Filed 1/17/14 Poveda v. Southwestern Community College Dist. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

FERNANDO POVEDA, D062460 Plaintiff and Appellant, v. (Super. Ct. No. 37-2011-00099248- CU-WM-CTL) SOUTHWESTERN COMMUNITY COLLEGE DISTRICT, Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Richard E. L.

Strauss, Judge. Reversed and remanded with directions.

David S. Bristol, Boudreau Williams and Jon R. Williams for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Marlon Craig Wadlington for Defendant and Respondent.

Fernando Poveda appeals the trial court's denial of his petition for writ of mandate filed under Code of Civil Procedure section 1085. He contends that during the 39 months after his former employer, respondent Southwestern Community College District (Southwestern), laid him off for lack of funds, he applied for several positions at Southwestern, but Southwestern filled those positions without granting him the reemployment preference to which he was entitled under Education Code1 section 88117.

Southwestern counters that it filled all those positions internally with current Southwestern employees. It interprets section 88117 as requiring it to grant Poveda reemployment preference over only external applicants, that is, those not currently employed at Southwestern.

The issue presented is whether the term "new applicants" used in section 88117 applies only to external applicants or to both internal and external applicants. We agree with Poveda and conclude that the latter interpretation comports with the statute's plain terms and the legislative scheme. Accordingly, we reverse the judgment and remand for the court to grant Poveda's writ petition and determine the appropriate relief under Code of Civil Procedure section 1095.

FACTUAL AND PROCEDURAL BACKGROUND In an October 2011 verified petition for writ of mandate, Poveda alleged that Southwestern hired him in October 1991 as coordinator for outreach/school and community relations, a classified administrative position that later was elevated to a

In opposing Poveda's writ petition, Southwestern did not dispute his factual claims; rather, it argued that section 88117 granted Poveda preference over new external applicants only, and not over internal ones. Southwestern acknowledged that although it is not a merit district, section 88117 applies to it under section 88014. Southwestern argued that, faced with massive budget cuts over several years, it was forced to restructure its operations and therefore eliminated certain positions, reduced the total number of full-time employees, and filled other positions internally as permitted by California Code of Regulations, title 5, section 530213. Southwestern claimed that

Joseph Quarles, Southwestern's interim vice-president of human resources, explained in a supporting declaration why Southwestern did not grant Poveda the reemployment preference. Quarles stated that approximately 87 percent of Southwestern's expenditures are personnel costs, including salaries and benefits. In 2011, in light of reduced state and federal funding, Southwestern reorganized and restructured its operations and programs. Quarles stated that in filling the challenged positions, Southwestern relied on its internal policy titled, "Recruitment and Hiring Policy and Recruitment and Hiring Procedure (No. 7120)," and reviewed all vacancies "for a determination of the necessity of continuing the position and other means of providing services that were less costly. Only where [Southwestern] determined that an absolute need existed for the services provided by a particular position was the position filled.

Because the ultimate goal was a reduction in personnel costs, it was determined that instead of following the normal hiring procedure, the vacancies would first be advertised

within and outside the district work force to attract qualified applicants for all new openings. . . . The requirement of open recruitment shall apply to all new full-time and part-time openings in all job categories and classifications." (Cal. Code Regs., tit. 5, 53021, subd. (a).) However, the regulation creates an exception permitting the community college to conduct " '[i]n-house or promotional only' " recruitment under limited circumstances. (Cal. Code Regs., tit. 5, § 53021, subd. (b)(1).) The regulation specifies: "For purposes of this section, a new opening is not created when: (1) there is a reorganization that does not result in a net increase in the number of employees; (2) one or more lateral transfers are made and there is no net increase in the number of employees; (3) a position which is currently occupied by an incumbent is upgraded, reclassified, or renamed without significantly altering the duties being performed by the individual." (Cal. Code Regs., tit. 5, § 53021, subd. (c).) internally for current employees only. If no qualified current employees were found, then the position would be advertised to non-employees. The positions identified by [Poveda] in his declaration and pleadings were all advertised internally only and only current employees were permitted to apply for the positions."4 The court denied Poveda's petition for writ of mandate. It ruled nothing in section 88117 required Southwestern to grant Poveda reemployment preference over internal applicants, and if the Legislature had intended that result, it would have specified that laid-off individuals were entitled to preference over "other new applicants." It reasoned that section 88117 did not apply to Poveda because he was a laid-off employee, and not a "new applicant." DISCUSSION Poveda contends that under a plain reading of section 88117, the term "new applicants," over whom he had reemployment preference, applies to both internal and external applicants. By contrast, Southwestern interprets section 88117 to require it to grant a laid-off employee a reemployment preference only over external applicants,

Section 88117 states in part: "(a) A person laid off because of lack of work or lack of funds shall be eligible for reemployment for a period of 39 months as follows: (1) The person's reemployment shall take preference over new applicants. (2) The person shall have the right to participate in promotional examinations within the district during the period of 39 months." Our plain meaning interpretation of that provision is that laid- off employees' preference applies over all new applicants, irrespective of whether they are internal or external applicants. We may not introduce a distinction between internal and external "new applicants" that the statute omits because "[d]oing so would violate the cardinal rule that a statute '. . . is to be interpreted by the language in which it is written, and courts are no more at liberty to add provisions to what is therein declared in definite language than they are to disregard any of its express provisions.' " (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097.) We accordingly reject Southwestern's attempt to engraft onto the statute a distinction that the Legislature did not make.

