The opinion
Filed 1/17/23 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
NATOMAS UNIFIED SCHOOL DISTRICT, C093475
Plaintiff and Respondent, (Super. Ct. No. 34-2019-8000-
3194-CU-WM-GDS)
v.
ORDER MODIFYING
SACRAMENTO COUNTY BOARD OF OPINION AND DENYING
EDUCATION, REHEARING
Defendant and Appellant, NO CHANGE IN JUDGMENT
I.O., a Minor, etc.,
Real Party in Interest and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County,
Michael W. Jones, Judge. Reversed.
Teresa Stinson, Elizabeth Linton; Weintraub Tobin Chediak Coleman Grodin Law
Corporation and Brendan J. Begley for Defendant and Appellant.
1
DLA Piper US, Stanley J. Panikowski, Gaspard Rappoport and Amanda
McCaffrey for Former School District Superintendents as Amici Curiae on behalf of
Defendant and Appellant.
Rob Bonta, Attorney General, Michael L. Newman, Assistant Attorney General,
Srividya Panchalam, Benjamin T. Conway, Carly J. Munson and Alexis M. Piazza,
Deputy Attorneys General for the Attorney General of California as Amici Curiae on
behalf of Defendant and Appellant.
C. Athena Roussos; Mary M. Sechser for Real Party in Interest and Appellant.
Abigail Trillin, William S. Koski; Cynthia L. Rice, Reina Canale, Phyllis Shafton
Katz; Nedra Shawler and Joyeta Basu for Youth & Education Law Project Stanford Law
School, California Rural Legal Assistance, Inc., and Legal Services for Children as Amici
Curiae on behalf of Real Party in Interest and Appellant.
Alexandra Santa Ana, Mona Tawatao; Stephanie Horwitz, Michael Harris; Victor
Leung; Linnea Nelson, Brandon Greene; Jonathan Markovitz and Bardis Vakili for Equal
Justice Society, National Center for Youth Law, American Civil Liberties Union
Foundation of Southern California, American Civil Liberties Union Foundation of
Northern California and ACLU Foundation of San Diego & Imperial Counties as Amici
Curiae on behalf of Real Party in Interest and Appellant.
Mary Louise Frampton as Amicus Curiae on behalf of Real Party in Interest and
Appellant.
Orbach Huff & Henderson and Sarah L.W. Sutherland for Plaintiff and
Respondent.
THE COURT:
It is ordered that the opinion filed herein on December 22, 2022, be modified as follows:
On page 24, the following footnote is added to the end of the first full paragraph,
before part III of the Discussion:
In a petition for rehearing, the District argues it should have an opportunity
to conduct a new hearing on I.O.’s proposed expulsion from his middle
school—even though, at this point, I.O. has long since graduated from his
middle school. The District argues a rehearing would be appropriate under
2
section 48923, subdivision (a), which provides: “If the county board finds
that relevant and material evidence exists which . . . was improperly
excluded at the hearing before the governing board, it may do either of the
following: [¶] (1) Remand the matter to the governing board for
reconsideration . . . . [¶] (2) Grant a hearing de novo upon reasonable
notice thereof to the pupil and to the governing board.” But the District did
more than exclude relevant and material evidence; it also failed to conduct
the appropriate inquiry under section 48915. For that reason, we reject the
District’s reliance on section 48923, subdivision (a). (See § 48923, subd.
(c) [for most types of legal errors, the county board will not remand the
matter for a new hearing; it will instead enter an order “reversing the
decision of the governing board”].)
This modification does not change the judgment. Respondent’s petition for rehearing is
denied.
FOR THE COURT:
/s/
ROBIE, Acting P. J.
/s/
BOULWARE EURIE, J.
/s/
HOCH, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
3
Filed 12/22/22 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
NATOMAS UNIFIED SCHOOL DISTRICT, C093475
Plaintiff and Respondent, (Super. Ct. No. 34-2019-8000-
3194-CU-WM-GDS)
v.
SACRAMENTO COUNTY BOARD OF
EDUCATION,
Defendant and Appellant;
I.O., a Minor, etc.,
Real Party in Interest and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County,
Michael W. Jones, Judge. Reversed.
Teresa Stinson, Elizabeth Linton; Weintraub Tobin Chediak Coleman Grodin Law
Corporation and Brendan J. Begley for Defendant and Appellant.
1
DLA Piper US, Stanley J. Panikowski, Gaspard Rappoport and Amanda
McCaffrey for Former School District Superintendents as Amici Curiae on behalf of
Defendant and Appellant.
Rob Bonta, Attorney General, Michael L. Newman, Assistant Attorney General,
Srividya Panchalam, Benjamin T. Conway, Carly J. Munson and Alexis M. Piazza,
Deputy Attorneys General for the Attorney General of California as Amici Curiae on
behalf of Defendant and Appellant.
C. Athena Roussos; Mary M. Sechser for Real Party in Interest and Appellant.
Abigail Trillin, William S. Koski; Cynthia L. Rice, Reina Canale, Phyllis Shafton
Katz; Nedra Shawler and Joyeta Basu for Youth & Education Law Project Stanford Law
School, California Rural Legal Assistance, Inc., and Legal Services for Children as Amici
Curiae on behalf of Real Party in Interest and Appellant.
Alexandra Santa Ana, Mona Tawatao; Stephanie Horwitz, Michael Harris; Victor
Leung; Linnea Nelson, Brandon Greene; Jonathan Markovitz and Bardis Vakili for Equal
Justice Society, National Center for Youth Law, American Civil Liberties Union
Foundation of Southern California, American Civil Liberties Union Foundation of
Northern California and ACLU Foundation of San Diego & Imperial Counties as Amici
Curiae on behalf of Real Party in Interest and Appellant.
Mary Louise Frampton as Amicus Curiae on behalf of Real Party in Interest and
Appellant.
Orbach Huff & Henderson and Sarah L.W. Sutherland for Plaintiff and
Respondent.
