| Filed 7/29/08 Agosto v. Bd. of Trustees of the Grossmount-Cuyamaca Community College Dist. CA4/1 This opinion has not been certified for publication COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA DAVID JAY AGOSTO, Petitioner and Appellant, v. BOARD OF TRUSTEES OF THE GROSSMONT-CUYAMACA COMMUNITY COLLEGE DISTRICT, Respondent. D051045 (Super. Ct. No. GIC875153) APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Reversed and remanded. 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 yearto- 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).) Page 5 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 7 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. 8 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. McINTYRE, J. WE CONCUR: BENKE, Acting P. J. AARON, J. |
| In David Agosto case, GCCCD failed to follow the law in firing Executive Dean, says Appeals court |
| Comments (re above blog posting) Ah yes, the good ole boys (and girl) on the GCCCD board are at it again. Let's not forget the lawsuit they lost for "bullying" another employee to the tune of $300,000 (not including legal expenses). Soon to be ex-chancellor Suarez and his chief minion, soon to be ex-Vice Chancellor of Human Resoures Lastimado have made the last 4 years hell for employees of GCCCD. The District has the dubious honor of being at impasse with its collective employee groups more than any other California Community College. Recent PERB decisions found the Board lied about the availability of funds to pay its employees a living wage stating "its not about money its about a willingness to use the money to pay its employees" (paraphrased from State reports on the district's bad-faith bargaining practices). Think of the 10's of thousands of dollars wasted on legal bills!!!! Meanwhile, soon to be Ex-Chancellor Suarez has frozen hiring and travel at the district, no mention of his or Lastimado's 5 figure expense accounts being frozen. Documents from the district shows that the predominant beneficiary of these dollars is, you guessed it, Suarez and Lastimado, as they very often take turns paying for each other's lunches...how sweet. Students can't get classes, faculty and staff haven't had a decent raise in 5 years and the board condones wasting money on fancy lunches for its executives. Who is accountable? Apparently no one. Posted by: WhoseAccountable at July 30, 2008 08:19 PM It sounds like the trial judge applied the law as it is generally understood, and the appellate court, understandably, didn't like the result so it interpreted the law in a way that got the right result. Appellate courts have that luxury; trial courts do not. Happy ending, here anyway. Posted by: Ronald Truman at July 30, 2008 08:54 PM What's really galling about the GCCCD Governing Board is their smug self assurance....at the next board meeting they will probably decide to reject 11 of the 14 recommendations made by the San Diego Grand Jury regarding improving ethical behavior at the community college governing board level. Rick Alexander, who has served on the GCCCD Board since 1990, was instrumental in siphoning Prop R funds to construct massive buildings at the small college in his backyard, while stonewalling projects at the larger campus. His contentious attitude toward the Grossmont faculty has done nothing to improve services to students and the community. But he thinks he deserves to be a life-time trustee of the district.....yikes. Posted by: questions2ask at July 31, 2008 12:45 PM Mr. Truman, the trial judge did NOT apply "the law as it is generally understood". In fact, at the oral argument, the appellate justices were laughing at the idea that the District's counsel would put forth such an argument and, even more, that anyone -- especially the trial court -- would buy such an argument. If you want to see just how strong the Court of Appeal decision is on this very basic legal issue, read the opinion itself. It can be found at the California Courts website, Fourth Appellate District, unpublished opinions. A link to the decision is at the end of the blog, above. The Court of Appeal had several other issues before it on which it could have reversed the Trial Court, but it declined to do so because of the very obvious legal error in the Trial Court's decision. Martha Torgow, attorney for David Agosto Posted by: Martha A Torgow at August 1, 2008 04:57 PM |
| Appeals court judge writes that resorted to 'fraud' in justifying firing of sick worker San Diego Union Tribune July 30, 2008 Blog by Chris Reed I've badmouthed the Grossmont-Cuyamaca Community College District for years for its power plays, contempt for ethical standards and atttempts to whitewash scandal. Now I have fresh evidence that district constituents should be ashamed of the people they've elected as leaders. In comes in the form of a sharply worded decision issued yesterday in which an appeals court reversed a Superior Court judge's decision to throw out a lawsuit in which a fired top official at Grossmont-Cuyamaca charges he was denied due process and essentially forced out with a legal dirty trick. The ruling remands the lawsuit back to the lower court and orders its reconsideration. David Jay Agosto was hired in 1995 as executive dean of community services at Cuyamaca College and went on to serve in a variety of big jobs. But in February 2006, while Agosto was on medical leave to cope with kidney disease, he was fired by the Grossmont-Cuyamaca board of directors in a closed-session meeting. Agosto challenged this ruling, saying his original 1995 contract made him the beneficiary of job protections which required the board to give him notice of at least six months before the expiration of his contract. Here's where the dirty trick comes in: The argument that the GCCCD's lawyers used to persuade Superior Court Judge Joan M. Lewis to throw out Agosto's lawsuit was that the original 1995 contract had never taken legal effect because it was -- for reasons unknown -- never signed by the district's chancellor. It was kept on file, just never signed. The district argued that contract was invalid under the "statute of frauds" -- a legal provision which requires hard, documented evidence of contracts that last more than a year to ensure that they are not fraudulently redefined at some later date by the employer or employee. What a joke. The district operated for more than a decade as if the contract were in effect, then, when convenient, declared it null and void. The appeals court figured out this stunk to the high heavens even if Judge Lewis couldn't. Here's a sign of its disgust: The statute of frauds exists to prevent the commission of fraud, not to facilitate fraud. You follow? Judge James A. McIntyre is saying the fraud that's going on here is on the district's part! Wow. He's absolutely right. Now get ready for the members of the district board to blame its lawyers. It's what they do. Lots of rotten stuff happens on their watch, sure. But, you see, it's never their fault. ...The passage I cited is on page 5 [see below.] Posted by Chris Reed at July 30, 2008 04:58 PM |
| Attorney Jack Sleeth fails to accept responsibility for the damage he and GCCCD did to David Agosto |
PUBLIC MEETING OF GOVERNING
BOARD
FEBRUARY 19, 2008
Closed Session–5:00 p.m.Public
Session–6:30 p.m.
