Filed 2/23/24 Verceles v. Cal. Commission on Teacher Credentialing CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JUNNIE VERCELES

,

Plaintiff and Appellant

,

v.

CALI FORNIA COMMISSION

ON TEACHER

CREDENTIALING

,

Defendant and Respondent

. B3 23426

(Los Angeles County Super. Ct. No.

22STCV02113 )

APPEAL from a n order of the Superior Court of Los

Angeles County. Michael L. Stern , Judge. Affirmed

. Junnie Verceles, in pro pria per sona , for Plaintiff and

Appellant.

R ob Bonta, Attorney General, Chris Knudsen; Senior

Assistant Attorney General, Kelsey Linnett, Supervising Deputy

Attorney General, and Paloma Carrero, Deputy Attorney General

for Defendant and Respondent.

__________________________________________2 Junnie Verceles, a teacher, was fired by the Los Angeles

Unified School District (LAUSD) for mistreating his students.

He sued the California Commission on Teacher Credentialing

(CCTC), the state credentialing agency, for imposing a 14

- day

suspension of his teaching credential based on LAUSD’s

investigation. The trial court dismissed Verceles’s lawsuit.

Verceles appealed, representing himself. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Facts

A. LAUSD’s Termination of Verceles and Report to

the CCTC

Verceles was a middle school teacher for LAUSD in 2015,

when allegations of misconduct wer e raised against him. 1

Verceles reportedly threw a book at a student, hit a student with

an iPad

, and used force against a student. Verceles was removed

from his school and reassigned pending an investigation.

Following the investigation, LAUSD suspend ed and/or

terminated Verceles for misconduct and reported its adverse

action to the CCTC. 2

B. The CCTC and Its Investigating Arm

The CCTC is an independent state agency that determines

the professional standards for obtaining teaching credentials in

Cali fornia public schools. (Ed. Code, § 44225, subd. (d).) The

CCTC has jurisdiction to investigate and, if warranted, to take

1 V erceles currently holds a California teaching credential that is valid until April 1, 2025

.

2 T he date of Verceles’s termination from LAUSD is not

clear from the record.3

disciplinary action against credential holders. (Ed. Code, §§

44242.5, 44421.) The CCTC is authorized to privately admonish

or publicly reprove a credential holder, or revoke or suspend a

teaching credential for immoral or unprofessional conduct,

refusal to obey school district regulations, or unfitness for service.

( Ed. Code, §§ 44421, 444 40.)

The CCTC appoints the Committee of Credentials

(Committee) to investigate allegations of misconduct by

credential holders, and, if necessary, to recommend any adverse

actions to be taken. ( Earnest v. Commission on Teacher

Credentialing ( 2023) 90 Cal. App.5th 62, 70 ( Earnest ).)

The Committee’s investigation may consist of three phases:

“ ‘ the preliminary review [citation], the initial review [citation],

and the formal review .’ ” ( Earnest, supra, 90 Cal.App.5th at

p. 6 8 .) If the investigation continues to the initial review phase,

the credential holder is given notice that his or her fitness to hold

a teaching credential is under review and an opportunity to

provide written materials for the Committee’s consideration. ( Id.

at p. 69. ) If the investigation proceeds to the formal review

phase, the credential holder may appear at the hearing, answer

questions under oath

, and the Committee may call witnesses to

testify. ( Id . at p. 70.) If the Committee finds probable cause, the

cred ential holder may request an adjudicatory hearing before the

Office of Administrative Hearings. ( Ibid. ) Otherwise, the

Committee reports its probable cause findings and

recommendations of any adverse actions to the CCTC, which may

or may not adopt them. ( Ibid. )4 C. The CCTC’s Suspension of Verceles’s

Teaching Credential

According to Verceles’s first amended complaint, after

learning of LAUSD’s adverse action, the CCTC notified Verceles

that he was the subject of an initial review of his fitness to hold a

teaching credential. The notice included LAUSD’s reports of the

three incidents of alleged misconduct.

Verceles provided material to the CCTC “to clear his name”

and advised that LAUSD’s information “was biased against him,”

and “include[ed] incidents th at were not thoroughly investigated,

the omission of dates and names of witnesses making allegations,

and student statements that were illegible or were not signed

under penalty of perjury.”

The Committee reviewed Verceles’s responses, set a formal

review, and “required” him to travel to Sacramento for a hearing.

