On 08/15/2016 ALL OF US OR NONE-L A CHAPTER filed a Labor - Other Labor lawsuit against L A UNIFIED SCHOOL DI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY KEOSIAN. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
ALL OF US OR NONE-LOS ANGELES CHAPTER
LOS ANGELES UNIFIED SCHOOL DISTRICT
DHF LAW P.C.
A NEW WAY OF LIFE REENTRY PROJECT
TURBULL EFFIE K. DEPUTY CITY ATTY.
HERNANDEZ MARCOS F. ASST. GEN. COUNSEL
EVANS SUE ANN SALMON ESQ.
2/7/2018: AMENDED NOTICE OF MOTION FOR PROTECTIVE ORDER
3/21/2018: PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE
5/21/2019: Notice of Ruling
10/14/2016: Minute Order
12/14/2016: DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT'S NOTICE OF UNAVAILABILITY FROM DECEMBER 26, 2016 THROUGH JANUARY 6, 2017
3/2/2017: DECLARATION OF MARCOS F. HERNANDEZ RE MEET AND CONFER OF DEFENDANTS LOS ANGELES UNIFIED SCHOOL DISTRICT, MICHELLE KING, SERGIO FRANCO AND KARL GOULD'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' FI
3/28/2017: DEFENDANTS LOS ANGELES UNIFIED SCHOOL DISTRICT, MICHELLE KING, SERGIO FRANCO AND CARL GOULD'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT
6/5/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
6/22/2017: DEFENDANTS LOS ANGELES UNIFIED SCHOOL DISTRICT, MICHELLE KING, SERGIO FRANCO AND KARLA GOULD'S ANSWER TO FIRST AMENDED COMPLAINT
10/10/2017: DECLARATION OF JOSHUA E. KIM IN SUPPORT OF PLAINTIFFS' DEMURRER AND MOTION TO STRIKE
12/12/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
12/14/2017: DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT?S NOTICE OF UNAVAILABILITY FROM DECEMBER 26, 2017 THROUGH JANUARY 5, 2018
Notice of Ruling; Filed by Los Angeles Unified School District (Defendant); Michelle King (Defendant); Sergio Franco (Defendant) et al.Read MoreRead Less
Order ([PROPOSED] ORDER CONTINUING TRIAL); Filed by Los Angeles Unified School District (Defendant); Michelle King (Defendant); Sergio Franco (Defendant) et al.Read MoreRead Less
at 09:00 AM in Department 61; Case Management Conference (Conference-Case Management; Trial Date Set) -Read MoreRead Less
Minute OrderRead MoreRead Less
Case Management Order; Filed by CourtRead MoreRead Less
Minute order entered: 2018-05-25 00:00:00; Filed by ClerkRead MoreRead Less
CASE MANAGEMENT ORDERRead MoreRead Less
at 09:00 AM in Department 61; Case Management Conference (Conference-Case Management; Continued by Court) -Read MoreRead Less
Minute order entered: 2018-05-18 00:00:00; Filed by ClerkRead MoreRead Less
CASE MANAGEMENT STATEMENTRead MoreRead Less
Minute OrderRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/SummonsRead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
COMPLAINT FOR: 1. VIOLATION OF LABOR CODE 432.7(A); ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by All of Us or None-Los Angeles Chapter (Plaintiff); Jane Roe (Plaintiff); John Doe (Plaintiff)Read MoreRead Less
Case Number: BC630614 Hearing Date: October 15, 2020 Dept: 61
Defendants Los Angeles Unified School District, Michelle King, Sergio Franco, and Karla Gould’s Motion for Summary Judgment or Adjudication is GRANTED only as to the Third Cause of Action, but otherwise DENIED.
Defendants to give notice.
MOTION TO SEAL
The court may order that a record be filed under seal only if it expressly finds facts that establish:
(1) There exists an overriding interest that overcomes the right of public access to the record;
(2) The overriding interest supports sealing the record;
(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exist to achieve the overriding interest.
(California Rules of Court (“CRC”) Rule 2.550, subd. (d).)
A party moving to seal records must make a sufficient evidentiary showing to overcome the presumed right of public access to the documents. (see Huffy Corp. v. Superior Court (“Huffy”) (2003) 112 Cal.App.4th 97, 108.)
Plaintiffs move for an order allowing them to file various unredacted records in support of their opposition to Defendants’ motion for summary judgment under seal, on the grounds that they bring this action anonymously pursuant to this court’s April 19, 2018 protective order allowing same. (Motion at p. 1.) The court agrees, for the reasons stated in its ruling on the protective order, that Plaintiffs possess an overriding interest in their anonymity in this action that supports sealing records containing unredacted personal identifying information, that this interest will be prejudiced if the records are not sealed, and no less restrictive means exist to achieve this end.
The motion to file under seal is GRANTED.
Plaintiffs offer objections to the evidence submitted in support of LAUSD’s motion. Objections No. 1 and 4–12 to the declaration of Laurent Hernandez are SUSTAINED for lack of foundation and personal knowledge, as Hernandez testifies to the processing and reasoning behind the denial of Doe’s employment application and appeal without stating how he learned of these processes or what records, if any, justify his conclusions therefore. Although he testifies that he is a deputy director of LAUSD’s office of employee relations, and is responsible for overseeing fingerprinting and for conducting administrative reviews for employees under LAUSD’s conviction standards, he does not state that he occupied this position when Plaintiffs made their applications or that he had any involvement therein. (Hernandez Decl. ¶¶ 3–4; Opposition Exh. 27 at p. 47 [stating that he began in his position in February 2016].) Objections No. 13 and 14 to statements made in Exhibits H and L are SUSTAINED on hearsay grounds as to the truth of the matters stated in the letters.