... to consult with legal counsel
regarding three cases of pending
litigation:
Agosto v. GCCCD,
Stevens v. GCCCD, and Tarvin v.
GCCCD; and section 54957.6 to
confer with the District Chief
Negotiator regarding United
Faculty, California School
Employees Association (CSEA),
Administrators’ Association, and
Confidential Staff matters...
BOARD
FEBRUARY 19, 2008
Closed Session–5:00 p.m.Public
Session–6:30 p.m.
... to consult with legal counsel
regarding three cases of pending
litigation:
Agosto v. GCCCD,
Stevens v. GCCCD, and Tarvin v.
GCCCD; and section 54957.6 to
confer with the District Chief
Negotiator regarding United
Faculty, California School
Employees Association (CSEA),
Administrators’ Association, and
Confidential Staff matters...
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| Win some, lose some In the November 4, 2008 election, Nick Aguilar, who decided not to run for re-election to his county board of education seat and instead run for the Southwestern College board, won his new office handily against incumbent David Agosto. |
| David Agosto was fired for blowing the whistle on the GCCCD Board |
| Grossmont-Cuyamaca Community College District might be held liable for improperly firing its interim associate vice chancellor while he was on medical leave. Community College Week October 20, 2008 Calif. Judicial Panel Sides with Fired College Official in Lawsuit By Ian Freedman and Eric Freedman The California Court of Appeal has decided that the district failed to follow the state Education Code when it gave David Agosto fewer than three months notice of its decision not to renew his contract. The law entitled him to at least six months notice. The suit seeks reinstatement with back pay, as well as damages for harm to his reputation and discrimination based on disability, according to his attorney, Martha Torgow of Northridge. However, a lawyer for the district, Jack Sleeth Jr. of San Diego, said Agosto may have to repay unearned salary. “I think he owes us money. We paid more than he was entitled to so we would avoid violating the disability statute,” Sleeth said. The three-judge panel sent the case back to San Diego County Superior Court for further proceedings. |
| Grossmont-Cuyamaca Community College District (GCCCD) loses in court again and again Is it time to ask if lawyers are pursuing billable hours to defend bad decisions? |
| California Judge Orders Community College to Reinstate Fired Instructor The Chronicle of Higher Education 2 Sep 2008 September 2, 2008 A California judge has overturned the 2006 firing of a Grossmont College instructor who allegedly offered a student a passing grade if she agreed to show him her bra, The San Diego Union- Tribune reported on Saturday. The judge, Charles R. Hayes of the Superior Court for San Diego County, ordered the Grossmont-Cuyamaca Community College District to reinstate Timothy Cliffe, a physical-geography instructor. In his decision, Judge Hayes overruled another judge who had found that Mr. Cliffe had engaged in “immoral conduct.” According to a spokeswoman for the district, it has not decided whether it will appeal the latest ruling. In his ruling, Judge Hayes questioned the validity of the claims made by the student, Yu Yu Chen, a native of Taiwan. He said Ms. Chen’s limited English skills might have caused a misunderstanding. He also noted that Mr. Cliffe had once caught the student cheating on a test. The alleged incident occurred when Ms. Chen asked Mr. Cliffe to change her grade from an F to a C. Mr. Cliffe has admitted making a sarcastic comment that likened course grades to bra sizes, but has denied seeking sexual favors. —Allie Grasgreen |
| Gwyneth Mapes wins against GCCCD Grossmont instructor awarded $385,000 by jury San Diego Union-Tribune March 25, 2009 A San Diego Superior Court jury has awarded $385,000 to a Grossmont College instructor who accused school officials of retaliating against her after she reported sexual discrimination and harassment to a supervisor in 2002. The jury last week awarded damages to Gwenyth Mapes, a tenured humanities instructor at the El Cajon community college. In her lawsuit, Mapes said she told her supervisor to tell another teacher, William Hoaglin, to “keep it in his pants” after reporting alleged incidents of sexual misconduct, according to court documents. She based her complaint on discussions she had with a male student who had been in Hoaglin's class and told her he gave preferential treatment to attractive blond female students. She said a staff member also told her he had made suggestive comments to her. In addition, Mapes said she overheard students joking how being a blonde in the teacher's class would get someone an A. The district said Mapes did not produce any evidence, and Hoaglin denied any wrongdoing. Mapes said district officials gave her negative evaluations, suspended her and excluded her from activities after her initial complaint to her supervisor, Zoe Close, chair of Philosophy, Humanities and Religious Studies. The district's lawyer said Mapes' supervisors disciplined her because she she had not produced any evidence of wrongdoing and continued to spread rumors about Hoaglin. –L.S. |
