Tiffany v. Sierra Sands Unified School Dist.

• Decision Date: 07 March 1980
• Citation: 162 Cal.Rptr. 669,103 Cal.App.3d 218
• Court: California Court of Appeals Court of Appeals
• Parties: Ellis L. TIFFANY, Plaintiff and Appellant, v. SIERRA SANDS UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. Civ. 3820.

Page 669

162 Cal.Rptr. 669

103 Cal.App.3d 218

Ellis L. TIFFANY, Plaintiff and Appellant, v. SIERRA SANDS UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

Civ. 3820.

Court of Appeal, Fifth District, California.

March 7, 1980.

George E. Dalton, Los Angeles, for plaintiff and appellant

Richard C. Anthony and Frank J. Fekete, Bakersfield, for defendants and respondents.

OPINION

ZENOVICH, Associate Justice.

Plaintiff Ellis L. Tiffany filed a complaint for declaratory relief in Kern County Superior Court against defendants Sierra Sands Unified School District (hereinafter District) and the governing board of District (hereinafter Board). Defendants District and Board answered the complaint, setting forth various affirmative defenses, including failure to state a cause of action. At the beginning of trial, defendant District moved for judgment on the pleadings. Following oral argument on the motion, the trial court denied the defense motion without prejudice to its being renewed at a later date. Certain evidence was then presented by plaintiff as support for his cause of action. After listening to the testimony presented on behalf of plaintiff, the court permitted counsel for both parties to submit briefs in the event that defendant District renewed its motion for judgment on the pleadings.

Thereafter, defendant District renewed its motion for judgment on the pleadings by a letter to the court. The trial court granted the defense motion, ordering "that judgment be granted for defendants; that this action be, and the same hereby is, dismissed with prejudice; plaintiff is to take nothing by this action; and defendants are to recover their costs of suit herein." Plaintiff appeals.

Since the motion for judgment on the pleadings performs the same function as a general demurrer, the facts alleged in the pleading must be accepted as true for purposes of review. (See Baillargeon v. Department of Water & Power (1977) 69 Cal.App.3d 670, 676, 138 Cal.Rptr. 338.) The complaint alleged that appellant was a school psychiatrist for the Indian Wells Valley Joint Union School District (hereinafter Indian Wells) during the 1970-1973 school years. Appellant was also employed as director of pupil personnel services and director of special education at Indian Wells during the 1973-1974 school year. The complaint averred that the duties assigned to appellant during the 1973-1974 school year entailed district-wide responsibilities which required certification qualifications. Following a successful unification election in May 1973, Indian Wells was unified into the District, effective July 1, 1974. Subsequent to the unification, appellant alleges that he was demoted from his position as director of pupil personnel services and as director of special education to the position of school psychologist.

The complaint then sets forth the allegations underlying appellant's claim for declaratory relief. In paragraph 10 of the complaint, appellant contended that respondent District had a duty to employ appellant in the same position of director of special services as he held in Indian Wells following the unification of the two areas. Further, appellant alleged that his demotion from the position of director in the former district to the office of school psychologist was not a reasonable assignment of duties. In his complaint, appellant also claimed that as a result of respondent District's action in demoting him from the position of director, he sustained damages such as a loss of supervisorial responsibilities and a reduction in salary. Moreover, appellant specifically maintained that he was damaged by not being hired for at least two years in the same or equivalent position held during his employment with Indian Wells.

Appellant requested in his complaint that the court should make the following declaration: "Upon unification of the prior districts and the creation and establishment of defendant School District, plaintiff was, and now is, entitled to be employed in the position of a 'Director' in said District for the same period of time as other persons so employed since unification, but in no event for less than two years in the same or equivalent position in which he was employed prior to unification; . . . "

In its answer to the complaint, respondent District denied certain allegations and affirmatively alleged that appellant's contract with Indian Wells for the 1973-1974 school year expired by its own express terms on June 30, 1974. Respondent District further averred that appellant was properly and reasonably assigned as a school psychologist in the District for the 1974-1975 school year, referring to a contract dated August 16, 1974, between appellant and the new district. Based on the following allegations, respondent District concluded in its answer: "There was no duty on the part of defendants to employ plaintiff beyond the expiration of plaintiff's 1973-74 contract in the position of 'Director' or any other position of comparable responsibility and plaintiff has not been demoted or denied any contractual or statutory rights pertaining to reassignment, classification or otherwise." Respondent also alleged certain affirmative defenses, including the claim that the complaint failed to state a cause of action.

