848 F. 2d 1242 - August v. Los Angeles Community College District Board of Trustees

MEMORANDUM*

Michael August (August) appeals pro se the grant of summary judgment in favor of the Los Angeles Community College District (College) and various college officials in his 42 U.S.C. Sec. 1983 and Sec. 1985 action. August argues the defendants violated his due process rights by failing to give him adequate notice of or a hearing on the charges upon which he was suspended from the College. August also contends that the district court erred in dismissing as time-barred his three pendent tort claims for defamation, intentional infliction of emotional distress and abuse of process. We affirm.

On January 13, 1984 August filed a complaint against the Los Angeles Community College District and each of the individual defendants alleging six causes of action. The events underlying the suit relate to August's allegedly disruptive behavior in a classroom context on two separate occasions in March of 1982 and the subsequent disciplinary action taken against him by the College.

The first three causes allege deprivations of rights guaranteed under the 14th Amendment in violation of 42 U.S.C. Secs. 1983 and 1985. The complaint contends the defendants individually and collectively "conspired to hold an illegal hearing to expel plaintiff" from the College (ER 2, p V); that the charges raised at the May 13, 1982 disciplinary hearing were improperly brought because they had previously been dismissed (ER 3, p VI); that the plaintiff has been injured in his good name and reputation and been deprived of his right to pursue his chosen profession (ER 3, p VII); and, that the College never processed or gave him an appeal or review of his expulsion within the time limits required by the procedures adopted by the School Board and required by California state law (ER 6, p III, F).

The last three causes of action arguably state pendent tort claims for defamation, intentional infliction of emotional distress and abuse of process for injuries resulting from the May 13, 1982 disciplinary hearing and the subsequent suspension/expulsion.

The district court granted summary judgment for the College on the grounds that the pendent tort claims, counts Four through Six, were not filed within the applicable one year statute of limitations and because August failed to file a claim under the California Tort Claims Act within 100 days of accrual. Summary judgment as to the civil rights claims was granted on the grounds that (1) the plaintiff's constitutional rights were not violated; and (2) each of the defendants was entitled to either absolute or qualified immunity. August timely appeals.

The district court's grant of summary judgment is reviewed de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629-30 (9th Cir.1987). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

The district court's ruling on the appropriate statute of limitations is a question of law reviewed de novo. In re Swine Flu Products Liability Litigation, 764 F.2d 637, 638 (9th Cir.1985).

The district court's determinations on questions of law and on mixed questions of law and fact which implicate constitutional rights are also reviewed de novo. LaDuke v. Nelson, 762 F.2d 1318, 1322 (1985), amended 796 F.2d 309 (9th Cir.1986).

August's causes of action for defamation, intentional infliction of emotional distress and abuse of process are each governed by the one-year statute of limitations period set out in Section 340(3) of the California Code of Civil Procedure. Cal.Civ.Proc.Code Sec. 340(3) (West 1982 & Supp.1987). See Wiener v. Superior Court, 58 Cal.App.3d 525, 529, 130 Cal.Rptr. 61, 63 (1976) (one year limitations period for libel and slander); Grywczynski v. Shasta Beverages, Inc, 606 F.Supp. 61, 66 (N.D.Cal.1984) (intentional infliction of emotional distress claim barred by California's one year limitations period for personal injury torts); McFaddin v. H.S. Crocker Co., Inc., 219 Cal.App.2d 585, 33 Cal.Rptr. 389, 393 (1963) (claim for abuse of process barred unless filed within one year after the commission of the wrongful act).

In addition, as an action against a public entity, August's claims are also governed by Sec. 911.2 of the California Government Code. Section 911.2 provides for a 100-day period "after the accrual of the cause of action" for the presentation of personal injury claims. The date of accrual of a cause of action under Sec. 911 is the same as for the statute of limitations which would otherwise be applicable. Wozniak v. Penninsula Hospital, 1 Cal.App.3d 716, 722, 82 Cal.Rptr. 84, 88 (1969).