Defendants’ objection to the declaration of Angelique Evans, who testifies that she knows people who are afraid to apply for employment with LAUSD because of their conviction policies, is SUSTAINED for lack of personal knowledge and hearsay.
A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)
The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)
Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
EQUAL PROTECTION — SECOND CAUSE OF ACTION
The alleged basis for Plaintiffs’ equal protection claim is as follows. If one is convicted of a serious or violent felony, but later obtains a certificate of rehabilitation, Education Code §§ 45122.1, subd. (e) and 44830.1, subd. (f) prohibit school districts “from denying employment to the person solely on the basis of the conviction.” (FAC ¶ 75.) These statutes do not protect misdemeanants, even those with expunged misdemeanor convictions, because misdemeanants are not eligible for certificates of rehabilitation. (FAC ¶ 77.) LAUSD is alleged to have adopted “a policy and practice of categorically denying employment to people with expunged misdemeanors.” (FAC ¶ 79.) Because LAUSD does not deny employment to people because they were convicted of felonies if they later obtained a certificate of rehabilitation, but does deny employment to people who were convicted of misdemeanors, regardless of whether their records were later expunged, Plaintiffs allege that LAUSD denies them equal protection. (FAC ¶ 79.)
LAUSD argues that Plaintiffs’ equal protection claim must fail because LAUSD places no categorical bar before misdemeanants, but rather applies a discretionary “multi-stage review process” to analyze applicants’ prior convictions. (Motion at p. 18.) It also maintains that it has good reason to treat rehabilitated felons and expunged misdemeanants differently, as the process to obtain a certificate of rehabilitation is more involved than that for expunging a misdemeanor. (Motion at p. 20.) LAUSD also argues that Roe particularly cannot complain of any preference granted to rehabilitated felons under Penal Code § 4852.01, because she was initially convicted of a felony and could have availed herself of the rehabilitation remedy, but chose to have her conviction downgraded and dismissed as a misdemeanor. (Motion at p. 18.) Doe’s employment application was also rightfully rejected, LAUSD argues, because his criminal history suggested an incompatibility for work with children. (Motion at pp. 22–23.) Finally, LAUSD argues that the State of California is a necessary party to any constitutional challenge leveled at its statutory distinctions. (Motion at p. 23.)
The crux of the constitutional promise of equal protection is that persons similarly situated shall be treated equally by the laws. However, neither clause [of the United States or California Constitutions] prohibits legislative bodies from making classifications; they simply require that laws or other governmental regulations be justified by sufficient reasons. The necessary quantum of such reasons varies, depending on the nature of the classification. In considering whether state legislation violates the Equal Protection Clause, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. Classifications based on race or national origin, and classifications affecting fundamental rights, are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. M]ost legislation challenged under the equal protection clause is evaluated merely for the existence of a ‘rational basis' supporting its enactment. Under the latter analysis, the question is whether the classification bears a fair relationship to a legitimate public purpose.
(People v. Delacy (2011) 192 Cal.App.4th 1481, 1494, internal citations, alterations, and quotation marks omitted.)
Here, the classification at issue is between people whose misdemeanor convictions were expunged under Penal Code § 1203.4, and who are ineligible for certificates of rehabilitation, and people convicted of felonies which were dismissed by certificate of rehabilitation under Penal Code § 4852.01. This is not a suspect classification warranting strict scrutiny. And, despite Plaintiffs footnoted argument seeking strict scrutiny on the grounds that the restriction here impacts their right to practice a lawful profession (Opposition at p. 6, fn. 3), other courts apply equal protection standards based on groups’ relative eligibility for certificates of rehabilitation using the “rational basis” test. (See People v. Chatman (2018) 4 Cal.5th 277.)
The court first notes that LAUSD’s exemption for persons whose felony convictions set aside through certificate of rehabilitation is a product of statute, even if its converse policy for other applicants with criminal records is not. Education Code section 44830.1 subdivision (f) provides that "a person shall not be denied employment or terminated from employment solely on the basis that the person has been convicted of a violent or serious felony if the person has obtained a certificate of rehabilitation and pardon pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code." Education Code section 45122.1 subdivision (e) similarly provides: "Notwithstanding subdivision (a), a person shall not be denied employment or terminated from employment solely on the basis that the person has been convicted of a violent or serious felony if the person has obtained a certificate of rehabilitation and pardon pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code." Subdivision (a) of section 45122.1 provides: "In addition to any other prohibition or provision, no person who has been convicted of a violent or serious felony shall be employed by a school district pursuant to this chapter. A school district shall not retain in employment a current classified employee who has been convicted of a violent or serious felony, and who is a temporary, substitute, or a probationary employee who has not attained permanent status."
In overruling Defendants’ previous demurrer to the same cause of action, this court relied on Newland v. Board of Governors ("Newland") (1977) 19 Ca1.3d 705. In Newland plaintiff was "educationally well qualified" and sought a community college credential, but the Board of Governors confronted him about a seven-year-old misdemeanor conviction for lewdness in a public place. The Board rejected his application based on a provision of the Education Code prohibiting it from hiring anybody convicted of a sex offense. The applicant argued that the provision of the Education Code prohibiting hiring people convicted of sex offenses was amended to remove the bar for anybody who had obtained a certificate of rehabilitation and the accusation was dismissed under Penal Code section 1203.4. (Newland, supra, 19 Ca1.3d at p. 707-708.) However, the applicant stated that because he was convicted of a misdemeanor rather than a felony, he was ineligible to apply for a certificate of rehabilitation, and therefore could not avail himself of qualifying for an exception to the Education Code's absolute prohibition on hiring him due to the conviction. (Ibid.)
The Supreme Court held "this rather startling statutory preferential treatment for felons as contrasted with misdemeanants denies misdemeanants the equal protection of the laws. Consequently, the statutory requirement for a certificate of rehabilitation cannot constitutionally be applied to deny plaintiff, a misdemeanant, a community college credential." (Newland, supra, 19 Ca1.3d at p. 708.)
