De Cordoba v. Governing Bd. of Whittier Union High Sch. Dist.

Opinion

ALLPORT, Acting P. J.

Petitioner Lolita De Cordoba appeals from an order sustaining a demurrer to her amended petition for a writ of

[158]

mandamus whereby she sought to have a decision of the governing board of the Whittier Union High School District and the district not to reemploy her for the school year of 1975-1976 vacated and set aside and ordering that she be reemployed for that year. The appeal lies. (Code Civ. Proc., §§ 581d, 904.1, subd. (a).)

The decision not to reemploy petitioner was adopted by the board and, by its terms, made effective May 16, 1975. On June 19, 1975, petitioner requested a record of proceedings and on July 10, 1975, filed, pursuant to Code of Civil Procedure section 1094.5, her petition for writ of mandamus. There is no allegation as to date of delivery or service of the decision or delivery of the record of proceedings.

Relying upon respondent’s points and authorities. Government Code sections 11523, 11521 and the cases of

Eichman

v.

Escondido etc. Sch. Dist.,

61 Cal.2d 100 [37 Cal.Rptr. 199, 389 P.2d 727] and

Burgess

v.

Board of Education,

41 Cal.App.3d 571 [116 Cal.Rptr. 183], the trial court ruled that the petition for the writ was not filed within the time required by law, sustained respondent’s demurrer without leave to amend and entered the order of dismissal from which this appeal is taken.

Discussion

Government Code section 11523 provides for judicial review in a mandamus proceeding of a decision of the administrative agency (in this case the governing board of the school district) and provides that “such petition shall be filed within 30 days after the last day on which reconsideration can be ordered.” Section 11521 provides for reconsideration by the agency itself on its own motion or on petition of any party. The power to order reconsideration expires 30 days after delivery or mailing of the decision to the affected party, or “on the date set by the agency itself as the effective date of the decision if such date occurs prior to the expiration of the 30-day period or. . . .”