The opinion
Filed 3/25/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
WEST CONTRA COSTA UNIFIED
SCHOOL DISTRICT et al.,
Petitioners, A173289
v. (Contra Costa County
THE SUPERIOR COURT OF Super. Ct. No. N24-1353)
CONTRA COSTA COUNTY,
Respondent;
SAM CLEARE et al.,
Real Parties in Interest.
This is a proceeding for mandate brought by four teachers seeking to
compel the West Contra Costa Unified School District (District) to alter its
practices for putting teachers in specified schools in the District, and to direct
the District to comply with the statutory scheme governing the subject. At
trial, the issue quickly became reframed as whether the District had
established that compliance with the relevant statutes made it impossible to
put enough qualified teachers in classrooms, thus excusing the District’s non-
compliance. The trial court answered this question in the District’s favor.
We conclude the ruling must be set aside because the District failed to
establish that it had unsuccessfully tried to comply with all of the governing
statutory procedures for filling teacher vacancies. Unless and until the
District carries that burden, it is premature to consider whether the doctrine
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of impossibility will excuse the District’s non-compliance with those
procedures.
BACKGROUND
Williams and the Ensuing Litigation
In 2004, the State settled a class action lawsuit filed by the American
Civil Liberties Union on behalf of lead plaintiff Eliezee Williams: Williams v.
State of California (2003) Cal.Super.LEXIS 1063. The settlement provided
for many things. As relevant here, parents or teachers were allowed to raise
via a written complaint procedure the subject of “teacher vacancy or
misassignment.” This procedure was codified into Education Code section
35186, and is colloquially known as a “Williams complaint.” (See Mahoney,
The Williams Complaint and the Role of the Learning Environment In
Education Adequacy: “You Count; Do Well” (2021) 62 B.C. L.Rev. 659, 679–
680.)
Every school district was directed to have a “complaint form” in
accordance with enabling regulations “to help identify and resolve any
deficiencies related to instructional materials, emergency or urgent facilities
conditions that pose a threat to the health and safety of pupils or staff, and
teacher vacancy or misassignment.” (Ed. Code, § 35186, subds. (a), (h); Cal.
Code Regs., tit. 5, §§ 4680, 4682.) The District promulgated a “Complaint
Form” explaining the “Williams Uniform Complaint Procedure.”
The General Setting
The District operates dozens of schools, doing so in a setting where the
challenges are many, the resources meager. Three of the district schools
figure here: Stege Elementary (Stege), Helms Middle School (Helms), and
Kennedy High School (Kennedy). These schools illustrate some of the
District’s many problems, as described by the plaintiffs’ opening brief that
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begins its statement of facts with two paragraphs with which the District
does not take issue. These are the two paragraphs:
Stege, Helms, and Kennedy “have been plagued by numerous teacher
vacancies from Kindergarten to 12th Grade across a wide variety of subjects,
including Math, Science, and English and with respect to teachers authorized
to teach English Learners and students with disabilities. For years, the
District has ‘covered’ these vacancies with unauthorized substitutes (i.e.,
substitutes teaching beyond their 30-day authorization), ‘rolling’ substitutes
(i.e., a different substitute every 30 days), and/or other teachers trying to
cover teacher-less classes on a day-to-day basis in addition to their own
classes.
“Notably, these three schools have among the highest poverty rates (71-
87%) in the District. Helms has one of the highest enrollments of English
Learners (50%); Kennedy has the lowest graduation rate in the District
(62%); and all three are significantly failing behind state Math and English
standards.”
The Williams Complaints
In January 2024, using Williams Complaints authorized by section
35186, four teachers at the affected schools― Sam Cleare, Sarah Kincaid,
Jeremiah Romm, and Cristina Huerta (hereafter collectively “plaintiffs”)―
filed complaints about current teacher staffing practices, one of which,
Cleare’s, states it was “on behalf of 45 parents, students, and teachers.” The
common theme of the complaints was that the District was using “rolling
substitutes” instead of “ensur[ing] that all classes are covered by a single
designated certificated teacher,” and, “when fully credentialed teachers are
not available, to take advantage of the lawful options for staffing classrooms
with permanent teachers who may not yet be fully certified.” The complaints
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sought various remedies, but the one relevant to this appeal was framed as
follows: “[c]ease the illegal practice of using long-term substitutes to fill
vacancies, and instead implement districtwide processes to recruit, hire, and
assign permanent, legally authorized teachers in a timely manner and refine
the teacher development and support programs to advance such processes,
including supporting classified staff interested in a pathway to become a
certified teacher.”
