Filed 7/29/08
Agosto v. Bd. of Trustees of
the Grossmount-Cuyamaca
Community College Dist.

CA4/1

This opinion has not been certified for
publication


COURT OF APPEAL, FOURTH APPELLATE
DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

DAVID JAY AGOSTO,
Petitioner and Appellant,
v.
BOARD OF TRUSTEES OF THE
GROSSMONT-CUYAMACA COMMUNITY
COLLEGE DISTRICT,
Respondent.

D051045

(Super. Ct. No. GIC875153)

APPEAL from a judgment of the Superior Court
of San Diego County, Joan M.
Lewis, Judge. Reversed and remanded.

David Jay Agosto, a former employee of the
Grossmont-Cuyamaca Community
College District (the District), appeals from a
judgment entered against him on his petition for
writ of mandate arising out of the District's
termination of his employment.

Among other things, Agosto claims that the
Board of Trustees for the District (the Board)
failed to comply with the notice provisions of
Education Code section 72411 before
terminating his employment. (All undesignated
statutory references are to the Education Code.)
We agree, reverse the judgment, and remand
the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The District sent Agosto a letter offering to
employ him as "Executive Dean,
Student Services" at Cuyamaca Community
College (Cuyamaca College) effective March 27,
1995, and indicating it had prepared a written
contract. Agosto later signed a contract stating,
among other things, that his employment with
the District would be for a two-year term from
March 27, 1995 to March 27, 1997. The District,
however, placed the contract signed by Agosto
into his personnel file without the chancellor's
signature.

The District later redesignated Agosto's position
as "Vice President, Cuyamaca
College," but his salary, position number and
terms and conditions of his employment
remained the same. In 2000, the Board
approved Agosto's request for a leave of
absence without pay to allow him to act as the
interim president at a different college district.

Agosto returned to Cuyamaca College and
accepted an assignment as its interim
president in 2001. In 2004, he held a one-year
assignment as interim associate vice
chancellor for the District, followed by the same
assignment in 2005, ending on June 30,
2006. In between these assignments, Agosto
returned to his duties as vice president at
Cuyamaca College.
In September 2005, Agosto was diagnosed with
kidney disease and took
intermittent leave from September 2005 through
January 2006, and full time medical
leave thereafter until November 30, 2006. On
February 21, 2006, while Agosto was on
medical leave, the Board met in closed session
to consider the "non re-employment of
administrators." The minutes for the closed
session indicated that the Board "issued a
non-renewal of the contract for the position of
Assistant Dean, Student Affairs,
Grossmont College" and "gave alternative
instructions of negotiation to the Chancellor to
explore with [Agosto as the] Interim Associate
Vice Chancellor."

Agosto later received a
letter dated March 10, 2006, informing him that
the Board decided to not renew his
appointment as interim associate vice
chancellor, that the position would end July 1,
2006, and that he would not be offered another
administrative position, but could return
to a faculty position.

In November 2006, Agosto filed the instant
petition, alleging that the Board failed
to properly terminate his contract at least six
months before its expiration as required by
statute for a person employed under a contract
for longer than one year. (§ 72411, subd.(b).)

Thus, he claims that his contract automatically
renewed on March 27, 2007, and
remains in effect until March 26, 2009. Agosto,
relying on the minutes for the February
closed session Board meeting, also claimed
that the Board never voted or took any
official action to terminate his employment.

The Board denied these allegations, claiming
that it employed Agosto under yearto-
year appointments and that it timely notified
Agosto of its decision to not renew his
appointment. The Board claimed that it never
signed Agosto's purported written contract and
that the statute of frauds barred its enforcement.
The Board also presented declarations showing
it voted to terminate Agosto's appointment at the
February closed session Board meeting and
argued that it was not required to report this
action in its minutes based on certain
exceptions to the Ralph M. Brown Act (Gov.
Code, § 54950 et seq.)

Even assuming Agosto had a valid written
contract, the Board argued that the
parties had modified or rescinded it based on
their subsequent conduct.
The trial court concluded that the statute of
frauds rendered the purported contract
invalid because the District had not signed it.
Additionally, it determined that the Board
timely terminated Agosto's year-to-year
employment and tentatively denied the
requested writ of mandate.

