1 

Filed 6/4/13 

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

DEL M. GRACE, 

 Plaintiff and Appellant, 

v. 

BEAUMONT UNIFIED SCHOOL 

DISTRICT, 

 Defendant and Respondent. 

 E054801 

 (Super.Ct.No. RIC532079) 

OPINION 

 APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. 

Affirmed. 

 Anyiam Law Firm and Christian U. Anyiam for Plaintiff and Appellant. 

 Atkinson, Andelson, Loya, Ruud & Romo, Mark W. Thompson, and Brooke E. 

Jimenez for Defendant and Respondent. 

 Plaintiff and appellant Del M. Grace (Grace) was a probationary school nurse with 

defendant and respondent Beaumont Unified School District (the District). On March 3, 

2009, the District decided to terminate her employment for the 2009-2010 school year. 

 Grace filed a petition for writ of mandate to compel her reinstatement, arguing that 

the notice of her termination was insufficient. The trial court found that an e-mail notice 
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from the District’s head of human resources was sufficient notice and denied the petition. 

Grace appeals from the ensuing judgment. 

I 

ISSUE 

 Education Code section 44929.21, subdivision (b)1 provides that the governing 

board of a school district must notify a probationary teacher on or before March 15 of the 

teacher’s second complete consecutive school year of employment of the decision to 

reelect or not reelect the teacher for the next succeeding school year. If the notice is not 

given, the teacher is deemed reelected for the next school year and must be classified as a 

permanent employee of the district at the commencement of that year. 

 No method of giving notice is stated in the section.2 The gap was filled by 

Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258 

 1 All further statutory references are to the Education Code unless otherwise 

specified. 

2 Section 44929.21, subdivision (b) provides: “Every employee of a school 

district of any type or class having an average daily attendance of 250 or more who, after 

having been employed by the district for two complete consecutive school years in a 

position or positions requiring certification qualifications, is reelected for the next 

succeeding school year to a position requiring certification qualifications shall, at the 

commencement of the succeeding school year be classified as and become a permanent 

employee of the district. 

 “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 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. 

 “This subdivision shall apply only to probationary employees whose probationary 

period commenced during the 1983-84 fiscal year or any fiscal year thereafter.”
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(Hoschler). The parties here interpret Hoschler differently. Grace argues that personal 

notice of the decision not to reelect (rehire) her is required and was not given. The 

District argues that actual notice is sufficient and that it was given. We therefore begin 

with Hoschler.

II 

DISCUSSION 

 In Hoschler, the District sent a notice of nonretention to Hoschler by certified mail 

on March 12, but he did not receive actual notice until weeks later. (Hoschler, supra, 149 

Cal.App.4th at p. 262.) The trial court found that the use of certified mail complied with 

the statute. However, the appellate court disagreed and reversed. (Id. at p. 261.) 

 Hoschler claimed that he did not receive the letter from the District and did not see 

it until he received it from his attorney on May 8. (Hoschler, supra, 149 Cal.App.4th at 

p. 262.) The District did not produce a signed return receipt, and the parties agreed that 

Hoschler did not willfully refuse to pick up his mail. (Ibid.) 

 The appellate court applied a de novo standard of review in interpreting the 

statute. (Hoschler, supra, 149 Cal.App.4th at p. 262.) After reviewing the statute and 

notice requirements of similar statutes, the court applied the principle that, when a statute 

requires notice but does not prescribe a method of notice, personal notice is required. (Id. 

at pp. 263-267.) 

 The court also reviewed the history of probationary dismissal statutes. (Hoschler, 

supra, 149 Cal.App.4th at pp. 267-268.) This lengthy discussion culminates in the 

sentence at issue here: “We therefore conclude that the notification requirement of 
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section 44929.21, subdivision (b) contemplates personal service or some other method 

equivalent to imparting actual notice.” (Id. at p. 269, italics added.) Interestingly 

enough, the opinion does not discuss what “some other method equivalent to imparting 

actual notice” might be. The implication, however, is that if an employee has actual 

notice, personal service is not required. 

 The language is broad enough to include service by certified mail if a return 

receipt shows that the letter was received before March 15. In such a case, the 

probationary employee would have actual notice before March 15. This possible 

interpretation is bolstered by the opinion’s discussion of the retroactivity of its opinion. 

Before the 1983 adoption of section 44929.21, many districts used certified mail to give 

the requisite notice. (Hoschler, supra, 149 Cal.App.4th at p. 271.) After the statute was 

adopted, without a specific requirement that notices be served in any particular manner, 

many districts continued the practice. (Ibid.) Accordingly, the decision was given 

limited retroactive effect. (Ibid.) 

 Subsequent cases have followed Hoschler. In Sullivan v. Centinela Valley Union 

High School Dist. (2011) 194 Cal.App.4th 69, 71 (Sullivan), the notice was one day late. 

The court said, “In this case, we hold a probationary teacher may not assert failure of 

service under section 44929.21, subdivision (b) when the probationary teacher avoids 

service where, under the circumstances, it reasonably can be inferred the teacher did so 

with knowledge of the nonretention decision. Based upon substantial evidence in the 

record, we invoke the exception here, and affirm on those grounds.” (Id. at pp. 71-72.) 
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 The court found evidence that Sullivan knew the board’s decision to terminate him 

and that he had willfully evaded service by certified mail. (Sullivan, supra, 194 

Cal.App.4th at p. 76.) “Implied in this finding is that Sullivan knew the Board’s decision. 

