# Verceles v. Los Angeles Unified School Dist. CA2/8

> California Court of Appeal · April 23, 2021

URL: https://www.frixlaw.com/law-library/cases/4680652

## Case

- **Court:** California Court of Appeal
- **Decided:** April 23, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4680652

## Opinion text

Filed 4/23/21 Verceles v. Los Angeles Unified School Dist. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

JUNNIE VERCELES, B302266

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS173633)
v.

LOS ANGELES UNIFIED
SCHOOL DISTRICT,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Wyatt Law and Andrew M. Wyatt for Plaintiff and
Appellant.
Kelly Kim and Michael Voigt for Defendant and
Respondent.
____________________
The Brown Act (Gov. Code, § 54950 et seq.) requires public
agencies to hold public meetings, with certain exceptions. During
a closed session, a school board decided to proceed with the
dismissal of teacher Junnie Verceles. Verceles petitioned for a
writ of mandate, claiming the board violated his rights under the
Brown Act. The school district demurred, and the trial court
sustained the demurrer. The Brown Act’s personnel exception
means the board was not obliged to open this meeting to the
public. We affirm.
I
The Los Angeles Unified School District (the district) hired
Verceles in 1998. On December 1, 2015, the district removed
Verceles from his classroom and reassigned him to work at home
pending an investigation. A statement alleged Verceles used
physical force and inappropriate language with students.
On December 14, 2017, the district conducted an
administrative review meeting. The district had given Verceles
documents supporting the allegations against him. It allowed
Verceles to present evidence in his favor. Counsel represented
Verceles at the meeting and read a prepared statement.
Following this review, the district recommended the Los Angeles
Unified School District Board of Education approve Verceles’s
dismissal. (We call this entity the board.)
Verceles sent letters to the board to request an open and
public hearing regarding his dismissal. The board did not
respond.
At the end of February 2018, Verceles contacted the deputy
director of employee relations and learned the board would be
considering his dismissal at a meeting on March 13, 2018. At the
March 13 meeting, Verceles provided a written statement and

2
spoke for three minutes during a public comment session.
Verceles requested an open session under Government Code
section 54957, subdivision (b)(1). The district’s legal counsel said
this section did not apply to Verceles. The board went into closed
session and decided to proceed with Verceles’s dismissal.
On March 14, 2018, the board sent Verceles a letter
expressing its intent to dismiss him after 30 days, unless he
requested an evidentiary hearing under Education Code sections
44930–44988. The board suspended Verceles without pay.
The letter enclosed a nine-page statement of charges dated
February 23, 2018. The statement included seven “Causes,”
including “Immoral conduct,” and “Evident unfitness for service.”
The statement enumerated several “Charges.” One charge
was about an alleged November 12, 2015 incident in which
Verceles grabbed an eighth grade student, pushed the student
against a wall and out of class, threw the student’s backpack, and
told the student to “ ‘Get the fuck out,’ or words to that effect.”
Another charge alleged that between August 12, 2014 and
December 1, 2015, Verceles told students to “shut up,” called
them “stupid,” and said “fuck.” Another charge alleged Verceles
called an eighth-grade student a “fucking idiot.” The statement
listed previous discipline and directives the district had issued to
Verceles in 2008, 2013, and 2017.
On April 11, 2018, Verceles requested a hearing under the
Education Code, but he withdrew this request on November 30,
2018.
In a letter to Verceles dated December 3, 2018, the board
noted Verceles had withdrawn his request for a hearing and the
board’s March 13, 2018 decision was now “final and effective.”
The board dismissed Verceles.

