Opinion
E029838.
7-17-2003
DEBORAH N. COOKSEY, Plaintiff and Appellant, v. SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
Gronemeier & Associates, Dale L. Gronemeier and Ellen J. Bowers for Plaintiff and Appellant. Creason & Aarvig and Maria K. Aarvig for Defendants and Respondents.
Plaintiff and appellant Deborah N. Cooksey appeals from judgment entered in favor of defendants and respondents the San Bernardino Unified School District (the district), Joseph J. Woodford, Don Simpson and Arturo Delgado (collectively, defendants), after the trial court granted defendants motions for summary adjudication and a directed verdict. We shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
I. Factual History
In December of 1992, the district hired plaintiff as an English and Spanish teacher at Cajon High School.
In the 1994-1995 school year, plaintiff taught her classes in three different classrooms due to a shortage of classrooms. Plaintiff complained about being a "roving" teacher. Plaintiff claimed that, because one of the classrooms was connected to a print shop, the fumes bothered her. Although plaintiff testified that she had problems with the other classrooms as well, she also testified that she did not object to the situation strenuously and "just bore with it." Chalk was not an issue during this school year because all three classrooms had whiteboards.
At the beginning of the 1995-1996 school year, plaintiff was assigned to the same classrooms as the previous year. Plaintiff was distressed over the condition of the room adjacent to the print shop, and testified that she "totally broke down" and that she "could not face [her] students in that filthy classroom that first day." The principal, Don Simpson, persuaded another teacher to trade rooms with plaintiff while plaintiff was put on alternative duty for the first three weeks of the school year.
During this school year, plaintiff was given a written warning for using profanity toward a student, and was written up for incidents of tardiness.
During the summer of 1996, plaintiff applied for teaching positions in Northern California, including with the Roseville Unified School District (Roseville), because plaintiffs husband had moved to Sacramento for his job. Roseville offered plaintiff a position, but she turned it down because the offer was so close to the start of the 1996— 1997 school year.
Plaintiff returned to Cajon High School for the 1996-1997 school year. Plaintiff was taken off the roving assignment and was given one classroom. Nonetheless, plaintiff complained about the assigned classroom because of the heating and air conditioning unit (ventilation problems), dust, dirt and the chalkboard.
Plaintiff was issued an off-work order in October of 1996. At the same time, plaintiff and her husband purchased a home in Sacramento. The doctor who issued the off-work orders, Dr. McGhee, testified at the trial. Dr. McGhee examined plaintiff on October 25, 1996, and issued an off-work order based upon her diagnosis of depression, shoulder pain and back pain. Plaintiff had reported that she was "under excess stress at home and at work." Plaintiff was prescribed anti-depressant medications, and was given an off-work order which indicated that she was to have no contact with students. Plaintiff had no complaints or symptoms of respiratory problems at that time.
In fact, plaintiff made no complaints of respiratory problems at any of her visits to the doctor during the fall of 1996. Hence, the off-work orders during that time made no reference to any work restrictions related to environment issues in general, or a chalkboard in particular.
During this time period, while plaintiff was on leave from the district, plaintiff was offered and accepted a substitute teaching position for 10 days in January of 1997, in Roseville. Plaintiff did not inform the district that she taught at another school while she was on leave from the district.
In February of 1997, plaintiff made a claim of respiratory problems to her doctor, and to the affirmative action officer of the district. She obtained medical documentation of the accommodation she was requesting on March 13, 1997. The district accommodated her by purchasing a whiteboard and an air purifier; plaintiff returned to her classroom on March 17, 1997. Plaintiff worked the remainder of the school year with no respiratory problems.
Nevertheless, plaintiff continued to have serious conflicts with her students and faculty members. Plaintiff admitted that she told students that whatever the principal stated was "bullsh—," and that she told other students to "get the hell out of here." Plaintiff also admitted to other incidents of using profanity toward students. Moreover, plaintiff admitted to a verbal confrontation with another teacher in which she used profanity in the presence of students. Furthermore, plaintiff had a problem with tardiness. Plaintiff described her experience during the balance of the school year as "an awful situation."
Plaintiff did not report to work on the first day of the 1997-1998 school year and submitted another off-work order. She requested a leave of absence because she was depressed and anxious about returning to work at the district. She was, at that time, under the care of psychiatrists in Northern California, in weekly therapy. She was also taking medications which made her dysfunctional.
The district became suspicious of the off-work order because it could not be confirmed with the local Kaiser facilities and plaintiff could not be reached by telephone. The district began to investigate. The district learned that the off-work order was issued from a Northern California Kaiser facility and that plaintiff was living in Northern California. Moreover, it was learned that plaintiffs teaching credential had been activated in Placer County, which led to the discovery that she had been working in Roseville while on leave from the district in January of 1997.
On October 14, 1997, the district issued a "Notice of Proposed Suspension and Dismissal" with an accompanying "Statement of Charges" (the Charges). The Charges against plaintiff asserted immoral conduct, dishonesty, and evident unfitness for service. The sole basis of the Charges was the fact plaintiff taught in Roseville while she claimed that she could not work for the district.
Plaintiffs union appointed Conrad Ohlson to represent plaintiff regarding the Charges. Plaintiff authorized Ohlson to represent her at the Skelly hearing on October 24, 1997. At the hearing, Joseph Woodford, the assistant to the superintendent of the district, discussed the possibility of plaintiffs resignation — which resulted in settlement discussions. During the negotiations that ensued, all communication was held between Ohlson and Woodford. Although plaintiff spoke with Ohlson approximately 30 times during this period, she never spoke directly with Woodford or issued any written communication to him.
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 203, 124 Cal. Rptr. 14, 539 P.2d 774 (Skelly).
Woodford prepared a first draft of a settlement agreement, which he sent to Ohlson, and which plaintiff received on October 31, 1997. The district believed that plaintiff was represented by counsel, in addition to her union representative, during the settlement discussions because it had received a message from plaintiffs counsel and the union informed the district that plaintiff had counsel. Plaintiff, however, maintains that she was not represented by counsel during the settlement negotiations. Notwithstanding whether plaintiff was represented by counsel, the evidence showed that plaintiff consulted with a number of sources during the settlement negotiations, including the State Teachers Retirement System, her accountant, and a representative of the California Teachers Association (CTA) in Sacramento. Moreover, plaintiff admitted that she told her union representative that she had consulted with an attorney regarding the settlement proposal.