California law requires school districts to expel a student in a limited set of
circumstances, including, for instance, when the student furnishes a firearm, brandishes a
knife at another person, or possesses an explosive. State law also grants school districts
discretion to expel a student if they make two findings. First, the school district must find
the student committed one of several statutorily enumerated acts, including, as relevant
here, that the student possessed a dangerous object or an imitation firearm. Second, the
school district must find either (1) “[o]ther means of correction are not feasible or have
repeatedly failed to bring about proper conduct” or (2) “[d]ue to the nature of the act [or
2
violation], the presence of the pupil causes a continuing danger to the physical safety of
the pupil or others.” (Ed. Code,1 § 48915, subd. (b); see id., subd. (e).)
In this case, Natomas Unified School District (the District) expelled a student,
I.O., under its discretionary authority. At an expulsion hearing, the District heard
evidence that I.O. brought two unloaded BB guns and a sealed bag of plastic BBs to his
middle school, showed the guns to two friends, and fired one of the unloaded guns at the
ground. The District also heard evidence that one of the friends who saw the guns feared
testifying at the expulsion hearing because I.O. and his mother had asked the student’s
family to speak about I.O.’s character. Based on this evidence, the District found I.O.
unlawfully intimidated a witness. It further found he should be expelled. It reasoned that
he committed an expellable offense in possessing the BB guns and posed a continuing
danger to himself or others—a conclusion it reached after preventing I.O. from presenting
character witnesses and excluding his evidence tending to show his classmates did not
believe he posed a danger.
On I.O.’s appeal from the trial court’s judgment in the District’s favor, we reverse
for two reasons. First, we find the District’s “continuing danger” finding was flawed. In
the District’s view, it could consider only I.O.’s immediate misconduct when evaluating
whether he posed a continuing danger to himself or others. But under the relevant
standard, the District should have considered all the relevant facts, including evidence of
I.O.’s general character. Because the District misunderstood the appropriate inquiry, it
improperly limited I.O.’s ability to present a defense and excluded relevant evidence.
Second, we find the District’s witness intimidation finding was flawed. To support a
claim of witness intimidation in a school disciplinary proceeding, the evidence must
show the student either intended to prevent another student from testifying or to retaliate
1 Undesignated statutory references are to the Education Code.
3
against another student for testifying. But no evidence in this case shows I.O. had any
improper intent. For these reasons, we reverse.
BACKGROUND
I
Legal Background
Children in California have a right to a public school education. (Levi v.
O’Connell (2006) 144 Cal.App.4th 700, 707; see also Cal. Const., art IX, § 5 [“The
Legislature shall provide for a system of common schools by which a free school shall be
kept up and supported in each district . . . .”].) But this right is not absolute. Section
48900 et seq. describes the grounds and procedures for expelling a student—the most
serious form of student discipline. (See § 48925, subd. (b) [“ ‘Expulsion’ means removal
of a pupil from (1) the immediate supervision and control, or (2) the general supervision,
of school personnel . . . .”].)
Under these provisions, the expulsion process begins with a school’s principal or a
school district’s superintendent recommending expulsion for one of the grounds listed in
section 48900 et seq. (§§ 48900, 48915, subds. (a)(1), (b), (c), (e).) Three of these
grounds, two of which are largely identical, are relevant here. First, a principal or
superintendent generally must recommend a student’s expulsion if the student possessed
“any . . . dangerous object of no reasonable use to the pupil.” (§ 48915, subd. (a)(1)(B).)
Second, a principal or superintendent may recommend a student’s expulsion if the
student “[p]ossessed, sold, or otherwise furnished a . . . dangerous object” without school
permission. (§ 48900, subd. (b).) And third, a principal or superintendent may
recommend a student’s expulsion if the student “[p]ossessed an imitation firearm” —
meaning, “a replica of a firearm that is so substantially similar in physical properties to an
existing firearm as to lead a reasonable person to conclude that the replica is a firearm.”
(Id., subd. (m).)
4
Should a principal or superintendent recommend a student’s expulsion, the school
district must then schedule a hearing on the proposed expulsion. (§ 48918, subd. (a)(1).)
The district must also, at least 10 days before the hearing, notify the student of the time
and place of the hearing (id., subd. (b)(1)), provide a “statement of the specific facts and
charges upon which the proposed expulsion is based” (id., subd. (b)(2)), and, among
other things, inform the student of the student’s right “to confront and question all
witnesses who testify at the hearing, to question all other evidence presented, and to
present oral and documentary evidence on the pupil’s behalf, including witnesses” (id.,
subd. (b)(5)).
Following a hearing on a student’s proposed expulsion, the school district’s
governing board must decide whether to expel the student, with the required findings
varying depending on the charges. (§ 48918, subd. (a)(2).) If a principal or
superintendent recommends a student’s expulsion for possessing a dangerous object
(§§ 48915, subd. (a)(1)(B), 48900, subd. (b)), the school district’s governing board may
order expulsion if it makes two findings. First, it must find the student committed the
alleged act. Second, it must find “one or both of the following”: (1) “[o]ther means of
correction are not feasible or have repeatedly failed to bring about proper conduct,” or
(2) “[d]ue to the nature of the act, the presence of the pupil causes a continuing danger to
the physical safety of the pupil or others.” (§ 48915, subd. (b).) Similarly, if a principal
recommended a student’s expulsion for possessing an imitation firearm (§ 48900, subd.
(m)), the school district’s governing board may order expulsion if it makes two findings.
First, it must find the student committed the alleged act. Second, it must find “either of
the following”: (1) “[o]ther means of correction are not feasible or have repeatedly failed
to bring about proper conduct,” or (2) “[d]ue to the nature of the violation, the presence
of the pupil causes a continuing danger to the physical safety of the pupil or others.”
(§ 48915, subd. (e).)
5
II
Factual Background
A. I.O. Brings Two BB Guns to His School
I.O. formerly attended a middle school in the District. On two consecutive days in
2019, when he was 11 years old, he brought two plastic BB guns and a sealed bag of
plastic BBs to his middle school. Both guns were unloaded and had orange tips. I.O.
kept the guns in his backpack during school hours and showed them to two friends after
school.