The trial court agreed that the Board's decision
to not renew Agosto's
employment was not mentioned in the Board's
minutes, but that Agosto had waived any
right to object to the error. After the trial court
heard oral argument, the Board sought to
augment the record to present additional
evidence regarding the vote to not renew
Agosto's appointment. The trial court granted the
request and again denied the petition.

Agosto timely appealed from the judgment.

DISCUSSION

Educational administrators, such as Agosto,
may be employed by appointment or
contract for up to four years. (§ 72411, subd. (a).)
Any administrator employed by
appointment or contract for a term longer than
one year must be given notice of
termination at least six months in advance of the
expiration of the appointment or
contract. (§ 72411, subd. (b).)

However, if the appointment or contract is for
one year or
less, notice of termination must be given before
March 15. (Ibid.) If the governing board
fails to give notice of its intent to not renew an
appointment or contract, then the
employment is renewed for the same time
period as the earlier appointment. (Id. at
subd.(c).)

Page 5

The Board admits that Agosto's termination
notice would be untimely had he been
hired under a two-year written contract, but
asserts that Agosto's purported contract was
unenforceable under the statute of frauds
because a District representative never signed
the contract. Under the statute of frauds, a
contract that will take longer than one year to
perform is invalid unless it is "in writing and
subscribed by the party to be charged or by
the party's agent[.]" (Civ. Code, § 1624, subd.
(a)(1).)

The statute of frauds serves an
evidentiary purpose, requiring reliable
evidence of the existence and terms of a
contract
to prevent the enforcement of contracts
through fraud or perjury that were never in fact
made. (Sterling v. Taylor (2007) 40 Cal.4th 757,
766.) Thus, "'the requirement of a
memorandum is read in the light of the dispute
which arises and the admissions of the
party to be charged; there is no need for
evidence on points not in dispute.' [Citations.]"
(Id. at p. 767, italics deleted.)

The statute of frauds exists to prevent the
commission of fraud, not to facilitate
fraud. (Rader Co. v. Stone (1986) 178
Cal.App.3d 10, 30.) Accordingly, "[w]here a
contract, which is required by law to be in
writing, is prevented from being put into
writing by the fraud of a party thereto, any
other party who is by such fraud led to believe
that it is in writing, and acts upon such belief to
his prejudice, may enforce it against the
fraudulent party." (Civ. Code, § 1623; also Evid.
Code, § 623 ["Whenever a party has,
by his own statement or conduct, intentionally
and deliberately led another to believe a
particular thing true and to act upon such
belief, he is not, in any litigation arising out of
such statement or conduct, permitted to
contradict it"]; Evid. Code, § 125 ["'Conduct'
includes all active and passive behavior, both
verbal and nonverbal"].)

