LERNER v. State Board of Education et al., Defendants.*

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District Court of Appeal, Second District, Division 1, California.

Herbert LERNER, Plaintiff and Appellant, v. LOS ANGELES CITY BOARD OF EDUCATION, the members thereof, Dr. H. C. Willett, J. C. Chambers, Arthur F. Gardner, Mrs. Georgiana Hardy, Dr. Ralph Richardson, Charies Reed Smoot and Mrs. Mary Tinglof, and Ellis A. Jarvis, Superintendent of Schools of the Los Angeles City High School District, Respondents, State Board of Education et al., Defendants.*

Civ. 25384.

Decided: March 16, 1962

Hugh R. Manes, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, Los Angeles, and Jerry F. Halverson, Deputy County Counsel, Rollings Hills, for respondents.

Plaintiff sought a declaration (as to defendants Los Angeles City Board of Education, the members of the board, and the superintendent of the city schools) that he was entitled: (1) to be reinstated in his position as a permanent teacher in the Los Angeles City High School District; and (2) to recover unpaid salary which allegedly accrued after his state teacher's credential had been revoked.

In this action plaintiff also sought to recover damages from the defendants State Board of Education, the members of the board, and the State Superintendent of Public Instruction, by reason of their alleged wrongful revocation of his state teacher's credential (general secondary life diploma). The motion of these defendants (State Board of Education, et al.) for judgment on the pleadings was granted. No appeal was taken from that judgment.

At the trial, as to the other defendants (Los Angeles City Board of Education, et al.), the plaintiff waived his claim for alleged unpaid salary. Judgment was in favor of these defendants. That judgment was rendered upon the basis that plaintiff's asserted cause of action (for reinstatement) was barred by the statute of limitations and by laches. Plaintiff appeals from the judgment and from the order denying his motion for a new trial.

Appellant contends that the evidence does not support the determination by the trial court that his cause of action was barred by the statute of limitations (Code Civ.Proc. § 338, subd. 1—three years) or barred by laches.

On February 17, 1947, the Los Angeles City Board of Education (referred to herein as city board) employed plaintiff as a substitute high school teacher.

On July 10, 1948, plaintiff was arrested in Los Angeles on a charge of being a lewd vagrant in violation of section 647, subdivision 5, of the Penal Code. On July 12, 1948, when he was arraigned in the Los Angeles Municipal Court on that charge, he pleaded not guilty. On July 15, 1948, he pleaded guilty. Proceedings were suspended without imposition of sentence and he was granted summary probation on condition that he pay a $100 fine, which he paid.

On September 1, 1948, the city board employed plaintiff as a probationary teacher. (It does not appear that the board knew of the conviction.)

On January 5, 1949, pursuant to a motion under section 1203.4 of the Penal Code, guilty, entered a plea of not guilty, and dismissed guulty, entered a plea of not guilty, and dismissed the case.

On July 1, 1950, the city board employed plaintiff as a permanent teacher. (It does not appear that the board knew of the conviction.)

On December 10, 1954, the State Board of Education revoked the credential of plaintiff, and on December 14 the state board notified the city board of the revocation. Thereupon, the city board terminated plaintiff's employment for the reason that his state teaching credential had been revoked. Plaintiff discontinued teaching in the city schools on that date.

About December 17, 1948, plaintiff received a letter from the state board stating that his teaching credential had been revoked by reason of his conviction, in July 1948, on violation of section 647, subdivision 5, of the Penal Code.

Several days after receiving that letter, plaintiff called the administrative office of the city board by telephone and asked someone there whether plaintiff could do anything ‘to straighten the matter out.’ That person replied there was nothing he could do. In July 1955, plaintiff sent a letter to the state Attorney General wherein he inquired as to the procedure necessary to obtain a reinstatement of his teaching credential. The Attorney General forwarded that letter to the state board. On July 26, 1955, the state board replied that ‘neither the Attorney General, the State Board of Education, nor any other official has any jurisdiction or authority to restore your credential to you nor may any California school district employ you.’ In July or August 1955, plaintiff consulted an attorney with respect to obtaining reinstatement of his teaching credential. In August 1955, the attorney communicated, by telephone and letters, with persons in the offices of the city board, the Attorney General, and the state board regarding reinstatement. On August 12, 1955, the state board replied by letter, stating in substance that no person whose credential had been revoked because he had been convicted of a sex offense may have his credential restored to him. The attorney then advised plaintiff that, as a practical matter, no remedy was available. Plaintiff made no further attempt to obtain a reinstatement of his credential until June 1956, when he sent a letter to the Governor. On June 21, 1956, the state board sent a letter to plaintiff wherein it was stated, in substance, as follows: that the Governor had referred plaintiff's letter to the state board; that the board files reflected that on July 15, 1948, plaintiff pleaded guilty in the Los Angeles Municipal Court of a violation of section 647, subdivision 5, of the Penal Code; that, under the law, the board must revoke the teaching credential of anyone who has been convicted of that offense; that an ‘expungement’ under section 1203.4 of the Penal Code ‘is ineffective’; that the problem was discussed by the Attorney General in an opinion, a copy of which was enclosed.

