Peles v. La Bounty

Citation153 Cal.Rptr. 571,90 Cal.App.3d 431
CourtCalifornia Court of Appeals
Decision Date14 March 1979
PartiesAmit PELES, Plaintiff and Appellant, v. Hugh O. LaBOUNTY, Jr., Arthur G. Covarrubias, et al., Defendants and Respondents. Civ. 53607.

William R. Bernstein, Tustin, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., Thomas M. Scheerer, Deputy Atty. Gen., for defendants and respondents.

ASHBY, Associate Justice.

Plaintiff Amit Peles appeals from the denial of his "Petition for Writ of Mandate to Reinstate Student After Expulsion From University." The trial court denied the petition after sustaining defendants' demurrer on the ground that the action was barred by the statute of limitations.

In early 1973 plaintiff, who was then a graduate student engaged in a master's program at California State Polytechnic University, Pomona, was terminated from the program on grounds he committed plagiarism in his research project submitted in lieu of a master's thesis. He was permanently expelled from any other program at the institution. The charge of plagiarism was found true at a university hearing conducted April 30, 1973, and the hearing officer's recommendation of permanent expulsion was "approved" by the president of the university on May 9, 1973.

Plaintiff did not file the instant petition until August 11, 1977, more than four years later. The theory of the petition was that the decision to expel him was effectively made on January 22, 1973, and that the hearing of April 30 violated due process because it was not conducted "before" the alleged actual decision. 1 The petition further alleged that the hearing was unfairly conducted and that the hearing officer was biased.

The petition alleged that defendants 2 have an affirmative duty to remedy the alleged constitutional violation; that on July 11, 1977, plaintiff made a formal demand on defendants to reinstate him as a student; and that such demand was "summarily refused" on July 14, 1977.

DISCUSSION

We hold the trial court correctly determined that plaintiff's action is barred by the statute of limitations. The thrust of the petition is to challenge the validity of the decisions made on January 22, April 30, and May 9, 1973. The petition was not filed until more than four years later, on August 11, 1977. The action is founded upon constitutional rights and upon regulations governing the California State University and Colleges enacted pursuant to statute (reorganized Ed.Code, § 89030; Cal.Admin.Code, tit. 5, § 41301 et seq.). Therefore the applicable statute of limitations is three years for actions based on a liability created by statute. (Code Civ.Proc., § 338, subd. 1; see Monroe v. Trustees of the California State Colleges, 6 Cal.3d 399, 405, 99 Cal.Rptr. 129, 491 P.2d 1105.) 3

Relying upon Monroe v. Trustees of the California State Colleges, supra, plaintiff contends that the petition states a separate cause of action for "refusal to reinstate," and that the time had not run on such cause of action in view of the allegation that plaintiff demanded reinstatement on July 11, 1977, which demand was refused on July 14, 1977. Plaintiff's reliance on Monroe is misplaced. In 1950 Monroe was discharged from his position as professor at a state college solely on the basis of his refusal to sign the "Levering" loyalty oath. He pursued administrative remedies but then did not resort to the courts since the constitutionality of the oath had been upheld in 1952. Years later, in December 1967, the California Supreme Court overruled its 1952 decision, and held the oath was unconstitutional. Immediately after that decision, Professor Monroe requested the trustees of the California state colleges to reinstate him in his position, which request was denied. Within six months he filed a petition for writ of mandate.

On appeal from a judgment of dismissal of the petition, the Supreme Court held that to the extent the petition challenged the original discharge in 1950, the action was barred by the statute of limitations. However, the court held that the petition also stated a claim for reinstatement which was not barred by the statute of limitations. The court's theory was that since the sole basis for Monroe's discharge was his refusal to sign the oath, the subsequent invalidation of the oath as unconstitutional "removed the sole disability" and entitled him, under a certain provision of the Education Code, to reinstatement. (6 Cal.3d at [90 Cal.App.3d 436] p. 410, 99 Cal.Rptr. 129, 491 P.2d 1105.) The trustees' refusal to reinstatement him, in 1968, after the invalidation of the sole previous ground for his discharge, gave rise to a new cause of action for wrongful refusal to reinstate, which did not accrue until 1968, and which was therefore within the period of limitations. (Id., at p. 408, 99 Cal.Rptr. 129, 491 P.2d 1105. See also Lerner v. Los Angeles City Board of Education, 59 Cal.2d 382, 29 Cal.Rptr. 657, 380 P.2d 97, discussed in Monroe.)

