ASHURST v. MONTEREY PENINSULA UNIFIED SCHOOL DISTRICT

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Court of Appeal, Sixth District, California.

Anthony ASHURST, Plaintiff and Appellant, v. MONTEREY PENINSULA UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

No. H016156.

Decided: September 09, 1997

John J. MacPherson, Monterey, for Plaintiff and Appellant. Breon, O'Donnell, Miller, Brown & Dannis, Keith V. Breon, Guy A. Bryant, San Francisco, for Defendant and Respondent.

The Monterey Peninsula Unified School District (the District) recommended that Anthony Ashurst be dismissed from his employment with the District after it learned he had had sexual intercourse with a 15-year-old student.   Ashurst appealed the recommendation to the District, which conducted an evidentiary hearing as is required by law.   When the hearing officer upheld the District's recommendation, Ashurst filed a petition in the superior court for writ of administrative mandate directing the District to reinstate him.   The trial court denied his petition.

On appeal, Ashurst contends (1) that his declaration against interest that he engaged in sexual intercourse with a 15-year-old student was inadmissible hearsay, and (2) that the District was barred by the relevant statute of limitations from dismissing him.   We shall conclude, as did the trial court, that Ashurst's declaration was admissible evidence and that the “delayed discovery rule,” which is applied in many statute of limitations situations, should also apply to the two-year statute of limitations contained in Education Code section 45113.   Accordingly, we shall affirm the order denying Ashurst's petition for writ of administrative mandate.

FACTS

In November 1992, 39-year-old Anthony Ashurst was watching television in his home with a 15-year-old minor, N.L., and her mother.   When N.L.'s mother said it was time to go home, N.L. asked if she could stay and watch the rest of the program.   Ashurst volunteered to drive her home, and the mother consented.   At some point after the mother left, Ashurst went into his bedroom.   N.L. followed him, closed the door, and began kissing him.   Ashurst told her, “no, this is not right,” but she persisted.   She began undressing him.   Ashurst became aroused and helped N.L. undress.   He put on a condom and had sexual intercourse “with ․ vaginal penetration.”

At the time of the incident, N.L. was a student of the Monterey Peninsula Unified School District in the home study program and Ashurst was a custodian for the District, working at a school attended by 14 to 17 year olds.

Approximately two months after the incident, N.L. and her family moved to Colorado.   In 1994 during a psychiatric session, N.L. told her therapist of the sexual encounter with Ashurst.   The therapist notified N.L.'s mother.

In July 1994 N.L.'s mother confronted Ashurst at his house in California and accused him of having had sexual intercourse with her daughter.   Ashurst admitted to her that it was true.   For about a year after N.L.'s mother returned to Colorado, she contemplated what she should do about the incident.

Finally she decided to inform the District.   In August 1995 she phoned the District and reported that Ashurst had had sexual intercourse with her daughter in November 1992, when the daughter was a student of the District.   N.L.'s mother explained that she called because she was afraid that if Ashurst could do this with one minor, he might do it again.

On August 15, 1995, the District reported the incident to the Seaside Police Department.   It also initiated proceedings to dismiss Ashurst from his employment.

On August 29, 1995, Officer Raussa called Ashurst into his office for an interview at the Seaside Police Department.   Raussa read Ashurst his Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) rights before proceeding.   At that point, Ashurst waived his right to have an attorney present and his right to remain silent and gave a statement admitting that he had had sexual intercourse with N.L. when she was 15 and he was 39 years old.

On September 28, 1995, the District notified Ashurst that he was being recommended for dismissal from his position in the classified service, and it advised him of his right to request a hearing.   Ashurst requested an evidentiary hearing, which was held on November 28, 1995.   He was represented at the hearing by his present counsel.