The District was obligated to respond within 45 working days (Cal.
Code Regs., tit. 5, § 4685), but it did not do so, not until April. The gist of its
five-page response can be summarized as follows: the District acknowledged
that it had, and has, “utilized long-term and day-to-day substitutes,” and
thus “is out of compliance” with state law. Nevertheless, the District advised
plaintiffs, these practices would not be discontinued because “the District is
currently unable to provide the requested remedies to the extent they require
addressing statewide, systemic problems over which the District has little
control.” In short, the District was aware of the problem but asserted it was
unable to correct it because a sufficient number of properly credentialed
teachers simply could not be found and hired. As the trial court would later
put it, apparently indicating its view of the District’s position: “the few
teachers that are coming out of credential programs. . . most of them
unfortunately want to teach in places like Lafayette and San Ramon and
Moraga and Orinda. They don’t want to teach in Richmond.”
Plaintiffs appealed to the District’s Board of Education, but were
unsuccessful.
The Proceedings Below
On July 19, 2024, plaintiffs filed a verified petition for traditional
mandate (Code Civ. Proc., § 1085), declaratory, and injunctive relief, naming
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the District and the members of its Board of Education. The gravamen of the
petition was a restatement of the Williams Complaints justifying the court
mandating the remedies sought by those complaints, presumably a halt to
the District’s practices of employing “rolling substitutes.”
Neither side has included the District’s answer to the petition, but from
what we glean the District responded with the same justification:
notwithstanding its best efforts, qualified teachers could not be hired, thus
necessitating the unorthodox use of substitute teachers. The essence the
District’s position at all times is set out most compellingly in a declaration by
its Associate Superintendent of Human Resources, who stated:
“Currently, we are recruiting for forty-five (45) open certificated
teaching positions across the District’s forty-five (45) K-12 schools . . .
“My staff and I have used and are using every means available to us to
recruit teachers and fill all vacancies across the District. We list our
openings on multiple job sites, such as Edjoin, Indeed, LinkedIn, EdCal, and
EdWeek, and use paid advertising on social media. To recruit for the 2024-
2025 school year, we attended 37 job fairs. We also have a partnership
contract with Teach for America to attract teachers leaving this program to
the District. We have partnership contracts with 35 universities whereby we
attempt to recruit students to teach in the District. We also actively reach
out to and advertise for credentialed retirees to return to the classroom. The
District also takes advantage, as much as possible, of the exceptions and
allowances in the Education Code for teachers, when they want to, to teach
outside of their credential permissions to fill vacancies. . . .
“The District also has developed its own programs too [sic] assist people
in becoming credentialed teachers. For example, the District has a Teacher
in Residency Program through which an applicant with a bachelors’ degree
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who applies for and enrolls in a credential program at one of the District’s
partner universities is provided with tuition and living expenses support, a
year-long placement with an experienced mentor teacher, and ongoing
support for the first years of teaching. . . .
“The District also takes advantage of the Commission on Teacher
Credentialing’s intern programs. The CTC allows students who have
completed a certain amount of their credentialing program to serve as full-
time classroom teachers on an intern credential. Moreover, the District has a
Provisional Internship Program that allows credential students who do not
meet the requirements to enter an internship program to teach for one year []
as a provisional intern. . . .
“The District has also used the CTC’s Short Term Staff Permit, which
allows an individual who has the required level of subject matter course work
to fill an . . . . acute staff need[,] defined as when the District needs to fill a
classroom immediately based on an unforeseen need . . . .”
The matter came on for hearing where, according to an unsigned
minute order in the record, the trial court accepted the Department’s
reasoning and denied the petition. The unsigned minute order is eight lines
in length and provides in its substantive entirety, however redundantly, as
follows: “As stated on the record, the Court having heard a lot of argument
from both counsels denies the Writ of Mandate. The Writ of Mandate is
denied. The teacher vacancies writ of mandate is denied. Further, the Court
does not see a basis for the Writ of Mandate.”
As to what apparently led to the minute order, these few lines are how
the trial court ended the hearing: “So I think I have heard a lot of
arguments, and I’m still where I began which is that the first issue with
regards to Stege is moot, so the Writ of Mandate is denied. [¶] And as to the
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teachers, the complaints about teacher vacancies, the court is also denying
the writ. I do not see that the defendant is refusing to comply with the law or
refusing to fill these vacancies. They’re doing the best they can, so I do not
see a basis for a Writ of Mandate.”
