Adler v. Los Angeles Unified School Dist.

CourtCalifornia Court of Appeals
Writing for the CourtCOBEY
Citation98 Cal.App.3d 280,159 Cal.Rptr. 528
PartiesMarcus ADLER, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. Civ. 54614.
Decision Date31 October 1979

Page 528

159 Cal.Rptr. 528
98 Cal.App.3d 280
Marcus ADLER, Plaintiff and Appellant,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
Civ. 54614.
Court of Appeal, Second District, Division 3, California.
Oct. 31, 1979.
Hearing Denied Jan. 3, 1980.

[98 Cal.App.3d 283]

Page 529

Morris L. Davidson, Los Angeles, for plaintiff and appellant.

John H. Larson, County Counsel, Dennis M. Gonzales, and Gordon J. Zuiderweg, Deputy County Counsels, Los Angeles, for defendants and respondents.

[98 Cal.App.3d 284] COBEY, Acting Presiding Justice.

Plaintiff, Marcus Adler, appeals from a judgment granting him an alternative writ of mandate and from a partial summary judgment in favor of defendants, Los Angeles Unified School District, et al., with respect to other causes of action of plaintiff's third amended complaint. 1

FACTS 2

On or about May 8, 1969, plaintiff, a probationary high school social studies teacher for defendant District, voluntarily resigned his position effective June 20, 1969. Three days prior to his resignation becoming effective, plaintiff, while teaching in his classroom, was assaulted and injured by a student. The next day the principal of his high school rated plaintiff's work unsatisfactory in a performance report. On or about July 1, 1969, plaintiff learned of this unsatisfactory rating and immediately demanded an investigation and hearing thereon as required by the grievance and adjustment procedures of the District.

Page 530

The District denied this demand principally on the ground that since plaintiff had resigned, he, as an ex-employee, was no longer entitled to these procedures.

On or about August 24, 1970, plaintiff initiated this litigation. He did not, however, serve his complaint on defendants. About three years later (August 20, 1973) he caused a first amended complaint to be filed and served upon defendants. Approximately five and one-half months thereafter (February 8, 1974) he filed and served a second amended complaint upon defendants. About six and one-third months subsequent (August 19, 1974) he filed and served upon defendants his third amended complaint. This is the pleading upon which the trial court granted the partial summary judgment and upon which, among other things, the trial, culminating in the issuance of an alternative writ of mandate, was had. 3

[98 Cal.App.3d 285] The third amended complaint contains five purported causes of action. The first of these is for loss of future earnings alleged to be in excess of $300,000 and is founded upon various alleged breaches of contract by defendants in not providing plaintiff a safe place to teach and in not granting him a grievance hearing on his unsatisfactory rating. In the second cause of action plaintiff claims that defendants in refusing to accord him a grievance hearing on his unsatisfactory rating violated his federal constitutional rights under the 1871 Federal Civil Rights Act (42 U.S.Code, § 1983) and that this refusal being willful and malicious entitled him to $100,000 in punitive damages. The third cause of action is for injunctive relief with respect to the denial of the grievance hearing. 4 In the fourth cause of action plaintiff alleges that his resignation was coerced and therefore a writ of mandate should issue restoring him to his teaching position. Plaintiff asks in his final cause of action, the fifth, for specified disability pay of 12 weeks and 1 year as required by statute and Board rules for injuries incurred by him in the aforementioned classroom assault by a student.

The trial court granted defendants summary judgment as to the first, second, third and fifth causes of action. 5 It also granted to plaintiff, after trial, an alternative writ of mandate directing that the District either replace plaintiff's unsatisfactory rating with a satisfactory rating or initiate grievance procedures with respect to the unsatisfactory rating. We understand from the briefs of the parties that the District has complied with the first alternative.

DISCUSSION

1. The Summary Judgment for Defendants on the First Cause of Action for Damages for Breach of Contract Was Proper.

Government Code section 945.4 provides, with exceptions here immaterial, that no suit for money or damages may be brought against a [98 Cal.App.3d 286] public entity on a cause of action for which a claim is required to be presented until such a claim has been properly presented to the public entity and has been acted upon or been deemed to be rejected by the public entity. With an exception here immaterial, Government Code section 950.2 provides that a cause of action against a public employee for injury resulting from

Page 531

an act or omission within the scope of his or her employment is barred whenever an action against his or her employer for such injury is likewise barred.

A claim relating to a cause of action for injury to a person must be presented not later than the 100th day after the accrual of the cause of action according to Government Code section 911.2. A cause of action for this purpose, under Government Code section 901, accrues on the date upon which it would be deemed to have accrued for statute of limitations purposes. In the case of an injury to a person, such accrual occurs when the wrongful act was done. (See Los Angeles City Sch. Dist. v. Superior Court (1970) 9 Cal.App.3d 459, 467, 88 Cal.Rptr. 286; 2 Witkin, Cal.Procedure (2d ed. 1970) Actions, § 263, p. 1116.)