On the first day, I.O. told his friends he had a “gun” and revealed part of one of
the BB guns while off school property. But after some giggling, he admitted the gun was
fake and revealed its orange tip. According to his friends’ unsworn statements, the
friends told him not to bring the guns again. The next day, I.O. brought the guns again
and again showed them to his friends—this time on school property at one of the school’s
exits. I.O. then pulled one of the unloaded guns out of his bag, pointed it at the ground,
and fired it. A parent noticed and walked over to I.O. The parent seized I.O.’s bag,
instructed him to wait, and directed another parent to get the principal, Amy Whitten.
Whitten arrived shortly afterward, finding I.O. crying. I.O. told her, “[T]his man
scared me[.] I was just going to take it to the park[.] I want to be a police officer.” I.O.
added he was sorry. Mia Emmitt, a retired police officer and substitute teacher, arrived
soon after and walked with Whitten and I.O. to Whitten’s office. After reaching
Whitten’s office, Emmitt and Whitten searched I.O.’s bag and found two unloaded BB
guns and a sealed pack of BBs. A school resource officer afterward conducted a threat
assessment. He found two unloaded BB guns and no credible threat.
B. The District Expels I.O.
Whitten recommended that the District expel I.O., citing sections 48915,
subdivision (a)(1) and 48900, subdivisions (b), (k), and (m). As covered above, with the
exception of section 48900, subdivision (k), these provisions either require or authorize a
6
principal to recommend expulsion if a student possessed a dangerous object (§§ 48915,
subd. (a)(1), 48900, subd. (b)) or an imitation firearm (§ 48900, subd. (m)). Section
48900, subdivision (k), in turn, authorizes a principal to suspend, but not expel, certain
students for disrupting school activities or willfully defying school personnel. (§ 48900,
subd. (k)(1)-(4).)
Following Whitten’s recommendation, I.O.’s parents requested a hearing to
determine whether expulsion would be appropriate. The District then scheduled a
hearing before a three-member panel, consisting of two principals and a vice principal
from other schools in the District. (See § 48918, subd. (d) [a school district’s governing
board can appoint an impartial three-person panel to conduct an expulsion hearing].) Dr.
Michelle Hamilton, a District director who was not part of the panel, designated herself
the “panel chairperson.” Whitten appeared on the middle school’s behalf, and I.O. and
his parents appeared on I.O.’s behalf.
To make its case in favor of expulsion, the school relied largely on unsworn
written statements from two parents and two students. One parent said he saw a student
with a gun, and another parent said she notified Whitten after hearing about the gun. The
two students discussed seeing the BB guns. One said, I.O. “told me an[d] [redacted] that
he had a gun. [Redacted] and I told him no[t] to bring it. He told us it was just a BB gun.
The next day he took it out and [redacted] dad saw him.” The student added that the
students were walking home the first day and at school the second day. The other student
said, I.O. “blurted out that he had a gun on our way back home. I got suspi[ci]ous of him
cause he was giggling so I asked him to show me the tip of the gun so I could make sure
if it was a real gun. I wanted to see it because I knew the difference between a bee-bi gun
and a real gun. After [I] said that[,] he told us it was a bee-bi gun.” The student added
that the next day, I.O. “pulled out the gun and shot at the ground (the gun had no bee bi’s
in it).”
7
Apart from the witness statements, the school presented two witnesses at the
hearing: Whitten and Emmitt. Before the hearing, Emmitt submitted an unsworn
statement characterizing the BB guns as “very realistic looking, albeit fake handguns.”
But at the hearing, after swearing an oath to tell the truth, she said the guns “were real
small, real fake looking.” She also discussed her efforts to determine I.O.’s motive for
bringing the guns. I.O. told her he wanted to become a police officer after hearing from
an officer at a recent career day and so decided “to take these little BB guns to the park
and shoot them at trees to maybe practice.” He also told her he brought the guns to
school because that would allow him to go directly to the park for practice after school on
his way home. Emmitt found I.O. “completely genuine,” though a little ignorant. In her
view, “he was just a little boy that wanted to go practice.” She added that she had no
“safety concern at all” after considering I.O.’s demeanor, found “this [wa]s probably a
stupid mistake,” and believed I.O. should not be expelled.
Whitten spoke next.2 Apart from reading an incident report and the witness
statements, her statements largely touched on a new charge against I.O. that had yet to be
mentioned to I.O. and his family—intimidating a witness in violation of section 48900,
subdivision (o). Under that provision, a student cannot “harass[], threaten[], or
intimidate[] a pupil who is a complaining witness or a witness in a school disciplinary
proceeding for purposes of either preventing that pupil from being a witness or retaliating
against that pupil for being a witness, or both.” (§ 48900, subd. (o).)
To establish the new charge, Whitten said she earlier spoke to a parent of one of
the students who saw the BB guns. In Whitten’s retelling, the parent said I.O.’s family
visited her home and asked her and her family to speak on I.O.’s behalf at the hearing.
2 The parties dispute whether Whitten swore to tell the truth at the hearing. Nothing in
the administrative record shows she did. But in the trial court, Whitten submitted a
declaration indicating she did testify under oath.
8
But the family felt uncomfortable with the visit and declined to show up at the hearing.
Apart from relaying the parent’s statements, Whitten and a panel member also discussed
the parent’s and her son’s written statements about these events. In these statements,
both the parent and the son checked a box requesting that their “statement remain
anonymous as I fear retaliation. Following are the specific reasons.” The student wrote:
I.O. “and his mom came to my house and started talking to my mom about the
statement.” The parent, similarly, wrote: “I really don’t want to attend this hearing
because boy [and] his mom came to our house, and want me to write statement. But I
really don’t know about this boy. And I am scare[d] to show them our faces who we
are.”
After hearing these statements, I.O.’s mother tried to explain. She said, “I did not
request the parent to speak on [I.O.’s] behalf. I only asked for a letter of character
reference because [I.O.] knows them” and “walks home with that family every day from
school.” But a panel member found her explanation lacking. He said even if I.O.’s
mother had no intent to intimidate, “when someone now says that they’re scared to come
here and show their face or be involved in this, that is -- that is why this is -- this Ed Code
is in place.” He then admonished her: “It’s not appropriate to . . . intervene in a hearing
like this or process like this by going to someone’s house.”