The Supreme Court held "a legislative classification, such as that involved here, violates the constitutional requirement of equal protection of the law unless it rationally relates to a legitimate state purpose." (Newland, supra, 19 Ca1.3d at p. 711.)
Because a misdemeanant is not eligible to petition for a certificate of rehabilitation, the 1976 amendment works the Kafka-like perverse effect of providing that a person convicted of a felony sex crime who applies for a certificate of rehabilitation and who is otherwise fit, can obtain certification to teach in the community college system but that an otherwise fit person, convicted of a misdemeanor sex crime, is forever barred. This statutory discrimination against misdemeanants can claim no rational relationship to the protective purpose of section 13220.16. This amendment stands as a legislative recognition that many of the persons barred for life under the unamended version of section 13220.16 were fit to teach. The Legislature could not possibly or sensibly have concluded that misdemeanants, as opposed to felons, constitute a class of particularly incorrigible offenders who are beyond hope of rehabilitation.
(Newland, supra, 19 Ca1.3d at p. 711.)
The court ultimately held that "[s]ince plaintiff has fulfilled two of the three requirements for relief under subdivision (b) of section 13220.16, and the remaining requirement - that he apply for or obtain a certificate of rehabilitation - cannot constitutionally be invoked to deny relief to misdemeanants, we conclude that defendant board cannot rely upon section 13220.16 to deny plaintiffs application for a community college credential." (Newland, supra, 19 Ca1.3d at p. 714.)
LAUSD argues that Newland is distinguishable in part because, unlike the defendant in Newland, and contrary to the allegations of the FAC, the District has no blanket policy prohibiting the hiring of misdemeanants, but instead has a multi-stage review process for reviewing criminal convictions. (Motion at p. 18.) Laurent Hernandez, LAUSD’s Deputy Director of the Office of Employee Relations, testifies that LAUSD reviews an applicant’s prior convictions and applies “an evolving table of employment time bars which vary according to both the severity of the crime committed as well as fitness for public school employment.” (Hernandez Decl. ¶¶ 19–20.) Hernandez also testifies that LAUSD offers applicants a means of appealing from any disqualification decision, and the district may grant them an exception in its discretion. (Hernandez Decl. ¶ 24.)
This argument alone does not furnish a basis for granting the motion because it does not eliminate the distinction that is the basis for Plaintiffs’ claims and which formed the basis for the Newland decision. Namely, people convicted of misdemeanors, even if those convictions are expunged and dismissed, may still be denied employment with LAUSD based on those convictions, pursuant to LAUSD’s “evolving table” of employment time bars. But people convicted of felonies, who later obtain a certificate of rehabilitation under Penal Code § 4852.01, are subject to no such policy. (Opposition Exh. 27 at pp. 35–36.) Indeed, it is undisputed that the District disqualified both Doe and Roe for employment based on their expunged misdemeanor criminal histories, while no policy would bar their employment had they been convicted of felonies and later obtained certificates of rehabilitation, for which they, as ex-misdemeanants, are ineligible. (Motion at pp. 22–23, 25.) LAUSD’s policy thus creates a distinction between applicants that must satisfy constitutional standards.
LAUSD argues that, unlike Newland, a rational basis exists to support its different policies as to people convicted of felonies who obtain certificates of rehabilitation and people with expunged misdemeanor convictions, based on the resource-intensive judicial process by which certificates of rehabilitation are issued. (Motion at pp. 18–20.) The Supreme Court in People v. Chatman (2018) 4 Cal.5th 277, described the process of obtaining a certificate under Penal Code § 4852.01:
To obtain a certificate of rehabilitation and benefit from the relief it provides, petitioners must satisfy a number of conditions. An eligible felon may only file a petition for a certificate of rehabilitation after a specified “period of rehabilitation,” which must last a minimum of five years from the petitioner’s release from prison or placement on probation. (§ 4852.03, subds. (a), (b); § 4852.06.) During the period of rehabilitation, the petitioner must “live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.” (§ 4852.05.) A potential petitioner is “entitled to receive counsel and assistance from all rehabilitative agencies, including the adult probation officer of the county and all state parole officers.” (§ 4852.04.) In the proceedings before the trial court, the petitioner is entitled to the assistance of appointed counsel. (§ 4852.08.) The trial court “may require testimony as it deems necessary,” and may require, “without expense of any kind to the petitioner,” “the production ... of all records and reports relating to the petitioner and the crime of which he or she was convicted.” (§ 4852.1, subd. (a).) The trial court may also order the district attorney to investigate the petitioner’s residence, criminal history, representations to the trial court, and conduct during the period of rehabilitation, as well as “any other information the court deems necessary in making its determination.” (§ 4852.12, subd. (a).)
The trial court has discretion whether to grant a petition for a certificate of rehabilitation. (See People v. Lockwood (1998) 66 Cal.App.4th 222, 228, 77 Cal.Rptr.2d 769 [“Section 4852.13 ... gives courts the express discretion to decide whether a petitioner has demonstrated [rehabilitation] to [the trial court’s] satisfaction ....”].) In exercising its discretion, the trial court considers whether the petitioner has demonstrated “by his or her course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship.” (§ 4852.13, subd. (a).) If the trial court grants the petition, the clerk of the court must immediately forward the certificate of rehabilitation to the governor’s office so that the petitioner can be considered for a pardon. (§§ 4852.14, 4852.16.) But if the petitioner violates the law during the period of rehabilitation, “the court may deny the petition and determine a new period of rehabilitation not to exceed the original period of rehabilitation for the same crime.” (§ 4852.11.)