Following the hearing, the hearing officer issued a written recommendation upholding the dismissal.   The hearing officer's decision was based on the following findings:  (1) the notice of intent to dismiss was timely issued under article XI, section (c) of the CSEA Agreement;  (2) the District had sustained its burden of proof through evidence admissible in a civil action that Ashurst engaged in conduct in violation of Penal Code section 261.5;  and (3) such conduct represents cause for dismissal under section (d)(4) and (14) of the CSEA Agreement and under Board policy 4245(c), (h) and (j).

The District then dismissed Ashurst from his position in the classified service.

On May 6, 1996, Ashurst filed a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5.   After that petition was denied, he filed the instant appeal.

STANDARD OF REVIEW

 Because this case “affect[ed]” vested, fundamental rights (i.e., Ashurst's right to continued employment), “the trial court [was required] not only [to] examine[ ] the administrative record for errors of law but also [to] exercise[ ] its independent judgment upon the evidence disclosed in a limited trial de novo.”  (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242;  see also California School Employees Association v. Jefferson Elementary School District (1975) 45 Cal.App.3d 683, 687, 119 Cal.Rptr. 668.)

 Although the trial court was required to exercise its independent judgment in reviewing the administrative decision of the District, this court's duty is to determine whether the trial court's findings are supported by substantial evidence.   The appellate court must “uphold the trial court's decision if the underlying findings were clearly supported by substantial evidence in the record.”  (County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 911, 251 Cal.Rptr. 267, 760 P.2d 464;  accord Bixby v. Pierno, supra, 4 Cal.3d at pp. 143-144, 93 Cal.Rptr. 234, 481 P.2d 242;  Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 353, 25 Cal.Rptr.2d 852;  Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, 1590, 45 Cal.Rptr.2d 822.)   In applying the substantial evidence rule, the appellate court is required to resolve all evidentiary conflicts (whether presented by oral testimony or written declarations) in favor of respondent and affirm so long as the evidence favoring respondent is sufficient to support the judgment.  (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479, 243 Cal.Rptr. 902, 749 P.2d 339.)

 Furthermore, where, as here, an appellant fails to request a statement of decision, the appellate court must presume that all factual findings were made by the trial court to support its decision.   (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793, 218 Cal.Rptr. 39, 705 P.2d 362;   In re Marriage of Green (1989) 213 Cal.App.3d 14, 20, 23, 261 Cal.Rptr. 294;  In re Marriage of Laube (1988) 204 Cal.App.3d 1222, 1226, 251 Cal.Rptr. 745.)

DISCUSSION

A. Sufficiency of the Evidence

Ashurst points out that the only evidence supporting the administrative hearing officer's finding of sexual misconduct warranting dismissal was hearsay (to wit:  N.L.'s mother's and N.L.'s therapist's statements to Officer Raussa and his own “declaration against interest” admitting sexual intercourse with N.L.).   Hearsay evidence may be used in administrative proceedings for the purpose of supplementing or explaining other evidence, but it is insufficient on its own to support a finding unless it would have been admissible over objection in civil actions.  (Gov.Code, § 11513, Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 210, 98 Cal.Rptr. 467, 490 P.2d 1155;  Carl S. v. Commission for Teacher Preparation & Licensing (1981) 126 Cal.App.3d 365, 371, 178 Cal.Rptr. 753.)

 Ashurst contends that none of the hearsay evidence here would have been admissible over objection in a civil action.   We agree with respect to the hearsay statements of N.L.'s mother and her therapist.  (See, e.g., Carl S. v. Commission for Teacher Preparation and Licensing, supra, 126 Cal.App.3d at pp. 371-372, 178 Cal.Rptr. 753 [discussing unsworn hearsay statements by three witnesses against a teacher].)   We disagree, however, with Ashurst's contention that his “declaration against interest” (admitting to Officer Raussa that he had sexual intercourse with 15-year-old N.L.) would not have been admissible over objection in a civil trial.

