Bush v. California Conservation Corps

Opinion

Introduction

Plaintiffs Berne Bush (Bush) and Thomas Farley (Farley) appeal from an order of dismissal entered after the trial court sustained the demurrer of defendant California Conservation Corps (CCC) and plaintiffs failed to amend causes of action for writ of mandate, injunctive relief, deprivation of civil rights ( 42 U.S.C. § 1983 ) and declaratory relief.

Statement of Facts

On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted. (Glaire v. La Lanne-Paris Health Spa, Inc. (1979) 12 Cal.3d 915 , 918 [ 117 Cal.Rptr. 541 , 528 P.2d 357 ]; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 , 713 [ 63 Cal.Rptr. 724 , 433 P.2d 732 ].) Plaintiffs’ complaint discloses the following express and reasonably inferred facts: On February 22, 1978, plaintiffs Bush and Farley executed contracts with the CCC. The contracts provided in pertinent part: The corpsmember agrees to conform to the rules and regulations of the state and any orders of authorized state officials and failure to do so would result in immediate termination; appropriate technology curriculum and other educational opportunities shall be provided as part of the benefit of

On appeal, the plaintiff bears the burden of demonstrating either that a demurrer was sustained erroneously or that sustaining a demurrer without leave to amend was an abuse of discretion. (Stanson v. Brown (1975) 49 Cal.App.3d 812 , 814 [ 122 Cal.Rptr. 862 ].) A trial court’s ruling sustaining a demurrer is deemed erroneous where a plaintiff has stated a cause of action under, any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94 , 103 [ 101 Cal.Rptr. 745 , 496 P.2d 817 ]; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825 , 833 [ 134 Cal.Rptr. 839 ].) In assessing the sufficiency of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implication are deemed true. (Buckaloo v. Johnson (1975) 14 Cal.3d 815 , 828 [ 122 Cal.Rptr. 745 , 537 P.2d 865 ]; Glaire v. La Lanne-Paris Health Spa, Inc., supra, 12 Cal.3d 915 , 918.)

Plaintiffs maintain that they were entitled to the procedural due process procedures promulgated in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [ 124 Cal.Rptr. 14 , 539 P.2d 774 ]. Defendant responds by denying that plaintiffs were public employees or possessed any other property right in continued employment and as a consequence were not entitled to due process protection. Relying on Barthuli v. Board of Trustees (1977) 19 Cal.3d 717 [ 139 Cal.Rptr. 627 , 566 P.2d 261 ], the trial court accepted this argument, finding plaintiffs to be employees under a contract for a term of years which created no property interest. However, we find Barthuli inapposite to the case at bar. Upon considering a comprehensive statutory scheme relating to school teachers and administrators, the court concluded that the statutes conferred upon school administrative and supervisory personnel the right to positions as teachers, but did not vest such persons with a right to administrative positions. (Id., at p. 721.) The distinguishing feature of Barthuli is the existence of a statutory employment right other than that asserted by the petitioner. Due process rights stem from any legitimate claim of entitlement created from an existing understanding which emanates from a source independent of the Constitution; such a source need not be purely statutory, but may be embodied in other forms. (Perry v. Sindermann (1972) 408 U.S. 593 , 601 [ 33 L.Ed.2d 570 , 579-580, 92 S.Ct. 2694 ]; Board of Regents v. Roth (1972) 408 U.S. 564 , 577 [ 33 L.Ed.2d 548 , 560-561, 92 S.Ct. 2701 ]; see also Skelly v. State Personnel Bd., supra, 15 Cal.3d 194 , 207.)

Clearly, the Legislature never contemplated the elevation of corps-members to the status of civil service employees; employment is relegated to a role secondary to the emphasis on training and education. As a consequence, plaintiffs have no statutory property interest as permanent (nonprobationary) public employees per Skelly v. State Personnel Bd., supra, 15 Cal. 3d 194 . But as noted, ante, that does not resolve the matter.

