Opinion
B193192
4-22-2008
WANDA ARMSTRONG, Plaintiff and Appellant, v. BURBANK UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
Law Offices of Leo James Terrell and Leo James Terrell for Plaintiff and Appellant. Doumanian & Associates and Nancy P. Doumanian for Defendant and Respondent.
NOT TO BE PUBLISHED
SUMMARY
The trial court erred when it sustained a school districts demurrer to an administrative employees complaint without leave to amend. The court correctly concluded there was no legal basis for the contract claims in the employees complaint. But the court should have given the employee an opportunity to amend her complaint to allege a statutory claim under the Education Code.
FACTUAL AND PROCEDURAL BACKGROUND
On October 24, 2005, Wanda Armstrong sued the Burbank Unified School District. She asserted three causes of action: breach of contract, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Armstrong alleged that on March 15, 2005, the District illegally terminated her as principal at Luther Burbank Middle School. Her complaint sought compensatory and punitive damages. Armstrong alleged she had an exemplary employment history; the District had no good cause to terminate her; and the District failed to comply with its own policies and procedures on performance evaluations. She alleged the existence of an implied contract that she would not be discharged without good cause and without compliance with the Districts policies and procedures on performance evaluations. Armstrong also alleged the Districts conduct caused her severe emotional distress.
The District demurred. It argued Armstrong could not state a claim against the District because public employment in California is governed by statute, not by contract. (Miller v. State of California (1977) 18 Cal.3d 808, 813 ["public employment is not held by contract but by statute"; "no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law"].) Armstrong could not state a claim for breach of the implied covenant of good faith and fair dealing either, because the covenant is an implied term of a contract. The District also argued Armstrongs claim for intentional infliction of emotional distress did not allege facts establishing extreme or outrageous conduct.
Armstrong opposed the demurrer. Her papers requested leave to file an amended complaint, but she did not specify how she would amend the complaint. At the hearing on the Districts demurrer, Armstrong admitted the applicability of Miller v. State of California. Her counsel argued that her case "belongs under the Education Code and the Government Code and . . . we have facts or we can add facts to the complaint . . . by leave to amend to meet those requirements." The trial court replied:
"[Y]ou based it on contract. This does not stop you from filing a new complaint which is correct. Im not amending it because youre changing the whole case. [¶] . . . [¶] So you have to do a new case and get the contract out. [¶] . . . [¶] You have to do it by statute. You didnt cite any statute."
Counsel for Armstrong responded: "Thats why we [have] come in. We ask for leave to amend to cite and support the statute that we rely upon."
The court declined to permit amendment. The court stated there was "nothing to amend" and Armstrong should "file a new complaint under the Education Code." The court entered an order of dismissal on July 18, 2006. This appeal followed.
DISCUSSION
The sole issue Armstrong raises is whether the trial court should have granted her leave to amend her complaint. She contends she could have stated a valid claim: that the District violated the notice requirement of Education Code section 44951 (section 44951) in terminating her employment. We agree that the trial court should have given Armstrong an opportunity to amend. We therefore reverse the courts order of dismissal.
We apply well-settled legal principles. Whether the trial court abused its discretion in sustaining a demurrer without leave to amend is an issue on appeal "even though no request to amend [the] pleading was made." (Code Civ. Proc., § 472c; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939 ["section 472c of the Code of Civil Procedure does not require a specific request to amend, or an indication of its legal basis, as a prerequisite to reviewing the trial courts order on appeal"].) It is an abuse of discretion to sustain a demurrer without leave to amend " `if there is any reasonable possibility that the defect can be cured by amendment. " (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The plaintiff has the burden of demonstrating abuse of discretion. The plaintiff does so by showing " `in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. " (Ibid.) This showing "need not be made in the trial court so long as it is made to the reviewing court." (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386 (Careau & Co.).)
We conclude Armstrong has demonstrated on appeal that she can amend her complaint to state a violation by the District of section 44951. Armstrong points out:
• Section 44951 provides that:
"Unless [an employee in a position such as Armstrongs] is sent written notice deposited in the United States registered mail with postage prepaid and addressed to his or her last known address by March 15 that he or she may be released from his or her position for the following school year, or unless the signature of the employee is obtained by March 15 on the written notice that he or she may be released from his or her position for the following year, he or she shall be continued in the position."