In July 1957, plaintiff went to Sacramento and consulted an attorney for the state board.

From January to November 1958 plaintiff was in a hospital where he was treated for minimal tuberculosis.

About June 9, 1958, plaintiff received a letter from the state board, enclosing a copy of the decision in the case of the Fountain v. State Board of Education, 157 Cal.App.2d 463, 320 P.2d 899. In that letter the board stated: that, in said case the court held that the summary revocation of Fountain's teaching credential under section 12756 of the Education Code was invalid for the reason that his conviction of a sex offense occurred prior to the effective date of that section (July 2, 1952); that plaintiff was advised, however, that conviction of a sex offense, irrespective of date of conviction, is evidence of immoral conduct and of unfitness for service, and such conduct or unfitness is a ground for revocation or denial of a credential; that the board construed the Fountain decision as requiring an administrative hearing for the revocation or denial of a credential involving a person who had been convicted of a sex offense prior to July 2, 1952.

On July 2, 1958, the state board reinstated plaintiff's teaching credential. On July 24, 1958, plaintiff requested the city board to reinstate him in his position as a teacher. On August 21, 1958, the city board denied the request.

About August 24, 1958, the state board served on plaintiff an accusation in which it sought to revoke plaintiff's teaching credential on the grounds that: he engaged in immoral conduct on July 10, 1948; he was convicted, on July 15, 1948, of an offense involving moral turpitude; he concealed such conviction, with intent to deceive and defraud, in applying for renewal of his teacher's credential on April 28, 1959, and June 4, 1954.

On December 4, 1958, an administrative hearing on the accusation was held and the matter was submitted.

On December 10, 1958, prior to a decision in the administrative proceeding, plaintiff commenced the present action.

On March 5, 1959, the hearing officer submitted his proposed decision wherein he found that the charges of immoral conduct and fraudulent concealment were untrue; and he recommended that the accusation be dismissed. On April 16, 1959, the state board adopted the proposed decision, and dismissed the accusation. Plaintiff notified the city board of the decision of the state board, and he renewed his request that he be reinstated in his position. On May 13, 1959, the city board sent a letter to plaintiff, indicating therein that the board considered his request to be for reemployment. The letter also stated that the findings of the hearing officer were not sufficiently explicit to enable the city board to resolve all doubts as to the non-existance of the events which led to the conviction, ‘particularly in view of the fact that the most important testimony—that of the arresting officer who is now deceased—was not available at’ the hearing. The letter stated further that ‘it is our conclusion that you should not be re-employed by the Los Angeles City School District.’

After the state board had reinstated his teaching credential, he filed a supplemental complaint in the present action Wherein he sought a declaration only that he was entitled to reinstatement in his teaching position, and was entitled to recover unpaid salary.

At the trial (as against the city board and city officials only), plaintiff waived his demand for ‘loss of salary,’ and he made a demand to the effect that if he is reinstated he be paid a salary (in the future) based upon the teaching experience which he would have acquired if his employment had not been terminated.

The court found that plaintiff's employment by the city board was terminated about December 14, 1954; his cause of action for reinstatement arose at the time his employment was terminated; no sufficient reason for failing to file the action within a reasonable time after the accrual of the cause of action had been shown; his failure to file his action for reinstatement for nearly four years was not justified.

The court concluded that plaintiff's cause of action was barred by section 338, subdivision 1, of the Code of Civil Procedure, and by laches.