The District's position is that plaintiff never presented a timely claim to it for the monetary damages which he now asserts in his first cause of action of the third amended complaint. In January 1977 plaintiff did apply to the trial court for permission to be exempted, pursuant to Government Code section 946.6, from the claim presentation requirement. The trial court denied this application on the ground that plaintiff had not applied to the District for leave to file a late claim within a year after the accrual of his cause of action. Plaintiff appealed this denial of such relief but thereafter apparently abandoned this appeal by taking no further action with respect to it.

Plaintiff, in an obvious change of position, now contends that the first cause of action pled by him in his third amended complaint did not accrue until the judgment in mandamus was rendered in his favor on June 28, 1977, and that he thereafter presented to the District a timely claim. The record on appeal does not contain this claim and his reliance on Myers v. County of Orange (1970) 6 Cal.App.3d 626, 635-636, 86 Cal.Rptr. 198, and Olson v. County of Sacramento (1974) 38 Cal.App.3d 958, 963-965, 113 Cal.Rptr. 664, is misplaced. They both involve a tolling of the claims presentation period for the time during [98 Cal.App.3d 287] which the respective plaintiffs therein were either exhausting their administrative remedies, as required, or establishing judicially the requisite wrongfulness of the defendants' conduct. There were no precedent...

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18 practice notes
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • May 12, 1981
    ...County, 43 Or.App. 583, 603 P.2d 1216 (1979); Ingram v. Moody, Ala., 382 So.2d 522 (1980); Adler v. Los Angeles Unified School Dist., 98 Cal.App.3d 280, 159 Cal.Rptr. 528 (1979); Tyler v. Whitehead, Mo.App., 583 S.W.2d 240 (1979)." W.Va., 271 S.E.2d at To paraphrase Preiser, we need not for......
  • Harrah v. Leverette, Nos. 14321
    • United States
    • Supreme Court of West Virginia
    • October 7, 1980
    ...County, 43 Or.App. 583, 603 P.2d 1216 (1979); Ingram v. Moody, Ala., 382 So.2d 522 (1980); Adler v. Los Angeles Unified School Dist., 98 Cal.App.3d 280, 159 Cal.Rptr. 528 (1979); Tyler v. Whitehead, Mo.App., 583 S.W.2d 240 When the state is guilty of extraordinary dereliction, discharge is ......
  • Inmates of Sybil Brand Institute for Women v. County of Los Angeles
    • United States
    • California Court of Appeals
    • March 24, 1982
    ...in view of the existence of [Code of Civil Procedure] section 1021.5. [Citations.]" (Adler v. Los Angeles Unified School Dist. (1979) 98 Cal.App.3d 280, 290, fn. 11 [159 Cal.Rptr. 9 The issue is presently pending before the California Supreme Court in Serrano v. Unruh formerly reported at 1......
  • Short v. Nevada Joint Union High School Dist.
    • United States
    • California Court of Appeals
    • January 23, 1985
    ...v. Oakland Unified School Dist. (1981) 114 Cal.App.3d 804, 806-807, 170 Cal.Rptr. 867; Adler v. Los Angeles Unified School Dist. (1979) 98 Cal.App.3d 280, 285, 286-287, 159 Cal.Rptr. 528.) We treat the claim as one at law for 3 Public high school employees have collective bargaining rights,......
  • Request a trial to view additional results
18 cases
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • May 12, 1981
    ...County, 43 Or.App. 583, 603 P.2d 1216 (1979); Ingram v. Moody, Ala., 382 So.2d 522 (1980); Adler v. Los Angeles Unified School Dist., 98 Cal.App.3d 280, 159 Cal.Rptr. 528 (1979); Tyler v. Whitehead, Mo.App., 583 S.W.2d 240 (1979)." W.Va., 271 S.E.2d at To paraphrase Preiser, we need not for......
  • Harrah v. Leverette, Nos. 14321
    • United States
    • Supreme Court of West Virginia
    • October 7, 1980
    ...County, 43 Or.App. 583, 603 P.2d 1216 (1979); Ingram v. Moody, Ala., 382 So.2d 522 (1980); Adler v. Los Angeles Unified School Dist., 98 Cal.App.3d 280, 159 Cal.Rptr. 528 (1979); Tyler v. Whitehead, Mo.App., 583 S.W.2d 240 When the state is guilty of extraordinary dereliction, discharge is ......
  • Inmates of Sybil Brand Institute for Women v. County of Los Angeles
    • United States
    • California Court of Appeals
    • March 24, 1982
    ...in view of the existence of [Code of Civil Procedure] section 1021.5. [Citations.]" (Adler v. Los Angeles Unified School Dist. (1979) 98 Cal.App.3d 280, 290, fn. 11 [159 Cal.Rptr. 9 The issue is presently pending before the California Supreme Court in Serrano v. Unruh formerly reported at 1......
  • Short v. Nevada Joint Union High School Dist.
    • United States
    • California Court of Appeals
    • January 23, 1985
    ...v. Oakland Unified School Dist. (1981) 114 Cal.App.3d 804, 806-807, 170 Cal.Rptr. 867; Adler v. Los Angeles Unified School Dist. (1979) 98 Cal.App.3d 280, 285, 286-287, 159 Cal.Rptr. 528.) We treat the claim as one at law for 3 Public high school employees have collective bargaining rights,......
  • Request a trial to view additional results

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