The only item on the first draft of the settlement agreement that was changed was the amount of money plaintiff would receive under the agreement. Ohlson negotiated for more money, and also requested that the settlement not be reported to the Internal Revenue Service (IRS). The district approved the request for a higher payout, but rejected the request that the income not be reported to the IRS.
Ohlson communicated that with the exception of the amount to be paid, the first draft was acceptable as printed. A final draft of the agreement was prepared, with the only substantive change being an increase in the amount to be paid by the district.
The final agreement, in pertinent part, provided as follows (the settlement agreement):
(1) That plaintiff tender an irrevocable voluntary resignation of her own free will and choice;
(2) That the district pay the sum of $ 14,500;
(3) That the district continue to provide plaintiffs benefits through December of 1997;
(4) That the parties mutually release one another;
(5) That the parties acknowledge that they each had been represented by counsel;
(6) That plaintiff had 21 days to consider the settlement agreement; and, once plaintiff executed the agreement, plaintiff had seven days within which to rescind the agreement; and
(7) That the district not place "the Notice of Proposed Suspension and Dismissal, Statement of Charges or investigation documents" in plaintiffs personnel file.
Plaintiff signed the settlement agreement, rendering her resignation effective November 19, 1997.
In the interim, at a board meeting on November 18, 1997, one day before plaintiff signed the settlement agreement, the district determined that it would suspend plaintiff without pay for an indefinite period of time and proposed to dismiss her.
Subsequently, the following events transpired.
A. The District Reports the Suspension and Settlement Agreement to the California Commission on Teacher Credentialing (Commission)
The district, through its assistant superintendent Arturo Delgado, made a report regarding plaintiffs mid-year resignation to the Commission on January 13, 1998, as required under California Code of Regulations, title 5, section 80303, which states, that "Whenever a credential holder, working in a position requiring a credential: [P] (1) is dismissed; [P] (2) resigns; [P] (3) is suspended for more than 10 days; [P] (4) retires; or [P] (5) is otherwise terminated by a decision not to employ or re-employ as a result of an allegation of misconduct, the superintendent of the employing school district shall report the change in employment status to the Commission within 30 days."
California Code of Regulations, title 5, section 80303, subdivision (a) (section 80303).
Section 80303, subdivision (c), states that "the report shall be made to the Commission regardless of any proposed or actual agreement, settlement, or stipulation not to make such a report. . . ."
B. The District Responds to a State Teachers Retirement System (STRS) Questionnaire
Shortly after resigning, plaintiff applied for disability benefits from the STRS. In processing plaintiffs application, STRS sent a questionnaire to the district. The questionnaire asked the reason for plaintiffs termination or other factors affecting plaintiffs ability to return to work. The district briefly answered that question by stating that plaintiff "resigned in lieu of termination."
C. Vocational Rehabilitation Consultant
About one year after her resignation, plaintiffs vocational rehabilitation consultant made an inquiry into her employment history, and asked for a reason for termination. After the district received a signed authorization for release of information from plaintiff, the district answered that the reason for termination was "resignation in lieu of termination."
II. Procedural History
On May 12, 1999, plaintiff filed a complaint against the district, Woodford and Simpson. She subsequently named Delgado as a Doe defendant. After a series of demurrers, the operative complaint was the fourth amended complaint (the complaint), which alleged causes of action for rescission of the settlement agreement, breach of the settlement agreement, fraudulent concealment, fraudulent misrepresentation, and due process violations.
Both plaintiff and defendants filed motions for summary adjudication. The trial court denied plaintiffs motion. The trial court granted the districts motion as to the first cause of action for rescission. The trial court concluded that, because section 80303 did not require the District to give plaintiff notice of that section prior to plaintiffs resignation, the contract was not illegal. The trial court also granted the motion in favor of Delgado and Simpson as to the sixth cause of action for violation of 42 United States Code section 1983 because the alleged misconduct did not constitute a due process violation.
The case proceeded to trial. After opening statement, the trial court granted Woodfords and the districts motion for nonsuit on plaintiffs sixth cause of action for violation of 42 United States Code section 1983. As a result, the second cause of action for breach of contract against the district was the only remaining causes of action in the operative complaint.
After both sides rested, each party moved for a directed verdict on the remaining causes of action. The trial court granted defendants motion for a directed verdict.
Plaintiff appeals.
ANALYSIS
I. Plaintiff Did Not Appeal from the Judgment of Nonsuit or the Denial of Plaintiffs Motion for Summary Adjudication
Plaintiff contends that the trial court erred in granting Woodfords motion for nonsuit and in denying plaintiffs motion for summary adjudication. Defendants contend that we are without jurisdiction to review these contentions because neither the notice of appeal nor the amended notice of appeal expressly listed these determinations as bases for appeal. We agree with defendants.
Although a notice of appeal must be liberally construed, this general rule of construction does not apply when a notice of appeal unambiguously evidences an intent to appeal from only part of a judgment, or one of several separate appealable orders or judgments. "The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders. [Citation.]"
Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625 (Unilogic); Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal. App. 3d 35, 46— 47, 269 Cal. Rptr. 228.
Unilogic, supra, 10 Cal.App.4th 612, 625, quoting Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal. App. 3d 35, 47.
Here, in the first notice of appeal filed on July 5, 2001, plaintiff specifically stated that she was appealing from: (1) the courts order and judgment on motion for directed verdict, and (2) the judgment on "Defendants Motion for Summary Judgment." Thereafter, on January 28, 2002, plaintiff filed a second notice of appeal. In the second notice of appeal, plaintiff again specified that she was appealing from: (1) the courts order and judgment on motion for directed verdict, and (2) the judgment on defendants "Motion for Summary Judgment."
Hence, from the two separate notices of appeal, it is clear that plaintiff intended to appeal exclusively from the judgment entered after the court granted defendants motion for a directed verdict and motion for summary judgment. Given these specific and unambiguous designations, we cannot treat this as an appeal from judgment of nonsuit or from the denial of plaintiffs motion for summary adjudication. Therefore, plaintiff can raise only contentions that challenge the judgment based on the granting of the directed verdict and summary judgment.
