 

irrelevant. Nothing in the record suggests the Board‟s decision not to reelect 

appellant was affected by its failure to appreciate that she had become a 

probationary employee by operation of law. The District‟s only obligation to 

appellant was to “notify” her of the Board‟s decision. A statement of reasons was 

not required, and the record reveals none. As appellant received notice of the 

Board‟s decision before March 15 of her second year of employment, the 

requirements of section 44929.21, subdivision (b) were satisfied.

Appellant further contends that the first notice of nonreelection was 

ineffective because it was sent by certified mail and was not personally served. 

Section 44929.21, subdivision (b) does not prescribe a method of service for the 

notice of nonreelection. “Under accepted canons of statutory interpretation, where 

a statute does not prescribe the method of notice, personal service is 

contemplated.” (Hoschler, supra, 149 Cal.App.4th at p. 267.) Accordingly, “the 
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notification requirement of section 44929.21, subdivision (b) contemplates 

personal service or some other method equivalent to imparting actual notice.” (Id. 

at p. 269; see also Grace v. Beaumont Unified School Dist. (2013) 216 Cal.App.4th 

1325, 1331 [“[T]he receipt of actual notice of nonretention trumps any requirement 

of personal service. Actual notice fully meets the purpose of the statute [(section 

44929.21)].”].) Though not required to do so, the District sent appellant the March 

9, 2009 notice of nonretention by certified mail. The record shows appellant had 

actual notice of the Board‟s decision not to reelect her for the following year, as 

she admitted having actual knowledge of the March 2009 notice of nonretention. 

In short, the 2009 notice of nonreelection complied with the requirements of 

section 44929.21, subdivision (b), and was effective. 

Appellant‟s reliance on Hoyme v. Board of Education (1980) 

107 Cal.App.3d 449 (Hoyme) and Barton v. Governing Board (1976) 

60 Cal.App.3d 476 (Barton) is misplaced. Those cases held that a school district 

must strictly comply with the notice requirements in section 44951 before releasing 

an administrative employee or reassigning the employee to a nonadministrative 

position. (Hoyme, supra, at pp. 451-452 [release]; Barton, supra, at p. 479 

[reassignment].)4Section 44951 provides in pertinent part:

“Unless a certificated employee holding a position requiring an 

administrative or supervisory credential is sent written notice deposited in the 

United States registered mail with postage prepaid and addressed to his or her last 

 

4 We note that Barton appears to have been undermined by the subsequent 

California Supreme Court decision in Barthuli v. Board of Trustees (1977) 

19 Cal.3d 717, 721, holding that administrative and supervisory employees have 

no due process right to contest reassignment. (See Agosto v. Board of Trustees of 

Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 342, 

fn. 10.) 
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known address by March 15 that he or she may be released from his or her position 

for the following school year, or unless the signature of the employee is obtained 

by March 15 on the written notice that he or she may be released from his or her 

position for the following year, he or she shall be continued in the position.”

In Hoyme, supra,107 Cal.App.3d at page 451, the court held that notice by 

personal delivery without obtaining the employee‟s signature did not satisfy the 

requirements of section 44951 that notice be sent by registered mail or that the 

employee‟s signature be obtained. Likewise, in Barton, the court found that 

merely informing the employee that he would be reassigned was insufficient to 

meet the notice requirements of section 44951. (Barton, supra, 60 Cal.App.3d at 

pp. 478-479 [addressing former version of section 44951].) Both cases are easily 

distinguishable as here, the District complied with the requirements of section 

44929.21, subdivision (b) by imparting actual notice to appellant of her 

nonreelection before March 15 of her second year of employment. 

Appellant‟s reliance on Griego v. Los Angeles Unified School Dist. (1994) 

28 Cal.App.4th 515 is equally unavailing. There, the certificated employee taught 

during three school years as a probationary employee. In the first and third years, 

she worked a complete school year. During the second year she taught less than 75 

percent of the school year because she took an approved leave of absence for a 

work-related injury. The school district notified the employee of her nonreelection 

on June 23 of her third year. (Id. at p. 517.) On appeal, the court concluded that 

appellant was a permanent employee pursuant to section 44929.21, subdivision (b), 

as she had served more than two consecutive complete years as a probationary 

employee and was deemed reelected for the following school year, because she had 

not been notified before March 15 of her nonreelection. (Id. at pp. 520-521.) The 

court determined that appellant had served more than two complete consecutive 
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terms because her leave of absence in the second year did not interrupt her service 

time, as under section 44975, “[n]o leave of absence when granted to a 

probationary employee shall be construed as a break in the continuity of service 

required for the classification of the employee as permanent.” (Id. at pp. 518, 520, 

italics omitted.) The instant case does not involve the effect of leaves of absence 

on service time. More important, here, appellant was notified of her nonreelection 

before March 15 of her second year of employment. Thus, appellant was not 

reelected for the 2009-2010 school year as a Probationary II employee; rather, she 

was a temporary employee her second year. As appellant concedes, if she was a 

temporary employee during the 2009-2010 school year, the notice she received in 

March 2010 was effective.

Because the notices of nonreelection were valid and effective, appellant was 

not reelected for the next succeeding school year after completing two years of 

service as a probationary employee. Thus, she failed to meet the requirements to 

become a permanent employee under section 44929.21, subdivision (b). 

Accordingly, the trial court did not err in denying appellant‟s petition for a writ of 

mandate directing the District to reinstate her as a permanent employee, effective 

July 1, 2010, and award her backpay.
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DISPOSITION

The judgment of dismissal is affirmed. Costs are awarded to respondent.

CERTIFIED FOR PUBLICATION.

MANELLA, J. 

We concur:

EPSTEIN, P. J.

WILLHITE, J.