Declarations against interest, Ashurst points out, are admissible only when the declarant is unavailable.  (See Evid.Code, § 240, subd. (a).)  Ashurst would have been considered unavailable if this had been a criminal trial, due to his privilege against self-incrimination.  (People v. Smith (1970) 13 Cal.App.3d 897, 91 Cal.Rptr. 786, People v. Maxwell (1979) 94 Cal.App.3d 562, 156 Cal.Rptr. 630;  see Evid.Code, § 940.)   Since this was an administrative hearing, however, Ashurst could have been called as a witness so long as he was advised that any statement made under threat of discipline could not be used against him in any subsequent criminal proceeding.  (See Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 829, 221 Cal.Rptr. 529, 710 P.2d 329.)   Thus he was available and accordingly his “declaration against interest” would not have been admitted over objection in a civil action.

We are not persuaded, however, that the statements Ashurst made to Officer Raussa were merely declarations against interest.   Ashurst told Raussa that he went into his bedroom in November 1992, when he was 39 and N.L. was 15;  that N.L. followed him into the room and made sexual advances that he initially resisted;  that he became aroused and stopped resisting;  and that the two then had sexual intercourse with full vaginal penetration.   Ashurst did not claim he was unaware of N.L.'s age;  in fact, he had been a friend of the family for some time.

These statements are not merely declarations against interest;  they constitute (1) party admissions, as Ashurst was a party in the underlying administrative dismissal proceedings, and (2) confessions.   Party admissions and confessions, unlike declarations against interest, are admissible even when the party is available as a witness.1

 Party admissions are exceptions to the hearsay rule and may be used to prove the truth of the matter asserted.   They are considered reliable evidence because an individual would not normally admit to a wrongful act unless he or she had in fact committed the act.   Party admissions constitute affirmative or substantive evidence which the fact-finder may believe as against other evidence, including the party's own contrary testimony on the stand.  (Boogaert v. Occidental Life Ins. Co. (1983) 150 Cal.App.3d 875, 881, 198 Cal.Rptr. 357.)   Ashurst's party admission that he had sexual intercourse with a 15-year-old student of the District would have been admissible over objection in a civil action and therefore may form the basis for a finding pursuant to Government Code section 11513, subdivision (c).  (Imachi v. Department of Motor Vehicles (1992) 2 Cal.App.4th 809, 3 Cal.Rptr.2d 478, criticized on another ground in McNary v. Department of Motor Vehicles (1996) 45 Cal.App.4th 688, 693-694, 53 Cal.Rptr.2d 55.)

 As the trial court noted, Ashurst's statements also constituted a confession.2  Like a party admission, a confession may be admissible over objection in a civil action even if the witness is not unavailable.3

 “A confession is defined as ‘a complete and express acknowledgment of the crime charged’ [citation], a statement in which the defendant ‘disclos [es] his guilt of the charged offense and which exclud[es] the possibility of a reasonable inference to the contrary.’  [Citations.]  However, when the statement contains facts which amount to a claim of mitigation, justification or excuse, it is an admission rather than a confession.  [Citations.]”  (People v. Maynarich (1978) 83 Cal.App.3d 476, 481, 147 Cal.Rptr. 823.)

In the instant case, Ashurst's statement constituted a complete and express acknowledgment that he committed the crime of unlawful sexual intercourse with a minor.  Penal Code section 261.5 defines that crime as “an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.   For the purposes of this section, a ‘minor’ is a person under the age of 18 years․”  Subdivision (d) of that statute provides, “[a]ny person over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.”

 Ashurst's statement claimed that the sexual encounter was consensual, but consent is not a defense to the crime of unlawful sexual intercourse with a minor.  (Cynthia M. v. Rodney E. (1991) 228 Cal.App.3d 1040, 279 Cal.Rptr. 94.)   Ashurst did not claim he was mistaken as to any facts 4 (e.g., that the minor was over 18 years of age).   Because Ashurst's statement acknowledged all the elements of the crime of unlawful sexual intercourse with a minor and presented no facts amounting to a claim of mitigation, justification or excuse, the statement constituted a confession.

