Valvo v. University of Southern California, 48458

• Decision Date: 21 March 1967
• Docket Number: No. 48458,No. 48904,48458,48904
• Citation: 136 Cal.Rptr. 865,67 Cal.App.3d 887
• Court: California Court of Appeals Court of Appeals
• Parties: Franklin C. VALVO, Petitioner and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, etc., et al., Respondents. Civ. 48458, 48904. . March, 7, 1977. Franklin C. Valvo, in pro. per. Musick, Peeler & Garrett and Michael W. Conlon, Los Angeles, for respondents. DUNN, Associate Justice. In August 1974 Franklin Valvo commenced, in superior court, a proceeding in mandate against the University of Southern California and its board of trustees. In his second amended petition for writ of mandate, petitioner alleged that in March 1967, when he was a third-year student in the University's school of medicine, respondents summarily dismissed him from the school. Petition sought to compel respondents to reinstate him as a third-year medical student in good standing. Respondents demurred generally to the second amended petition on the ground the proceeding was barred by limitations. 1 The trial court (Judge Hupp) sustained the demurrer without leave to amend, and entered an order (judgment) dismissing the proceeding. (Code Civ.Proc. §§ 581, subd. 3, 581d.) Thereafter, petitioner filed a motion for reconsideration of the order sustaining the demurrer. The motion was denied. Petitioner appeals from (1) the order sustaining the demurrer without leave to amend, (2) the order of dismissal, and (3) the order denying the motion for reconsideration. (Appeal) During the pendency of the appeal petitioner moved, pursuant to Code Civ.Proc. § 473, to vacate the orders appealed from on the following grounds: (1) the orders were made as a result of the 'mistake, inadvertence, neglect and possible fraud' of petitioner's former counsel; 2 and (2) the orders were void because they were rendered by a judge who was disqualified by reason of financial interest in the case and prejudice against petitioner. The court (Judge Dowds) denied the motion to vacate. Petitioner appeals from the order denying that motion. (Appeal) Appeal An order sustaining a demurrer is not appealable; an appeal li

Page 865

136 Cal.Rptr. 865

67 Cal.App.3d 887

Franklin C. VALVO, Petitioner and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, etc., et al., Respondents.

Civ. 48458, 48904.

Court of Appeal, Second District, Division 4, California.

March, 7, 1977.

Franklin C. Valvo, in pro. per.

Musick, Peeler & Garrett and Michael W. Conlon, Los Angeles, for respondents.

DUNN, Associate Justice.

In August 1974 Franklin Valvo commenced, in superior court, a proceeding in mandate against the University of Southern California and its board of trustees. In his second amended petition for writ of mandate, petitioner alleged that in March 1967, when he was a third-year student in the University's school of medicine, respondents summarily dismissed him from the school. Petition sought to compel respondents to reinstate him as a third-year medical student in good standing. Respondents demurred generally to the second amended petition on the ground the proceeding was barred by limitations. ¹ The trial court (Judge Hupp) sustained the demurrer without leave to amend, and entered an order (judgment) dismissing the proceeding. (Code Civ.Proc. §§ 581, subd. 3, 581d.) Thereafter, petitioner filed a motion for reconsideration of the order sustaining the demurrer. The motion was denied. Petitioner appeals from (1) the order sustaining the demurrer without leave to amend, (2) the order of dismissal, and (3) the order denying the motion for reconsideration. (Appeal No. 48458.)

During the pendency of the appeal petitioner moved, pursuant to Code Civ.Proc. § 473, to vacate the orders appealed from on the following grounds: (1) the orders were made as a result of the 'mistake, inadvertence, neglect and possible fraud' of petitioner's former counsel; ² and (2) the orders were void because they were rendered by a judge who was disqualified by reason of financial interest in the case and prejudice against petitioner. The court (Judge Dowds) denied the motion to vacate. Petitioner appeals from the order denying that motion. (Appeal No. 48904.)

Appeal No. 48458.

An order sustaining a demurrer is not appealable; an appeal lies only from the ensuing judgment of dismissal. (Code Civ.Proc. §§ 581d, 904.1, subd. (a); Beazell v. Schrader, 59 Cal.2d 577, 579--580, 30 Cal.Rptr. 534, 381 P.2d 390 (1963); Berri v. Superior Court, 43 Cal.2d 856, 860, 279 P.2d 8 (1955); Michaels v. Mulholland, 115 Cal.App.2d 563, 564--565, 252 P.2d 757 (1953).) Accordingly, petitioner's purported appeal from the order sustaining the demurrer is dismissed. There is no authority for an appeal from an order denying a motion to reconsider the ruling on a demurrer. (See Code Civ.Proc. § 904.1; 6 Witkin, Cal. Procedure, 2d ed., pp. 4077, 4091--4092, 'Appeal' §§ 62, 81.) Therefore, petitioner's appeal from such order likewise is dismissed. ³ We now turn to the merits of his appeal from the judgment of dismissal.