3
Verceles filed a petition for writ of mandate alleging the
board violated the Brown Act. His second amended petition is
the operative pleading. This petition focuses on Verceles’s
requests for an open session and on the board’s March 13, 2018
meeting. The petition seeks a declaration the board violated the
Brown Act by (1) not giving Verceles 24-hour notice before
holding the session and (2) by not making the session public. The
petition also requests a writ of mandate to order the board to
comply with the Brown Act, to reverse the termination, and to
deem the board’s closed session disciplinary actions null and void.
The district demurred, arguing Verceles lacked the right to
an open session and he insufficiently pleaded facts to show he
was entitled to an open session.
The trial court issued a tentative order in favor of the
district. It held a hearing on the demurrer on July 12, 2019.
Verceles argued and the district submitted on the tentative. The
court reasoned that the case Kolter v. Commission on Professional
Competence of Los Angeles Unified School District (2009) 170
Cal.App.4th 1346 (Kolter) controlled. The court adopted its
tentative ruling, sustained the district’s demurrer, dismissed
Verceles’s petition with prejudice, and entered judgment in favor
of the district.
II
The district acted properly.
A
We independently review an order sustaining a demurrer
without leave to amend. (Centinela Freeman Emergency Medical
Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994,
1010.) Our interpretation of the Brown Act is independent. (See

4
Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876,
880.)
A complaint must plead facts sufficient to constitute a
cause of action. (Code Civ. Proc., § 430.10.) Complaints against
public entities must plead every fact material to the entity’s
statutory liability with particularity. (Gonzales v. City of San
Diego (1982) 130 Cal.App.3d 882, 890.) The issue today is
whether Verceles’s petition pleaded particularized facts that
constitute a cause of action against the district.
B
Statutory procedures govern how school districts can
dismiss teachers. (See Ed. Code, § 44932 et seq.; Shields v.
Poway Unified School Dist. (1998) 63 Cal.App.4th 955, 958.)
The district can begin the process by filing written charges
that specify facts and cite statutory grounds for dismissal. (Ed.
Code, § 44934, subds. (b) & (c).) The board votes on whether to
proceed. (Id., subd. (b).) Specifically, upon majority vote, the
board may “give notice to the permanent employee of its intention
to dismiss or suspend [the employee] at the expiration of 30 days
. . . unless the employee demands a hearing.” (Ibid.)
If the board votes to dismiss the employee, it must give the
employee a notice of intent, the charges (Ed. Code, § 44936), and
an advisement the employee has 30 days to file a notice of contest
and a demand for an evidentiary hearing (§ 44934, subd. (b)).
For charges within certain categories, including “immoral
conduct,” the board may immediately suspend the employee
pending dismissal. (Ed. Code, § 44939, subd. (b).) The employee
may challenge the suspension before an administrative law
judge. (Id., subd. (c).)

5
If the teacher demands an evidentiary hearing, the board
may either rescind its action or schedule a hearing. (Ed. Code,
§ 44943.) The hearing is before a three-member commission,
called the Commission on Professional Competence (the
commission), unless the parties stipulate to a hearing before one
administrative law judge. (§ 44944, subd. (c).) The three-
member commission includes one member the employee selects,
one member the board selects, and one administrative law judge.
(Ibid.) In advance of the hearing, the district must disclose
relevant documents and a list of potential witnesses.
(§ 44944.05.) The employee may conduct depositions. (Ibid.)
Witnesses testify under oath at the hearing. (§ 44944, subd.
(b)(2)(A).)
After hearing evidence, the commission chooses between
three options: (1) dismissing the teacher; (2) suspending the
teacher without pay for a fixed period of time; or (3) finding that
the teacher should not be dismissed or suspended. (Ed. Code,
§ 44944, subd. (d)(1).) The teacher may seek writ review of the
commission’s decision. (§ 44945.)
C
The Brown Act generally requires government bodies to
meet in public but authorizes certain exceptions. (Gov. Code, §§
54957 & 54962.) The relevant exception is the “personnel
exception,” which exists to protect employees from public
embarrassment and to permit free and candid discussion of
personnel matters. (Fischer v. Los Angeles Unified School Dist.
(1999) 70 Cal.App.4th 87, 96 (Fischer).)
For this case, the language of the personnel exception
requires careful attention. In the following quotation, note the
words we italicize.