Prior to the hearing, the Committee “attempted to intimidate”

Verceles by informing him of the potential adverse actions if the

misconduct allegations were found true. Verceles submitted

addition al information, which he maintained supported his

claims that both LAUSD and the CCTC engaged in corrupt and

discriminatory practices.

At his formal review on September 11, 2019, the Committee

failed to discuss “any of the exculpatory evidence or inaccuracies

of the investigation that [Verceles] wanted [Committee members]

to address and explain.”

On September 20, 2019, the Committee recommended that

Verceles’s teaching credential be suspended for 14 days. Verceles

requested the suspension be reconsidered; he never sought an

adjudication hearing before the Office of Administrative

Hearings. The Co mmittee reviewed and upheld its suspension of5

Verceles’s teaching credential, which the CCTC enforced from

March 8 through March 21, 2020.

II. Procedural Background

Verceles timely filed an administrative complaint of

employment discrimination against the CCTC with the

Department of Fair Employment and Housing . He received a

right

- to

- sue notice . Verceles also filed a civil suit against

LAUSD.

Representing himself, Verceles sued the CCTC for

damages. His verified first amended complaint alleged 11

separa te causes of action against the CCTC: Five causes of

action for discrimination/retaliation in violation of the California

Fair Housing and Employment Act (FEHA), one cause of action

for intentional infliction of emotional distress, and various

violations of the Education Code, California Constitution, the

Bagley

- Keene Act, and 42 United States Code (USC) sections

1981 and 1983.

The CCTC demurred to the first amended complaint in its

entirety and to the separate causes of action. Following a

hearing, the trial court sustained the demurrer on all grounds

raised by the demurrer. The court dismissed the first amended

complaint with prejudice. This appeal followed.

DISCUSSION

Verceles contends the trial court erred in sustaining the

demurrer to his first ame nded complaint without leave to amend.

I. Standard of Review

“ In reviewing a trial court ’ s order sustaining a demurrer

without leave to amend, we must ask (1) whether the demurrer

was properly sustained, and (2) whether leave to amend was properly denied. ” ( Schep v. Capital One, N.A. (2017) 126

Cal.App.5th 1331, 1335.) The first question requires us to

“ independently evaluate whether the operative complaint states

facts sufficient to state a cause of action ” ( Alborzian v. JPMorgan

Chase Bank, N.A. (2015) 235 Cal.App.4th 29, 34), and in so doing,

we accept as true “all material facts properly pled” in that

complaint ( Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th

148, 152)

. “ T he second question ‘ requires us to decide whether

“ ‘ “ there is a reasonable possibility that the defect [in the

operative complaint] can be cured by amendment. ” ’ ” ’ ” ( Schep,

supra, at p. 1335, quoting McClain v. Sav

- On Drugs (2017) 9

Cal.App.5th 684, 695

, affd. (2019) 6 Cal.5th 951 .) Because

Verceles proffers no suggestion on how to further amend his

complaint and because we perceive no viable way to do so, the

propriety of the dismissal order in this case turns entirely on

whether his complaint states one or more viable causes of action.

II. The Firs t Amended Complaint Was Properly

Dismissed

We independently agree with the trial court that Verceles’s

first amended complaint was properly dismissed on demurrer.

A. Statutory Immunity

1. Government C ode section 818.4

Government Code section 818.4, which the trial court

concluded was the basis of the CCTC’s immunity, provides that a

“public entity is not liable for an injury caused by the issuance

, denial, suspension

, or revocation of, or by the failure or refusal to

issue, deny, suspend

, or revoke, any pe rmit, license, certificate,

approval, order, or similar authorization .” ( Gov. Code, § 818.4;

Guzman v. County of Monterey (2009) 178 Cal.App.4th 983, 997.)

The statute applies to discretionary, not mandatory decisions.

(See Corona v. State (2009) 178 Cal.App.4th 723, 733.) It is7

undisputed the CCTC’s determination of the status of a teaching

credential is a discretionary act. The first amended complaint

alleges neither a lack of immunity nor a mandatory duty the

CCTC failed to discharge. All 11 of Verceles’s claims arise from

the CCTC’s suspension decision and thus fall within the scope of

immunity conferred by Governmen t Code section 818.4. They

were properly dismissed on demurrer.