(Id. at pp. 285–86.) In summary, a certificate of rehabilitation requires the petitioner to live an honest and upright life and exhibit good moral character for the rehabilitation period, and to demonstrate their rehabilitation to the satisfaction of a trial court through a judicial fact-finding process.
The Chatman court also summarized the process of obtaining a dismissal of a conviction under Penal Code § 1203.4, much as Plaintiffs have done here:
The aforementioned section 1203.4 requires, meanwhile, for the underlying conviction to be dismissed “[i]n any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation.” (§ 1203.4, subd. (a)(1).) The trial court may also dismiss a conviction under section 1203.4 where a probationer has not satisfied the terms of probation if it is in “the interests of justice.”
(Id. at p. 286.)
LAUSD argues that it has a rational basis for its distinction between felons who are certified rehabilitated and misdemeanants who have had their convictions dismissed, because the former obtain their relief via an intensive and discretionary judicial fact-finding process, as described above, while relief under Penal Code § 1203.4 is afforded upon the completion of probation and is not discretionary but mandatory:
Section 1203.4 provides that a defendant who ‘has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation’ is entitled as a matter of right to have the plea or verdict changed to not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed. If the petitioner establishes either of the necessary factual predicates, the trial court is required to grant the requested relief.
(People v. Tran (2015) 242 Cal.App.4th 877, 892 fn. 6, internal quotation marks and citations omitted.) LAUSD thus contends it is justified in regarding expunged misdemeanors with greater skepticism than felonies later dismissed via certificate of rehabilitation.
Plaintiffs respond that there is no relevant distinction between someone convicted of a felony and later certified as rehabilitated and someone convicted of a misdemeanor who obtains dismissal under Penal Code § 1203.4. (Opposition at pp. 5–6.) Plaintiffs note that section 1203.4 authorizes dismissal “[i]n any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section.” (Penal Code § 1203.4, subd. (a).) The second prong of that paragraph — discharge prior to termination of probation — may be ordered by the court “when the ends of justice will be served thereby, and when the good conduct and reform of the person so held on probation shall warrant it.” (Penal Code § 1203.3, subd. (a).) Plaintiffs also point out that when relief is sought under the third prong — when it is in “the interests of justice” to grant relief — may involve consideration of both the applicant’s probation and post-probation conduct. (Opposition at p. 5, citing People v. McLernon (2009) 174 Cal.App.4th 569, 572.)
Plaintiffs argue that both a certificate of rehabilitation under Penal Code § 4852.01 and a dismissal under Penal Code § 1203.4 serve as “’legislatively authorized’ evidence that a court found satisfactory evidence for ‘complete rehabilitation based on a prescribed showing of exemplary conduct.” (Opposition at p. 6.) For this point, Plaintiffs rely on the case People v. Moreno (2014) 231 Cal.App.4th 934.
In Moreno, the eponymous petitioner successfully had two prior felony convictions reduced to misdemeanors and dismissed under Penal Code § 1203.4. (Moreno, supra, 231 Cal.App.4th at p. 937–38.) When he later applied for a certificate of rehabilitation under Penal Code § 4852.01, the application was denied on the grounds that such relief was only a available to a “person convicted of a felony,” which Moreno no longer was. (Ibid..) When he argued that it was a violation of equal protection to afford the certificate-of-rehabilitation process to persons convicted of a felony, but not to people who had had their felonies reduced to misdemeanors and dismissed, the court disagreed, holding that persons with unrehabilitated felonies and persons with reduced and dismissed misdemeanors were not similarly situated for the purposes of equal protection analysis. (Id. at p. 941.) The court noted the many civil disabilities that ex-felons face, such as franchise, jury, and firearm restrictions, the use of felony convictions as impeachment evidence, and the availability of sentencing enhancements in criminal proceedings. (See id. at p. 942.) Conversely, “[a] misdemeanant, after serving a sentence, suffers no further obligation, disability, or loss of civil rights.” (Ibid.) The court went on:
[T]he purpose of section 4852.01 is to afford an avenue for felons who have proved their rehabilitation to reacquire lost civil and political rights of citizenship. Moreno had his civil and political rights restored when the court reduced his felony convictions to misdemeanors for all purposes under section 17, subdivision (b), and granted his application under section 1203.4. The expunging of the record of conviction [under section 1203.4] is, in essence, a form of legislatively authorized certification of complete rehabilitation based on a prescribed showing of exemplary conduct during the entire period of probation. When such an order has been entered there is no further criminal prosecution pending against the defendant. He has then, without any further showing of rehabilitation on his part, received a statutory rehabilitation and a reinstatement to his former status in society insofar as the state by legislation is able to do so. Thus, even were felons and misdemeanants in similar circumstances, we would not conclude that they receive significantly different treatment under sections 4852.01 and 1203.4 for equal protection analysis. Parties in similar circumstances are entitled to like treatment. Identical treatment is not required.
We do not intend to diminish his achievements in any way, but Moreno has essentially secured the relief he now seeks. He was no longer subjected to the statutory disabilities or deprivations which accompany or ensue from a felony conviction after the court declared his offenses misdemeanors for all purposes. When Moreno obtained relief under sections 1203.4 and 17, subdivision (b), he was no longer labeled nor similarly situated to a felon. A certificate of rehabilitation in these circumstances would afford him nothing he has not already acquired under section 1203.4. The certificate of rehabilitation and executive pardon do not automatically remove all of the foregoing disabilities. But they do eliminate or significantly ameliorate some. Most significantly, the granting of a pardon based on a certificate of rehabilitation results in the restoration of full civil and political rights. Here, Moreno's civil and political rights were restored when the court dismissed the misdemeanor charges.
(Id. at p. 943, internal quotation marks and citations omitted.) Plaintiffs argue that LAUSD’s different treatment of persons rehabilitated pursuant to Penal Codes §§ 4852.01 and 1203.4 fly in the face of alike function and purpose for government and individual, as outlined in Moreno.