Following the initial denial of the defense motion for judgment on the pleadings, certain evidence was adduced at a proceeding before the trial court. Marvin Heinsohn, a former assistant superintendent at District and a former administrator at Indian Wells, testified that appellant did not receive any notice during the 1973-1974 school year about being dismissed or removed from his administrative position. Appellant took the stand and testified that he did not receive any extension of his employment as an administrator with Indian Wells beyond the time mentioned in the one-year contract, which terminated on June 30, 1974. Appellant also conceded that he signed a contract (dated Aug. 16, 1974) with District for the 1974-1975 school year as a school psychologist, and that he failed to execute the contract "under protest." In addition, Howard Harmon, former superintendent of District, testified that appellant failed to submit any written grievances or statements of protest until the 1975-1976 and 1976-1977 school years.

Before examining appellant's contentions, it is pertinent to consider the standard of appellate review applicable when judgment has been granted on the pleadings. It is clearly established that a motion for judgment on the pleadings which challenges the insufficiency of a plaintiff's cause of action is tantamount to a general demurrer. (MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 812-813, 161 P.2d 449; Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 275, 239 P.2d 630; Welshans v. City of Santa Barbara (1962) 205 Cal.App.2d 304, 305, 23 Cal.Rptr. 108.) Unlike a demurrer, however, the motion may be made at any time before final judgment and without prior notice at trial. (4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, §§ 166, 167, p. 2820; Morel v. Morel (1928) 203 Cal. 417, 418, 264 P. 760; Macbeth v. West Coast Packing Corp. (1947) 83 Cal.App.2d 96, 99, 187 P.2d 815.) Whenever the declaratory judgment is on the pleadings, the standard of appellate review is the same as for a judgment of dismissal which follows the sustaining of a general demurrer. The issue on appeal then becomes whether a cause of action has been stated, and the allegations in the complaint must be taken as true in resolving the question. (Gill v. Curtis Publishing Co., supra, 38 Cal.2d at p. 275, 239 P.2d 630; Beverage v. Canton Placer Mining Co. (1955) 43 Cal.2d 769, 772, 278 P.2d 694; Dohrmann Co. v. Security Sav. & Loan Assn. (1970) 8 Cal.App.3d 655, 662, 87 Cal.Rptr. 792.)

For purposes of review, the motion for judgment on the pleadings is confined to the face of the pleading under attack. (Baillargeon v. Department of Water & Power, supra, 69 Cal.App.3d at pp. 675-676, 138 Cal.Rptr. 338; 4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 162, pp. 2817-2818.) Since it is analogous to a general demurrer, the motion for judgment on the pleadings admits all material and issuable facts pleaded. (Colberg, Inc. v. State of California ex rel. Dept. Pub. Wks. (1967) 67 Cal.2d 408, 412, 62 Cal.Rptr. 401, 432 P.2d 3, cert. den. (1968), 390 U.S. 949, 88 S.Ct. 1037, 19 L.Ed.2d 1139.) In ruling upon the motion, the facts alleged in the pleading attacked must be accepted as true, although the court may consider matters subject to judicial notice, including competent evidence of record in the lower court. (Stencel Aero Engineering Corp. v. Superior Court (1976) 56 Cal.App.3d 978, 986-987 and fn. 6, 128 Cal.Rptr. 691; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 630, 99 Cal.Rptr. 393.)

I.

Appellant initially contends that the trial court erred in dismissing the action with prejudice, since a motion for judgment on the pleadings should not be granted without first giving the party an opportunity to amend his pleadings. (See MacIsaac v. Pozzo, supra, 26 Cal.2d at p. 816, 161 P.2d 449.) Although this is a correct statement of the law, we are of the opinion that the trial court did not err when it entered a judgment of dismissal under the circumstances of the present case.

Even though stating that a dismissal may be error in many cases involving a judgment on the pleadings, MacIsaac also noted:

" 'If plaintiff has a good cause of action, which by accident or mistake he has failed to set out in his complaint, the court, on motion for judgment on the pleadings, should, On his application so to do, permit him to amend.' " (MacIsaac v. Pozzo, supra, 26 Cal.2d at p. 815, 161 P.2d 449, at 452, quoting Kelley v. Kriess (1885) 68 Cal. 210, 212, 9 P. 129, emphasis added.) ¹

Similarly, section 472c of the Code of Civil Procedure provides that an appellant can allege that a court abused its discretion in...