2. Government C ode section 821.6

All of Verceles’s claims are also barred by Government

Code section 821.6. That statute provides that a public employee

is not liable for injury caused by t he employee’s instituting or

prosecuting any judicial or administrative proceeding within the

scope of the employee’s employment, even if the employee acts

maliciously and without probable cause. (Gov. Code, § 821.) This

immunity has been extended to pub lic entity employer s . (Gov.

Code, § 815.2, subd. (b).) We agree with the trial court that

because the gravamen of Verceles’s 11 claims are that CCTC’s

investigations, hearings, and decisions were wrongful,

discriminatory and/or retaliatory, this immunity applies. ( Ross v.

San Francisco Bay Area Rapid Transit Dist. (2007) 146

Cal.App.4th 1507, 1516.) The demurrer was properly sustained

on this ground.

B. Failure t o State a Claim

1. Lack of standing

The first amended complaint asserts FEHA claims of age,

color, race, national origin, sex, and gender discrimination;

retaliation; and denial of employment due to a history of

convictions. (See Gov. Code, § 12921.) FEHA claims are

predicated on an employm ent relationship. ( Vernon v. State of

California (2004) 116 Cal.App.4th 114, 123.)8 To demonstrate the requisite employment relationship with

the CCTC, Verceles first relies on the Ralph C. Dills Act (Dills

Act) (Gov. Code, § 3512 et seq.) in his first ame nded complaint.

The Dills Act established collective bargaining for state

employees. (Gov. Code, § 3512 [purpose of the Dills Act is to

“ promote full communication between the state and its employees

by providing a reasonable method of resolving disputes regarding

wages, hours, and other terms and conditions of employment

between the state and public employee organizations ”].)

The CCTC, Verceles’s only named defendant, is a state

agency subject to the Dills Act. 3 (Ed. Code, § 44225, subd. (d).)

Verceles alleges he is a state employee as defined by the Dills

Act, which provides, in pertinent part: “ ‘ State employee’ means

any civil service employee of the state, and the teaching staff of

schools under the jurisdic tion of the State Department of

Education or the Superintendent of Public Instruction.” (Gov.

Code, § 3513, subd. (c).) However, Verceles fails to allege facts

showing he is, or has ever been employed in a civil service

position by the CCTC (or any other state agency), or by a school

“under the jurisdiction of the State Department of Education or

the Superintendent of Public Instruction.” 4 While Verceles was

3 L AUSD, by contrast, is a public

- school employer subject to the Educational Employment Relations Act, Government Code

section 3540 et seq. , which established collective bargaining for California’s public schools (K

- 12) and community colleges.

4 T his language appears to refer to institutions in the State Special Schools and Services Division . As a subdivision of the California Department of Education , the State Special Schools

and Services Division furnishes services to deaf, hard

- of

- hearing, blind and visually impai red students in addition to offering LEA/district special education programs with assessment9

an employee at the relevant times alleged, he was not an

employee of the CCTC or the State of Ca lifornia.

Nonetheless, the first amended complaint asserts the

CCTC and LAUSD were Verceles’s joint employers. “ ‘ “ Joint

employment occurs when two or more persons [or entities] engage the services of an employee in an enterprise in which the

employee is subject to the control of both. ” ’ ” ( Morales v. 22nd

Dist

. Agricultural Assn

. (2018) 25 Cal.App.5th 85, 94, fn. 14 .) To

be a joint employer, an entity must have had the ability “ (a) to

exercise control over .

. . wages, hours or working conditions, [or]

(b) to suffer or permit [the] work, or (c) to engage, thereby

creating a common law employment relationship .” ( Martinez v.

Combs (2010) 49 Cal.4th 35, 64.)

“ ‘ “ There is no magic formula for determining whether a n organization is a joint employer. Rather, the court must analyze

‘ myriad facts surrounding the employment relationship in

question. ’ No one factor is decisive. ” ’ ” ( St. Myers v. Dignity

Health (2019) 44 Cal.App.5th 301, 311 .) “ ‘ Factors to be taken

into account in assessing the relationship of the parties include

payment of salary or other employment benefits and Social

Security taxes, the ownership of the equipment necessary to
performance of the job, the location where the work is performed,

the obligation of the defendant to train the employee, the

authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work

schedules and assignments, the defendant ’ s discretion to

determine the a mount of compensation earned by the employee,

services, technical assistance and staff development. (See Ed. Code, §§ 59001, 59100 .)10

the skill required of the work performed and the extent to which

it is done under the direction of a supervisor, whether the work is

part of the defendant ’ s regular business operations, the skill

required in th e particular occupation, the duration of the

relationship of the parties, and the duration of the plaintiff ’ s employment. ’ ” “ The most important factor is ‘ “ the defendant ’ s right to control the means and manner of the workers ’

performance. ” ’ ” ( St. Myers, supra, at pp. 311

– 312, quoting

Vernon v. State of California , supra, 116 Cal.App.4th at pp

. 124

– 126.)

