Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC875153, Joan M. Lewis, Judge.
McINTYRE, J.
David Jay Agosto, a former employee of the Grossmont-Cuyamaca Community College District (the District), appeals from a judgment entered against him on his petition for writ of mandate arising out of the District's termination of his employment. Among other things, Agosto claims that the Board of Trustees for the District (the Board) failed to comply with the notice provisions of Education Code section 72411 before terminating his employment. (All undesignated statutory references are to the Education Code.) We agree, reverse the judgment, and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The District sent Agosto a letter offering to employ him as "Executive Dean, Student Services" at Cuyamaca Community College (Cuyamaca College) effective March 27, 1995, and indicating it had prepared a written contract. Agosto later signed a contract stating, among other things, that his employment with the District would be for a two-year term from March 27, 1995 to March 27, 1997. The District, however, placed the contract signed by Agosto into his personnel file without the chancellor's signature.
The District later redesignated Agosto's position as "Vice President, Cuyamaca College," but his salary, position number and terms and conditions of his employment remained the same. In 2000, the Board approved Agosto's request for a leave of absence without pay to allow him to act as the interim president at a different college district. Agosto returned to Cuyamaca College and accepted an assignment as its interim president in 2001. In 2004, he held a one-year assignment as interim associate vice chancellor for the District, followed by the same assignment in 2005, ending on June 30, 2006. In between these assignments, Agosto returned to his duties as vice president at Cuyamaca College.
In September 2005, Agosto was diagnosed with kidney disease and took intermittent leave from September 2005 through January 2006, and full time medical leave thereafter until November 30, 2006. On February 21, 2006, while Agosto was on medical leave, the Board met in closed session to consider the "non re-employment of administrators." The minutes for the closed session indicated that the Board "issued a non-renewal of the contract for the position of Assistant Dean, Student Affairs, Grossmont College" and "gave alternative instructions of negotiation to the Chancellor to explore with [Agosto as the] Interim Associate Vice Chancellor." Agosto later received a letter dated March 10, 2006, informing him that the Board decided to not renew his appointment as interim associate vice chancellor, that the position would end July 1, 2006, and that he would not be offered another administrative position, but could return to a faculty position.
In November 2006, Agosto filed the instant petition, alleging that the Board failed to properly terminate his contract at least six months before its expiration as required by statute for a person employed under a contract for longer than one year. (§ 72411, subd. (b).) Thus, he claims that his contract automatically renewed on March 27, 2007, and remains in effect until March 26, 2009. Agosto, relying on the minutes for the February closed session Board meeting, also claimed that the Board never voted or took any official action to terminate his employment.
The Board denied these allegations, claiming that it employed Agosto under year-to-year appointments and that it timely notified Agosto of its decision to not renew his appointment. The Board claimed that it never signed Agosto's purported written contract and that the statute of frauds barred its enforcement. The Board also presented declarations showing it voted to terminate Agosto's appointment at the February closed session Board meeting and argued that it was not required to report this action in its minutes based on certain exceptions to the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) Even assuming Agosto had a valid written contract, the Board argued that the parties had modified or rescinded it based on their subsequent conduct.
The trial court concluded that the statute of frauds rendered the purported contract invalid because the District had not signed it. Additionally, it determined that the Board timely terminated Agosto's year-to-year employment and tentatively denied the requested writ of mandate. The trial court agreed that the Board's decision to not renew Agosto's employment was not mentioned in the Board's minutes, but that Agosto had waived any right to object to the error. After the trial court heard oral argument, the Board sought to augment the record to present additional evidence regarding the vote to not renew Agosto's appointment. The trial court granted the request and again denied the petition. Agosto timely appealed from the judgment.
DISCUSSION
Educational administrators, such as Agosto, may be employed by appointment or contract for up to four years. (§ 72411, subd. (a).) Any administrator employed by appointment or contract for a term longer than one year must be given notice of termination at least six months in advance of the expiration of the appointment or contract. (§ 72411, subd. (b).) However, if the appointment or contract is for one year or less, notice of termination must be given before March 15. (Ibid.) If the governing board fails to give notice of its intent to not renew an appointment or contract, then the employment is renewed for the same time period as the earlier appointment. (Id. at subd. (c).)
The Board admits that Agosto's termination notice would be untimely had he been hired under a two-year written contract, but asserts that Agosto's purported contract was unenforceable under the statute of frauds because a District representative never signed the contract. Under the statute of frauds, a contract that will take longer than one year to perform is invalid unless it is "in writing and subscribed by the party to be charged or by the party's agent[.]" (Civ. Code, § 1624, subd. (a)(1).) The statute of frauds serves an evidentiary purpose, requiring reliable evidence of the existence and terms of a contract to prevent the enforcement of contracts through fraud or perjury that were never in fact made. (Sterling v. Taylor (2007) 40 Cal.4th 757, 766.) Thus, "'the requirement of a memorandum is read in the light of the dispute which arises and the admissions of the party to be charged; there is no need for evidence on points not in dispute.' [Citations.]" (Id. at p. 767, italics deleted.)