The record indicates that somebody submitted a “proposed order and
proposed judgment,” but according to the very opaque register of actions, no
formal order or judgment was in fact entered.
Plaintiffs moved for a new trial, which for some reason was denied by a
different Judge. And Plaintiffs filed a notice of appeal from the “Judgment
after court trial.”
DISCUSSION
Can We Consider the Matter?
“[A] reviewing court lacks jurisdiction on direct appeal in the absence of
an appealable order or judgment.” (Walker v. Los Angeles County
Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 21.) The point of
jurisdiction is so fundamental that “[a] reviewing court must raise the issue
on its own initiative whenever a doubt exists as to whether the trial court has
entered a final judgment or other order or judgment made appealable by
Code of Civil Procedure section 904.1.” (Jennings v. Marralle (1994) 8
Cal.4th 121, 126.)
California Rules of Court, rule 8.204, subdivision (2)(B) states that
“[a]n appellant’s opening brief must [¶] . . . [¶] [s]tate that the judgment
appealed from is final, or explain why the order appealed from is appealable.”
But plaintiffs’ opening brief does not heed the rule. Nor did the District
address it in its brief.
As noted, the minute order was not signed by anyone, and there is no
indication that the trial court ruled on petitioners’ causes of action for
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injunctive and declaratory relief. Left to our own devices, we began exploring
the problem of whether an appealable judgment or order was before us.
The initial complication was an entry in the register of actions that
someone submitted a form of judgment. But no judgment was actually
entered. Similarly, at the conclusion of the mandate hearing, the trial court
directed counsel for the District to prepare an order for its signature. There
is no indication the District did so. So we are left with just the unsigned
minute order.
Our initial research as to whether the unsigned minute order was
appealable was inconclusive. On one hand, there is elderly authority that
when no further judicial action is contemplated, it might be. (See Steen v.
Board of Civil Service Comm’rs. (1945) 26 Cal.2d 716, 727; Covina-Azusa Fire
Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48, 56; Holden v.
California Employment Stabilization Com. (1950) 101 Cal.App.2d 427, 430.)
However, there are two insurmountable impediments.
The first difficulty is that further judicial action was clearly
contemplated, either with the order the trial court presumably intended to
sign when received from the District, or with the judgment submitted after
the different Judge denied the District’s new trial motion.
The second difficulty came into focus only upon receipt of supplemental
briefing we had requested. We had assumed from the original briefs that the
parties treated the trial court’s rejection of the petition for mandate cause of
action as effectively denying the other causes of action, thus effectively
terminating trial proceedings. In such circumstances the order might be
appealable. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688,
698―700.) This assumption was submarined when the District advised us
that the other causes of action—for declaratory and injunctive relief—
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remained outstanding. That means that, at best, we confront only a partial,
interlocutory, non-final, non-appealable ruling. (Id., at p. 697; accord, Kurwa
v. Kislinger (2013) 57 Cal.4th 1097, 1101.)
Thus, our tentative conclusion was to follow the recent pronouncement
by our Supreme Court that “the time to appeal in administrative mandate
proceedings begins with the entry of ‘judgment’ or service of notice of entry of
‘judgment,’ not with the filing of an ‘order’ or other ruling, or service of notice
of filing of such a ruling, even where an appellate court might deem such a
ruling appealable in order to vindicate the right of appeal.” (Meinhardt v.
City of Sunnyvale (2024) 16 Cal.5th 643, 657, italics added.)
As indicated, we ordered the parties to submit supplemental briefing on
the appealability issue. In light of what we have learned, we must conclude
that no appealable order or judgment is currently in existence.
The District urges us to treat the non-compliance with Rule 8.204 as
sufficient by itself to justify dismissal of the appeal. We do not believe such
an extreme reaction is warranted.
Our Supreme Court has stated that “A petition for a writ, not an
appeal, is the authorized means for obtaining review of judgments and orders
that lack the finality required by Code of Civil Procedure section 904.1,
subdivision (a).” (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725,
743–744.) More to the point, it allows that a reviewing court may treat a
defective appeal as a petition for an extraordinary writ, although it cautioned
that this should be done only in “unusual circumstances.” (Olson v. Cory
(1983) 35 Cal.3d 390, 400–401.) Plaintiffs urge us to save them by adopting
this mechanism. We shall do so, deeming the following circumstances
sufficient to validate the normal practice of dismissing a purported appeal
from a non-appealable order.