Nevertheless, plaintiff argues that Unilogic does not apply to her case because her second notice of appeal was ambiguous. Plaintiff contends that when she filed her first notice of appeal, a final judgment on the order for nonsuit had not been issued. After an amended order, which included the judgment for nonsuit, was issued, plaintiff filed a second notice of appeal. However, plaintiff claims that the second notice of appeal referred to the first order, which did not include the judgment for nonsuit. Hence, plaintiff argues that, "unlike the appellant in Unilogic, [plaintiffs] order here is ambiguous and clearly was meant to notice appeal of the November 6, 2001 judgment and order." Plaintiff, therefore, argues that she is entitled to a liberal construction of her notice of appeal to include both the order and judgment for nonsuit and directed verdict. Plaintiffs argument is unpersuasive.
Had plaintiff indicated that she was appealing from all the rulings included in the trial courts order, her argument may have some merit. However, as stated above, plaintiff clearly indicated that she was appealing from the judgment based on granting the motions for a directed verdict and for summary judgment. Plaintiff never mentioned the judgment for nonsuit. Whether the judgment for nonsuit was included in the amended order was irrelevant. Plaintiff clearly and unambiguously set forth the portions of the judgment from which she wished to appeal. "The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders. [Citation.]"
Unilogic, supra, 10 Cal.App.4th 612, 625, quoting Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal. App. 3d 35, 47.
Moreover, plaintiffs reliance on Kellett v. Marvel is unavailing. In Kellett, the appellant filed a notice of appeal stating that the appeal was taken from an order denying a motion filed by respondent "entered and rendered on the 19th day of March, 1931 . . . ." However, the order was actually made on March 26th, and no order was made on March 19, as indicated by the notice of appeal. The court noted that "[the] notice of appeal is ambiguous in that it names the order, gives a date on which no adjudication was made . . . ." In order to preserve the right of review, the court construed the notice of appeal liberally and considered that the order appealed from was the final judgment entered on March 26th.
Kellett v. Marvel (1936) 6 Cal.2d 464, 58 P.2d 649 (Kellett).
Kellett, supra, 6 Cal.2d 464, 471.
Kellett, supra, 6 Cal.2d 464, 471.
Kellett, supra, 6 Cal.2d 464, 471.
Here, there is no ambiguity. Plaintiff listed the two rulings she wished to appeal from the judgment. There is no argument that plaintiff failed to preserve the right of review of these two rulings because she failed to list the amended final order date in her second notice of appeal — as the respondent argued in Kellett. Here, the only issue is whether plaintiff can appeal from rulings that she failed to list in her notice of appeal. As discussed above, she cannot.
Furthermore, we can make no determination on the denial of plaintiffs summary adjudication motion in this opinion, since an appeal may not be taken from a denial of a summary judgment motion. "[Code of Civil Procedure] section 904.1 specifies those orders and judgments of the superior court from which an appeal may be taken. An order denying summary judgment is not one of them. Section 437c, subdivision (l) specifies that the judgment resulting from the granting of a motion for summary judgment is appealable, as is any other judgment. However, the same subdivision provides that the denial of such a motion may only be reviewed by way of a petition for extraordinary writ." adjudication ruling, plaintiffs opening brief does not set forth any arguments pertaining to the fourth and fifth causes of action. Therefore, we will only address what is before us — whether the trial court properly granted summary adjudication in defendants favor as to the first and sixth causes of action.
Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256.
Sierra Craft, Inc. v. Magnum Enterprises, Inc., supra, 64 Cal.App.4th 1252, 1256.
A. Standard of Review
A motion for summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "In evaluating the propriety of a grant of summary judgment our review is de novo, and we independently review the record before the trial court. [Citation.] In practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial courts determination of a motion for summary judgment. [Citation.]"
Code of Civil Procedure section 437c, subdivision (c).
Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 469-470.
"We apply the same three-step analysis required of the trial court in ruling on a motion for summary judgment. [Citation.] First, we identify the issues framed by the pleadings because the courts sole function on a motion for summary judgment is to determine from the submitted evidence whether there is a triable issue as to any material fact. [Citation.] To be material for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings [citation], and it must also be essential to the judgment in some way. [Citation.]
"Second, we determine whether the moving party has met its burden of proof under [Code of Civil Procedure] section 437c. [Citation.]" Where the plaintiff is the moving party, it has met its "burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action."
Kelly v. First Astri Corp., supra, 72 Cal.App.4th 462, 470.
Code of Civil Procedure section 437c, subdivision (p)(1).
"Finally, if the moving party has met its statutory burden and the summary judgment motion prima facie justifies a judgment, we determine whether the opposing party has met its burden under [Code of Civil Procedure] section 437c." Where the defendant is the opposing party, we determine if it has met its burden of showing "that a triable issue of one or more material facts exists as to that cause of action or a defense thereto."
Kelly v. First Astri Corp., supra, 72 Cal.App.4th 462, 470.
Code of Civil Procedure section 437c, subdivision (p)(1).
B. First Cause of Action — Rescission
1. Step One — Issues Framed by the Pleadings
In her cause of action for rescission, plaintiff contended that the settlement agreement was void because (1) "it was procured by the District by its failure to adhere to the requirements of 5 CCR 80303 "; (2) "it was procured by the Districts fraudulent concealment of its intention to report the Charges against [plaintiff] to the Commission"; (3) "it was procured by fraud by the Districts fraudulent misrepresentation of its intentions"; and (4) plaintiff "had the mistaken belief that defendants would not report the Charges to the Commission."
In sum, plaintiffs "recission [sic] cause of action is predicated on the Districts failing its duty to give [plaintiff] the notification required by § 80303(e) that her resignation would trigger a report to the Credentialing Commission."
2. Step Two — Defendants Established That They Were Entitled to Judgment in Their Favor
Section 80303, subdivision (e), states as follows:
"The superintendent of an employing school district shall, in writing, inform a credential holder of the content of this regulation whenever that credential holder, working in a position requiring a credential, is dismissed, resigns, is suspended for more than ten days, retires, or is otherwise terminated by a decision not to employ or re-employ as a result of an allegation of misconduct. Failure to comply with this subdivision by a superintendent of schools constitutes unprofessional conduct which shall be investigated by the Committee of Credentials."