Verceles’s first amended complaint alleges: (1) The CCTC

controls Verceles’s wages: “As [Verceles] holds a clear credential

issued by the CCTC to get a paycheck, LAUSD also shares

control over [Verceles’s] wages as it determines when [he] gets

paid and how much money [he] can earn.” (2) The CCTC controls

the hiring of Verceles: The CCTC granted Verceles a teaching

credential allowing him t o work for LAUSD; the school district

will rely on the CCTC’s W eb site to confirm Verceles’s credential;

and the CCTC has “substantial direct and immediate control of

the hiring, firing, and discipline of teachers.” The “CCTC and

LAUSD share in the proces s as an employer of hiring [ Verceles.]”

(3) The CCTC controls the disciplining of Verceles: The “ CCTC

and LAUSD both share the responsibility of disciplining

employees in order to maintain a standard of good conduct for

teachers.” Verceles’s discipline history and credential record can

be viewed on the CCTC’s W eb site by prospective employers.

(4) The CCTC supervises Verceles’s employment: “[ Verceles ] was enrolled in a teacher credentialing program in order to obtain his

clear teaching credential.”11 Ver celes’s allegations are insufficient to establish the CCTC

and LAUSD were joint employers of Verceles. First, most of the

allegations are based on a purported “shared” relationship

between the two entities over Verceles’s employment. Assuming

LAUSD was Verceles’s employer, whether the CCTC was

Verceles’s employer depends upon its relationship with Verceles

(primarily the CCTC’s right to control Verceles’s work

performance), not on the CCTC’s relationship with LAUSD.

Second, nothing in the allegations or the record indicates

the CCTC hired Verceles to teach, set the amount of his

compensation or actually paid him for his services, provided him

with on

- the

- job training, supplies or equipment, determined his

work assignments, supervised his daily work perfor mance, and

had the authority to discipline, promote, transfer, or terminate

Verceles. The first amended complaint fails to allege facts that, if

true, would show the CCTC to have been Verceles ’s employer. In

the absence of an employment relationship, Ver celes lacks

standing to sue the CCTC. Lack of standing is an appropriate

basis for sustaining a demurrer. ( McKinny v. Board of Trustees

(1982) 31 Cal.3d 79, 90.)

2. Claims s ubject to G overnment Claims Act

Pursuant to the Government Claims Act, a plaintiff seeking

money damages against public entities and public employees

acting within the scope of their employment is required to file an

initial claim with the relevant public entity. (See Gov. Code

, §§ 905, 950.2.) Failure to do so precludes the plaintiff from suing

the relevant public entity and public employees and thus

furnishes a ground for sustaining a demurrer. ( Gov. Code

, § 945.4; City of Stockton v. Superior Court (2007) 42 Cal.4th 730,

737

– 738.) Here, Verceles’s failure to plead he has complied with12

the requirements of the Government Claims Act means he cannot

state a cause of action for intentional infliction of emotional

distress, and violations of Education Code section 44944, a rticle I

,

s ection 7 of the California Constitution, and the Bagley

- Keene

Act.

3. 42 USC sections 1981 and 1983

The trial court properly sustained the demurrer to

Verceles’s alleged violations of 42 U SC sections 1981 and 1983.

Government entities which are an “ ‘ arm of the state ’ ” are

immune from litigation under those statutes. The reason is such

entities are not persons within the meaning of sections 1981 and

1983. ( Mackey v. Trustees of California State University (2019)

31 Cal.App.5th 640, 653

– 654.)

We have i ndependently concluded the trial court did not err

in this case.13 DISPOSITION

The order is affirmed. The parties will bear their own costs

on appeal.

LUI, P. J.

We concur:

ASHMANN

- GERST, J.

HOFFSTADT , J.