All that is required to create an estoppel to
assert the statute of frauds is the
existence of a fraud inherent in the
consequences of the application of the statute.
(Mintz
v. Rowitz (1970) 13 Cal.App.3d 216, 224.)
Generally, "four elements must be present in
order to apply the doctrine of equitable estoppel:
(1) the party to be estopped must be
apprised of the facts; (2) he must intend that his
conduct shall be acted upon, or must so
act that the party asserting the estoppel had a
right to believe it was so intended; (3) the
other party must be ignorant of the true state of
facts; and (4) he must rely upon the
conduct to his injury. [Citations.]" (Driscoll v. City
of Los Angeles (1967) 67 Cal.2d
297, 305.) Whether equitable estoppel should
be applied is generally a question of fact
(Byrne v. Laura (1997) 52 Cal.App.4th 1054,
1068); however, the question becomes one
of law when the evidence is not in conflict and is
susceptible to only one reasonable
inference. (Driscoll v. City of Los Angeles, supra,
67 Cal.2d at p. 305.)
The trial court found that the statute of frauds
prevented enforcement of the
written contract, impliedly rejecting Agosto's
arguments that Civil Code section 1623 and
estoppel applied to prevent the Board's reliance
on the statute of frauds defense. We
conclude that the trial court's implied finding that
estoppel did not apply is not supported
by the evidence.
Charleen McMahan, the District's Vice
Chancellor of Human Resources in 1995,
stated she was present when the Board
authorized Chancellor Jeanne Atherton to enter
into an employment contract with Agosto for a
two-year term. McMahan also
established that the District drafted the contract
Agosto received based on a framework
provided by the District's attorney and that the
District's practice at that time was to
7
provide vice presidents with two-year
employment terms. McMahan's office would
prepare the contract, send two originals to the
new vice president for signature and then
forward the signed documents to the chancellor
for signature.
Counsel for the Board admitted during oral
argument below that the District had a
practice of entering into two-year contracts, that
he did not know why Agosto's contract
was not signed and that he has been waiting for
a signed contract to be found. Notably,
documents generated by the District refer to the
contract: (1) a "Notice of Employment
of Academic Personnel" referenced an "original
contract" date of "3/20/95," interlineated
to "3/27/95" and (2) an "Evaluation for Placement
on the Salary Schedule" dated May 17,
2002, indicated the Agosto's "Current Contract
Date" was 3/20/95. Additionally, a
January 1997 memo interpreting section 72411
from the District Administrator's
Association to McMahan noted that the initial
contracts of three administrators were set
to expire within the next six months, but would
automatically renew unless the
administrators were given timely notice of
non-reemployment. Agosto received a copy
of this memo, presumably because it impacted
his employment contract.
The Board presented no documents expressly
stating it had hired Agosto under a
year-to-year appointment. Jeanne Atherton, the
Chancellor at the time of Agosto's hire,
was no longer working for the District and a
District representative could not find an
administrator with an opinion as to whether
Agosto had been hired under a two-year
contract; although he found several
administrators who "thought" Agosto had been
employed on a year-to-year appointment. Only
after a dispute arose between the parties
did the District deny the existence of the contract.
8
The evidence Agosto presented, and
reasonable inferences therefrom, show that
the District prepared the contract, presented it to
him for signature and that he signed and
returned the contract, but that the District placed
the contract in his personnel folder
unsigned. The District's conduct, including hiring
Agosto and generating documents that
referenced his contract, strongly suggested it
had signed the contract and Agosto
reasonably relied on this conduct unaware that
the District never signed the contract. To
permit the Board to assert the statute of frauds
defense in these circumstances would
facilitate a fraud upon Agosto and unjustly allow
the District to escape its obligations to
him under the contract. (Civ. Code, § 1623.)
Accordingly, the judgment must be
reversed. We do not reach Agosto's argument
that his contract automatically renewed on March
27, 2007.

The Board alternatively argued that even
assuming the statute of frauds did not bar
consideration of the two-year contract, the
parties modified or rescinded the contract
based on their subsequent conduct. The trial
court, however, did not address these
additional defenses and we decline to address
their merits in the first instance. We
remand the matter to the trial court for further
proceedings, including the introduction of
additional evidence, to consider these defenses.
Because the Board's notice of
termination was ineffective as untimely, we need
not reach Agosto's remaining
contention that the Board did not actually vote to
terminate his employment.


DISPOSITION
The judgment is reversed and the matter
remanded for further proceedings
consistent with the views expressed in this
opinion. Agosto is entitled to his costs on
appeal.

McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
In David Agosto case,
GCCCD failed to follow the
law in firing Executive Dean,
says Appeals court
Comments
(re above blog posting)

Ah yes, the good ole boys (and girl) on
the GCCCD board are at it again. Let's
not forget the lawsuit they lost for
"bullying" another employee to the
tune of $300,000 (not including legal
expenses). Soon to be ex-chancellor
Suarez and his chief minion, soon to
be ex-Vice Chancellor of Human
Resoures Lastimado have made the
last 4 years hell for employees of
GCCCD. The District has the dubious
honor of being at impasse with its
collective employee groups more
than any other California Community
College.

Recent PERB decisions found the
Board lied about the availability of
funds to pay its employees a living
wage stating "its not about money its
about a willingness to use the money
to pay its employees" (paraphrased
from State reports on the district's
bad-faith bargaining practices).