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(1) The issue of whether the District’s lack of compliance with
statutory staffing requirements is justified has been addressed in the
extensive briefs filed by the parties and by the amici drawn to the perceived
importance of the controversy. (See Morehart v. County of Santa Barbara,
supra, 7 Cal.4th at p. 746 [“The merits of those issues not only have been
briefed by the parties . . . but also have been thoughtfully addressed by a
diverse group of amici curiae.”].)1
(2) To return the matter to the trial court would almost certainly be, in
the Supreme Court’s words, “ ‘ “unnecessarily dilatory and circuitous. ” ’ ”
(Olson v. Cory, supra, 35 Cal.3d at p. 401.) It would seem to be a virtual
certainty that in light of the ruling on the mandate cause of action, plaintiffs
would not obtain declaratory relief that the District is in violation of state law
and the District enjoined from continuing that violation. Equally certain is
that plaintiffs would again appeal. This would entail a waste of judicial time
and resources at two levels.
(3) “The fact that the trial court is not a party is not an insuperable
obstacle since there is no indication that the court as respondent would
appear separately or become more than a nominal party.” (Olson v. Cory,
supra, 35 Cal.3d at p. 401.)
(4) Most importantly, the trial court has endorsed a possibly untenable
conclusion that cries out for the speediest resolution. As will be shown, the
District may be operating under procedures that are contrary to state law.
Unless promptly addressed, the continuance of that state of affairs would
1 We granted leave to permit filing of three amicus briefs, on behalf of:
The American Civil Liberties’ Union of Southern California and RYSE;
California Teachers Association and California Federation of Teachers;
Disability Rights California and Disability Rights Education & Defense
Fund.
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have an adverse impact on students and staff in a public school district. (See
Litmon v. Superior Court (2003) 123 Cal.App.4th 1156, 1166.) This is clearly
a matter of the gravest public importance, which “cries out for immediate
appellate review.” (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640,
651.) Delay is not a real option when the quality of children’s education is at
issue. Parenthetically, this is why we will not simply dismiss the appeal, as
the District suggests, because dismissal would leave that ruling in place until
proceedings in the trial court could resume and conclude, thereby permitting
a new appeal. (Cf. Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134
[Supreme Court declined to dismiss an appeal because it would amount to
affirmance of a compromised ruling].)
In compliance with Code of Civil Procedure section 1088 and Palma v.
U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, the parties have been
notified that we may order issuance of a peremptory writ in the first instance.
Denial of the Writ Was Error
Petitioners have filed a 75-page opening brief that has one argument:
the trial court erred in denying the writ “based on the purported
‘impossibility.’ ” The argument has two subparts: (1) there is no impossibility
defense to the teacher certification and Williams regimes, and (2) the District
failed to carry its burden to show impossibility in any event. We agree with
the second subpart.
As we see it, the issue before us is simple and straightforward. The
importance of public education is beyond question―or need of justification.
Central to its function is the belief that knowledge should be imparted by
qualified instructors. As quoted, California law mandates the District’s duty
to fill every classroom with a permanent, and qualified, teacher for the school
year. (Ed. Code, §§ 35186, subd. (h)(3), 44225.7, 44830, subd. (a).) Substitute
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teachers may be used for no more than 60 days. (Cal. Code Regs., tit. 5,
§§ 80025, 80025.1.)
Yet the Legislature did not mandate inflexible rigidity in hiring only
currently credentialed teachers. And the difficulty of hiring sufficient
numbers of teachers is manifest, for example, by the recent legislative change
that authorized the hiring of retired teachers. (See Stats. 2023, ch. 885, § 3,
adding Ed. Code, § 24214, subd. (f).) Another option is a district with a
teacher shortage may use what the parties call “university interns” for up to
four years. (E.g., Ed. Code, §§ 44225, 44256, 44263, 44325, 44328, 44527,
44258.2, 44258.3, 44258.7, 44452, 44453, 44455.) Various other one-year
options are also available. (See Cal. Code Regs., tit. 5, §§ 80022―80023.1.)
And credentialed teachers can be reassigned from administrative and other
non-teaching positions. (Ed. Code, §§ 35035, subd. (e), 44258.3.)
