Opinion
NOT TO BE PUBLISHED
1 APPEAL from a judgment of the Superior Court of Los Angeles County No. BC370951 Judith Chirlin, Judge.
Holmgeir Brynjolfsson, in pro. per., for Plaintiff and Appellant.
David Holmquist, General Counsel, Kathleen E. Collins, Associate General Counsel, and Effie Turnbull, Assistant General Counsel, for Defendant and Respondent.
ALDRICH, J.
Holmgeir Brynjolfsson, appearing in properia persona, appeals from the judgment entered following the dismissal of his third amended complaint. The third amended complaint seeks damages for a procedural due process violation of the Fourteenth Amendment of the United States Constitution, a violation of the Ralph M. Brown Act (Gov. Code, § 54950 et seq.), and negligence in connection with his dismissal from, and his reinstatement to, his position as a mechanic for the Los Angeles Unified School District (the District). After his reinstatement following an administrative appeal, Brynjolfsson filed this lawsuit alleging he was misled into believing his former position had been eliminated, and he was forced to return to a position that required him to commute for six months to a District facility that was farther away from his home. Brynjolfsson viewed this conduct as the latest in a series of incidents that allegedly represented a continuing pattern of retaliatory conduct spanning a seven-year period during his 28 years of employment with the District. Finding no cognizable theory of recovery alleged in the third amended complaint, the trial court sustained the District’s demurrer without leave to amend. We affirm the judgment of dismissal.
The clerk’s transcript spells appellant’s name “Holmgier Brynjolffson.” We use appellant’s spelling as set forth in his briefs.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts surrounding Brynjolfsson’s dismissal and reinstatement are set forth in detail in the appeal following his petition for writ of administrative mandamus. (Los Angeles Unified School District Personnel Commission v. Holmgeir Brynjolfsson (Sept. 19, 2008, B204231) [nonpub. opn.].) Brynjolfsson was suspended from work for 30 days pending dismissal for installing the wrong size brake chamber on the left rear wheel of a school bus. As a result, the bus failed an inspection by the California Highway Patrol before being returned to service. After an administrative review of the disciplinary recommendation, the District concluded the error was caused by Brynjolfsson’s inattention to, or dereliction of, his duties as a mechanic, and dismissed him from employment effective October 27, 2004. Following an appeal, the administrative hearing officer recommended upholding the dismissal. (Id. at p. 3.) Brynjolfsson appealed to the Los Angeles Unified School District Personnel Commission (Commission), and the Commission voted to restore him to his position effective September 27, 2005. (Ibid.) Brynjolfsson was reinstated and still works for the District. Shortly after he was reinstated, he initiated this lawsuit.
Brynjolfsson filed a petition for writ of administrative mandamus to compel, among other things, the Commission to award him full backpay and benefits since it withheld one year’s benefits and pay from the date of his suspension on September 28, 2004 through September 26, 2005. The trial court granted the writ and restored Brynjolfsson to full backpay and benefits. (Los Angeles Unified School District Personnel Commission v. Holmgeir Brynjolfsson, supra, B204231 at p. 6.) The Court of Appeal reversed and remanded the matter to the Commission to make the appropriate findings to support its decision.
1. The Government Claim for Damages
In October 2006, Brynjolfsson filed a government claim seeking damages from the District. (Gov. Code, § 910 et seq.) The claim stated that upon his reinstatement, the District’s fleet maintenance manager, Ricardo Salas, misrepresented to Brynjolfsson that his former position at the Sun Valley Garage had been eliminated in March 2006. As a result, Brynjolfsson had to take a position farther away from his home and incurred additional expenses to commute to the District’s downtown facility. Brynjolfsson sought reimbursement from the District for the additional commuting expenses.
In general, no suit for money or damages may be filed against a public entity until a written claim has been presented to, and acted upon by, the entity’s board. (Gov. Code, § 945.4.) Once the claim has been rejected, the claimant is free to file a suit, but the complaint must be based upon the facts alleged in the claim. (Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 434.)
Brynjolfsson stated in his claim that Salas made these representations to retaliate against him following his appeal of his dismissal, and in a continuing attempt to terminate his employment in violation of California Labor Code provisions.
The District rejected the claim on November 16, 2006.
In a letter to the District dated May 14, 2007, Brynjolfsson attempted to submit what he termed a “New/Updated/Revised Claim.” The claim was “relate[d] to acts against employee starting in the first quarter of the year 2000 and continued until the last quarter of 2006. This updates and revises claims submitted on 10/10/2006 and rejected on 11/16/2006 by L.A.U.S.D.”