The second amended petition for writ of mandate alleged: respondent University of Southern California is a corporation; it is divided into various schools, including the school of medicine, and is governed by respondent Board of Trustees; in accordance with the rules and regulations of respondents, 'student status, class standing and promotion is imposed upon all students' by the deans of the respective schools; in the school of medicine, class standing is determined by a body called the 'Promotions Committee,' which is responsible to the dean of the school; in September 1962 petitioner enrolled in the medical school; in September 1964 he entered the third year in good academic standing; in May 1965, for a 'variety of reasons,' he withdrew from the school; he was readmitted in July 1966 on the understanding that his progress would be reviewed early in 1967, but grading and promotion would be determined only on the basis of a full academic year, so that a decision regarding petitioner's promotion would not be made until the summer of 1967; accordingly, in September 1966 petitioner reentered medical school; early in 1967 he became ill, and was treated by a Dr. Sloan; the promotions committee met at mid-year and 'without permitting an opportunity for a full hearing or for that matter any hearing or consideration of the (medical) report by Dr. Sloan summarily dismissed petitioner'; written notice of the dismissal was dated March 21, 1967, and was preceded by petitioner's interview with Dr. Nerlich, associate dean of the medical school; Dr. Nerlich told petitioner that his dismissal came as a complete surprise and that petitioner was not given notice of the meeting of the promotions committee because Nerlich did not believe that any of petitioner's problems would prevent his successful completion of the academic year; Nerlich stated that the committee's dismissal of petitioner 'was the wrong thing to do'; he said that he 'knew of no other student dismissed in the middle of the academic year,' and added that six other junior students, also on probation and in petitioner's category, were passed over, and only petitioner was dismissed; Nerlich further stated that the promotions committee had received Dr. Sloan's medical report but 'did not bother to read it and was only interested in a rapid dismissal' of petitioner; at the time of his dismissal, petitioner was encouraged by Dr. Nerlich to continue his medical training and 'to come back into the program at the University'; at all times petitioner was free of any unbecoming behavior capable of subjecting him to disciplinary action or dismissal; he was in good academic standing according to the procedures of the medical school in effect at the time of his dismissal.

The petition further alleged: the medical school has certain policies governing read mission which provide that students dismissed by the promotions committee who wish to be readmitted 'must file a petition for readmission through the office of Student Affairs; if the Associate Dean of Student Affairs believes there is adequate reason for reopening the case, the petition will be presented to the faculty executive committee and thereafter to the Promotions Committee,' which has final authority in matters of readmission; at all times such procedure was followed in petitioner's case; after petitioner was dismissed, attempts were made for clarification of his status, but on July 23, 1969, he was again 'turned back without a hearing' by the promotions committee; in August 1969 Dr. Nerlich told petitioner his case was hopelessly enmeshed with the internal problems of the medical school and the promotions committee; petitioner's situation was then discussed with Dr. Bauer, dean of the medical school; Dr. Bauer expressed disagreement with the action of the promotions committee, but indicated his inability to change its decision; at this time, as well as at other times, petitioner was 'given encouragement' that when the medical school's internal problems were corrected, his status would be changed by appropriate action of the promotions committee; however, in October 1969, and again in November 1970, the committee refused to readmit petitioner to the medical school.

It was also alleged: at none of the meetings of the promotions committee from March 1967 through November 1970 was petitioner afforded a full and complete hearing regarding his status in the medical school; in dismissing petitioner and refusing to readmit him, respondents acted arbitrarily, capriciously and in bad faith; from March 1967 through November 1970, and even thereafter, petitioner was in constant contact with medical school personnel at respondent University; during this period, petitioner was encouraged to attempt to secure readmission through normal channels 'with the view expressed that such method was the proper way to proceed'; at least through November 1970, petitioner, in good faith, relied on the representations and conduct of medical school personnel by attempting to secure readmission through the procedure set up by the school rather than through the commencement of a lawsuit; petitioner has exhausted all known remedies, short of mandate for securing readmission.

A mandate proceeding is barred if not commenced within the applicable period prescribed by the limitations statutes, and the limitation begins to run when the cause of action first accrues. (Barlow v. City Council of Inglewood, 32 Cal.2d 688, 697, 197 P.2d 721 (1948); Dillon v. Board of Pension Commrs., 18 Cal.2d 427, 429--430, 116 P.2d 37 (1941).) Code of Civil Procedure § 343 reads: 'An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.' It has been held that § 343 applies to proceedings in mandate (see Barnes v. Glide, 117 Cal. 1, 6--7, 48 P. 804 (1897); Woods v. Hyde, 64 Cal.App. 433, 439, 222 P. 168 (1923)) and, under the facts alleged in the present case, no other statute of limitations appears to be appropriate. Thus, the limitation period here is four years. Petitioner argues that, because the exhaustion of administrative remedies was a condition precedent to his right to seek judicial relief (see Holderby v. Internat. Union etc. Engrs., 45 Cal.2d 843, 846, 291 P.2d 463 (1955); Alexander v. State Personnel Bd., 22 Cal.2d 198, 199, 137 P.2d 433 (1943)), his cause of action accrued in November 1970, when he exhausted the procedure established by respondents for readmission to medical school following his dismissal. It is perhaps more precise to view petitioner's claim of improper dismissal as having accrued on the date of the actual dismissal, and to consider the statute of limitations as tolled while petitioner pursued available administrative remedies. (See Monroe v. Trustees of the California State Colleges, 6 Cal.3d 399, 405--406, fn. 2, 99 Cal.Rptr. 129, 491 P.2d 1105 (1971).) Thus, rephrasing petitioner's contention, his cause of action accrued upon his dismissal in March 1967, but the limitation period began to run only upon his...