Think of the 10's of thousands of
dollars wasted on legal bills!!!!

Meanwhile, soon to be Ex-Chancellor
Suarez has frozen hiring and travel at
the district, no mention of his or
Lastimado's 5 figure expense
accounts being frozen.

Documents from the district shows
that the predominant beneficiary of
these dollars is, you guessed it,
Suarez and Lastimado, as they very
often take turns paying for each
other's lunches...how sweet.

Students can't get classes, faculty
and staff haven't had a decent raise in
5 years and the board condones
wasting money on fancy lunches for
its executives.

Who is accountable? Apparently no
one.

Posted by: WhoseAccountable at July
30, 2008 08:19 PM

It sounds like the trial judge applied the
law as it is generally understood, and
the appellate court, understandably,
didn't like the result so it interpreted the
law in a way that got the right result.
Appellate courts have that luxury; trial
courts do not. Happy ending, here
anyway.

Posted by: Ronald Truman at July 30,
2008 08:54 PM



What's really galling about the GCCCD
Governing Board is their smug self
assurance....at the next board meeting
they will probably decide to reject 11 of
the 14 recommendations made by the
San Diego Grand Jury regarding
improving ethical behavior at the
community college governing board
level.
Rick Alexander, who has served on the
GCCCD Board since 1990, was
instrumental in siphoning Prop R funds
to construct massive buildings at the
small college in his backyard, while
stonewalling projects at the larger
campus. His contentious attitude
toward the Grossmont faculty has done
nothing to improve services to students
and the community. But he thinks he
deserves to be a life-time trustee of the
district.....yikes.

Posted by: questions2ask at July 31,
2008 12:45 PM



Mr. Truman, the trial judge did NOT
apply "the law as it is generally
understood". In fact, at the oral
argument, the appellate justices were
laughing at the idea that the District's
counsel would put forth such an
argument and, even more, that
anyone -- especially the trial court --
would buy such an argument.

If you want to see just how strong the
Court of Appeal decision is on this
very basic legal issue, read the
opinion itself. It can be found at the
California Courts website, Fourth
Appellate District, unpublished
opinions. A link to the decision is at
the end of the blog, above.

The Court of Appeal had several other
issues before it on which it could
have reversed the Trial Court, but it
declined to do so because of the very
obvious legal error in the Trial Court's
decision.

Martha Torgow, attorney for David
Agosto

Posted by: Martha A Torgow at
August 1, 2008 04:57 PM
Appeals court judge writes that  
resorted to 'fraud' in justifying
firing of sick worker

San Diego Union Tribune
July 30, 2008
Blog by Chris Reed

I've badmouthed the
Grossmont-Cuyamaca Community
College District for years for its power
plays, contempt for ethical standards
and atttempts to whitewash scandal.
Now I have fresh evidence that district
constituents should be ashamed of the
people they've elected as leaders.

In comes in the form of a sharply
worded decision issued yesterday in
which an appeals court reversed a
Superior Court judge's decision to
throw out a lawsuit in which a fired top
official at Grossmont-Cuyamaca
charges he was denied due process
and essentially forced out with a legal
dirty trick. The ruling remands the
lawsuit back to the lower court and
orders its reconsideration.

David Jay Agosto was hired in 1995 as
executive dean of community services
at Cuyamaca College and went on to
serve in a variety of big jobs. But in
February 2006, while Agosto was on
medical leave to cope with kidney
disease, he was fired by the
Grossmont-Cuyamaca board of
directors in a closed-session meeting.

Agosto challenged this ruling, saying
his original 1995 contract made him
the beneficiary of job protections which
required the board to give him notice of
at least six months before the
expiration of his contract.

Here's where the dirty trick comes in:
The argument that the GCCCD's
lawyers used to persuade Superior
Court Judge Joan M. Lewis to throw out
Agosto's lawsuit was that the original
1995 contract had never taken legal
effect because it was -- for reasons
unknown -- never signed by the
district's chancellor. It was kept on file,
just never signed.