• Armstrong alleges that on March 4, 2005, the District hand-delivered a notice to her, advising her that "you may be released from your administrative assignment of Principal at Luther Burbank Middle School, and . . . you may be reassigned to a teacher position beginning with the 2005-2006 school year."
• Armstrong asserts she can allege facts showing the District did not comply with the statutory mandate. The statute required the District either to have sent the notice by registered mail or to have obtained Armstrongs signature by March 15 on the notice it hand-delivered to her.
• As authority, Armstrong cites Hoyme v. Board of Education (1980) 107 Cal.App.3d 449 (Hoyme). In Hoyme, the court concluded that strict compliance with the notification procedures in the statute "is a prerequisite to the reassignment of a principal to a teaching position." (Id. at p. 455.) In Hoyme, a principal was handed a notice of possible release, but was not asked to sign the notice. Written notice was not sent to her by registered mail. (Id. at p. 450.) The court of appeal held that, because the principal did not receive proper notice of her possible release, the trial court correctly granted a writ of mandate compelling her reinstatement as a principal. (Id. at p. 455.) "The requirement of proper notice in accordance with the section is jurisdictional; unless such notice is given, the reassignment of a principal to a teaching position is ineffective and subject to reversal. [Citations.]" (Id. at pp. 454-455.)
In sum, if the facts Armstrong alleges are true, they would support a complaint seeking a writ of mandate requiring the District to reinstate her to her position as principal. So Armstrong has shown "in what manner [she] can amend [her] complaint and how that amendment will change the legal effect of [her] pleading." (Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.) We necessarily conclude that the trial court abused its discretion in refusing to permit Armstrong to amend her complaint.
The District insists there was no abuse of discretion. It contends Armstrongs entire complaint was defective, and she cannot cure the defect "without having to start anew and completely change the complexion of her case." But the nub of Armstrongs case is that she was improperly terminated from her position as principal. While her complaint did not contain "any factual allegations concerning . . . an alleged violation of Education Code § 44951," she may amend the complaint to allege those facts and that violation. As noted, it is an abuse of discretion to sustain a demurrer without leave to amend if it is reasonably possible the defect in the complaint can be cured by amendment. This rule "is liberally applied to permit further amendment not only where the defect is one of form but also where it is one of substance, provided the pleader did not have ` "a fair prior opportunity to correct the substantive defect. "`[Citations.]" (Careau & Co., supra, 222 Cal.App.3d at p. 1387, italics omitted.) Here, Armstrong had no prior opportunity to amend the complaint to correct the substantive defect.
The District cites Foundation for Taxpayer & Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal.App.4th 131 for the proposition that a defendant may not be required "to answer a wholly different legal liability or obligation from that originally stated." (Id. at p. 136.) But Armstrongs proposed amendment, while it states a new cause of action, would not require the District to answer "a wholly different legal liability." It only would state a new legal basis for its underlying claim that Armstrongs termination was improper.
In a related argument, the District complains that Armstrong did not raise the issue of Education Code section 44951 in the trial court. But it is settled that a plaintiff may make her showing to the reviewing court that she can cure the defective complaint by amendment. (Careau & Co., supra, 222 Cal.App.3d at p. 1386, citing authorities.)
The District also argues Armstrong has not shown she can plead compliance with the Government Claims Act on her proposed cause of action under section 44951. The Government Claims Act establishes certain conditions precedent to the filing of a lawsuit against a public entity, including the timely filing with the public entity of a claim for money or damages. Failure to do so bars the plaintiff from bringing suit against that entity. (Gov. Code, §§ 911.2 & 945.4.) According to the District:
• Armstrong filed a claim form with the District in connection with her claims of wrongful termination and breach of contract, but the claim did not mention section 44951.
• In Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431 (Fall River), the court observed that if a plaintiff relies on more than one theory of recovery against the governmental agency, " ` "each cause of action must have been reflected in a timely claim," " and " ` "the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint . . . ." " (Id. at p. 434, citations omitted.)