6
The exception authorizes closed sessions “to consider the
appointment, employment, evaluation of performance, discipline,
or dismissal of a public employee or to hear complaints or charges
brought against the employee by another person or employee
unless the employee requests a public session.” (Gov. Code,
§ 54957, subd. (b)(1), italics added.)
The italicized “or” divides the personnel exception into two
parts. The first part, about considering appointment,
employment, evaluation of performance, discipline, or dismissal,
is distinct from the second part, about hearing complaints or
charges. (Fischer, supra, 70 Cal.App.4th at pp. 91 & 96; Bollinger
v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568, 574
(Bollinger).)
The final phrase––“unless the employee requests a public
session”—modifies only the second part, about hearing
complaints or charges. (Fischer, supra, 70 Cal.App.4th at pp. 96–
97; Bollinger, supra, 71 Cal.App.4th 568 at p. 574.) In other
words, the statute allows an employee to request a public session
only if the body hears complaints or charges. This right does not
extend to the first part.
Government Code section 54957, subdivision (b)(2)
describes notice protections for sessions about complaints or
charges. Employees are entitled to 24-hour advance written
notice if a body holds a “closed session on specific complaints or
charges” brought against the employee by another person or
employee. (Ibid.) Absent this notice, the body’s actions against
the employee based on the specific complaint or charges in the
closed session are null and void. (Ibid.)
We repeat the key provision, but now we italicize different
words. The exception authorizes closed sessions “to consider the

7
appointment, employment, evaluation of performance, discipline,
or dismissal of a public employee or to hear complaints or charges
brought against the employee by another person or employee
unless the employee requests a public session.” (Gov. Code,
§ 54957, subd. (b)(1), italics added.)
Courts of appeal have examined the difference between
considering personnel matters and hearing complaints or charges
under Government Code section 54957, subdivision (b)(1). The
Legislature’s decision to use “consider” in connection with
dismissal but “hear” in connection with complaints or charges is
significant. To consider means to deliberate upon, while to hear
means to listen to in an official capacity. (Bollinger, supra, 71
Cal.App.4th at p. 574.) Hearings are proceedings of relative
formality in which a body hears witnesses, views evidence, and
tries definite issues of fact or of law. (Ibid.; Kolter, supra, 170
Cal.App.4th at p. 1351.) The phrase “complaints or charges”
means accusations against an employee. (Bell v. Vista Unified
School Dist. (2000) 82 Cal.App.4th 672, 683 (Bell).)
In sum, the statute permits closed meetings when the
government entity is “considering” information, and in this
situation the entity need not give statutory notice. But the entity
must give notice and hold an open meeting when “hearing” an
accusation leveled by another person against an employee.
D
Verceles’s petition did not plead sufficient facts to
constitute a cause of action against the district under the Brown
Act. The district correctly points to a lack of facts and allegations
in the record to show the board’s actions constituted a hearing of
complaints or charges against Verceles. Verceles’s petition
neither cites evidence nor asserts any allegations to show the

8
board heard testimony from witnesses or took evidence during
closed session on March 13, 2018.
The board did not conduct an evidentiary hearing on the
statement of charges against Verceles; rather, it considered
whether those charges justified the initiation of dismissal
proceedings. The commission would have heard the charges, had
Verceles availed himself of that process. The personnel exception
applied to the board’s March 13 meeting.
The Kolter case, which held the personnel exception applied
when the board considered whether charges justified initiation of
dismissal proceedings, is on point. (See Kolter, supra, 170
Cal.App.4th at p. 1352.) There, the board met in a closed session
and initiated the process to dismiss a teacher, Colleen Kolter.
The district had not provided notice of the session or of the
charges against Kolter. After the closed session, the district
notified Kolter it intended to dismiss her and told her of her right
to a hearing. Kolter exercised her right to a hearing before the
commission but then moved to dismiss the hearing, arguing the
board’s closed session violated her rights under the Brown Act.
The commission denied her motion, proceeded with the hearing,
and agreed the district should dismiss the teacher. Kolter
petitioned for writ relief. (Id. at pp. 1349–1350.)
The Kolter court concluded the board had considered
whether the charges against Kolter justified the initiation of
dismissal proceedings. (Kolter, supra, 170 Cal.App.4th at p.
1352.) The board did not conduct an evidentiary hearing against
her. It may have considered the charges in closed session, but the
commission heard these charges. Thus, the personnel exception
applied, and the district did not need to give Kolter 24-hour
written notice.