In Goss v. Lopez (1975) 419 U.S. 565 [ 42 L.Ed.2d 725 , 95 S.Ct. 729 ], the United States Supreme Court determined that the “State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.” (Id., at p. 574 [42 L.Ed.2d at pp. 734-735].) The education referred to in Goss was at the precollege level and it is not entirely clear that the statutory creation of postsecondary public education confers a similar entitlement. The training and education provided by the CCC is more akin to that of a postsecondary vocational school. Enrollment therein is not a matter of right and, hence, we conclude that there is no statutory

We need not rely solely on those statutes authorizing regulations promulgating retention criteria to find a property interest, however; there exists a clear, independent basis. The contract between plaintiffs and the CCC enumerated specific grounds for dismissal in many of its paragraphs. Generally, if an employee “is subject to discharge only for cause, he has a property interest which is entitled to constitutional protection.” (Mendoza v. Regents of the University of California, supra, 78 Cal.App.3d 168 , 175; see also Arnett v. Kennedy (1973) 416 U.S. 139 [ 40 L.Ed.2d 15 , 94 S.Ct. 1633 ] and Perry v. Sindermann, supra, 408 U.S. 593 .) We perceive no reason to deny the benefit of this principle to plaintiffs, notwithstanding the primarily educational nature of their relationship with the CCC. Defendant argues, however, that the provision which states the contract may be terminated upon written notice creates a contract at will, which affords plaintiffs no right to due process protection. (Healdsburg Police Officers Assn. v. City of Healdsburg (1976) 57 Cal.App.3d 444 [ 129 Cal. Rptr. 216 ].)

The whole of a written instrument is to be taken together, in order to give effect to every phrase and part. (Civ. Code, § 1641; County of Marin v. Assessment Appeals Bd. (1976) 64 Cal.App.3d 319 , 325 [ 134 Cal.Rptr. 349 ].) Had the CCC intended the contract to be terminable at will, it would have been a simple matter to have expressly said so, rather than to stress, in many parts, specific causes for dismissal, as the state has done. Defendant’s construction of the contract renders the express provisions entirely superfluous and runs counter to the spirit of the agreement. Clearly, it was contemplated that termination should only be for cause and the contract expresses those “mutually

Goss v. Lopez, supra, 419 U.S. 565 , held that, at a minimum, the students involved therein must, before suspension, “be given some kind of notice and afforded some kind of hearing.” (Id., at p. 579 [42 L.Ed.2d at p. 737].) Although plaintiffs were not necessarily entitled to the full panoply of rights set forth in Skelly v. State Personnel Bd., supra, 15 Cal. 3d 194 , for public employees, they were entitled to the minimum protection iterated in Goss. The complaint clearly alleges plaintiffs were given no opportunity for predischarge hearings. As a result, plaintiffs have stated a cause of action for deprivation of civil rights.

To hold otherwise would be contrary to the intent and purpose of the . CCC and would serve to erode and undermine its effectiveness in developing concepts of responsible citizenship among corpsmembers. The CCC’s failure to provide corpsmembers with an opportunity to challenge or refute the charges leveled against them is not conducive to the furtherance of respect for governmental institutions. In fact, such highhanded treatment only serves to breed contempt for the democratic process.

Defendant contends that adequate administrative remedies existed at the time of plaintiffs’ termination and, as a consequence, the trial court’s ruling should be upheld on the ground of plaintiffs’ failure to exhaust their administrative remedies prior to bringing suit. We disagree. The available procedures included in the record on appeal were clearly inadequate to protect plaintiffs’ constitutionally protected property interest as they failed to satisfy due process requirements. At no time did any of the available procedures afford plaintiffs an opportunity to challenge the charges against them. The reinstatement procedure, relied on so heavily by defendant, required the offending corpsmembers to admit guilt and demonstrate contrition as a prerequisite for reinstatement. Defendant argues that procedures did exist for challenging disciplinary action at the time of plaintiffs’ discharge. However, as defendant concedes, an evidentiary hearing would be required to prove the existence of these procedures; hence, the matter is beyond the scope of the demurrer.

Defendant further suggests that plaintiffs should have utilized the CCC’s grievance procedure. This procedure did not exist at the time of