Following the admonishment, Dr. Hamilton allowed I.O.’s parents to present their
son’s side of the case. I.O.’s parents intended to question one of his teachers at the
hearing and, to that end, asked the school to bring the teacher to the hearing. I.O.’s
parents believed the teacher—who recently wrote that I.O. “is very patient and caring to
his classmates,” “is a cheerful, pol[ite], and enthusiastic learner,” and “is a positive
influence on the class and a joy to have in class”—would provide a fuller picture of I.O.
because she interacted with I.O. on a daily basis. But the school declined to produce the
teacher at the hearing. Dr. Hamilton attempted to provide an explanation on the record,
but the record captured only this: “[W]e don’t (unintelligible).” The District later
9
acknowledged that off the record it informed I.O.’s parents that the teacher could not
testify because “[i]nformation regarding [I.O.’s] general character was not
probative. . . .”3
I.O.’s parents also sought to present a family member, who was a parole officer, as
a witness who could testify about the BB guns and I.O.’s character. But a District
director refused to allow the family member to testify because he did not witness the
incident. I.O.’s mother further discussed various student comments (20 in her count)
telling him “we miss you,” “we want you back,” “everyone has your back and supports
you,” and “everyone makes mistakes, you are not a bad person.” She also brought copies
of the comments. But the panel never admitted these comments into the record. The
District later indicated it found this type of evidence irrelevant because it “was not
probative of the conduct in question or whether due to the nature of it, [I.O.’s] presence at
school caused [a]n ongoing danger.”
With limited witness options, I.O.’s parents relied principally on one witness: I.O.
I.O. acknowledged he took the BB guns to school on two days, took a gun out of his
backpack on one occasion, and shot the gun at the ground. He said he wanted to “show
my friends” and to do “target practice after school.” He added that he had just received
the BB guns and had never before shot a BB gun, apart from the one instance when he
fired the unloaded gun at the ground. He acknowledged it was wrong to bring the BB
guns to school.
Following the hearing, the panel recommended that I.O. receive a suspended
expulsion. It cited the same statutes that Whitten had cited in her expulsion
3 Although the District claimed character evidence was inadmissible, it only appears to
have excluded evidence of good character. To the extent the District found evidence of
bad character (including evidence showing I.O. had a prior incident with another student
that resulted in peer mediation), the District admitted the evidence.
10
recommendation and added a new statute, section 48900, subdivision (o), for the witness
intimidation charge. It also checked a box stating, “Due to the nature of the act, the
presence of the pupil causes a continuing danger to the physical safety of the pupil or
others.” Explaining its decision, the panel wrote that I.O. admitted possessing two BB
guns and an unopened pack of BBs, shooting an unloaded BB gun, and trying to pass the
guns as real. But citing I.O.’s age and “minimal behavior history,” the panel
recommended a suspended expulsion, which would allow I.O. to continue to receive
work from his teacher for the remainder of the semester and then enroll in the Promise
Program—a community school for expelled students—for the following semester.
Although the panel left open the possibility that I.O. could eventually return to a school
in the District if certain conditions were met, it found he should never return to his
current middle school because he had intimidated a witness.
The District’s governing board later adopted the panel’s findings and the panel’s
suspended expulsion order without modification.
C. The County Board’s Decision
I.O. appealed the District’s decision to the Sacramento County Board of Education
(the County Board), which, per section 48922, has authority to review a school district’s
expulsion decisions. Under its review authority, the County Board may evaluate, among
other things, whether a school district provided a fair hearing, abused its discretion, or
improperly excluded relevant and material evidence. (§ 48922, subd. (a)(2)-(4).)
After holding a hearing, the County Board reversed the District’s decision. It
found the District deprived I.O. of a fair hearing and prejudicially abused its discretion
for several reasons. First, it found insufficient evidence supported the District’s findings
that I.O. possessed a “firearm,” a “dangerous object,” and an “imitation firearm.”
Second, it found insufficient evidence supported the District’s finding that I.O. posed a
continuing danger and further found the District improperly excluded evidence—
including his teacher’s testimony and his classmates’ comments—that could have been
11
relevant to this topic. Third, it found the District wrongly relied on section 48900,
subdivision (k) as a ground for expulsion. Fourth, it found the District’s finding that I.O.
intimidated a witness failed for two reasons—the District provided inadequate notice of
the charge, and it also supplied insufficient evidence to support a finding of witness
intimidation. Lastly, the County Board found the District failed to provide I.O. with a
fair hearing, reasoning that the District prejudicially undermined I.O.’s right to present
evidence and question witnesses and that Dr. Hamilton, a high-level District
administrator, improperly influenced the hearing panel when she advocated for I.O.’s
expulsion.
The County Board ordered the District’s expulsion decision expunged from I.O.’s
school records and deemed the expulsion not to have occurred.
D. The Trial Court’s Decision
Following the County Board’s decision, the District filed a combined petition for
writ of administrative mandamus and civil complaint for declaratory and injunctive relief
with the trial court. The District asked the trial court to order the County Board to set
aside its decision, to declare that the County Board acted in excess of its authority, and to
enjoin the County Board. It also sought an immediate stay of the County Board’s
decision to prevent I.O. from enrolling at his middle school before a decision on the
merits.
A trial judge with Sacramento County Superior Court denied the District’s request
for an immediate stay. The court explained, based on the limited evidence before it, that
it “disagree[d] with the district that the board . . . appears to have exceeded its authority
in overturning the decision. I don’t believe they’ve exceeded their authority.” The court
added that “none of the evidence that the school district has presented . . . indicates that
the student poses any continuing danger to school safety.”
Following the adverse ruling, the District sought an order assigning the case to a
judge from a different court. It reasoned that because the suit involved two adversarial
12
public entities from Sacramento County, the matter should be before a judge from a
county other than Sacramento County. (See Code Civ. Proc., § 394.) The court granted
the motion and, shortly after, the case was reassigned to a trial judge with Placer County
Superior Court.
After the reassignment, the trial court found the County Board’s decision should
be set aside, finding none of the County Board’s stated reasons for its decision
persuasive. The court afterward ordered the County Board to set aside its decision and,
after finding the District’s suit enforced an important public policy, awarded the District
over $150,000 in attorney fees.