2. The Prior Complaints and Demurrers
In a series of complaints, Brynjolfsson alleged a number of additional events spanning a seven-year period leading up to his dismissal and reinstatement.
The original complaint was timely filed on May 11, 2007. The factual allegations included his dismissal and reinstatement to a facility farther away from his home, along with an incident that occurred in 2000 when he was demoted by Salas from probationary assistant garage supervisor to bus mechanic, and given a 20-day suspension in 2002 for dereliction of duties. Based upon these facts, Brynjolfsson alleged causes of action for violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), sections 12926(i)(K)(l), which does not exist, and 12926(h), defining a medical condition. After the District’s successful demurrer, Brynjolfsson was granted leave to amend.
Brynjolfsson’s first amended complaint alleged the same incidents and asserted causes of action for negligence and “intentional tort, intentional infliction of emotional distress and damages.” After the District’s demurrer was sustained, Brynjolfsson again was granted leave to amend.
Based on the same factual allegations, Brynjolfsson alleged a pattern of discriminatory conduct in his second amended complaint. The second amended complaint alleged two causes of action: (1) a FEHA violation for disparate treatment, retaliation, harassment, failure to provide due process, dereliction of duty, abuse of authority, misrepresentation, and infliction of emotional distress; and (2) negligence. The trial court sustained the demurrer to the FEHA cause of action without leave to amend and overruled the demurrer to the negligence cause of action. The District later obtained judgment on the pleadings on the negligence cause of action. Brynjolfsson was given leave to amend.
3. The Third Amended Complaint and Demurrer
Because this case comes before us on appeal from a judgment sustaining a demurrer, we assume the truth of the facts alleged and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.)
Brynjolfsson alleged a systematic and concerted effort against him that involved discriminatory acts and attacks, misrepresentations, and false charges resulting in disciplinary action, including termination.
Brynjolfsson alleges the triggering incident giving rise to his third amended complaint is his return to work in May 2006 after successfully appealing his dismissal. When Brynjolfsson returned to work, Salas misrepresented to him that his former position had been eliminated. In September 2006, Brynjolfsson learned of an open position in Sun Valley, his former garage. As a result of the misrepresentation, Brynjolfsson drove an additional 44 miles per day to and from work for about six months.
Brynjolfsson also alleges a series of incidents beginning in 2000 and leading up to his reinstatement that “constituted both retaliation and... a hostile working environment.” Specifically, he alleges the retaliation began in 2000 after he refused the request to arrive to work one-half hour early without pay. Shortly thereafter, in April 2000, Salas demoted him from probationary assistant garage supervisor to mechanic. After an investigation, the Commission upheld the demotion, but placed Brynjolfsson’s name on the eligibility list for another promotion. Within 60 days, two positions became available, but Brynjolfsson was not promoted. Brynjolfsson alleges his 2000 demotion without notice constituted a violation of the Brown Act.
In 2003, Brynjolfsson received a 20-day suspension from Salas for unsatisfactory work and dereliction of duty. Brynjolfsson later appealed, and after a three-day administrative hearing, the suspension was reduced to three days. Brynjolfsson alleged the suspension was unwarranted but did not pursue a further appeal because he was suspended from service pending dismissal in September 2004.
On September 9, 2004, Brynjolfsson received notice of his suspension pending dismissal for installing the wrong brake chamber. The District conducted an administrative review of the disciplinary recommendation, which included meeting and discussing the charges with Brynjolfsson. At the conclusion of the administrative review, the director of transportation informed Brynjolfsson that he decided to uphold the disciplinary recommendation and forwarded it to the Board of Education (the Board) for disposition. Thereafter, on October 27, 2004, Brynjolfsson received notice that the Board had dismissed him. The notice included a statement of the charges, and his appeal rights. Brynjolfsson alleges the action by the Board violated the Brown Act.
Based upon these factual allegations, the third amended complaint seeks damages arising from a violation of the due process clause of the Fourteenth Amendment to the United States Constitution, a violation of the Brown Act, and negligence.
The due process cause of action alleges disparate treatment, retaliation, harassment, dereliction of duty, abuse of authority, misrepresentation of facts, and infliction of emotional distress. Brynjolfsson alleges the Board’s decision constitutes a taking of a property interest without due process, citing Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95 (Bostean). He further alleges his due process was violated based upon Education Code sections 45306, 45312, and 45116, and Government Code section 19253.5, because the District and Board failed to provide a hearing before his dismissal.