Plaintiffs further contend that LAUSD’s justification for its discrimination has been made illegal by statute. This court on June 8, 2017, sustained LAUSD’s demurrer to what was then the first cause of action for violation of Labor Code § 432.7, subd. (a), which prohibits employers from considering convictions dismissed pursuant to Penal Code § 1203.4. (See 6/8/2017 Order at pp. 10–11.) The court sustained the demurrer based on subdivision (m) of that statute, which does not prevent an employer from considering prior convictions if an employer is required by law to obtain that information, and based on Education Code § 45125’s requirement that school districts obtain background checks of employees. (6/8/2017 Order at p. 14.) Plaintiffs now point to an amendment to Labor Code § 432.7: While formerly providing that an employer could “utilize [expunged convictions] as a factor in determining any condition of employment” provided the employer was required by law to obtain information of same, an amendment effective January 1, 2019, removed this language from the operative subsection. (See Labor Code § 432.7, subd. (m).) That same amendment has also limited the exception to allow employers to ask about “a particular conviction” provided the employer is required by law to obtain information about “the particular conviction.” (Lab. Code § 432.7, subd. (m)(1)(A).)
Plaintiffs thus argue that the asserted basis for LAUSD’s distinction is presently unlawful, both because LAUSD is not permitted to utilize expunged convictions in deciding applications for employment under Labor Code § 432.7, but also because LAUSD is not permitted to ask about convictions not particularly described in the Education Code, which are generally limited to serious or violent felonies or specified sex and drug offenses. (Opposition at pp. 7–8, citing Educ. Code §§ 44830.1, 45122.1, 44836, 45123.)
In overruling LAUSD’s demurrer to this same cause of action, the court previously relied on the Newland case and the FAC’s allegations that LAUSD “categorically den[ied] employment to people with expunged misdemeanors.” (FAC ¶ 79.) The court reasoned, “the FAC alleges that the sole reason for the denial of [Plaintiffs’] employment was prior convictions which, had the convictions been felonies rather than misdemeanors, would not categorically bar them from employment because they could seek a certificate of rehabilitation.” (6/8/2017 Order at p. 18.) The court further indicated that whether Plaintiffs’ applications were denied “in part or solely on the basis of their prior convictions” was an evidentiary issue not appropriately resolved on demurrer. (Ibid.)
LAUSD in the present motion has presented evidence that its policy on prior misdemeanor convictions is somewhat less than categorical, but is rather based on a series of “time-bars” prohibiting employment for a number of years following conviction of given crimes, with more severe crimes listed as “Barring Employment for Life,” and others being listed under lesser bars, such as 15, ten, or five years. (Motion Exh. A.) Laurent Hernandez testifies that an applicant may appeal a decision based on this policy to an Administrative Review Committee, who may grant a discretionary exception based on materials submitted by the applicant. (Hernandez Decl. ¶¶ 24–28.) However, the form letter given to rejected applicants — HR 9071 — until 2015 or 2016 did not contain notice of the applicant’s right to appeal. (Hernandez Decl. ¶¶ 23, 29.)
Moreover, “[f]or purposes of determining an applicant’s eligibility, the District considered a conviction irrespective of whether it had been dismissed/expunged pursuant to Penal Code section 1203.4.” (Hernandez Decl. ¶ 18.) Hernandez opines this is because “[t]he District cannot safely assume all convicts with dismissed/expunged convictions pursuant to Penal Code section 1203.4 are fit for employment.” (Hernandez Decl. ¶ 17.) In this respect, LAUSD’s standards parallel the Education Code, which states that “a termination of probation and dismissal of an accusation or information pursuant to Section 1203.4 of the Penal Code shall not, for the purpose of this division, have any effect,” but provides an exception allowing hearings for those whose section 1203.4 expungements were accompanied by certificates of rehabilitation. (Educ. Code § 44008, subd. (a), (b).) But this statute applies to statutory provisions prohibiting the employment of those with specified convictions, which are not at issue in the present case. (See Educ. Code § 44009 [identifying statutes prohibiting employment or credentialing of those with specified convictions].)
LAUSD has presented no evidence indicating that there was any basis for the denial of Plaintiffs’ applications beyond their expunged convictions. LAUSD concedes that the denial of Doe’s application was “based on a long history of criminal behavior” (Motion at pp. 22–23), and that Roe’s application was based on her “self-disclosed criminal record,” (Motion at p. 25.) LAUSD did not alter these decisions after Doe and Roe sought administrative appeals. (Hernandez Decl. ¶¶ 38–42, 47–48.)
With this evidence and the above law in mind, there is little reason for this court to depart from its prior order overruling LAUSD’s demurrer to this claim. That Doe and Roe’s employment applications were denied because of their expunged misdemeanor convictions is undisputed. It is also undisputed that, had they been convicted of felonies and thereafter obtained certificates of rehabilitation, the District would not have considered them as being “convicted” of anything, and any such conviction would have posed no barrier to their employment. (Opposition Exh. 27 at pp. 35–36.) But Plaintiffs are blocked from obtaining certificates of rehabilitation because their convictions are for misdemeanors, not felonies. Thus the pernicious distinction identified in Newland once more reveals itself.