| Community College Week October 20, 2008 "...However, a lawyer for the district, Jack Sleeth Jr. of San Diego, said Agosto may have to repay unearned salary. “I think he owes us money. We paid more than he was entitled to so we would avoid violating the disability statute,” Sleeth said. The three-judge panel sent the case back to San Diego County Superior Court for further proceedings. In addition to associate vice chancellor, Agosto had served as Cuyamaca College’s interim president in 2001 and as its vice president. He’d also served as the interim president of San Diego City College in 2000. Agosto is currently president of the governing board of the Southwestern Community College District in Chula Vista but isn’t employed at a community college, Torgow said. He was on medical leave for kidney disease from September 2005 until his notice of dismissal arrived in March 2006, according to the decision. The district said “he would not be offered another administrative position, but could return to a faculty position,” the decision said. |
| GCCCD |
In addition to associate vice chancellor, Agosto had served as Cuyamaca
College’s interim president in 2001 and as its vice president. He’d also served
as the interim president of San Diego City College in 2000...
He was on medical leave for kidney disease from September 2005 until his
notice of dismissal arrived in March 2006, according to the decision.
The district said “he would not be offered another administrative position, but
could return to a faculty position,” the decision said.
In his appellate brief, Agosto accused the district of attempting “to obscure the
complete facts.”
...He also said the district “feigned efforts to accommodate his medical needs,
while in reality setting up barriers and obstacles to his returning to work.
Ultimately, he was offered a work schedule that involved 11-hour days, with no
breaks.”
The Court of Appeal overturned a Superior Court judge who had concluded
Agosto’s original two-year contract was unenforceable because no one could
find a copy of the document signed by the district’s chancellor when he was
hired in 1995...
Sleeth, the district’s lawyer, said the lesson that the case
teaches community colleges is “keep good records. Part of the
problem is we didn’t know what contract he was under.”
Sleeth said the minutes of the board concerning Agosto’s
administrative appointment “didn’t disclose the length of the contract,”
which could be up to four years under California law.
The appeal raised another issue that the panel didn’t resolve —
whether the board had properly made public its closed-door decision
to terminate him, according to Torgow, his lawyer.
She said the lower court must now decide whether the district will be allowed to
claim at trial that its termination was procedurally valid.
College’s interim president in 2001 and as its vice president. He’d also served
as the interim president of San Diego City College in 2000...
He was on medical leave for kidney disease from September 2005 until his
notice of dismissal arrived in March 2006, according to the decision.
The district said “he would not be offered another administrative position, but
could return to a faculty position,” the decision said.
In his appellate brief, Agosto accused the district of attempting “to obscure the
complete facts.”
...He also said the district “feigned efforts to accommodate his medical needs,
while in reality setting up barriers and obstacles to his returning to work.
Ultimately, he was offered a work schedule that involved 11-hour days, with no
breaks.”
The Court of Appeal overturned a Superior Court judge who had concluded
Agosto’s original two-year contract was unenforceable because no one could
find a copy of the document signed by the district’s chancellor when he was
hired in 1995...
Sleeth, the district’s lawyer, said the lesson that the case
teaches community colleges is “keep good records. Part of the
problem is we didn’t know what contract he was under.”
Sleeth said the minutes of the board concerning Agosto’s
administrative appointment “didn’t disclose the length of the contract,”
which could be up to four years under California law.
The appeal raised another issue that the panel didn’t resolve —
whether the board had properly made public its closed-door decision
to terminate him, according to Torgow, his lawyer.
She said the lower court must now decide whether the district will be allowed to
claim at trial that its termination was procedurally valid.
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