• The time for filing a claim under the Government Claims Act has long since run, so Armstrong can never cure" this fatal flaw in her case."
When questioned at oral argument on the propriety of Armstrongs seeking nonmonetary relief, without the necessity of filing a claim under the Government Claims Act, the District suggested that such a claim would be barred by time limitations and for other reasons.
To clarify these issues, we ordered supplemental briefing on several points, including (1) whether compliance with the Government Claims Act is a condition precedent to Armstrongs amending her complaint to seek reinstatement based on a violation of section 44951, and (2) whether any statute of limitations operates to prevent Armstrong from amending her complaint to state a violation of section 44951. We now conclude that a complaint seeking reinstatement rather than monetary damages would not require compliance with the Government Claims Act, and that the statute of limitations cited by the District does not bar the claim.
We also asked whether the claim Armstrong filed with the District constituted compliance with any Government Claims Act requirements for purposes of asserting a violation of section 44951. However, our conclusion on the first question we posed makes it unnecessary to consider this point.
First, Armstrong observes in her supplemental brief that the remedy for a violation of section 44951 is reinstatement, and "[a]s such, the proposed amended pleading based on section 44951 would not seek monetary damages and thus is not subject to the Tort Claims Acts presentation requirement." We agree. A cause of action for a writ of mandate, seeking reinstatement as principal based on the Districts violation of section 44951, would not be, standing alone, a claim for damages within the purview of the Government Claims Act. (See Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1081 ["the general rule [is] that the claims statutes do not impose any requirements for nonpecuniary actions, such as those seeking injunctive, specific or declaratory relief"].) Consequently, unless Armstrongs amended complaint seeks damages — and counsel asserts it would not — no basis would exist for application of the claims presentation requirements of the Government Claims Act.
The general rule does not apply "where a petition for extraordinary relief is merely incidental or ancillary to a prayer for damages." (Loehr v. Ventura County Community College Dist., supra, 147 Cal.App.3d at p. 1081.) However, "in some situations a claimant may seek both damages and nonmonetary relief from a public entity in the same action, and thus invoke a basis of recovery which is not within the purview of the Tort Claims Act . . . ." (Ibid.)
Second, the statute of limitations cited by the District would not bar Armstrongs action for reinstatement. The District contends that the two year statute of limitations in Code of Civil Procedure section 339 applies. But the District offers no rationale for applying section 339, which governs oral contracts. Armstrong contends that Code of Civil Procedure section 338, subdivision (a) — a three-year limitations period for "[a]n action upon a liability created by statute, other than a penalty or forfeiture" — applies. Armstrong appears to have the better of the argument. (Cf. Phillips v. County of Fresno (1990) 225 Cal.App.3d 1240, 1244, 1250 [in deputy sheriffs suit for writ of mandate seeking retroactive reinstatement, parties agreed that obligation plaintiff sought to enforce was created by statute "which, pursuant to Code of Civil Procedure section 338, subdivision (a), is governed by a three-year statute of limitations"].) But even if a shorter statute applied, Armstrongs complaint was filed on October 24, 2005, based on events occurring on March 15, 2005, and it is difficult to see why her amended complaint would not relate back to the filing date of her original complaint. (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600 ["[t]he modern rule ... is that, where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts"].) Consequently, the statute of limitations defense, as raised by the District at the oral argument and argued in its supplemental brief, is without merit.
While limitations issues often involve questions of fact, in this case the parties do not proffer any fact issues.
A two-year limitations period applies to "[a]n action upon a contract, obligation or liability not founded upon an instrument of writing . . . ." (Code Civ. Proc., § 339, subd. 1.)
Accordingly, Armstrong is entitled to an opportunity to amend her complaint to seek reinstatement based on a violation of Education Code section 44951.
DISPOSITION
The judgment (order of dismissal) is reversed. The cause is remanded to the trial court with instructions to vacate its order and to issue a new order sustaining the demurrer of Burbank Unified School District to Wanda Armstrongs complaint with leave to amend the complaint. Armstrong is to recover her costs on appeal.
We concur:
COOPER, P. J.
FLIER, J.