The Brown Act violation arises from the Board’s decision. Brynjolfsson alleges the Brown Act mandates that he receive prior notice and an opportunity to be heard before the Board decided to dismiss him from employment.
The negligence cause of action cites 16 acts of negligent and willful misconduct in general terms, such as “[p]ermitted employees to abuse their authority, ” and “[f]ailed to properly enforce LAUSD practices regarding employment and the discipline system[.]”
The District filed a demurrer to the third amended complaint contending the due process cause of action failed because the Fourteenth Amendment does not provide a private right of action for damages, the Brown Act does not apply, and the negligence claim is barred under Government Code section 815, citing Miklosy v. Regents of University of California, supra, 44 Cal.4th at page 899.
The trial court sustained the demurrer to the third amended complaint without leave to amend. Judgment was entered on May 6, 2009, and Brynjolfsson timely appealed.
DISCUSSION
1. Standard of Review
“In reviewing the sufficiency of a complaint against a general demurrer... we [must] determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden is on the plaintiff... to demonstrate the manner in which the complaint might be amended. [Citation.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)
We review de novo questions of law involving the due process clause. (Bostean, supra, 63 Cal.App.4th at pp. 107-108.)
2. The Trial Court Properly Sustained the Demurrer to the Due Process Cause of Action
A violation of the due process clause of the Fourteenth Amendment to the United States Constitution does not give rise to a cause of action for damages. (Magana v. Com. of the Northern Marina Islands (9th Cir. 1997) 107 F.3d 1436, 1441-1442.) Instead, claims for damages for a deprivation of due process under the Fourteenth Amendment are brought under title 42 of the United States Code section 1983 (section 1983). (Magana v. Com. of the Northern Marina Islands, supra, at p. 1441.) “Section 1983 provides a remedy against ‘any person’ who, under color of state law, deprives another of rights protected by the Constitution.” (Collins v. Harker Heights (1992) 503 U.S. 115, 120; see also Bostean, supra, 63 Cal.App.4th at p. 105 [petitioner alleged deprivation of his due process rights under the Fourteenth Amendment in violation of section 1983]; Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098, 1100 [suspended employee sued the District under section 1983].)
Brynjolfsson relies on numerous provisions of the Education Code and provisions of the Government Code in his third amended complaint and briefs as a basis to pursue damages for a violation of due process. None of the cited statutes confer such a right. For example, the remedy for a violation of the Brown Act provision requiring notice is to nullify the Board’s decision. (Gov. Code, § 54957, subd. (b)(2).)
Even if we were to consider this cause of action as asserting a section 1983 claim for a due process violation, this cause of action would fail for another independent reason. As the District asserted, it cannot be sued under section 1983 because it is an arm of the state under the Eleventh Amendment to the United States Constitution and is therefore not a “person” within the meaning of section 1983. (See Kirchmann v. Lake Elsinore Unified School Dist., supra, 83 Cal.App.4th at pp. 1103-1105, 1111-1115.)
A state or an entity that is an arm of the state is not considered a “person” subject to suit under section 1983. (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 64-69; Kirchmann v. Lake Elsinore Unified School Dist., supra, 83 Cal.App.4th at p. 1101.) California school districts have been held to be “arm[s] of the state” and not “persons” for purposes of Eleventh Amendment immunity. (Kirchmann v. Lake Elsinore Unified School Dist., supra, at pp. 1105-1115.) In Kirchmann, the Court of Appeal held, based upon various criteria, including the State of California’s beneficial ownership of school district funds and other property, that school districts shared the state’s immunity from state court suits brought under section 1983. (Kirchmann v. Lake Elsinore Unified School Dist., supra, at pp. 1105-1115.) Bostean, supra, 63 Cal.App.4th at page 95, was an appeal from an administrative mandamus proceeding decided before Kirchmann, with no discussion of whether a school district has immunity as a state instrumentality.
The due process cause of action, however, also fails on the merits, assuming Brynjolfsson sought an available remedy through mandamus, or sought declarative or injunctive relief. (Bostean, supra, 63 Cal.App.4th at p. 99.) In analyzing a due process claim, we first determine whether the plaintiff had a property interest subject to due process protection under the Fourteenth Amendment. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206 (Skelly).) If we find an interest existed, we then determine whether the defendant met due process requirements when it deprived the plaintiff of that interest. (Id. at pp. 207-208.)