The court is mindful of the deferential standard of review afforded to the District on constitutional challenges to policies of this type. Such enactments are “presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable.” (People v. Chatman, supra, 4 Cal.4th at p. 289.) But Plaintiffs have made such a showing here. Although Defendants’ claim their distinction between felons rehabilitated under Penal Code § 4852.01 and misdemeanants rehabilitated under Penal Code § 1203.4 is grounded in a preference for the more thorough, discretionary procedures underlying the former, this preference (along with the divergent outcomes it facilitates) is irrational in light of the identity of function and outcome that both Penal Code sections are designed to facilitate. Section 1203.4, like section 4852.01, is “a form of legislatively authorized certification of complete rehabilitation based on a prescribed showing of exemplary conduct,” only designed for application to probationers. (Moreno, supra, 231 Cal.App.4th at p. 943.) As was held in Moreno, people who obtain relief under either statute do not “receive significantly different treatment under sections 4852.01 and 1203.4 for equal protection analysis.” (Ibid.) Had the Moreno court contemplated that public employers like the District could rationally regard applicants whose misdemeanor convictions were dismissed under the section 1203.4 with greater suspicion than applicants whose felony convictions were dismissed section 4852.01, it presumably would have reached a different result.
LAUSD further argues that Roe cannot claim any equal protection violation on her part because she was initially convicted of a felony, which she later had reduced to a misdemeanor and expunged under Penal Code § 1203.4. (Motion at p. 22.) Because she could have availed herself of the procedures of Penal Code § 4852.01 yet voluntarily chooses not to do so, the District argues that she has no cause for complaint. (Motion at p. 22.)
This argument is unpersuasive. As was held in Moreno, a felony conviction reduced to a misdemeanor under section 1203.4 is thereafter considered a misdemeanor “for all purposes.” (Moreno, supra, 231 Cal.App.4th at p. 941.) The court specifically held that a conviction so reduced was thereafter ineligible for relief under section 4852.01. (Ibid.) Thus Roe is presently barred from petitioning for relief under that section. Nor may the court begrudge her the opportunity to bring the equal protection challenge she now presents on the grounds that she made the wrong choice in deciding what form of relief from conviction to pursue. As explained in Moreno, she had good reason to believe that section 1203.4 would afford her the same benefits as section 4852.01 when she made the choice.
In reply, the District points to the case People v. Vasquez (2001) 25 Cal.4th 1225, which stated that Penal Code § 1203.4 does not obviate “nonpenal restrictions or qualifications imposed for public protection” imposed upon those with felony convictions. (Id. at p. 1230.) Yet this authority is inapposite, as the operative distinction in this case is not between ex-felons certified as rehabilitated and ex-felons whose convictions are dismissed under section 1203.4, but between the former and misdemeanants whose convictions are dismissed under the latter statute, and who thereafter have no means of obtaining relief under Penal Code § 4852.01. The legal effect of the respective statutory procedures has been held to be functionally identical for equal protection purposes such that misdemeanants who obtain section 1203.4 relief have no constitutional cause to complain about their inability to take advantage of section 4852.01. (Moreno, supra, 231 Cal.App.4th at p. 943.)
LAUSD finally argues that California is a necessary party to this equal protection dispute, since “in actions for declaratory and injunctive relief challenging the constitutionality of state statutes, state officers with statewide administrative functions under the challenged statute are the proper parties defendant.” (Opposition at p. 23, quoting Serrano v. Priest (1976) 18 Cal.3d 728, 752.) But the FAC does not challenge the constitutionality of Education Codes §§ 44830.1 or 45122, as the District suggests. Plaintiffs rather challenge LAUSD’s policy of using expunged misdemeanor convictions as a basis for denying employment eligibility.
Accordingly, the motion is DENIED as to the second cause of action.
PENAL CODE § 11105, SUBD. (t) — THIRD CAUSE OF ACTION
Penal Code section 11105 subdivision (t) provides:
Whenever state or federal summary criminal history information is furnished by the Department of Justice as the result of an application by an authorized agency, organization, or individual defined in subdivisions (k) to (p), inclusive, and the information is to be used for employment, licensing, or certification purposes, the authorized agency, organization, or individual shall expeditiously furnish a copy of the information to the person to whom the information relates if the information is a basis for an adverse employment, licensing, or certification decision. When furnished other than in person, the copy shall be delivered to the last contact information provided by the applicant.
LAUSD argues that no liability may be had against it under this statute because it is prohibited from furnishing DOJ criminal records by Education Code § 45125, subd. (k)(1) and (3), which respectively state that school districts are to keep DOJ criminal records confidential and that districts must destroy DOJ records after making hiring decisions. (Motion at p. 24.) LAUSD also argues that it never requested Doe’s criminal record from the DOJ, that Roe’s denial was based on her self-disclosed conviction, and that the claim is now moot since Plaintiffs have been provided with all criminal records relied upon. (Motion at pp. 23–25.) LAUSD also argues that there is no private right of action under Penal Code § 11105, subd. (t). (Motion at pp. 25–26.)
The court agrees with LAUSD that no private right of action exists under this section. “A violation of a state statute does not necessarily give rise to a private cause of action. Instead, whether a party has a right to sue depends on whether the Legislature has ‘manifested an intent to create such a private cause of action’ under the statute.” (Vasquez v. Solo 1 Kustoms, Inc. (2018) 27 Cal.App.5th 84, 90.) There is no indication in Penal Code § 11105 that the legislature intended a violation of subsection (t) to give rise to a private cause of action. That section contains one particular paragraph that gives rise to a cause of action: subparagraph (iv) of paragraph (10) of subdivision (c), which gives an “injured” employee “a cause of action against the public utility or cable corporation to recover damages proximately caused” by the entity’s violation of a provision allowing it to discover certain criminal records upon a showing of compelling need. No such provision exists for violations of subdivision (t).
Plaintiffs argue that it is immaterial whether a private right of action exists under this statute because Plaintiffs may seek declaratory relief as to whether a violation of this statute occurred. (Opposition at pp. 18–19.) Yet Plaintiffs present no authority for the proposition that a declaratory relief action will lie when no private right of action exists, and moreover, their FAC does not seek declaratory relief as to any violation of Penal Code § 11105, but rather limits the request for such relief to questions of constitutionality and Labor Code § 432.7. (FAC ¶¶ 94–97, 105.)