Finally, if all else fails, there are a number of special permits and
short-term renewable waivers from statutory teacher certification
requirements that a district may request from either the Commission on
Teaching Credentialing or the State Board of Education. There is even
provision for “emergency teacher permits” in times of recruitment shortages.
(Ed. Code, §§ 44225.7, 44300.) As to the former, see Education Code section
44225, subdivision (m); California Code of Regulations, title 5, sections 80120
to 80125; Commission on Teacher Credentialing Ensuring Teacher Quality,
Waiver Requests Guidebook (rev. ed. 2024)
<https://www.ctc.ca.gov/credentials/manuals> (as of March 25, 2026). As to
the latter, see Education Code sections 44669, 44685, 52178, and 54407. All
this was urged by plaintiffs below.
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As noted, the hearing quickly became focused on the issue of
impossibility, leading to the trial court’s denial of the writ. That denial was
error in the circumstance here―at best, premature.
Impossibility is in the nature of an affirmative defense and, as such, up
to the party claiming it to prove. (E.g., Evid. Code, § 500; Abrams v. Motter
(1970) 3 Cal.App.3d 828, 839; Rench v. Watsonville Meat Co. (1956) 138
Cal.App.2d 482, 489.) This burden of proof required the District to establish
that all lesser options had been tried and found wanting. (See Lloyd v.
Murphy (1944) 25 Cal.2d 48, 54.) As one court tersely put it in point-blank
fashion: “We cannot say that it is impossible until it has been tried.” (Board
of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 303.)
As plaintiffs confirmed at the motion for new trial, they argued that
“[the District] could have gotten—they should have, they were required
legally to get a waiver, if they really have exhausted every other thing. To
establish impossibility, it has to be . . . a real impossibility. [¶] They’re
required, if they’ve exhausted all efforts, to go to the commissioner of teacher
credentials . . . [¶] . . . . [¶] . . . . [T]hey can go to the state agency and get a
waiver or make their impossibility case there.” As to this, there is nothing in
the record establishing that the District ever asked either the Commission on
Teaching Credentialing or the State Board of Education for any waiver of
statutory teacher credentialing requirements. Until this appears―indeed,
until all other options are exhausted―the District cannot make a claim of
impossibility, that is to say, the District cannot show that it has done
everything possible and is still unable to assign credentialed instructors to
classrooms.
We are not insensitive to the demands on a public school district where
the needs are many and the money scarce. Innovation and unorthodox
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thinking may be necessary, even commendable. But here we deal with the
core function and duty of a public institution―teaching. Moreover, that
function is the subject of an extensive statutory scheme whose very detail
severely restricts the scope for local improvisation.2 In sum and in short, the
statutory provisions must be followed until they have been exhausted and
found wanting. The District did not establish that matters have come to that
point. Until it does, the doctrine of impossibility is not available.
In light of the foregoing, there is no need to consider whether error also
attended the denial of plaintiffs’ new trial motion.
DISPOSITION
Let a peremptory writ of mandate issue commanding the Superior
Court of Contra Costa County to vacate the minute order denying the petition
of mandate and to enter a new order denying the petition. The parties shall
bear their respective costs.
2 In fact, the Legislature may be said to have occupied the field. (See
Butt v. State of California (1992) 4 Cal.4th 668, 689 and authorities cited
[characterizing the State’s role as “pervasive”].)
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RICHMAN, J.
We concur.
STEWART, P.J.
DESAUTELS, J.
(A173289P)
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Superior Court of Contra Costa County
Hon. Benjamin T. Reyes, II and Hon. Terri Mockler
Counsel:
Leone Alberts & Duus, Katherine A. Alberts for Petitioners.
No Appearance for Respondent.
Munger, Tolles & Olson, Rohit K. Singla, Dane P. Shikman, Kyra
Schoonover, Laura R. Perry; Public Advocates, John T. Affeldt, Karissa A. D.
Provenza for Real Parties in Interest.
Laura P. Juran, Brian Schmidt for California Teachers Association; Rothner,
Seagall & Greenstone, Julia Harumi Mass for California Federation of
Teachers, as Amicus Curiae on behalf of Real Parties in Interest.
Megan Stanton-Trehan for Disability Rights California and Jinny Kim for
Disability Rights Education and Defense Fund, as Amicus Curiae on behalf of
Real Parties in Interest.
Victor Leung for American Civil Liberties Union Foundation of Southern
California and RYSE; Morrison & Foerster, Jack W. Londen as Amicus
Curiae on behalf of Real Parties in Interest.
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