As a general rule, the limitations period applicable to actions for libel or slander runs from the utterance or publication of the defamatory matter. Wiener, 58 Cal.App.3d at 529, 130 Cal.Rptr. at 63. A number of California cases, however, have applied the so-called "rule of discovery" to actions for libel (and personal injury) arising under Sec. 340 of the Cal.Civ.Proc.Code. Manguso v. Oceanside Unified School Dist., 88 Cal.App.3d 725, 152 Cal.Rptr. 27 (1979); Saliter v. Pierce Bros. Mortuaries, 81 Cal.App.3d 292, 146 Cal.Rptr. 271 (1978). Under the "rule of discovery," a cause of action does not accrue until the plaintiff knows or should have known all material facts essential to show the elements of his cause of action. Manguso, 88 Cal.App.3d at 728, 152 Cal.Rptr. at 29. However, in order to invoke this "special defense" to the limitations period, the plaintiff "must specifically plead facts which show (1) the time and manner of discovery, and (2) the inability to have made earlier discovery despite reasonable diligence." Saliter, 81 Cal.App.3d at 297, 146 Cal.Rptr. at 274.

If the standard one-year limitations period of section 340(3) is applied in August's case, his cause of action for defamation is plainly time barred. The disputed utterance occurred on May 13, 1982 at the student disciplinary hearing and his complaint was not filed until January 13, 1984. Similarly, August's Government Tort Claim was not filed with the College until on or about July 20, 1983. This is again well over the 100 day time period allowed under section 911.2 and also over one year of the allegedly injurious acts of May 13, 1982. August argues, however, that his discovery of the allegedly defamatory charges was delayed until approximately June 2, 1983 when he received a copy of the hearing transcript, and thus, in effect, that the delayed discovery rule should apply in his case.1

August's failure to plead specifically facts showing or explaining his inability to secure a copy of his official transcript earlier than June 1983 despite the exercise of "reasonable diligence" takes him outside of the operation of the delayed discovery rule. Although August did plead the time and manner of his discovery, his lack of diligence in investigating the content of his official school records and the consequences of the May 13, 1982 hearing, of which he had full notice and failed to attend, precludes the application of the rule in this case.

A similar analysis applies to August's claims for intentional infliction of emotional distress and abuse of process. Notice or reasonable opportunity for notice of the College's disciplinary hearing, the source of the distress and site of the alleged wrong, was provided. See Murphy v. Allstate Ins. Co., 83 Cal.App.3d 38, 50-51, 147 Cal.Rptr. 565, 575-6 (1978); McFaddin, 219 Cal.App.2d at ----, 33 Cal.Rptr. at 393. All three tort claims accrued on or about May 13, 1982 and accordingly, under the one year statute of limitations, each is time barred.

The central question presented by August's constitutional claims under section 1983 is whether the College provided sufficient notice of and hearing on the charge of "disorderly, lewd, indecent, obscene or offensive" conduct. Assuming, without deciding, whether the College has deprived August of a constitutionally protected liberty interest,2 we first assess whether the College provided "reasonable notice of the substance of the charges to be considered." Willner v. Committee on Character, 373 U.S. 96, 105 (1963). If the College provided reasonable oral or written notice of the charges raised at the May 13, 1982 hearing, and offered a reasonable opportunity for August to be heard, then the requirements of the due process clause of the Fourteenth Amendment are satisfied. See Board of Curators v. Horowitz, 435 U.S. 78, 84-5 (1978); Goss v. Lopez, 419 U.S. 565, 581 (1975).

By letter dated May 3, 1982, Dr. Davis, Dean of Student Services, informed August that his hearing before the Disciplinary Committee had been rescheduled to May 13, 1982. Dr. Davis' letter indicated August was charged with "willful disobedience" and "obstruction/disruption." At the May 13th hearing itself, which August failed to attend, Dr. Davis read charge one as being "disorderly, lewd, indecent, obscene, or offensive conduct or expression ..." and charge two as "obstruction and disruption of classroom activities." (emphasis provided). In its final report to the President of the College, the Disciplinary Committee indicated its finding that August was in violation of "both charges" namely, "(1) Willful disobedience; (2) Obstruction/disruption."3 We also note that by May 3, 1982 August had been suspended twice, once by Dean of Student Services Dr. Davis and once by the President of the College, Dr. McIntosh, both suspensions to last ten days for "violations of college rules."

From the record before us, and despite the slight variations in the statement of the charges, we conclude that reasonable notice, both oral and written, of the charges considered on May 13, 1982 was provided. The College fully informed August of the scheduled Disciplinary Committee hearings and of the general nature of the charges presented. An opportunity for August to present his side of the story was provided. See Goss, 419 U.S. at 581. Where August failed to avail himself of the very process he was due, he cannot now claim a violation of his constitutional rights. We conclude the College's general compliance with applicable notice and hearing requirements is sufficient in this case to satisfy due process.

Appellees' request for attorneys fees is denied.

AFFIRMED.