The parties do not dispute that the district failed to give notice to plaintiff, as required under section 80303, subdivision (e) . The central issue, therefore, is whether plaintiff can rescind the settlement agreement solely on the basis that the district failed to notify plaintiff of the districts duty under section 80303 before plaintiff tendered her resignation. The answer, as will be discussed below, is no.
A plain reading of section 80303 reveals that there is no duty imposed on the district to inform plaintiff about section 80303 prior to the tendering of her resignation. As stated above, although section 80303, subdivision (e), requires a school district to inform a credential holder of the content of section 80303, the regulation does not state when this notice should be given. "If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citations.]"
California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal. Rptr. 817, 621 P.2d 856; see Kizer v. Hanna (1989) 48 Cal.3d 1, 8, 255 Cal. Rptr. 412, 767 P.2d 679 ["If a statutes language is clear, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs. [Citation.]"].
Moreover, the settlement agreement that plaintiff executed makes no mention of section 80303. The settlement agreement was reached between the district and plaintiff through an arms-length negotiation. Ohlson, plaintiffs union representative, negotiated the settlement agreement on behalf of plaintiff. At his deposition, he testified that during the negotiations of the settlement agreement, the subject of reporting plaintiffs resignation to the Commission was never discussed. Ohlson never told Woodford that plaintiff would not sign the settlement agreement unless the district promised not to report her to the Commission. Moreover, no one from the district ever told Ohlson that the district was not going to report plaintiff to the Commission, and Ohlson never told plaintiff that she would not be reported. In fact, plaintiff neither asked Ohlson if she would be reported nor asked to include a provision about reporting to the Commission in the settlement agreement. Ohlson stated that he was not surprised when he later learned that the district had reported plaintiffs resignation to the Commission, because he knew that the district had the duty to make such a report under section 80303. At the time of the negotiations, Ohlson was not aware of a provision requiring the district to provide a copy of the section 80303 to plaintiff.
Based on the above, there was no evidence to suggest an intent to deceive or conceal the reporting requirements under section 80303.
3. Plaintiff Failed to Raise a Triable Issue of Fact
Notwithstanding the plain language of section 80303, and that there are no facts to indicate that the district made any misrepresentations to plaintiff regarding its reporting obligations under section 80303, plaintiff argued that the settlement agreement should be rescinded because the district had a duty to notify plaintiff regarding section 80303 "at least when she resigned." In support of her assertion, plaintiff cites to the legislative history of section 80303. Plaintiffs argument, however, is unavailing because the legislative history supports the districts position.
In its original form, section 80303 mandated that the school district and the credential holder report any resignation/termination of the credential holder to the Commission. Hence, the original purpose for the school districts in giving notice to the credential holders regarding section 80303 was so that the credential holders became aware of their duty to report to the Commission, not so that the credential holders simply became aware of the existence of section 80303. In fact, in an analysis by the California Teachers Association (CTA) of the proposed regulations, including section 80303, the CTA noted, "if failure to report a change of working status shall constitute unprofessional conduct by a credential holder, the holder must first be informed of the requirement to so-report. Since the proposed regulation is triggered by actions commenced by an employing superintendent of schools, that superintendent should be the person responsible for providing sufficient notice to the credential holder." Moreover, at a public hearing to consider changes to section 80303, counsel for the CTA re— emphasized that "if you are going to take someones teaching credential because they failed to notify the Commission, you should tell them that. . . . All were saying is that common decency and fairness requires that someone tell that to the teacher. . . . Our proposed addition of Subdivision (E) to 80303 takes nothing away from the proposed regulation, in fact it enhances it. It simply states that if a school district intends to take personnel action against the teacher, that they inform the teacher that they have the obligation to notify this Commission of the results. . . ." Although the Commissions staff did not recommend the CTAs amendment, the Commission approved the adoption of section 80303 with the suggested amendments by the CTA. What this legislative history makes clear is that the policy behind a school districts duty to inform a credential holder regarding section 80303 was to inform that credential holder that she had a duty to report any disciplinary action to the Commission, not so that the credential holder becomes aware of the school districts duty to notify the Commission.
Thereafter, in an action entitled California Teachers Association v. California Commission on Teacher Credentialing, (Sup. Ct. Sacramento County, 1999, No. 98AS03278), the Sacramento Superior Court declared the requirement that a credential holder report herself to the Commission as void and unenforceable, in a judgment entered April 26, 1999. The judgment stated:
"IT IS ORDERED that subsections (a) and (d) of Section 80303 of Title 5 of the California Code of Regulations are declared to be unauthorized in their scope and penalties by relevant statutory provisions of [the] California Education Code § 44242.5, which specifically sets forth those circumstances when investigation of a credential holder by the Commission on Teacher Credentialing may be undertaken for alleged professional misconduct, in the following respects:
"(1) To the extent that 5 California Code of Regulations § 80303 subsection (a) requires the holder of a credential, working in a position requiring a credential, to report a change in employment status to the Commission on Teacher Credentialing, the regulation is void and may not be enforced.
"(2) To the extent that 5 California Code of Regulations § 80303 subsection (d) makes failure to report a change in their employment status to the Commission on Teacher Credentialing by any holder of a credential to constitute unprofessional conduct and to the extent the Committee on Credentials or Commission on Teacher Credentialing is authorized to investigate any such holder of a credential for that, the regulation is void and may not be enforced."
As a result, section 80303 was amended to delete the requirement that a credential holder report any change in her employment status to the Commission. Nevertheless, section 80303, subdivision (e) was not changed to delete the requirement of notifying the credential holder about section 80303. Because the sole purpose of this requirement was to inform credential holders about their duty to report to the Commission, and that duty now has been deleted, there is no policy to be served by the provision left in subdivision (e) of section 80303. As discussed above, contrary to what plaintiff argues, the purpose of subdivision (e) of section 80303 was not so that credential holders became aware of a school districts duty to notify the Commission regarding disciplinary issues. Hence, plaintiffs argument that she should have been notified regarding section 80303 when she resigned is not supported by either the plain language of section 80303 or its legislative history.