Thus, Sullivan cannot assert failure of service.” (Ibid.) The court found that “Sullivan’s 

conduct in avoiding service demonstrates his knowledge (actual notice) of the decision 

not to retain him.” (Ibid., fn. omitted.) 

 The court also affirmed the alternative ground that Sullivan had actual notice, as 

required by Hoschler, before the statutory deadline. (Sullivan, supra, 194 Cal.App.4th at 

pp. 71-72, 76-77.) The alternative ground was based on evidence that Rita Sullivan had 

signed a receipt for the certified mail, which was received at the Sullivan residence on 

March 15. (Id. at p. 77.) Even before that, Sullivan was orally told that he would not be 

rehired, and this was also sufficient. (Ibid.) 

 Of some relevance here, there was evidence that Sullivan attended a school district 

board meeting at which the termination decisions were adopted and published by 

employee number.3 (Sullivan, supra, 194 Cal.App.4th at pp. 72-73.) The court also 

stated that this was actual notice. (Id. at p. 77 & fn. 8.) 

 Thus, the Sullivan court approved the Hoschler statement that actual notice was 

sufficient and affirmed on this alternate ground. (Sullivan, supra, 194 Cal.App.4th at p. 

77.) 

 

3 Although Sullivan was outside the room when the decision was announced, 

his friend/attorney was present. (Sullivan, supra, 194 Cal.App.4th at pp. 72-73.) Since 

the attorney submitted a declaration that he was not acting as Sullivan’s attorney, the 

court did not rely on this notice evidence in reaching its decision.
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III 

APPLICATION TO THE FACTS OF THIS CASE 

 At her deposition, Grace testified that she was present at the board meeting of 

March 3, 2009. At that meeting, the board met in closed session to discuss actions to take 

pursuant to section 44929.21. In open session, the board announced its decision to lay off 

12 employees, identified by employee number. According to a note, which was 

apparently added to the document later, one of the numbers belonged to Grace.4 At that 

time, therefore, Grace learned that the resolution applied to her. Subsequently, the 

District confirmed that the action was passed and that it included Grace’s employee 

number. 

 On March 11, Grace was sent an e-mail asking her to be available for a meeting 

that day. She responded that she was unable to meet then and asked the purpose of the 

meeting. Mr. Hovey, assistant superintendent for personnel services, responded that the 

purpose of the meeting was “to provide you notice that the district will not be offering 

you a contract for next school year.” The e-mail went on to state that, if Grace preferred, 

the District would mail her notice by certified mail. Grace responded by asking that the 

District notify her by certified mail. This response was a waiver of any right to a meeting 

to discuss the issue personally. 

 

4 The document was provided by plaintiff as an exhibit to her reply to the 

District’s opposition to the mandamus petition. 
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 The District then mailed her a certified letter on March 11.5 It was unclaimed and 

subsequently returned to the District. As in Sullivan, it appears that plaintiff was aware 

the letter was coming and merely failed to claim it before March 15. 

 In any event, we agree with the District that, under Hoschler and Sullivan, actual 

notice of the decision not to rehire Grace for the next school year was communicated to 

her by the resolution adopted by the District board at a meeting she attended. The 

resolution, containing her employee number, gave her actual notice of her impending 

termination on March 9.6 

 In addition, Grace’s rejection of Mr. Hovey’s request that they meet personally to 

receive notice that her contract would not be renewed, and her request to receive notice 

by certified mail, effectively waived any right she had to be personally served. In effect, 

she chose the method of notice, and her choice was sufficient to relieve the District of 

any obligation it had to personally serve her with a written notice. 

 The purpose of the statute is to provide the probationary employee with ample 

notice to allow the employee “an opportunity to find another job and plan for the future.” 

 

5 Grace repeatedly claims that the letter was mailed to the wrong address, but 

she admitted in her deposition that the address used was her correct address. The return 

receipt attached to the back of the letter omitted a portion of the street name, but it was 

never used.

6 In her deposition, Grace testified that two reduction-in-force proposals were 

presented to the board. Both included termination of a school nurse. The board selected 

one alternative and also passed the nonreelect list. Grace testified, “I got both votes.” 

Subsequently, she claimed she did not understand that the board had named her until 

April. The trial court considered her deposition as evidence. However, it did not decide 

if she was present at the board meeting in making its decision. It relied solely on the 

undisputed evidence provided by the e-mails.
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(Sullivan, supra, 194 Cal.App.4th at p. 77.) Actual notice gives the probationary 

employee that opportunity, and we agree with Hoschler and Sullivan that, in effect, the 

receipt of actual notice of nonretention trumps any requirement of personal service. 

Actual notice fully meets the purpose of the statute. (Hoschler, supra, 149 Cal.App.4th 

at p. 269.) 

 Accordingly, we find that Grace had actual notice of nonretention before March 

15, and the District therefore complied with section 44929.21.7

IV 

DISPOSITION 

 The judgment denying a petition for writ of mandate is affirmed. The District 

shall recover its costs on appeal. 

 CERTIFIED FOR PUBLICATION 

RICHLI 

 Acting P. J. 

We concur: 

KING 

 J. 

CODRINGTON 

 J. 

 

7 In view of this conclusion, we do not need to reach Grace’s other 

contentions.