Under California law, an individual employed in the public sector who has attained the status of “ ‘permanent employee’ ” [has] a property interest in the continuation of his [or her] employment which is protected by due process.” (Skelly, supra, 15 Cal.3d at pp. 207-208.) Once a court has determined that a party has a protected property interest and is entitled to due process, it must determine what process is due, and whether the party received it. (Bostean, supra, 63 Cal.App.4th at pp. 112-118.) That determination is grounded in federal, not state law. (Id. at p. 112.)
In Skelly, supra, 15 Cal.3d 194, the court applied the federal balancing test articulated by the United States Supreme Court to determine what process is due a public employee facing removal from employment. (Id. at pp. 211-216.) The California Supreme Court held a permanent employee with a property interest in continued employment is entitled to certain procedural safeguards before being removed from employment. While those due process safeguards do not include a full evidentiary hearing before removal, minimally pre-removal safeguards include “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Id. at p. 215.) Roe v. State Personnel Bd. (2004) 120 Cal.App.4th 1029, 1039-1040, upon which Brynjolfsson relies, reiterates the right to Skelly-type procedures for state employees and an opportunity to respond to the authority initially imposing discipline before dismissal. That case, however, addressed an entirely different issue, that is, whether a state employee’s resignation following his termination without due process cut off his remedies for backpay.
In Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 562-564, the Supreme Court held that Skelly does not require a pre-disciplinary hearing prior to a five-day suspension of a government employee. The court also appeared to suggest that a prompt post-suspension hearing would satisfy due process even in long-term suspension cases. (Id. at p. 562.)
Bostean, supra, 63 Cal.App.4th 95, however, concluded in long-term involuntary leave cases, a public employee must receive Skelly-type procedural protections, including notice of the charges and an opportunity to respond in order to satisfy due process. (Id. at pp. 117-118.) In Bostean, the public employee was placed on involuntary illness leave for seven months without pay and had no notice of the charges and no opportunity to be heard before he was placed on leave. (Id. at pp. 100-102.) The Bostean court, after weighing the relevant factors, held the leave was properly viewed as discipline, and the public employee was deprived of his property interest without due process of law. (Id. at pp. 112-117.)
Brynjolfsson contends Bostean required the District to hold a full evidentiary hearing before his dismissal, rather than a full hearing upon his appeal from his dismissal. Under Skelly and Bostean, a full evidentiary hearing is not required before dismissal. Brynjolfsson was given Skelly-type procedural safeguards before he was dismissed, which included notice of the charges, a Skelly-packet, and an opportunity to respond to the authority initially recommending dismissal. Brynjolfsson, accompanied by his union representative, met with the director of transportation and a human resources director to discuss the disciplinary charges against him. Brynjolfsson’s Skelly-packet contained a statement of the charges and witness statements related to the incident. Following the meeting, the director of transportation informed Brynjolfsson that he intended to forward the original recommendation of dismissal to the Board for disposition. Thereafter, Brynjolfsson was given notice of the Board’s decision to dismiss him, which included a description of the charges for “this suspension and dismissal, ” and his right to appeal the decision. Brynjolfsson exercised his rights and successfully appealed his dismissal. Brynjolfsson was not deprived of due process. The demurrer was properly sustained without leave to amend.
Brynjolfsson also relies on English v. City of Long Beach (1952) 114 Cal.App.2d 311 and Education Code section 45302. Neither advances his due process argument requiring a full evidentiary hearing before dismissal. In English, the issue was whether a policeman’s widow was entitled to a pension. The city contended the patrolman had been dismissed from service prior to his death and ceased to be an employee. (English v. City of Long Beach, supra, at pp. 313, 318.) Under the city charter, the effect of a dismissal was not final until a fair hearing on the charges. Having not been afforded a fair hearing, the civil service board decision sustaining his dismissal was a nullity. (Id. at pp. 318-322.) Thus, until he had a full hearing, his status as a member of the police department remained unimpaired. (Id. at p. 322.) Education Code section 45302 requires reasonable cause to demote or remove a permanent classified employee.
To the extent Brynjolfsson contends the initial suspension required a pre-suspension hearing, Brynjolfsson participated in the administrative review process which predated the suspension.