The instant case is not like Monroe or Lerner. What gave rise to a separate cause of action for refusal to reinstate in those cases was an intervening event. Monroe had no right to reinstatement until the oath was declared unconstitutional, and Lerner had no right to reinstatement until his teaching credential was restored. Monroe and Lerner acted within a reasonable time to demand reinstatement after the intervening event, and to file a court action upon the refusal of that demand.

The instant case is different. There is no intervening event which gave plaintiff a right to reinstatement which he did not have previously. Plaintiff's sole ground for reinstatement is the alleged invalidity of the 1973 proceedings. If he was entitled to reinstatement by virtue of a defect in those proceedings, he was so entitled in 1973 4 and the time commenced to run. He could have challenged those proceedings by mandate in a timely manner, but failed to do so. He may not indefinitely extend the statute of limitations by postponing the time of his demand for reinstatement. (Dillon v. Board of Pension Commrs., 18 Cal.2d 427, 430, 116 P.2d 37.)

In an attempt to bring this case within the Monroe mold, plaintiff argues that the enactment of reorganized Education Code section 67133, operative April 30, 1977, gave him a new cause of action analogous to the intervening event in Monroe. This argument is without merit. Education Code section 67133 merely gives a student the right to include in his student record his written statement or response concerning the disciplinary action. 5 It does not create a right of reinstatement as did the invalidation of the loyalty oath in Monroe.

Plaintiff contends that the statute of limitations was tolled during a period in which plaintiff was allegedly pursuing "administrative remedies." His alleged pursuit of these remedies is not contained in the petition and is wholly outside the record on appeal. 6 Plaintiff refers in his reply brief to a series of letters in 1973, 1974, and 1976 which requested reconsideration, modification, reinstatement or qualified reinstatement. Obviously, the statute of limitations is not normally tolled merely by correspondence between the parties in which the defendant is requested to reconsider its position. Plaintiff's reliance on Valvo v. University of Southern California, supra, 67 Cal.App.3d 887, 136 Cal.Rptr. 865, is misplaced. In that case, involving a student dismissed from a medical school, the petition alleged in detail that the university had specific administrative remedies for readmission of dismissed students, which a dismissed student "must follow." (Id., at pp. 893, 894, 136 Cal.Rptr. 865.) Here plaintiff has failed to show that defendants had any administrative procedures which plaintiff was required to follow in seeking reinstatement and which would therefore excuse his lengthy delay.

Plaintiff next contends that certain regulations governing student discipline at the California State University and Colleges entitle him to a new hearing on the 1973 plagiarism charges whenever plaintiff applies for readmission. These arguments have no merit. The regulations referred to do not require the university to relitigate the matters occurring in 1973 as to which the applicable statute of limitations has run.

First, plaintiff refers to his "right" as a California resident to attend a state institution of higher education. 7 However, this right obviously may be denied to a student who has abused it in the past. Title 5 of the California Administrative Code section 41303 8 provides:

"Conduct by Applicants for Admission. Notwithstanding any provision in this Chapter 1 to the contrary, admission or readmission may be qualified or denied to any person who, while not enrolled as a student, commits acts which, were he enrolled as a student, would be the basis for disciplinary proceedings pursuant to Sections 41301 or 41302. Admission or readmission may be qualified or denied to any person who, while a student, commits acts which are subject to disciplinary action pursuant to Section 41301 or Section 41302. Qualified admission or denial of admission in such cases shall be determined under procedures adopted pursuant to Section 41304." (Emphasis added.)

Plagiarism is an act which is...

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