As noted earlier, “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”  (Gov.Code, § 11513, subd. (c);  emphasis added.)   Ashurst's confession of sexual intercourse with a minor and his party admission of the same would have been admissible over objection in civil actions.   Accordingly, his statement was sufficient to support a finding of immoral conduct, a ground for termination under the collectively-negotiated agreement.  (Cf. Pettit v. State Board of Education (1973) 10 Cal.3d 29, 36-37, 109 Cal.Rptr. 665, 513 P.2d 889;  Board of Education v. Weiland (1960) 179 Cal.App.2d 808, 811, 4 Cal.Rptr. 286.)   The hearing officer could properly rely on Ashurst's admission in making his recommendation that Ashurst be dismissed from the classified service for sexual misconduct.   The trial court, in turn, independently reviewing the administrative record, could consider Ashurst's statement as evidence supporting the finding of sexual misconduct warranting dismissal.   Under these circumstances, the trial court properly denied Ashurst's petition for writ of administrative mandate to the extent it was based on his hearsay argument.

B. Statute of Limitations

 Ashurst also contends his writ petition should have been granted because the District was barred by the applicable statute of limitations from taking disciplinary action against him for a cause that arose more than two years before the District initiated dismissal proceedings.   Education Code section 45113 provides, in pertinent part:  “No disciplinary action shall be taken for any cause which arose ․ more than two years preceding the date of the filing of the notice of cause unless such cause was concealed or not disclosed by such employee when it could be reasonably assumed that the employee should have disclosed the facts to the employing district.”

The sexual misconduct here occurred in November 1992.   Shortly thereafter, the minor and her family moved to Colorado.   N.L.'s mother did not report the incident to the District until August 1995.   Within a month of notification, the District issued its notice of intention to dismiss.   However, this was almost three years after the date of the incident.   Ashurst acknowledges that the statute of limitations is tolled if an employee conceals or does not disclose a cause when it can reasonably be assumed that the employee should have disclosed the facts to the employing district.   Citing the federal and state constitutions and the Miranda decision, Ashurst contends that a civil statute requiring a person to “inform on himself” regarding a criminal act is unconstitutional on its face as it violates that person's privilege against self-incrimination.

In the instant case, both the hearing officer and the trial court concluded that the two-year statute of limitations contained in Education Code section 45113 should be tolled until such time as the District discovered the criminal act against one of its students.   The hearing officer observed, “[A]n employer cannot take disciplinary action for misconduct it does not know about, and normally any time limit would begin to run from the point at which the misconduct becomes known.   The contract language should be interpreted liberally in line with this accepted principle, and therefore it is concluded that ‘cause’ for the disciplinary action ‘arose’ at the time the District gained knowledge of the incident, rather than at the time the incident actually occurred.   Under this interpretation, the Notice of Intent on September 28, 1995 was issued in timely manner.”

Similarly, the trial court noted, “And the reality of life is that the school district did not reasonably have notice of these things until they occurred, and they were matters that were solely within the knowledge of Mr. Ashurst, and he failed to disclose or disclose them [sic ] in the process.   So it would be seemingly inappropriate in some situation like this to say that this is something to preclude school District from taking action.”

We agree that the delayed discovery rule should govern this case.   Other than his minor victim, Ashurst was the only person who knew of the sexual encounter, and he concealed it from the District.   The misconduct occurred off of school grounds and away from the direct supervision of the District.

Assuming arguendo that Ashurst's privilege against self-incrimination overrides his otherwise clear duty as a District employee to report sexual conduct with a minor student,5 the fact remains that the only way the District could learn of this criminal act against one of its students was for Ashurst or his minor victim to come forward.   Neither did.   It was only after the minor reported the incident years later in a therapy session that the District became aware of the misconduct.   Once the District learned of the incident, it took immediate action to terminate Ashurst's employment.