The period of time for the commencement of an action upon a liability created by statute, other than a penalty or forfeiture, is within three years. (Code Civ.Proc. § 335 and § 338, subd. 1.) Plaintiff's asserted cause of action is based, in part, upon section 13403 of the Education Code, which provides: ‘No permanent employee [public school teacher] shall be dismissed except for one or more of the following causes: * * * [10 causes are stated].’ Such cause of action was based also upon provisions in sections of the Education Code beginning with section 13304 and ending with section 13436. It is apparent that plaintiff's action is based upon an asserted liability allegedly created by statute. It has been held that said section 338, subdivision 1, of the Code of Civil Procedure is applicable to a mandamus action by a teacher seeking classification as a permanent teacher. (Ingram v. Board of Education, 36 Cal.App.2d 737, 739, 98 P.2d 527; Baldwin v. Fresno City etc. School Dist., 125 Cal.App.2d 44, 51, 269 P.2d 942.) Appellant seems to argue, however, that in his action for declaratory relief he sought only equitable relief and therefore the statute of limitations was not applicable. In Troeger v. Fink, 166 Cal.App.2d 22, 28, 332 P.2d 779, 783, it was said: ‘Generally, the running of an applicable statute of limitations will also bar equitable relief. * * * ‘Laches or no laches, an action not brought within the statutory period is barred, unless the case falls within some exception which the statute itself makes, or because of waiver or estoppel it is not open to the defendant to make the defense.’ [Citation.]' It was also said in that case, at page 29, 332 P.2d at page 783: ‘[I]t is settled that where the statute of limitations has barred any right to ‘coercive’ relief, declaratory relief designed to vindicate the same asserted right is likewise barred.' In the present case, the three-year statute of limitations was applicable.

As above stated, plaintiff's employment by the city board was terminated on December 14, 1954. This action was commenced on December 10, 1958,—about four years after the termination of employment.

Appellant argues, however, that if the statute of limitations (three years) is applicable herein, the statutory period did not commence until the state board reinstated his credential on July 2, 1958, which was within three years prior to the commencement of the action. He asserts that the period of limitation commenced on July 2, 1958, for the following reasons: The city board terminated his employment solely on the ground that he was ineligible to teach by reason of the revocation of his state teaching credential. The state board revoked his credential illegally in that it did not give him notice and a hearing. When the state board reinstated his credential, the basis for the city board's termination of his employment ‘collapsed’ and the city board was under a duty to reinstate him in his position on demand. The city board was under no duty to reinstate him, and could not legally employ him, until the state board reinstated his teaching credential, and therefore he had no cause of action for reinstatement in his position until the state board reinstated his credential. The city board, in refusing to reinstate him after the state board reinstated his credential, relied upon alleged grounds for dismissal (other than the conviction, i. e., moral unfitness) but it failed to comply with statutory provisions for notice and a hearing, and therefore the ‘liability’ of the city board accrued at the time the city board changed its position as to grounds for dismissal (which time was August 21, 1958).

The revocation of plaintiff's credential by the state board was based upon section 12756 of the Education Code enacted in 1952 (now section 13207 of the Education Code). That section and sections 12011, 12011.5 and 12011.7 of the Education Code enacted in 1952 (now included in sections 12910, 12911 and 12912 of the Education Code) are to the effect (in part): that whenever the holder of a teaching credential has been convicted of any offense defined in section 647, subdivision 5, of the Penal Code, the state board shall suspend the credential forthwith, and when the conviction becomes final or imposition of sentence is suspended, the board shall revoke the credential forthwith; a plea of guilty is deemed to be a conviction, irrespective of a subsequent order of dismissal under the provisions of section 1203.4 of the Penal Code; such order of dismissal shall have no effect.

As above indicated, by the state board's letter of June 9, 1958, that board apparently reinstated plaintiff's teaching credential by reason of the decision in Fountain v. State Board of Education, supra, 157 Cal.App.2d 463, 320 P.2d 899. In that case the plaintiff in 1948, prior to being employed by the district in 1951, pleaded guilty to a charge of being a lewd vagrant. In 1954 the state board revoked the teaching credential of plaintiff therein, upon the basis of said section 12756 of the Education Code which was enacted in 1952. It was held therein that said section did not apply retroactively, and that the judgment of the trial court (declaring that plaintiff was entitled to restoration of his credential, and to be reinstated in his position) was affirmed. The statute of limitations was not involved in that case.

In the present case, the plaintiff's employment as a teacher in the school district was terminated by the city board on December 14, 1954. Immediately after such termination of his employment, plaintiff could have commenced an action for the relief sought herein.

Appellant argues further that if the statute of limitations (Code Civ.Proc. § 338, subd. 1) is applicable herein, the state board waived the benefits of the statute by reinstating his credential, and that such waiver is binding upon the city board. The boards are separate legal entities, and the ‘liability,’ if any, of each board is a separate and distinct liability. Any waiver of the benefits of the statute by the state board is not binding on the city board.

The evidence is sufficient to support the determination by the trial court that the alleged action against the city board, its members, and the superintendent was barred by section 338, subdivision 1, of the Code of Civil Procedure.

In view of the above conclusion regarding the statute of limitations, it is not necessary to determine whether the alleged cause of action was barred by laches.

The appeal from the order denying the motion for a new trial is dismissed. The judgment appealed from is affirmed.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.

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