The district argued that contract was
invalid under the "statute of frauds" -- a
legal provision which requires hard,
documented evidence of contracts that
last more than a year to ensure that
they are not fraudulently redefined at
some later date by the employer or
employee.

What a joke. The district operated for
more than a decade as if the contract
were in effect, then, when convenient,
declared it null and void. The appeals
court figured out this stunk to the high
heavens even if Judge Lewis couldn't.
Here's a sign of its disgust:

The statute of frauds exists to prevent
the commission of fraud, not to
facilitate fraud.

You follow? Judge James A. McIntyre is
saying the fraud that's going on here is
on the district's part!

Wow. He's absolutely right.

Now get ready for the members of the
district board to blame its lawyers. It's
what they do. Lots of rotten stuff
happens on their watch, sure. But, you
see, it's never their fault.

...The passage I cited is on page 5
[see below.]
Posted by Chris Reed at July 30, 2008
04:58 PM
Attorney Jack Sleeth fails to accept
responsibility for the damage he and
GCCCD did to David Agosto
PUBLIC MEETING OF GOVERNING
BOARD

FEBRUARY 19, 2008
Closed Session–5:00 p.m.Public
Session–6:30 p.m.

... to consult with legal counsel
regarding three cases of pending
litigation:

Agosto v. GCCCD,
Stevens v. GCCCD, and Tarvin v.
GCCCD; and section 54957.6 to
confer with the District Chief
Negotiator regarding United
Faculty, California School
Employees Association (CSEA),
Administrators’ Association, and
Confidential Staff matters...
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Return to GCCCD page
in San Diego Ed Rpt
Win some, lose some

In the November 4, 2008 election, Nick Aguilar, who
decided not to run for re-election to his county board of
education seat and instead run for the Southwestern
College board, won his new office handily against
incumbent David Agosto.
David Agosto was fired for blowing
the whistle on the GCCCD Board
Grossmont-Cuyamaca Community College
District might be held liable for improperly
firing its interim associate vice chancellor
while he was on medical leave.

Community College Week
October 20, 2008
Calif. Judicial Panel Sides with Fired
College Official in Lawsuit
By Ian Freedman and Eric Freedman


The California Court of Appeal has decided that
the district failed to follow the state Education
Code when it gave David Agosto fewer than
three months notice of its decision not to renew
his contract. The law entitled him to at least six
months notice.

The suit seeks reinstatement with back pay, as
well as damages for harm to his reputation and
discrimination based on disability, according to
his attorney, Martha Torgow of Northridge.

However, a lawyer for the district, Jack Sleeth Jr.
of San Diego, said Agosto may have to repay
unearned salary.

“I think he owes us money. We paid more than
he was entitled to so we would avoid violating
the disability statute,” Sleeth said.

The three-judge panel sent the case back to
San Diego County Superior Court for further
proceedings.
Grossmont-Cuyamaca Community College District
(
GCCCD) loses in court again and again

Is it time to ask if lawyers are pursuing billable hours to defend bad
decisions?
California Judge Orders
Community College to
Reinstate Fired Instructor
The Chronicle of Higher Education
2 Sep 2008
September 2, 2008


A California judge has overturned the
2006 firing of a Grossmont College
instructor who allegedly offered a
student a passing grade if she agreed to
show him her bra, The San Diego Union-
Tribune reported on Saturday.

The judge, Charles R. Hayes of the
Superior Court for San Diego County,
ordered the Grossmont-Cuyamaca
Community College District to reinstate
Timothy Cliffe, a physical-geography
instructor. In his decision, Judge Hayes
overruled another judge who had found
that Mr. Cliffe had engaged in “immoral
conduct.”

According to a spokeswoman for the
district, it has not decided whether it will
appeal the latest ruling.

In his ruling, Judge Hayes questioned
the validity of the claims made by the
student, Yu Yu Chen, a native of
Taiwan. He said Ms. Chen’s limited
English skills might have caused a
misunderstanding. He also noted that
Mr. Cliffe had once caught the student
cheating on a test.

The alleged incident occurred when Ms.
Chen asked Mr. Cliffe to change her
grade from an F to a C.