Moreover, plaintiff argued that the settlement agreement should be rescinded because she was under the mistaken belief that the district would not report its charges to the Commission. But for this mistaken belief, plaintiff contends that "she would not have entered into the contract . . . ." Again, plaintiffs argument is without merit. There is nothing in the settlement agreement pertaining to section 80303, and there is nothing to show that the district made any implied promise that it would not comply with its mandatory duty to report plaintiffs resignation to the Commission. Plaintiff failed to provide any contrary evidence in her opposition to the districts motion.
Furthermore, plaintiff argued that the settlement agreement should be rescinded because the districts failure to disclose section 80303 to plaintiff during the negotiations constituted fraud. Again, as discussed above, the district had no duty to inform plaintiff regarding section 80303 during the settlement negotiations. The districts failure to do so, therefore, cannot constitute fraud. Furthermore, the evidence presented by the district via Ohlsons deposition testimony showed that the district did not fraudulently conceal any information to plaintiff. Plaintiff, who had access to her union via her representative and to attorneys, by her own admission, cannot blame the district for failing to inform her regarding section 80303.
On appeal, plaintiff argues that had she "been notified that the District would report the Charges to the Commission, it is uncontradicted that she would not have entered into the Settlement Agreement and/or would have rescinded it during the 7-day rescission window." Again, plaintiffs argument fails because she would have been reported to the Commission by the district, even if she would not have agreed to resign had she been aware of section 80303. The district determined on November 18, 1997, one day before plaintiff signed the settlement agreement, that it would suspend plaintiff without pay for an indefinite period of time and proposed to dismiss her. If plaintiff did not request a hearing regarding her proposed termination, the suspension would last at least 30 days. If she did request a hearing, the suspension in all likelihood would last even longer. That act of suspending her for more than 10 days triggered the notification requirement. No language in the settlement agreement, nor any attempt by plaintiff to challenge the districts decision to suspend her instead of resigning, could have excused the district from notifying the Commission.
Therefore, we hold that because plaintiff has failed to raise a triable issue of fact as to her cause of action for rescission, summary adjudication in favor of the district was proper.
C. Sixth Cause of Action — Violation of 42 United States Code Section 1983 Against Simpson and Delgado
1. Step One — Issues Framed by the Pleadings
In her sixth cause of action, plaintiff alleged that all defendants violated her due process rights under 42 United States Code section 1983 by failing to provide plaintiff with the notice required under section 80303, subdivision (e): "Defendants did not provide plaintiff the notice required by 5 C.C.R. § 80303 (e) and thereby deprived plaintiff of due process of law."
2. Step Two — Defendants Simpson and Delgado Established That They Were Entitled to Judgment in Their Favor
In their moving papers, Simpson (principal of Cajon High School) and Delgado (the assistant superintendent of the district) established that they were entitled to judgment in their favor as to the 42 United States Code section 1983 cause of action because "there was no duty on the part of anyone . . . to inform plaintiff of the requirements of 5 CCR 80303 prior to her resignation." We agree. As discussed above, section 80303 does not impose a duty on the district, or any of its representatives, to inform plaintiff regarding section 80303 prior to or simultaneously with her resignation. Therefore, the alleged due process violation, which is based upon the districts failure to provide the notice under section 80303, fails.
3. Plaintiff Failed to Raise a Triable Issue of Fact
Plaintiff claimed that "there are disputed issues of fact concerning the involvement of Delgado and Simpson . . ." because (1) "she was not given the notice required by 5 C.C.R. 80303(e) that her resignation would trigger a report to the Commission;" (2) plaintiff gave up her right under Education Code section 44944 to an administrative hearing "because she was not given the notice required by 5 CCR 80303(e);" and (3) Delgado and Simpson improperly relied on information that was not in her personnel file in communicating to third parties that plaintiff resigned in lieu of termination. Plaintiffs arguments are without merit.
First, as discussed in detail above, plaintiff cannot base a due process violation on the districts failure to notify her regarding section 80303 prior to or simultaneously with her resignation because no such duty exists. Second, plaintiffs argument regarding the improper reliance on information not in plaintiffs personnel file by Delgado and Simpson are not pled in the complaint under the sixth cause of action. Hence — that argument cannot be raised in plaintiffs opposition to defendants summary adjudication motion.
Therefore, we hold that the trial court properly granted summary adjudication in favor of Simpson and Delgado as to the sixth cause of action.
III. The Trial Court Properly Granted the Districts Motion for Directed Verdict on the Second Cause of Action for Breach of Contract
Plaintiff contends that the trial court erred in granting the districts motion for a directed verdict on the second cause of action for breach of the settlement agreement against the district.
A. Standard of Review
"It has become the established law of this state that the power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. A nonsuit or a directed verdict may be granted only when, disregarding conflicting evidence and giving to plaintiffs evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given. [Citations.]" When there is no conflict in the evidence of sufficient substantiality to support a verdict in favor of the plaintiff, the motion should be granted. "On appeal from a judgment on a directed verdict, appellate courts view the evidence in the light most favorable to appellant. All conflicts must be resolved and inferences drawn in appellants favor; and the judgment will be reversed if there was substantial evidence . . . tending to prove all elements of appellants case." If no legally sufficient evidence is presented, however, the directed verdict is properly granted and will not be reversed.
Estate of Lances (1932) 216 Cal. 397, 400, 14 P.2d 768.
Estate of Lances, supra, 216 Cal. 397, 400.
Colbough v. Hartline (1994) 29 Cal.App.4th 1516, 1521.
Dalrymple v. United Services Auto. Assn. (1995) 40 Cal.App.4th, 497, 511-512; see also Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630.
B. The Directed Verdict Was Properly Granted
On appeal, plaintiff asserts two arguments in support of her breach of contract cause of action: (1) that the district violated paragraph 7 of the settlement agreement by maintaining "dual personnel files;" and (2) that the contract was violated by the districts failure to comply with an implied term of the contract, section 80303, subdivision (e).