Accordingly, the motion is GRANTED as to the third cause of action.
DUE PROCESS — FOURTH CAUSE OF ACTION
LAUSD argues that the fourth cause of action for due process fails because Plaintiffs lack an interest in appellate review of their eligibility determinations subject to due process protection, and because administrative review was ultimately provided. (Motion at pp. 26–30.)
Application of the Due Process Clause of the California Constitution "must be determined in the context of the individual's due process liberty interest in freedom from arbitrary adjudicative procedures. Thus, when a person is deprived of a statutorily conferred benefit, due process analysis must start not with a judicial attempt to decide whether the statute has created an "entitlement" that can be defined as ‘liberty’ or ‘property,’ but with an assessment of what procedural protections are constitutionally required in light of the governmental and private interests at stake." (People v. Ramirez (1979) 25 Ca1.3d 260, 260-264.)
"Although under the state due process analysis an aggrieved party need not establish a protected property interest, the claimant must nevertheless identify a statutorily conferred benefit or interest of which he or she has been deprived to trigger procedural due process under the California Constitution and the Ramirez analysis of what procedure is due. The requirement of a statutorily conferred benefit limits the universe of potential due process claims: presumably not every citizen adversely affected by governmental action can assert due process rights; identification of a statutory benefit subject to deprivation is a prerequisite." (Ryan v. California Interscholastic Federation -San Diego Section (2001) 94 Cal.App.4th 1048, 1071, internal citations and quotation marks omitted.)
Here, Plaintiffs contend that they were denied “the administrative review process mandated by the Education Code and implemented by Defendants through its Rules, Operating Procedure, and Conviction Standards in connection with their application for employment with LAUSD.” (FAC ¶ 87.)
This court rejected an argument similar to that raised by LAUSD in overruling its previous demurrer to this same claim. The court identified provisions of the Education Code that required the adoption of rules “as may be necessary to insure the efficiency of the [classified] service and the selection and retention of employees upon a basis of merit and fitness.” (Educ. Code § 45260, subd. (a).)
In that previous ruling, the court pointed to LAUSD Rule 600 regarding rejection of applications, which is attached to the FAC as Exhibit 1, and which includes a requirement that any notice of rejection shall state that within seven calendar days of the notice the rejected individual may appeal to the Deputy Personnel Director for an administrative review. (FAC Exh. 1 at p. 3.) The court also pointed to LAUSD’s “Operating Procedure,” which provided that an applicant disqualified by the Conviction Review Committee may request a review of their record by an Administrative Review Committee. (FAC Exh. 2, subd. (c).) Because the FAC alleged that no administrative review had occurred, and since the rules providing for its occurrence originated in statutory authority, the court concluded that this was sufficient to allege an interest subject to due process protections. (See 6/8/2017 Order at p. 20.)
Here, LAUSD argues that Rule 600 is promulgated by the District’s personnel commission, which lacks jurisdiction over credentialed teachers like Roe, and because neither Rule 600 nor the personnel commission’s statutory grants of authority discuss its power to make rules governing criminal history reviews for applicants. (Motion at p. 27.) LAUSD also argues that Operating Procedure E-106 can form no basis for a due process claim because that rule was not promulgated pursuant to any direct grant statutory rulemaking authority. (Motion at p. 28.)
The court first concludes that Doe had a private interest subject to due process protection under the state constitution by virtue of Education Code §§ 45260 and 45261, which confer upon the district’s personnel commission the authority to create rules “regarding applications, examinations, eligibility, appointments, promotions, demotions” and other matters. (Educ. Code § 45261, subd. (a).) Pursuant to this authority, LAUSD’s personnel commission promulgated Rule 600, which opens with a preamble concerning applicable provisions of the Education Code barring employment for specified criminal offenses, and then proceeds to lay out criteria for evaluations of employment eligibility (including “[f]ailure to meet approved standards covering any other basis for rejection of unfit applicants and candidates,” such as LAUSD’s conviction guidelines), and then provides requirements for notice of the reasons for rejection and an opportunity for appeal. (Motion Exh. N.) The sole basis that LAUSD offers for arguing that Doe lacked an interest in receiving the benefits of this process is the testimony of its officers adduced in this litigation that, notwithstanding this statute and this rule, it is the District’s Office of Employee Relations, rather than the personnel commission, that is responsible for conviction review. (Hernandez Decl. ¶¶ 14–15.) Unstated in this argument is any reason why the District’s internal apportionment of responsibility ought to color a prospective employee’s expectations of the procedural protections to which their applications would be subject, in the face of a statute conferring the power to make rules concerning employment eligibility to the commission, and a rule promulgated pursuant to same outlining how such powers are to be exercised. Although neither specifically mention conviction review, there is no exclusion for same, and the subject matters implicated in both statute and rule reasonably include conviction review. There is thus a persuasive showing that applicants like Doe possess a statutory interest in the just processing of their applications, and LAUSD has made only a meager showing controverting this interest’s existence.
Nor have Defendants’ controverted Roe’s alleged interest in the due process of her own conviction review. It is alleged that Roe applied for employment with LAUSD in late 2013, that was placed on the eligibility list and hired, was fingerprinted in July 2014, and taught classes as a substitute in August 2014 as her background check results were delayed. (FAC ¶¶ 42–45.) Defendants have presented no evidence or argument directed toward rebutting this factual account, in either its motion or reply. While Roe may thus be deemed a certified employee exempt from personnel commission regulations for classified employees under Education Code § 45256, subd. (b)(1), Roe, as someone on the district’s eligibility list, had a constitutional interest in the adequate process of her removal from that list. (See Educ. Code § 44948.3 [defining dismissals for cause for probationary certificated employees, and requirements of notice and hearing]; Stana v. School Dist. Of City of Pittsburgh (3d Cir. 1985) 775 F.2d 122, 125–26 [holding teacher’s placement on eligibility list was a “property interest” protected by procedural due process guarantee].) Although this argument is discussed by Roe in Opposition, Defendants present no response to this argument in reply. (Reply at pp. 12–14.)