Mr. Cliffe has admitted making a
sarcastic comment that likened course
grades to bra sizes, but has denied
seeking sexual favors. —Allie Grasgreen
Gwyneth Mapes
wins against
GCCCD

Grossmont instructor awarded
$385,000 by jury
San Diego Union-Tribune
March 25, 2009

A San Diego Superior Court jury has
awarded $385,000 to a Grossmont College
instructor who accused school officials of
retaliating against her after she reported
sexual discrimination and harassment to a
supervisor in 2002.

The jury last week awarded damages to
Gwenyth Mapes, a tenured humanities
instructor at the El Cajon community
college.

In her lawsuit, Mapes said she told her
supervisor to tell another teacher, William
Hoaglin, to “keep it in his pants” after
reporting alleged incidents of sexual
misconduct, according to court documents.

She based her complaint on discussions
she had with a male student who had been
in Hoaglin's class and told her he gave
preferential treatment to attractive blond
female students. She said a staff member
also told her he had made suggestive
comments to her. In addition, Mapes said
she overheard students joking how being a
blonde in the teacher's class would get
someone an A.

The district said Mapes did not produce
any evidence, and Hoaglin denied any
wrongdoing.

Mapes said district officials gave her
negative evaluations, suspended her and
excluded her from activities after her initial
complaint to her supervisor, Zoe Close,
chair of Philosophy, Humanities and
Religious Studies.

The district's lawyer said Mapes'
supervisors disciplined her because she
she had not produced any evidence of
wrongdoing and continued to spread
rumors about Hoaglin. –L.S.
Community College Week
October 20, 2008

"...However, a lawyer for the district, Jack Sleeth Jr. of San Diego, said
Agosto may have to repay unearned salary.

“I think he owes us money.
We paid more than he was entitled to so we would
avoid violating the disability statute,” Sleeth said.

The three-judge panel sent the case back to San Diego County Superior Court
for further proceedings.

In addition to associate vice chancellor, Agosto had served as Cuyamaca
College’s interim president in 2001 and as its vice president. He’d also served as
the interim president of San Diego City College in 2000.

Agosto is currently president of the governing board of the Southwestern
Community College District in Chula Vista but isn’t employed at a community
college, Torgow said.

He was on medical leave for kidney disease from September 2005 until his notice
of dismissal arrived in March 2006, according to the decision.

The district said “he would not be offered another administrative position, but
could return to a faculty position,” the decision said.
Grossmont Cuyamaca
Community College
GCCCD David Agosto case
GCCCD incumbents &
Rosinski & CTA v. unions
GCCCD Mary Kay Rosinski
GCCCD
Gwyneth Mapes case Mar. 09
Timothy Cliffe case
In addition to associate vice chancellor, Agosto had served as Cuyamaca
College’s interim president in 2001 and as its vice president. He’d also served
as the interim president of San Diego City College in 2000...

He was on medical leave for kidney disease from September 2005 until his
notice of dismissal arrived in March 2006, according to the decision.

The district said “he would not be offered another administrative position, but
could return to a faculty position,” the decision said.

In his appellate brief, Agosto accused the district of attempting “to obscure the
complete facts.”

...He also said the district “feigned efforts to accommodate his medical needs,
while in reality setting up barriers and obstacles to his returning to work.
Ultimately, he was offered a work schedule that involved 11-hour days, with no
breaks.”

The Court of Appeal overturned a Superior Court judge who had concluded
Agosto’s original two-year contract was unenforceable because no one could
find a copy of the document signed by the district’s chancellor when he was
hired in 1995...

Sleeth, the district’s lawyer, said the lesson that the case
teaches community colleges is “keep good records. Part of the
problem is we didn’t know what contract he was under.”

Sleeth said the minutes of the board concerning Agosto’s
administrative appointment “didn’t disclose the length of the contract,”
which could be up to four years under California law.

The appeal raised another issue that the panel didn’t resolve —
whether the board had properly made public its closed-door decision
to terminate him, according to Torgow, his lawyer.

She said the lower court must now decide whether the district will be allowed to
claim at trial that its termination was procedurally valid.
Education Reform Report
GCCCD Lawsuits