I.O. and the County Board appealed.4
DISCUSSION
I
Timeliness of Appeal
We start with the District’s contention that I.O. and the County Board filed their
appeals too late. Although the trial court purported to enter judgment on January 4, 2021,
in a document titled “Judgment Granting Peremptory Writ of Mandate” (the Judgment),
the District contends the court actually entered judgment on October 2, 2020, in a
document titled “Ruling on Petition for Writ of Administrative Mandamus” (the Ruling).
It then contends I.O.’s and the County Board’s appeals are untimely because they filed
their appeals on January 26, 2021, and March 2, 2021, respectively, more than 60 days
after the trial court clerk served them with the Ruling on October 2, 2020. We disagree.
The normal time for filing an appeal is the earlier of “(A) 60 days after the
superior court clerk serves on the party filing the notice of appeal a document entitled
4 Various parties submitted applications to file briefs as amicus curiae. We granted
several of these applications before oral argument. We grant two more here, one for
Mary Louise Frampton and another for Former School District Superintendents.
13
‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, showing the date
either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is
served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-
endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days
after entry of judgment.” (Cal. Rules of Court, rule 8.104(a)(1).) The District focuses on
the first of these timelines. It argues the trial court’s October 2020 Ruling, and not its
January 2021 Judgment, served as the court’s judgment. It then contends the 60-day
timeline for filing an appeal was triggered in October 2020 when the trial court clerk
served the parties with a filed-endorsed copy of the Ruling.
But in making this argument, the District both misstates the facts concerning the
service of the Ruling and misunderstands the law on judgments. We start with the facts.
Although the District claims the Ruling was served on all parties, the proof of service
shows it was served on only two parties: the County Board and the District. I.O. was
never served. So even if we accept that the Ruling was the court’s judgment, I.O.’s
appeal nonetheless remains timely. That is because a party, having never been served
with the judgment, has 180 days after entry of judgment to file an appeal (Cal. Rules of
Court, rule 8.104(a)(1)); and in this case, I.O. filed his appeal on March 2, 2021, less than
180 days after entry of the Ruling.
We turn next to the law. “An application for a writ of administrative mandamus,”
like the one the District filed here, “is a ‘special proceeding of a civil nature.’ ” (Dhillon
v. John Muir Health (2017) 2 Cal.5th 1109, 1115 (Dhillon).) A “judgment” in these
types of proceedings “is the final determination of the rights of the parties therein” (Code
Civ. Proc., § 1064), and it does one of two things: It “either command[s] respondent to
set aside the [challenged] order or decision, or den[ies] the writ” (id., § 1094.5, subd. (f);
see also ibid. [“Where the judgment commands that the order or decision be set aside, it
may order the reconsideration of the case . . . and may order respondent to take such
further action” as required by law]).
14
But the October 2020 Ruling neither finally determined the rights of the parties
nor commanded the County Board to set aside its decision. Although the court said the
County Board’s “decisions . . . are set aside” in the Ruling, it did not in fact command the
County Board to set aside its decision until the January 2021 Judgment. Nor did it
specify the full relief the District would ultimately receive, which led the parties to
further disputes over the appropriate terms for the judgment. As the District itself
acknowledged in a letter to the trial court at the time, the District and the County Board
could not settle on the terms of the proposed judgment following the court’s Ruling and
sought a hearing to resolve their dispute. After the District proposed various versions of
the judgment, the trial court finally entered the Judgment in January 2021.
Considering these circumstances, we cannot say the October 2020 Ruling was “the
final determination of the rights of the parties” (Code Civ. Proc., § 1064) that “either
command[ed] respondent to set aside the order or decision, or den[ied] the writ” (id., §
1094.5, subd. (f)). The court’s January 2021 Judgment instead served that function. It
provided for “judgment granting the petition . . . in favor of [the District]” and provided
for the issuance of the requested writ of mandate that commanded the County Board to
set aside its decision, to act consistent with the Ruling, and to file a return to the writ
within 60 days. With the Judgment, and not the earlier Ruling, the trial court finally
terminated the litigation between the parties on the merits of the case. (See Dhillon,
supra, 2 Cal.5th at p. 1115 [“a judgment is final, and therefore appealable, ‘ “ ‘when it
terminates the litigation between the parties on the merits of the case and leaves nothing
to be done but to enforce by execution what has been determined’ ” ’ ”].)
The District’s counterarguments do not persuade us to find otherwise. It first
contends “an order granting . . . a petition for an extraordinary writ constitutes a final
judgment for purposes of an appeal, even if the order is not accompanied by a separate
formal judgment.” We acknowledge that several courts have stated as much. (See Public
Defenders’ Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409;
15
Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43, 58, review granted June 15,
2022, S274147.) But we find these cases misstate the relevant law. As our Supreme
Court has explained, “cases have . . . held that a trial court’s judgment granting
administrative mandamus, and ordering the substantive relief sought by the petitioner, is
a final judgment.” (Dhillon, supra, 2 Cal.5th at pp. 1113-1114, italics added.) And as
our Supreme Court has further explained, “[a]s a general test, which must be adapted to
the particular circumstances of the individual case, it may be said that where no issue is
left for future consideration except the fact of compliance or noncompliance with the
terms of the first decree, that decree is final.” (Id. at p. 1115.) For the reasons already
covered, the trial court’s Ruling was not a final judgment under this standard. It neither
ordered the full substantive relief that the District sought—including the District’s
requested “[j]udgment ordering the [County Board] to set aside the Decision”—nor
resolved all issues except the fact of compliance or noncompliance.
The District next suggests the trial court clerk evinced its own understanding that
the Ruling served as the judgment. That is so, it reasons, because “[w]hen the Court filed
its October 2, 2020, Ruling . . ., the Court [clerk] immediately entered judgment on the
same day in the court record, as reflected in the Court’s Register of Actions.” (Italics
omitted.) But the register of actions does not refer to any judgment until January 4, 2021,
when the court entered the January 2021 Judgment. That indicates that the court clerk
understood the January 2021 Judgment, and not the earlier Ruling, to be the judgment. In
any event, the substance and effect of a decision, not the clerk’s offered label in the
register of actions, is the controlling consideration. (See Dhillon, supra, 2 Cal.5th at p.
