Opinion

Petitioner California School Employees Association (CSEA) and Dieter Nicklesberg, a classified employee of respondent Los Angeles City Unified School District of Los Angeles County (District) sought a writ of mandate compelling District:

The order placing employees on unpaid leaves of absence never went into effect. It is therefore moot and not subject to judicial review.

The trial court denied the petition, entering the following findings of fact:

The trial court also concluded that:

District contests petitioner’s assertion that it lacks the right or power to place the employees in question on unpaid leaves of absence not to exceed five or two days, as the case may be. There is, accordingly, a present and actual controversy before us as to the validity of District’s rules and we proceed to adjudicate that dispute. (Chas. L. Harney, Inc. v. Contractors’ Bd. (1952) 39 Cal.2d 561, 564 [ 247 P.2d 913 ]; Klinker v. Klinker (1955) 132 Cal.App.2d 687, 693 [ 283 P.2d 83 ]; see Gov. Code § 11440.)

Petitioner contends that the leave of absence provision of the Education Code, limiting the reasons for leave to illness, injury, vacation and the like, impliedly prohibit District from granting unpaid leaves of absence for the reason set forth in the findings of the trial court. Education Code section 13652, however, specifically refutes this contention:

“When any provision of this code expressly authorizes or requires the governing board of a school district to grant a leave of absence for ány purpose or for any period of time to persons employed in positions not requiring certification qualifications, that express authorization or requirement does not deprive the governing board of the power to grant leaves of absence with or without pay to such employees for other purposes or for other periods of time, so long as the governing board does not deprive any employee of any leave of absence to which he is entitled by law.” (Italics added.)

It is apparent that District’s rules 1990, 3008 and 4008 are not in conflict with existing legislation; no claim is made that these rules have been or are being used to deprive petitioner of a leave to which he is entitled by law.

We find nothing in the cited rules which supports petitioner’s contention that they constitute a deprivation of the constitutionally guaranteed right to equal protection of the laws. Petitioner’s fundamental right to pursue a gainful occupation (Takahashi v. Fish & Game Commission (1948) 334 U.S. 410 [ 92 L.Ed. 1478 , 68 S.Ct. 1138 ]) is obviously not at stake nor do the uncontested facts before us show a reclassification or layoff of petitioner. Constitutional arguments based upon such nonexistent facts are misplaced. The distinction between 11- and 12-month employees, subjecting the latter to a longer period of leave, is rationally based on the longer period of employment of 12-month employees. Selecting petitioner and his colleagues to the drastically limited periods of unpaid leave when, by definition, their functions are administrative in nature and tied to the schools’ physical operation is an eminently practical, and fair, measure, especially when it is used to curtail administrative expenses during school vacations.

The judgment is affirmed.

Fleming, J., and Compton, J., concurred.

A petition for a rehearing was denied January 7, 1977, and appellants’ petition for a hearing by the Supreme Court was denied February 17, 1977.