The statute of frauds exists to prevent the commission of fraud, not to facilitate fraud. (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 30.) Accordingly, "[w]here a contract, which is required by law to be in writing, is prevented from being put into writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing, and acts upon such belief to his prejudice, may enforce it against the fraudulent party." (Civ. Code, § 1623; also Evid. Code, § 623 ["Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it"]; Evid. Code, § 125 ["'Conduct' includes all active and passive behavior, both verbal and nonverbal"].)
All that is required to create an estoppel to assert the statute of frauds is the existence of a fraud inherent in the consequences of the application of the statute. (Mintz v. Rowitz (1970) 13 Cal.App.3d 216, 224.) Generally, "four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citations.]" (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.) Whether equitable estoppel should be applied is generally a question of fact (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068); however, the question becomes one of law when the evidence is not in conflict and is susceptible to only one reasonable inference. (Driscoll v. City of Los Angeles, supra, 67 Cal.2d at p. 305.)
The trial court found that the statute of frauds prevented enforcement of the written contract, impliedly rejecting Agosto's arguments that Civil Code section 1623 and estoppel applied to prevent the Board's reliance on the statute of frauds defense. We conclude that the trial court's implied finding that estoppel did not apply is not supported by the evidence.
Charleen McMahan, the District's Vice Chancellor of Human Resources in 1995, stated she was present when the Board authorized Chancellor Jeanne Atherton to enter into an employment contract with Agosto for a two-year term. McMahan also established that the District drafted the contract Agosto received based on a framework provided by the District's attorney and that the District's practice at that time was to provide vice presidents with two-year employment terms. McMahan's office would prepare the contract, send two originals to the new vice president for signature and then forward the signed documents to the chancellor for signature.
Counsel for the Board admitted during oral argument below that the District had a practice of entering into two-year contracts, that he did not know why Agosto's contract was not signed and that he has been waiting for a signed contract to be found. Notably, documents generated by the District refer to the contract: (1) a "Notice of Employment of Academic Personnel" referenced an "original contract" date of "3/20/95," interlineated to "3/27/95" and (2) an "Evaluation for Placement on the Salary Schedule" dated May 17, 2002, indicated the Agosto's "Current Contract Date" was 3/20/95. Additionally, a January 1997 memo interpreting section 72411 from the District Administrator's Association to McMahan noted that the initial contracts of three administrators were set to expire within the next six months, but would automatically renew unless the administrators were given timely notice of non-reemployment. Agosto received a copy of this memo, presumably because it impacted his employment contract.
The Board presented no documents expressly stating it had hired Agosto under a year-to-year appointment. Jeanne Atherton, the Chancellor at the time of Agosto's hire, was no longer working for the District and a District representative could not find an administrator with an opinion as to whether Agosto had been hired under a two-year contract; although he found several administrators who "thought" Agosto had been employed on a year-to-year appointment. Only after a dispute arose between the parties did the District deny the existence of the contract.
The evidence Agosto presented, and reasonable inferences therefrom, show that the District prepared the contract, presented it to him for signature and that he signed and returned the contract, but that the District placed the contract in his personnel folder unsigned. The District's conduct, including hiring Agosto and generating documents that referenced his contract, strongly suggested it had signed the contract and Agosto reasonably relied on this conduct unaware that the District never signed the contract. To permit the Board to assert the statute of frauds defense in these circumstances would facilitate a fraud upon Agosto and unjustly allow the District to escape its obligations to him under the contract. (Civ. Code, § 1623.) Accordingly, the judgment must be reversed. We do not reach Agosto's argument that his contract automatically renewed on March 27, 2007.
The Board alternatively argued that even assuming the statute of frauds did not bar consideration of the two-year contract, the parties modified or rescinded the contract based on their subsequent conduct. The trial court, however, did not address these additional defenses and we decline to address their merits in the first instance. We remand the matter to the trial court for further proceedings, including the introduction of additional evidence, to consider these defenses. Because the Board's notice of termination was ineffective as untimely, we need not reach Agosto's remaining contention that the Board did not actually vote to terminate his employment.
DISPOSITION
The judgment is reversed and the matter remanded for further proceedings consistent with the views expressed in this opinion. Agosto is entitled to his costs on appeal.
WE CONCUR: BENKE, Acting P. J., AARON, J.