1. Alleged Dual Employment Files
Plaintiff contends that the district breached its settlement agreement with plaintiff by violating paragraph 7 of the settlement agreement, which states:
"7. The District agrees not to place the Notice of Proposed Suspension and Dismissal, Statement of Charges or investigation documents in Employees personnel file.
"The evidence was undisputed that the meaning to be ascribed to paragraph 7 was never questioned by either plaintiff or her union representative. Moreover, the evidence was undisputed that the district complied with this promise, and that the documents enumerated in paragraph 7 were never placed in plaintiffs personnel file.
Nevertheless, plaintiff contended that the district violated paragraph 7 because the district illegally maintained "dual employment files" on plaintiff, in violation of Education Code section 44031 (section 44031). Plaintiff, argues that, although the district did not place the enumerated documents in her "official" personnel file, the district, in essence, must have maintained another file which did contain the offending documents.
At the time of the alleged misconduct by the district, the following version of Education Code section 44031 was in effect:
"(a) Materials in personnel files of employees that may serve as a basis for affecting the status of their employment are to be made available for the inspection of the person involved.
". . . .
"(d) Information of a derogatory nature, except material mentioned in subdivision (b), shall not be entered or filed unless and until the employee is given notice and an opportunity to review and comment thereon. An employee shall have the right to enter, and have attached to any derogatory statement, his own comments thereon. The review shall take place during normal business hours, and the employee shall be released from duty for this purpose without salary reduction."
From the plain reading of section 44031, it is evident that this section is not applicable to this case. First, section 44031, subdivision (a), simply requires that materials in personnel files must be made available for inspection of the person involved. Here, plaintiff does not argue that materials in her personnel file were not made available to her upon request. Second, section 44031, subdivision (d), requires that derogatory information regarding an employee cannot be entered unless the employee is notified about the information and given an opportunity to review and comment on the information. Again, plaintiff does not argue that she was denied an opportunity to review any derogatory information about her in her personnel file. In fact, it is undisputed that the district, in accordance with paragraph 7 of the settlement agreement, never included such information in her file.
Nevertheless, plaintiff argues that the district violated section 44031 because it circumvented the law by maintaining dual employment files; which plaintiffs argues is illegal. In support of her argument, plaintiff relies on Miller v. Chico Unified School Dist. Miller, however, is not on point. In Miller, a school district notified the plaintiff, a principal of a junior high school, of his reassignment to a teaching position for the following school year. The plaintiff instituted a mandamus proceeding, seeking to reinstate his position as principal on the ground that the school board failed to comply with section 44031.,
Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703, 157 Cal. Rptr. 72, 597 P.2d 475 (Miller).
Miller, supra, 24 Cal.3d 703, 706.
The plaintiff also claimed a violation of Education Code section 44664, which is not at issue in this case.
The Court of Appeal explained that under section 44031, an employee of a school district "must be permitted to review and comment on derogatory written material compiled and maintained by a school district even though the material has not been properly placed in his personnel file." The appellate court went on to state that "[a] school board cannot avoid the requirements of section 44031 by putting derogatory written material in another file not designated personnel file and by such a process of labeling prevent the administrator from reviewing and commenting upon allegations directed against him."
Miller, supra, 24 Cal.3d 703, 707.
Miller, supra, 24 Cal.3d 703, 707.
In reaching this decision, the appellate court looked to statutory intent: "The Legislature enacted section 44031 in order to minimize the risk of employment decisions that were arbitrary or prejudicial, and to this end established a procedure whereby employees could correct or rebut incomplete or inaccurate information in the hands of their employers which might affect their employment status. The significance which the Legislature attached to adherence to the procedure is reflected in the provision allowing employees to review their files during normal business hours without reduction in salary."
Miller, supra, 24 Cal.3d 703, 713.
Hence, it is clear from the plain reading of section 44031 and from Miller, that section 44031 applies only for the purpose of allowing an employee to review and comment on derogatory written material which could affect their employment status. Here, the district did not create a "dual file" in order to prevent plaintiff from reviewing and commenting upon allegations directed against her. In fact, plaintiff does not complain that she was not allowed to review and comment on any written material. Plaintiffs only complaint is that the district improperly maintained a second file with materials that were not to be placed in her official personnel file. We fail to see any violation of section 44031 by the district.
Moreover, plaintiffs reliance on Wellpoint Health Networks, Inc. v. Superior Court — which was erroneously cited in the reply brief — is also misplaced. In Wellpoint, the plaintiff, a former employee, filed suit against his former employer alleging causes of action for (1) interference with prospective contractual relations; (2) retaliation for filing a complaint with the Department of Fair Employment and Housing, in violation of the Fair Employment and Housing Act (FEHA); and (3) failure to promote, in violation of the FEHA. The main issue on appeal was whether the prelitigation investigation, by an employers law firm, into the circumstances surrounding the plaintiffs claims of discrimination is protected by the attorney-client privilege and/or the attorney work product doctrine. "The trial court ruled that a prelitigation investigation of an employees discrimination claims did not result in attorney-client communications or attorney work product . . . ." The appellate court, however, concluded "that no substantial evidence supports the trial courts ruling concerning the inapplicability of the privilege and the work product doctrine."
Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110 (Wellpoint).
Wellpoint, supra, 59 Cal.App.4th 110, 114-115.
Wellpoint, supra, 59 Cal.App.4th 110, 114.
Wellpoint, supra, 59 Cal.App.4th 110, 114.
Wellpoint, supra, 59 Cal.App.4th 110, 114.
In that context, the appellate court discussed the applicability of Labor Code section 1198.5, which is similar to section 44031 of the Education Code. Labor Code section 1198.5, subdivision (a), provides: "Every employer shall at reasonable times, and at reasonable intervals as determined by the Labor Commissioner, upon the request of an employee, permit that employee to inspect such personnel files which are used or have been used to determine that employees qualifications for employment, promotion, additional compensation, or termination or other disciplinary action."
The court, in Wellpoint, stated: "We agree that the provision intends a broad definition of personnel file to preclude employers from assigning documents to files having some other name, and then refusing access to the documents on the ground that they are not contained in the personnel file. To accomplish this, the statute defines an employee personnel file as anything used to determine that employees qualifications for employment, promotion, additional compensation, or termination or other disciplinary action wherever located within the employees various departments. [Citation.]"