The District further argues that the due process claims are moot because both Doe and Roe have received their administrative hearings, and the District has since amended their HR 9071 letter to inform disqualified applicants that they may initiate an appeal of the decision by emailing the employee relations department. (Motion at pp. 29–30.)
But triable issues remain as to whether the review process that Doe and Roe were afforded complied with constitutional procedural guarantees. Doe was informed of disqualification by a letter stating, “[Y]ou have been disqualified and have been separated from any employment to which you have been assigned,” which provided no reason for the decision nor any notice of Doe’s right to appeal. (Motion Exh. G.) After Doe sent in an appeal to the personnel commission, the commission responded in January 2015 by directing him to the office of employee relations. (Motion Exh. H.) After Doe filed suit, his appeal was evidently transferred to LAUSD’s offer of general counsel and no further progress was made. (Hernandez Decl. ¶ 41.) Hernandez testifies that the District denied his employment eligibility because of his multiple convictions, but he provides no foundation for his conclusion that this was the basis. (Hernandez Decl. ¶ 42.)
As for Roe, she disclosed her criminal record to LAUSD, and was evidently informed of problems with her background check at some point on August 24 or 25, 2014. (Opposition Exhs. 4, 5.) On August 25, Roe sent an email asking another person to intercede on her behalf, apparently under the impression that the district or court had miscommunicated her record to omit the dismissal of her conviction. (Opposition Exh. 6.) Roe on the morning of August 28 sent a letter requesting a reason for the denial of her employment on August 28, 2014. (Opposition Exh. 8.) That afternoon Roe received a letter from Michael Voight, LAUSD employee relations coordinator, informing her that she had “not met the selection criteria required, for the position you applied for, with the Los Angeles School District.” (Motion Exh. K.) On September 12, 2014, the District’s employee relations section sent a letter to Roe stating that an administrative review was held pursuant to Roe’s request, and in consideration of the documents that she provided, the committee had “determined that it would not be appropriate to approve employment eligibility.” (Motion Exh. L.) However, the letter’s statements that a review was held, or that Roe had requested one, are both hearsay, and Hernandez’s declaration that both occurred are made without foundation. (Hernandez Decl. ¶ 47.)
As for corrective measures that LAUSD argues have since made the due process challenge moot, these consist of alterations made to form HR 9071 letter, which now advises applicants, “I regret to inform you that, after a careful review, it has been determined that you have not met the selection requirements necessary to be employed, or to volunteer, at LAUSD.” (Motion Exh. B.) The letter goes on: “If you have questions regarding this matter, or if you would like to appeal this decision, please send an email to the following address: firstname.lastname@example.org. Please note that some Education Code violations do not qualify for an appeal.” (Motion Exh. B.) If an applicant follows up with this form, they are then given an “Appeal Request Form,” asking them to provide a resume and three letters of recommendation, and to respond to the following prompts:
Describe the events that led up to the following incident: Date Penal code desc. OR allegation. Please describe your actions, and those of any other involved parties (e.g., bystanders, police officers, witnesses), while providing as much detail as possible.
What events took place immediately before the incident described above? (e.g., discussions you had with involved parties prior to the incident, prior confrontations with the other party)
What happened immediately after this incident? Please describe your activities as well as the activities of any other pertinent party (e.g., court actions, plea deals, disciplinary meetings)
What have you learned from this experience?
If a similar situation were to present itself, would you do anything differently? If yes, please explain.
Is there any other information that you would like to provide to the Administrative Review Committee that you believe would be helpful?
(Motion Exh. C.)
Due process analysis is flexible to adapt to myriad situations, and necessarily “depends on a careful and clearly articulated balancing of the interests at stake in each context.” (People v. Ramirez (1979) 25 Cal.3d 260, 269.)
[I]dentification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
(Id. at p. 269.)
It should be noted that Defendants do not attempt to justify the procedures afforded its applicants according to the above standard, but argue in conclusory fashion that both Doe and Roe were afforded an opportunity for administrative review of the decision to deny them eligibility. (Motion at p. 29.) But as to Roe, this claim has little factual basis: There is no evidence that she was informed of her right to an appeal, that she requested an appeal, or that any review was actually held, save for the hearsay attestations contained in a letter dated September 12, 2014. And while the District argue that Doe cut his own appeal short by his initiating litigation and his failure to appeal to the correct entity, their argument fails to consider that Doe’s appeal might have been expedited by the District’s timely provision of the reasons for the its decision, appropriate notice to Doe concerning his right to appeal, and directions concerning how such an appeal might be mounted. Thus the court has little basis to conclude that either plaintiff received the benefits of an administrative review. This being the case, the court has less basis to conclude that the District’s after-the-fact alterations to its form letter and appeal form render either plaintiff’s claims moot.
Accordingly, the motion for summary judgment is GRANTED only as to the Third Cause of Action, but otherwise DENIED.
 Plaintiffs also point out that Penal Code § 1203.4a, which provides relief for those not placed on probation, permits dismissal of charges if the affected person, after entry of judgment, has “lived an honest and upright life and has conformed to and obeyed the laws of the land.” (Penal Code § 1203.4a, subd. (a).) Although this standard is like that articulated in Penal Code § 4852.05 applicable to those seeking certificates of rehabilitation for felonies, Plaintiffs here were not afforded relief under Penal Code § 1203.4a. (FAC ¶ 3.)
 Indeed, the FAC alleges that the letter was unusual as Roe had not been informed that a hearing was taking place. (FAC ¶ 50.)