3. The Trial Court Properly Sustained the Demurrer to the Brown Act Violation
Brynjolfsson contends the Board’s decision to dismiss him violated the Brown Act because he was not given 24-hour notice that the Board would be considering his dismissal. (Gov. Code, § 54957, subd. (b)(2).) The notice provision does not apply to Brynjolfsson’s dismissal.
The Board is subject to the requirements of the Brown Act. (Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 95.) The Brown Act applies to meetings of legislative bodies, which includes “[t]he governing body of a local agency[.]” (Gov. Code, § 54952, subd. (a).) All meetings of the legislative body of a local agency must be open and public. (Gov. Code, § 54953, subd. (a).) The objective of the Brown Act “is to facilitate public participation in all phases of local government decisionmaking and to curb misuse of democratic process by secret legislation by public bodies.” (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 555.)
The Brown Act contains a personnel exception that allows local legislative bodies to hold closed sessions to act on matters such as discipline or dismissal of a public employee, or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session. (Gov. Code, § 54957, subd. (b)(1).) The Brown Act also requires 24-hour written notice to the public employee of the right to have an open session when hearing specific complaints or charges brought against the employee by another person or employee. (Gov. Code, § 54957, subd. (b)(2).)
In Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at pages 96-97, 100, we held the Legislature chose not to extend the 24-hour written notice requirement to discipline or dismissal of a public employee, but intended to limit the requirement to complaints or charges brought against the employee by another person or employee. The Board’s decision to dismiss Brynjolfsson was not a “complaint or charge” under the Brown Act. Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 683-684, and Moreno v. City of King (2005) 127 Cal.App.4th 17, 21, 28-29 are distinguishable because in each case, the closed session was the only forum in which the public agency heard the accusations against the employee (without an opportunity to present the employee’s version) and thereafter imposed the discipline before the employee had notice and an opportunity to be heard.
The complaint also alleges a violation of the Brown Act for Brynjolfsson’s demotion in 2000. The complaint does not allege the Board reviewed that decision, and Brynjolfsson appears to have abandoned that theory on appeal.
4. The Trial Court Properly Sustained the Demurrer to the Negligence Cause of Action
The District is immune from tort liability under the Government Claims Act (Gov. Code, § 810 et seq.) Government Code section 815, subdivision (a) states: “Except as otherwise provided by statute: [¶] A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” This section abolishes common law tort liability for public entities, except for liability as provided by statute or as required by the state or federal Constitution. Absent a statutory or constitutional basis to hold the District liable for negligence, the District is immune from liability. (See Miklosy v. Regents of University of California, supra, 44 Cal.4th at pp. 899-900.)
Brynjolfsson contends both of these exceptions apply to impose tort liability. As we have previously stated, he has not alleged a due process violation under the federal Constitution. Brynjolfsson also has not alleged a statutory basis for tort liability.
Brynjolfsson cites Education Code section 35161 in his brief in an attempt to impose tort liability on the District. Education Code section 35161 generally describes the powers and duties of the governing board of any school district and states the school district acts through its board. Brynjolfsson appears to contend Education Code section 35161 is the basis upon which the Board is liable under the statute imposing governmental liability for breach of a mandatory duty. (Gov. Code, § 815.6.)
We assume Brynjolfsson is proposing this as an amendment to the third amended complaint.
Education Code section 35161 states: “The governing board of any school district may execute any powers delegated by law to it or to the district of which it is the governing board, and shall discharge any duty imposed by law upon it or upon the district of which it is the governing board, and may delegate to an officer or employee of the district any of those powers or duties. The governing board, however, retains ultimate responsibility over the performance of those powers or duties so delegated.”
“ ‘Government Code [section] 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity: (1) an enactment must impose a mandatory, not discretionary, duty...; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability...; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.’ [Citations.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1458.)
Brynjolfsson’s complaint fails to allege a specific statutory duty. (See Becerra v. County of Santa Cruz, supra, 68 Cal.App.4th at p. 1458.) Education Code section 35161 also does not satisfy any of the pleading requirement set forth in Becerra v. County of Santa Cruz, supra, at page 1458. Thus, the trial court properly sustained the demurrer to this cause of action without leave to amend.
Brynjolfsson purports to challenge the constitutionality of Education Code section 45306. This issue is ancillary and unnecessary to our resolution of this appeal. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 259.) Moreover, Brynjolfsson waived the issue by failing to raise it before the trial court. We have considered and rejected Brynjolfsson’s remaining arguments presented on appeal.
DISPOSITION
The judgment is affirmed. Each party is to bear their own costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J