Wellpoint, supra, 59 Cal.App.4th 110, 124.
Similar to Miller, the court in Wellpoint simply discussed that employees should have access to all documents that could affect their employment status — notwithstanding where such documents may be located. Moreover, the court only discussed this point to reach its conclusion that Labor Code section 1198.5 "does not express a legislative intention to overthrow the traditional protections afforded attorney-client communications and work product documents." Based on our reading of Wellpoint, we find no support for plaintiffs contention in Wellpoint.
Wellpoint, supra, 59 Cal.App.4th 110, 125.
Even if the district violated section 44031, no reversal is required because the evidence is clear that the districts action was not prejudicial. Woodford, the assistant to the superintendent of the district, completed the requests for information from the Employment Development Department and STRS from his "personal knowledge," not from the documents that were allegedly kept in the illegal dual file. Therefore, whether the documents were illegally kept by the district was harmless.
See Miller, supra, 24 Cal.3d 703, 714.
2. Alleged Breach of an Implied-in-Law Term, Section 80303, Subdivision (e), of the Settlement Agreement
Plaintiff alleged that the district breached the settlement agreement by breaching the "implied-in-law term of the contract requiring [the district] to give [plaintiff] the notice" under section 80303, subdivision (e). Plaintiff argues that "this pleaded breach of contact [sic] claim was a well-founded claim because regulations like § 80303(e) which benefit public employees are implied-in-law terms of governmental agency contracts with public employees." In support of this novel argument, plaintiff relies on three cases: Frates v. Barnett, A.B.C. Federation of Teachers v. A.B.C. Unified School District, and United Teachers — Los Angeles v. Los Angeles Unified School District. None of these cases support plaintiffs assertion.
Frates v. Burnett (1970) 9 Cal. App. 3d 63, 87 Cal. Rptr. 731 (Frates); A.B.C. Federation of Teachers v. A.B.C. Unified Sch. Dist. (1977) 75 Cal. App. 3d 332, 142 Cal. Rptr. 111 (A.B.C.); and United Teachers — L. A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 1510 (United Teachers).
A. A.B.C.
In A.B.C., a trial court granted a writ of mandate in favor of the petitioners, who primarily consisted of teachers. The school district appealed. The facts were undisputed. In August of 1975, the district, after it had entered into employment contracts with the teachers for the 1975-1976 school year in July of 1975, decided to delete the districts policy in paying the teachers a $ 515 stipend in addition to the teachers annual salaries. The teachers contended, and the appellate court agreed, "that they were entitled to the extra pay as of July 1, 1975, as an integral part of their employment contracts, and the boards action in deleting that pay on August 4, 1975, constituted improper reduction of their fixed compensation after the beginning of the school year."
A.B.C., supra, 75 Cal. App. 3d 332, 334-336.
A.B.C., supra, 75 Cal. App. 3d 332, 337.
In support, the appellate court noted that ". . . Past cases clearly indicate . . . that a school board may not lower salaries fixed by its salary schedule after the beginning of the school year. [Citations.] This proposition follows from the fact that such salary schedules become an integral part of each teachers employment contract. [Citations.]"
A.B.C., supra, 75 Cal. App. 3d 332, 337-338.
The court went on to state "such a limitation follows from the contractual and legal relationship of the individual teacher and the board. . . . While it is true that the relation between the Board and a teacher is that of employer and employee, and that this relationship is created by contract, the terms of that contract are to be found in the authority granted the Board by law. [Citation.] The rules and regulations of the Board, and the resolutions of the Board fixing the status of teachers, are integral parts of that contract. The contract is contained in the statutes, the rules and regulations of the board, the resolutions appointing plaintiffs, and the resolutions of the Board."
A.B.C., supra, 75 Cal. App. 3d 332, 338.
We fail to see how A.B.C. supports plaintiffs bald assertion that her "breach of contact [sic] claim was a well-founded claim because regulations like § 80303(e) which benefit public employees are implied-in-law terms of governmental agency contracts with public employees." All that A.B.C. held was that the district could not change its policy to delete additional stipends to the teachers after the contracts, which included the former policy of the district allowing for payment of additional stipends, were already in effect.
Here, there is no employment contract in dispute. In fact, the contract in dispute is a settlement agreement that was reached between plaintiff and the district after negotiations between representatives of plaintiff and the district. Plaintiff has failed to provide any case law indicating that all rules and regulations regarding teachers should be implied in settlement agreements which end any contractual relationships between a teacher and a school district.
B. Frates
In Frates, the holding was narrow. An appellate court reiterated the rule that "Rules and regulations adopted by a board of education are, in effect, a part of a teachers employment contract and the teacher is entitled to their enforcement. [Citations.]"
Frates, supra, 9 Cal. App. 3d 63, 69.
Again, Frates does not support plaintiffs proposition because, here, the contract at issue is not plaintiffs employment contract. The contract involved is a settlement agreement between the district and plaintiff.
C. United Teachers
In United Teachers, a teachers union filed a writ of mandate to compel a school district to grant part-time status to eligible employees under regulations adopted by the district and incorporated into the parties collective bargaining agreement. The appellate court reversed the judgment of the trial court which denied the writ of mandate, and remanded with directions to grant the writ.
United Teachers, supra, 24 Cal.App.4th 1510, 1512.
United Teachers, supra, 24 Cal.App.4th 1510, 1513.
Certain sections of the Education Code provide that a district may establish regulations allowing eligible employees to have reduced work schedules to part-time without loss of retirement or other benefits. Although the part-time program is permissive, once a district adopts such a plan, the statutes require certain minimum provisions to be included in every part-time program.
United Teachers, supra, 24 Cal.App.4th 1510, 1513.
The collective bargaining agreement in United Teachers failed to include two regulations which the statutes mandate in every part-time program. The appellate court stated that, although it was not necessary to declare the entire contract void, regulations in the collective bargaining agreement which directly contradict the otherwise clear statutory mandate should be deemed void.
United Teachers, supra, 24 Cal.App.4th 1510, 1513.
United Teachers, supra, 24 Cal.App.4th 1510, 1519.