Our interpretation of section 88117, subdivision (a)(1) is bolstered by the context provided by subdivision (b), which states: "An employee who takes a voluntary demotion or a voluntary reduction in assigned time in lieu of layoff or to remain in his or present position . . . shall be granted the same rights as persons laid off and shall retain eligibility to be considered for reemployment for an additional period of up to 24 months." (Italics added.) The Legislature did not grant current, voluntarily-demoted employees reemployment preferences over laid-off employees; rather, it granted the same reemployment preferences to both. Therefore, contrary to Southwestern, we conclude the Legislature did not intend that the term "new applicants" exclude internal applicants.5 Southwestern's contention that section 88117 grants laid-off employees a reemployment preference over only external applicants also is refuted by the interplay of

Whenever a classified employee is laid off, the order of layoff within the class shall be determined by length of service. The employee who has been employed the shortest time in the class, plus higher classes, shall be laid off first. Reemployment shall be in the reverse order of layoff." Section 88195 grants permanent employees of the classified service who are absent because of non industrial accident or illness—and who have exhausted all entitlement to paid or unpaid leave—39 months on the reemployment list.

That section states: "The employee's reemployment shall take preference over all other applicants except for those laid off for lack of work or funds under Section 88117 in which case the employee shall be ranked according to his or her proper seniority." (§ 88195, italics added.) Read together, these sections support our conclusion that section 88117 grants laid-off employees reemployment preference over both internal and external applicants because section 88195 grants laid-off employees preference over one specific class of current employees—those who are on leave after having exhausted their leaves following a non-industrial illness.

Southwestern's argument that it relied on California regulations and Southwestern's internal recruitment and hiring procedure No. 7120 to secure money savings by hiring internal employees during a severe financial crisis is unavailing.

Without deciding the issue in this case, we note that to the extent a conflict exists between Southwestern's regulations and section 88117, the law in California is that

" ' "Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to[,] strike down such regulations." ' " (Ontario Community Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811, 816-817, italics omitted.) Section 88117 provides no exception to its reemployment preference mandate based on a community college's financial distress.

To the contrary, the statute presupposes that the reason an employee is laid off is the community college's "lack of work and lack of funds." Also to no avail is Southwestern's argument that because it does not administer employment exams it did not violate the provision of section 88117 regarding such examinations. The point of section 88117 is to grant reemployment preference to laid-off workers, and it is not a prerequisite to this mandate that a community college administer promotional examinations. Accordingly, Southwestern is not exempt from the obligation to grant reemployment preferences to laid-off persons.

Finally, our interpretation of section 88117 draws support from our interpretation in Tucker, supra, 168 Cal.App.4th 640 of a parallel provision set forth in section 45298,6 which applies in the context of elementary and secondary schools. "[W]hen possible, sections of the Education Code bearing on the same subject must be read and construed

In Tucker, we rejected the district's cramped reading of the reemployment statute, which would contravene the Legislature's intent: "By requiring that the preference be available only if the laid-off employee is applying for a position within the exact same class from which he or she was laid off, a district would be free to simply eliminate the position or class after laying off the employee, thereby doing away with the benefit the Legislature intended to afford to the laid-off employee by enacting section 45298.

District has broad discretion to define the qualifications required for any position for which it seeks applicants, thus it may ensure that only applicants who meet the prerequisites of a given position will be hired. Providing a preference for laid-off employees who can fulfill the qualifications of a position protects both the interests of the laid-off employee, as intended by the Legislature, and the interests of the District in having an employee qualified for the position." (Tucker, supra, 168 Cal.App.4th at pp.

647-648.)

Here too, it would defeat the purpose of the section 88117 reemployment provision to interpret it to apply only to external applicants as Southwestern urges. The Legislature since 1935 has granted laid-off classified community college employees a preference in reemployment for 39 months in recognition that they were laid off through no fault of their own. That protection would be rendered a nullity if, as here, Southwestern were allowed to fill its vacancies with internal applicants without giving a preference to laid-off employees.

DISPOSITION The judgment is reversed. On remand, the trial court is directed to vacate its prior order and conduct further proceedings consistent with this opinion. Fernando Poveda is awarded costs on appeal.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.