1115 [“ ‘ “It is not the form of the decree but the substance and effect of the adjudication
which is determinative” ’ ”].)
Lastly, the District contends the Ruling granted it the exact relief it sought and left
no issue open for future consideration except the fact of compliance or noncompliance. It
then characterizes the January 2021 Judgment as merely “redundant” of the earlier
16
Ruling. But that is not quite true. In the Ruling, the court explained its reasoning for
rejecting the County Board’s decision, said the writ was granted, and said the County
Board’s decisions are set aside. But it did not actually grant the District the full relief it
sought, nor did it command the County Board to do anything, until the January 2021
Judgment. Only then did the court provide for “judgment granting the petition . . . in
favor of [the District]” and provide for the issuance of a writ of mandate commanding the
County Board to set aside its decision. The District’s conduct before the trial court,
moreover, undermines its current claim that the January 2021 Judgment was merely
redundant of the Ruling. Again, following the Ruling, the District negotiated with the
County Board on the terms of the proposed judgment and sought a hearing to resolve the
parties’ disputes. These prior efforts to obtain a judgment in its favor bely the District’s
current assertion that the Ruling itself already resolved all the parties’ disputes. (See
Davis v. Superior Court (2011) 196 Cal.App.4th 669, 673 [“The city’s filing of its
‘[Proposed] Judgment’ belies its assertion that nothing more needed to be done, for if
nothing more were needed then why did the city file its proposed judgment”].)
II
The District’s “Continuing Danger” Finding
Satisfied we have jurisdiction, we turn to I.O.’s and the County Board’s contention
that the District misinterpreted section 48915 when it concluded I.O. posed a continuing
danger. I.O. contends the District, believing “the only relevant evidence on this issue
concern[ed] the incident itself,” improperly excluded relevant evidence and failed to
consider whether he truly posed a continuing danger. The County Board argues
similarly. We agree the District relied on a flawed understanding of section 48915.
Under section 48915, again, the District needed to make two findings before
expelling I.O. First, it had to find he committed an offense that could warrant expulsion;
and second, it had to find one or both of the following: (1) “[o]ther means of correction
are not feasible or have repeatedly failed to bring about proper conduct,” or (2) “[d]ue to
17
the nature of the act [or violation], the presence of the pupil causes a continuing danger to
the physical safety of the pupil or others.” (§ 48915, subd. (b); see id., subd. (e).) The
parties refer to the first required finding as the “primary” finding and the second as the
“secondary” finding.
Our focus here is on the “continuing danger” provision, which the District relied
on for its secondary finding. According to the District, the statutory text shows it could
consider only the nature of I.O.’s misconduct when evaluating whether he posed a
continuing danger. That is so, it argues, because the relevant inquiry under section 48915
is whether the student poses a continuing danger “due to” the nature of the student’s
misconduct—which the District presumes to mean due only to the nature of the student’s
misconduct.5
But according to I.O., the County Board, and the Attorney General (as amicus
curiae), a school district must consider a student’s circumstances more broadly before
finding the student poses a continuing danger. I.O. reasons that “[e]ven considering only
‘the nature of the act’ under section 48915[, subdivision ](b)(2), the context of the act is
important” and “[t]hat context includes the student’s character.” The County Board
appears to reason similarly. The Attorney General, taking a different approach, reasons
that the “continuing danger” provision requires school districts to engage in a “two-part
inquiry” that separately considers the nature of the act and the danger the student poses.
5 The District adds that its interpretation is entitled to deference under Yamaha Corp. of
America v. State Bd. of Equalization (1998) 19 Cal.4th 1—a case that dealt with a state
agency’s interpretation of a state law it was charged with enforcing. (Id. at pp. 6-8.) But
as other courts have found, while it often makes sense to give deference to a state
agency’s interpretation of a state statute, it makes less sense to defer to a local agency’s
interpretation of a state statute when numerous local agencies are charged with applying
the same statute. (California Highway Patrol v. Superior Court (2006) 135 Cal.App.4th
488, 501; see also Purifoy v. Howell (2010) 183 Cal.App.4th 166, 182-183.)
18
Our reading of section 48915 largely aligns with I.O.’s, the County Board’s, and
the Attorney General’s reading, though our reasoning is different than their own.
Familiar principles of statutory interpretation guide our decision. “ ‘ “ ‘We first examine
the statutory language, giving it a plain and commonsense meaning’ ” ’ ” in an effort to
ascertain the Legislature’s intent. (Brennon B. v. Superior Court (2022) 13 Cal.5th 662,
673.) We also “ ‘ “ ‘consider portions of a statute in the context of the entire statute and
the statutory scheme of which it is a part, giving significance to every word, phrase,
sentence, and part of an act in pursuance of the legislative purpose.’ ” ’ ” (Ibid.) “ ‘ “ ‘If
the language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and public policy.’ ” ’ ”
(Ibid.)
Those principles in mind, we turn first to section 48915’s text—and in particular,
to the phrase “[d]ue to the nature of the act [or violation].” (§ 48915, subd. (b); see id.,
subd. (e).) Although the phrase “due to” demonstrates that there must be a causal
connection between “the nature of the act [or violation]” and a finding of continuing
danger, “the closeness of the causal connection” is less clear. (U.S. Postal Service v.
Postal Regulatory Com’n (D.C. Cir. 2011) 640 F.3d 1263, 1268.) As other courts have
observed, “[t]he phrase ‘due to’ is ambiguous. ‘The words do not speak clearly and
unambiguously for themselves. The causal nexus of “due to” has been given a broad
variety of meanings in the law ranging from sole and proximate cause at one end of the
spectrum to contributing cause at the other.’ ” (Ibid.) “In other words, the phrase can
mean ‘due in part to’ as well as ‘due only to.’ ” (Ibid.; see also Kimber v. Thiokol Corp.
(10th Cir. 1999) 196 F.3d 1092, 1100 [“The phrase ‘due to’ is ambiguous”]; Adams v.
Director, OWCP (6th Cir. 1989) 886 F.2d 818, 821 [describing the “obvious ambiguity in
the ‘due to’ language”].)
