Adler v. Los Angeles Unified School Dist.

• Citation: 98 Cal.App.3d 280,159 Cal.Rptr. 528
• Court: California Court of Appeals
• Decision Date: 31 October 1979
• Parties: Marcus ADLER, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. Civ. 54614.

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.

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.

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.

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

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 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 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.)

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.

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 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 remedies that plaintiff had to exhaust in this case nor did he have to establish judicially first the wrongfulness of the District's denial to him of a grievance hearing before presenting to the District a claim for the monetary damages flowing therefrom. We will, therefore, affirm the summary judgment for defendants as to the first cause of action.

2. The Summary Judgment Dismissing Plaintiff's Fifth Cause of Action Was Improper.

The trial court dismissed plaintiff's cause of action for specified disability pay for the injuries plaintiff incurred in the classroom attack by a student on June 17, 1969, apparently on the same ground of noncompliance with the statutory claim requirement and because plaintiff's recovery of approximately $37,725 net in workers' compensation benefits constituted his exclusive remedy for such physical injuries.

In so doing the trial court erred. Government Code section 905, subdivision (c), exempts from the claim requirement "Claims by public employees for fees, salaries, wages, mileage or other expenses and Allowances." (Italics added.) We believe that plaintiff's claim for special disability pay in this fifth cause of action constituted an allowance within the meaning of the subdivision. (Cf. Longshore v. County of Ventura (1979)25 Cal.3d 14, 22, 157 Cal.Rptr. 706, 598 P.2d 866 (overtime pay).)

Defendants call our attention to Government Code section 935, subdivision (a), which authorizes a local public entity to impose a claims procedure upon claims exempted by the just-mentioned section 905 and to Board rule 1206 which requires the presentation of claims to the District for matters covered by the just-mentioned statutory exemption. This Board rule, however, was not adopted until September 11, 1969 (Ruggiero v. Los Angeles City Unified Similarly, plaintiff's compromise workers' compensation gross award of $43,900 does not constitute a bar to this cause of action. It no doubt does have that effect so far as any recovery by plaintiff of damages for these personal injuries in a civil suit is concerned (see Lab.Code, § 3601) but it does not prevent the payment of plaintiff's full salary (made up in part of workers' compensation benefits) for a limited period pursuant to Education Code section 44984 and Board rules 3283 and 3284 implementing that statute. ⁶

Sch. Dist. (1973) 33 Cal.App.3d 970, 975, 109 Cal.Rptr. 417) which is almost three months after this cause of action for personal injuries accrued. It contains no provision purporting to make it retroactive in effect. This being so, it may not be so applied. (See 2 Am.Jur.2d, Administrative Law, § 308, p. 137.) Accordingly, it cannot bar this cause of action. (Cf. McGranahan v. Rio Vista, etc., Sch. Dist. (1964) 224 Cal.App.2d 624, 629, 36 Cal.Rptr. 798.)

3. The Summary Judgment Dismissing Plaintiff's Second Cause of Action is Likewise Now Improper.

Since the rendition of the partial summary judgment under appeal on June 28, 1977, the United States Supreme Court decided on June 6, 1978 Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-691,...