We fail to see how United Teachers applies to this case. In United Teachers, the court correctly noted that once a school district adopts a part-time policy allowed under the Education Code, it must incorporate all the statutes and regulations that pertain to that part-time policy. Here, plaintiff and the district entered into a settlement agreement in lieu of termination. There are no statutes or regulations that provide how the agreement should be structured. Section 80303, subdivision (d) is unrelated to the settlement agreement. Section 80303, subdivision (e) does not set forth any actions to be taken by the district prior to plaintiffs resignation; it simply states what the district must do after plaintiff resigned her position.
Moreover, plaintiff makes a brief reference to Brown v. Critchfield, to support her proposition that the district breached its duty in failing to give plaintiff notice regarding section 80303 to determine whether to exercise her right to rescission. Again, plaintiffs reliance on Brown is misplaced.
Brown v. Critchfield (1980) 100 Cal. App. 3d 858, 161 Cal. Rptr. 342 (Brown).
In Brown, the plaintiff filed suit against his real estate broker and attorney to recover damages for the fraudulent or negligent breach of fiduciary duties owed to plaintiff by the defendants. In that case, the duty to disclose flowed from the defendants role as the plaintiffs real estate broker and attorney. Here, there is simply no authority, as discussed in detail above, to support plaintiffs proposition that the district had a duty to disclose section 80303 to plaintiff in conjunction with entering into a settlement agreement.
Brown, supra, 100 Cal. App. 3d 858, 861.
GAUT, J., Concurring and Dissenting
I concur in the majoritys affirmance of the trial courts decision as to the first, third, fourth, fifth and sixth causes of action. I respectfully dissent from the majoritys affirmance of the trial courts trial decision granting a directed verdict as to the second cause of action for breach of contract:
Plaintiff Deborah N. Cooksey is not particularly sympathetic. She failed to disclose her teaching activities in Northern California while at the same time claiming her inability to work in the San Bernardino Unified School District. She made what may have been unreasonable demands about her school room assignments, submitted requests for disability payments for periods when she was working in Northern California, and used profanity in the classroom.
I agree with the trial courts decision to grant summary adjudication as to Cookseys first cause of action for rescission. I would have denied that request had that cause of action been based upon the districts failure to timely notify her that it intended to disclose her suspension and resignation to the Commission on Teacher Credentialing as required by section 80303. That section requires the superintendent of an employing school inform a credential holder of the superintendents obligation to report a credential holders resignation, suspension, or dismissal. Had the superintendent given Cooksey that notice she would have realized that paragraph 7 of the settlement agreement did not protect her from disclosure of her resignation and suspension. At that time she could decide whether to rescind the settlement agreement under its terms. That theory, however, was not the basis for plaintiffs first cause of action and summary adjudication of that cause of action was therefore appropriate.
I disagree with the trial courts decision to grant the districts motion for directed verdict as to the second cause of action for breach of written contract. It had to be obvious to all parties that Cooksey believed paragraph 7 of the settlement agreement precluded disclosure of her resignation or suspension. Paragraph 7 provides that "The District agrees not to place the Notice of Proposed Suspension and Dismissal, Statement of Charges or investigation documents in Employees personnel file." It had to be clear to everyone that Cooksey was concerned with whether the suspension notice was physically placed in her personnel file. The obvious purpose of the provision was to prevent the Notice of Proposed Suspension from being placed in her file with the belief that if it was not in the file that information would remain confidential and would not be disclosed to the world. Cooksey testified to that belief.
Despite the apparent purpose behind paragraph 7, the district failed to disclose to Cooksey its obligation to report the suspension under section 80303. The district further breached paragraph 7 by disclosing the suspension to the public at large, even though the notice was apparently not placed in her personnel file but in some unspecified file cabinet. Nevertheless, the district still disclosed the contents of the document to anyone inquiring, such as Mrs. Ogburn, the vocational consultant, who requested a reference with the permission of Cooksey. The district apparently had no excuse for that disclosure, other than its contention, in the language of the districts council, that "the moment the plaintiff resigned from her employment, all of the statutes and regulations that the plaintiffs attorney relies upon became inapplicable to her."
I believe the district violated its obligation to Cooksey of good faith and fair dealing as a part of the settlement agreement. As the Restatement Second of Contracts, section 205 provides "every contract imposes on each party a duty of good faith and fair dealing in its performance and its enforcement." The comments to Restatement § 205 provide that "Good faith performance . . . of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party . . . ." The Restatement lists, among other types of bad faith: "evasion of the spirit of the bargain . . . ."
It is apparent that the district did everything possible to evade the spirit of the bargain. Even though section 80303, subdivision (c) expressly provides that the commission be informed of the resignation or dismissal "regardless of any proposed or actual agreement, settlement, or stipulation not to make such a report," the covenant of good faith required, at the very least, that the district expressly disclose the existence of that provision to Cooksey and therefore its inability to comply with the obvious intention behind paragraph 7. That failure, coupled with the districts willingness to disclose Cookseys suspension to the public at large, despite not placing the information in her personnel file, violated the clear purpose of paragraph 7 and required the issue of the districts breach of the settlement agreement be submitted to the jury.
I would reverse the trial courts decision granting a directed verdict as to the second cause of action for breach of a written contract.
Restatement Second Contracts, section 205 at page 99.
Restatement Second Contracts, section 205 at page 100.
Restatement Second Contracts, section 205 at page 101.
Because we cannot discern any basis wherein section 80303 can be implied into the settlement agreement, the trial court properly granted the districts motion for a directed verdict on plaintiffs cause of action based on the defendants alleged breach of section 80303, which was not a term of the settlement agreement.
DISPOSITION
The judgment is affirmed. Defendants shall recover costs on appeal.
I concur:
Ramirez P.J.
II. The Trial Court Properly Granted Defendants Motion for Summary Adjudication
Plaintiff contends that the trial court erred in granting defendants motion for summary adjudication. The trial court granted defendants summary adjudication motions on the following causes of action: (1) first case of action — rescission; (2) fourth cause of action — fraudulent concealment; (3) fifth cause of action — fraudulent misrepresentation; and (4) sixth cause of action — violation of 42 United States Code section 1983 for defendants Simpson and Delgado.
Although the notice of appeal refers to the entire summary