19
Considering the phrase “due to” in the context of section 48915, we find the
phrase means “due in part to”—which means the “continuing danger” finding must be
due in part to, not due solely to, “the nature of the act [or violation].” (§ 48915, subd. (b);
see id., subd. (e).) Our construction of the statute is grounded largely in a commonsense
reading of the text. Under section 48915, subdivisions (b)(2) and (e)(2), the ultimate
question is whether “the presence of the pupil causes a continuing danger.” (Id., subds.
(b), (e).) And as a matter of commonsense, determining whether a child truly poses a
continuing danger favors consideration of all the relevant facts, including evidence of the
child’s character. (Cf. United States v. Schell (10th Cir. 1982) 692 F.2d 672, 675 [court
could consider character evidence, prior conduct, and prior convictions in evaluating a
defendant’s dangerousness]; Boyd v. Johnson (5th Cir. 1999) 167 F.3d 907, 912
[“Evidence of good character . . . may support a negative answer to the special issue
regarding the future dangerousness”].) Between the parties’ competing interpretations,
then—one requiring a school district to make a finding of dangerousness based only on a
slice of information (namely, the nature of the student’s misconduct), and one requiring a
school district to make a finding of dangerousness based on all the relevant facts—we
find the latter interpretation “more ‘ “compatible with common sense.” ’ ” (People v.
Raybon (2021) 11 Cal.5th 1056, 1069 [between two proposed interpretations, courts
favor the one more compatible with commonsense].)
We also find this interpretation compatible with the whole of the statute, even if it
results in the “[d]ue to the nature of the act [or violation]” language playing a different
role than the District prefers. Like the District, we agree this language is important. It
ensures, for instance, that a school board does not find a student poses a continuing
danger for reasons having no meaningful connection to “the nature of the act [or
violation]” that led to the recommended expulsion. But we find it does not, as the
District believes, bar a school district from considering matters apart from the nature of
the act or violation when evaluating whether a student poses a continuing danger. Again,
20
as between one interpretation requiring a school district to make a finding of
dangerousness based on a single moment in a child’s life, and another interpretation
requiring a school district to make a finding of dangerousness based on all the relevant
facts, we find the latter interpretation more sensible and consistent with the Legislature’s
likely intent.
Review of the overall statutory scheme reinforces our reading of section 48915.
Various provisions in section 48900 et seq. require school districts to evaluate whether a
student poses a danger. We discussed two of these provisions already with section
48915, subdivisions (b) and (e). Several other provisions are similar, though they omit
the “[d]ue to the nature of the act [or violation]” language. Section 48900.5, subdivision
(a), for instance, allows a school district to suspend a student for certain first-time
offenses when “the pupil’s presence causes a danger to persons.” Section 48911,
subdivision (g), as another example, allows a school district to extend a suspension while
awaiting an expulsion decision if “the presence of the pupil at the school or in an
alternative school placement would cause a danger to persons or property or a threat of
disrupting the instructional process.” And section 48916, subdivision (c), to offer one
last example, requires a school district to readmit an expelled student who has completed
the district’s readmission process, “unless the governing board makes a finding that the
pupil has not met the conditions of the rehabilitation plan or continues to pose a danger to
campus safety or to other pupils or employees of the school district.” (See also 48911.1,
subd. (a), 48915.1, subd. (c), 48915.2, subd. (b).)
All these other provisions require a school district to evaluate whether a student
poses a danger based on all the relevant facts without any explicit limit on the scope of
the district’s inquiry. And if the Legislature intended a broad inquiry to evaluate
dangerousness in these provisions, we find it odd to conclude that it intended a far
narrower inquiry in section 48915, subdivisions (b) and (e). A simple example
emphasizes the point. Under the District’s reading, a school district would evaluate the
21
child’s true dangerousness based on all the relevant facts when deciding whether to
extend a suspension while awaiting an expulsion decision (see § 48911, subd. (g)), but it
would then artificially evaluate dangerousness based on a single piece of information
when deciding whether to expel. We find it highly unlikely that the Legislature intended
an informed finding of dangerousness for the initial decision to suspend but a largely
uninformed finding of dangerousness for the ultimate decision to expel. A more sensible
reading is that the Legislature intended a similar approach in all these provisions—it
wanted school districts to evaluate whether the student truly poses a danger based on all
the relevant facts, even if, in some instances, it also wanted school districts to ensure that
the dangerousness finding had a meaningful connection to “the nature of” the student’s
immediate misconduct.
We further find this construction consistent with the Legislature’s general intent in
section 48900 et seq. In a preamble to a 2012 amendment to section 48900 set seq., the
Legislature made at least four findings and declarations about this scheme that are
relevant here. It declared: “The public policy of this state is to ensure that school
discipline policies and practices support the creation of safe, positive, supportive, and
equitable school environments where pupils can learn.” (Stats. 2012, ch. 425, § 1, subd.
(a).) It found: “The overuse of school suspension and expulsion undermines the public
policy of this state and does not result in safer school environments or improved pupil
behavior. Moreover, such highly punitive, exclusionary practices are associated with
lower academic achievement, lower graduation rates, and a worse overall school
climate.” (Id., subd. (b).) It further found: “Research has found that nonpunitive
classroom discipline and in-school discipline strategies are more effective and efficient
than suspension and expulsion for addressing the majority of pupil misconduct.” (Id.,
subd. (f).) And it declared: “The public policy of this state is to provide effective
interventions for pupils who engage in acts of problematic behavior to help them change
their behavior and avoid exclusion from school.” (Id., subd. (g).)
22
These findings together demonstrate that although school districts must have the
ability to suspend and expel students, they should only do so when appropriate to
promote safer school environments and improve pupil behavior. And in evaluating
whether expulsion promotes the goal of safer school environments, commonsense favors
a scheme that evaluates the student’s actual dangerousness based on all the relevant facts,
not a scheme that artificially evaluates dangerousness based solely on a single moment in
time. The former approach, not the latter, better aligns with the Legislature’s intent to
promote safe school environments while also limiting unnecessary expulsions.