Although generally a statute of limitations commences when a cause of action “accrues” (i.e., on the date of injury) (Jolly v. Eli Lilly & Company (1988) 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923) or “ ‘upon the occurrence of the last element essential to the cause of action ․’ ” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 899, 218 Cal.Rptr. 313, 705 P.2d 886), these “principles have been significantly modified by the common law ‘discovery rule,’ which provides that the accrual date may be ‘delayed until the plaintiff is aware of her injury and its negligent cause.’  [Citation.]”  (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931, 30 Cal.Rptr.2d 440, 873 P.2d 613.)

In the instant case, the District had no knowledge of the unlawful act against one of its students until August 1995.   Nor in the exercise of reasonable diligence would the District have learned of this act, which occurred in the evening and away from school grounds.   The District cannot be expected to have taken disciplinary action against Ashurst for misconduct of which it had no knowledge.   As noted earlier, ignorance of the existence of an injury (in this case, the sexual abuse of one of its students) or of a cause of action may delay the running of the statute of limitations until the date of discovery.  (Bernson v. Browning-Ferris Industries, supra, 7 Cal.4th at p. 931, 30 Cal.Rptr.2d 440, 873 P.2d 613.)   Under the circumstances of this case, application of the delayed discovery rule is particularly appropriate.

We hold, as did the hearing officer and the trial court before us, that the District's delayed discovery of the sexual misconduct tolled the commencement of the two-year statute of limitations contained in Education Code section 45113.   The District's dismissal action was therefore not time-barred.   Under these circumstances, the trial court did not err in denying Ashurst's petition for writ of administrative mandate based on his statute of limitations argument.6

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Evidence Code section 1220 provides, in pertinent part:  “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.”

2.   The court stated, “I have to tell you that in the course of a year I sentence probably two, three, four, five people for having-who are over the age of 30 who have sexual relationships with girls 15 and younger.   I can probably count three or four or five of those that I've done, ․ just on this side of the county.   It's a criminal offense․  [¶] And as a matter of fact, if you're over ten years older than the particular child, then it's an aggravated criminal offense.  [¶] Somebody admitting to a police officer that they have had sexual relationships, that they're 39 and have had sexual relationships with a 15 year old girl is a confession.   It's not an admission, it's a confession․  A confession is [admissible] as an exception to the hearsay rule, and it's admissible in a civil case over objections if it's not subject to being excluded.”

3.   To be admissible in evidence, an extra-judicial confession must have been made voluntarily and without coercion.  (Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)   In the instant case, Ashurst presented no evidence at the administrative dismissal hearing that his statements admitting sexual intercourse with a minor were coerced, involuntary, or fraudulently obtained.   Officer Raussa, on the other hand, testified that he gave Ashurst his Miranda rights, including the right to remain silent, and that Ashurst voluntarily gave up these rights prior to making his confession.

4.   Mistake of fact can be a defense to the crime of unlawful sexual intercourse.  (Cynthia M. v. Rodney E., supra, 228 Cal.App.3d 1040, 279 Cal.Rptr. 94.)

5.   The Child Abuse and Neglect Reporting Act (Pen.Code, § 11164 et seq.) obligates school employees to report known or suspected child abuse, including sexual misconduct with a minor, to a child protective agency.  (Pen.Code, §§ 11165.7, 11166, subd. (a).)

6.   Our conclusion that the District's action was timely was not based on Ashurst's concealment of his criminal act.   Accordingly, we need not address Ashurst's contention that to the extent Education Code section 45113 obligated him to “inform on himself,” it violated his Fifth Amendment rights against self-incrimination and due process.   As noted earlier, we conclude that the District could bring disciplinary action against Ashurst more than two years after the cause arose because it was unaware of the injury until the date of discovery.

COTTLE, Presiding Justice.

PREMO and BAMATTRE-MANOUKIAN, JJ., concur.