9
Verceles’s case is nearly the same. The record shows
Verceles had both notice of the charges against him and the
opportunity for an evidentiary hearing before the commission.
The only reason Verceles did not have this evidentiary hearing
was his own rescission of a request for such a hearing. He cannot
create a Brown Act violation by deciding to forego the hearing.
Verceles’s request for an open hearing in front of the board
did not create a right to one. The nature of the board’s meeting
determines this right. Here, the board met to consider his
dismissal, not to hear complaints or charges.
Nor did the district’s “Statement of Charges” against
Verceles create a right to an open session hearing. In Kolter, the
board also had a “verified statement of charges” against the
teacher. (Kolter, supra, 170 Cal.App.4th at p. 1352.) It did not
conduct an evidentiary hearing on the statement of charges but
rather considered whether the charges justified the initiation of
dismissal proceedings. So too did the board in Verceles’s case.
Bell, supra, 82 Cal.App.4th 672 and Moreno v. City of King
(2005) 127 Cal.App.4th 17, which found Brown Act violations, are
distinguishable. In each case, the closed session was the only
forum in which the public agencies at issue heard the accusations
against the employees. (Bell, at pp. 679 & 683–684; Moreno, at
pp. 21, 28–29.) In Bell, at page 679, a board permanently
removed a teacher as a football coach and in Moreno, at page 21,
a city council terminated an employee, effective the day of the
meeting. The agencies thus made final decisions about discipline
without allowing the employee notice and an opportunity to be
heard. Unlike in these cases and like in Kolter, the board’s
decision was merely a prelude to the opportunity for a full

10
hearing. (Kolter, supra, 170 Cal.App.4th at p. 1352, fn. 4
[distinguishing Bell and Moreno].)
The board’s decision to suspend Verceles pending his
dismissal was permissible under Education Code section 44939
and it did not create a separate right to an open hearing.
In his opening brief, Verceles claims the district violated
his due process and Brown Act rights when it removed him from
his teaching assignment and placed him on administrative leave
in 2015. We do not analyze the merits of this contention, which
he did not raise in his petition before the trial court. (See Estate
of Westerman (1968) 68 Cal.2d 267, 279 [issues not raised before
trial court generally cannot be raised for the first time on
appeal].) The district’s removal of Verceles from his teaching
assignment before the March 13, 2018 meeting is immaterial to
the issue of his right to an open session hearing.
Verceles downplays the protections of the commission
hearing under the Education Code with mistaken claims about
the burden and standard of proof in these hearings. He
incorrectly claims the teacher must prove dismissal is wrongful
and the teacher is “guilty until proven innocent.” As the district
explains in its appellate brief, the district has the burden of proof
in teacher dismissal proceedings before the commission and the
standard of proof is preponderance of the evidence. (Gardner v.
Com. on Prof. Competence (1985) 164 Cal.App.3d 1035, 1038–
1039.) In his reply, Verceles fails to explain why the district is
incorrect about the burden and standard of proof, ignores
Gardner, and repeats his unsupported claim that the employee
must prove charges are false. We treat his unsupported
argument as waived. (See Susag v. City of Lake Forest (2002) 94
Cal.App.4th 1401, 1410–1411.) The commission hearing offered

11
Verceles the opportunity for an evidentiary hearing with robust
due process rights.
DISPOSITION
We affirm the judgment and award costs to the Los Angeles
Unified School District.

WILEY, J.

We concur:

GRIMES, Acting P. J.

STRATTON, J.

12

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4680652. Public record. Not legal advice.