For all these reasons—section 48915’s text, the broader statutory scheme for
expulsions, and the Legislature’s declared intent for this scheme—we find the
“continuing danger” provisions in section 48915, subdivisions (b) and (e) require
consideration of all the relevant facts, not merely the facts concerning “the nature of the
act” (§ 48915, subd. (b)) or “the nature of the violation” (id., subd. (e)). In some cases,
following this approach may lead a school district to find a student poses a continuing
danger, even if it might have found otherwise had it considered only “the nature of the act
[or violation]” itself. But in other cases, consideration of all the relevant facts may
militate against a finding that a student poses a continuing danger, as I.O. argues in this
case.
Here, in declining to consider all the relevant facts, the District misconstrued
section 48915’s “continuing danger” provisions and prejudicially abused its discretion as
a result. Because the District misinterpreted the statute, it improperly declined to admit
or consider relevant and material evidence that I.O. sought to produce, including his
teacher’s testimony, his teacher’s positive feedback, and his classmates’ supportive
comments. Shortly before I.O. brought the BB guns to school, his teacher had written
that I.O. “is very patient and caring to his classmates,” “is a cheerful, pol[ite], and
enthusiastic learner,” and “is a positive influence on the class and a joy to have in class.”
23
Several classmates, in turn, wrote “we miss you,” “we want you back,” “everyone has
your back and supports you,” and “everyone makes mistakes, you are not a bad person.”
All this evidence tended to show that those at school who knew I.O. best—his
teacher and his classmates—did not believe he posed a danger to the physical safety of
himself or others. Yet the District, misreading section 48915, found this evidence
irrelevant, precluded I.O.’s teacher from testifying, and failed to conduct the appropriate
inquiry under section 48915. Under these circumstances, we conclude the County Board
properly found the District prejudicially abused its discretion. (See § 48922, subd. (c)(1)
[a school district abuses its discretion “[i]f school officials have not met the procedural
requirements” of § 48900 et seq.].)
III
The District’s Witness Intimidation Finding
Lastly, we consider I.O.’s and the County Board’s challenge to the District’s
finding that I.O. intimated a witness in violation of section 48900, subdivision (o). Both
I.O. and the County Board contend insufficient evidence supports the District’s finding.
I.O. also contends the District pursued this charge not because the evidence warranted it,
but because the District sought to retaliate against I.O. and his mother for attempting to
prepare a defense. We agree the witness intimidation finding lacks evidentiary support.
Section 48900, subdivision (o) allows a school to discipline a student who
“[h]arassed, threatened, or intimidated a pupil who is a complaining witness or a witness
in a school disciplinary proceeding for purposes of either preventing that pupil from
being a witness or retaliating against that pupil for being a witness, or both.”
Here, in finding I.O. violated this provision, the District relied on two written
statements—one from a fellow student and another from the student’s mother. Both the
student and his mother sought to avoid testifying at I.O.’s hearing and, after receiving a
pre-filled form, checked a box saying they feared retaliation. The student wrote: I.O.
“and his mom came to my house and started talking to my mom about the statement.”
24
The student’s mother, similarly, wrote: “I really don’t want to attend this hearing
because boy [and] his mom came to our house, and want me to write statement. But I
really don’t know about this boy. And I am scare[d] to show them our faces who we
are.” Based on this evidence, the panel found I.O. intimated a witness within the
meaning of section 48900, subdivision (o). Although one panel member acknowledged
I.O. and his mother might not have had any ill intent, he found that irrelevant; it was
enough, in his view, that “someone now says that they’re scared to come here and show
their face or be involved in this.” The District later adopted the panel’s finding without
modifications.
We conclude the District’s finding lacks evidentiary support. Again, section
48900, subdivision (o) allows a school to punish a student who “[h]arasse[s], threaten[s],
or intimidate[s] a pupil . . . for purposes of either preventing that pupil from being a
witness or retaliating against that pupil for being a witness, or both.” (Italics added.) As
the statutory text makes clear, the student’s intent matters. But here, we have no
evidence that I.O. had the requisite improper intent. The student and his parent may have
feared retaliation, as evidenced by their checking a box saying, “I request my statement
remain anonymous as I fear retaliation.” But they never alleged facts tending to show
that I.O. “[h]arassed, threatened, or intimidated a pupil . . . for purposes of . . . retaliating
against that pupil for being a witness.” (§ 48900, subd. (o).) Even the one panel member
who commented on the topic acknowledged that I.O. and his mother might not have had
any improper intent.
The District, believing the evidence sufficient, counters that it is enough that I.O.’s
friend and his mother “felt intimidated by [I.O.’s] mother’s actions to the point that they
were fearful of the consequences of testifying at the hearing.” (Italics omitted.) But the
District misconstrues section 48900, subdivision (o) on several levels. First, in focusing
on I.O.’s mother’s actions, the District evidently believes I.O. could be punished for the
conduct of his parents. But section 48900 is explicitly concerned with the student’s
25
conduct, not the conduct of any parent. (§ 48900 [authorizing punishment if is
“determine[d] that the pupil has committed an act as defined pursuant to any of
subdivisions (a) to (r)” (italics added)].) Second, the District fails to appreciate that
section 48900, subdivision (o) is a specific intent offense. Again, per that provision, I.O.
needed to “[h]arass[], threaten[], or intimidate[] a pupil . . . for purposes of either
preventing that pupil from being a witness or retaliating against that pupil for being a
witness, or both.” (§ 48900, subd. (o).) But as covered, we have no evidence of the
required ill intent.6
6 Because we find reversal appropriate for the reasons stated, we need not address I.O.’s
and the County Board’s alternative arguments for reversal. Those arguments include that
the trial court applied the wrong standard of review, the District improperly relied on
hearsay evidence and unsworn statements, the District’s conclusions that I.O. possessed a
dangerous object and an imitation firearm were not supported by sufficient evidence, the
District’s conclusion that I.O. posed a continuing danger was not supported by sufficient
evidence, the District failed to identify findings supporting its “continuing danger”
conclusion, the District deprived I.O. of a fair hearing, the District failed to provide
sufficient notice of the witness intimidation charge, and the trial court improperly
awarded attorney fees.
26
DISPOSITION
The judgment and the postjudgment order granting attorney fees are reversed. I.O.
and the County Board are entitled to recover their costs on appeal. (Cal. Rules of Court,
rule 8.278(a).)
/s/
BOULWARE EURIE, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
HOCH, J.
27