SCeryrane on eee SSSR GB BES BNEBRBPRPBRBNB EE Philip A. Kok 16828 Chicago Bellflower, CA 90706 (626)-932-6857 (no fax) Court of Appeals 4th Appellate District “s Division Two Philip A. Kok Cs. No INC008958/E024883 Plaintiff Appeal Brief vs. Coachella Valley Unified School District; American Federation of Teachers; California Teachers Association Does | to 10, Inclusive, DefendantsPage Index Page No. Topic --- Actions of Defendants a Pretext for Antipathy Towards “Religious Teacher” The Agreement -violation of agreement- evaluation procedures not followed (Agreement” “two mutually planned observations...” ) -level I] Grievance Timely Filed (Request for Arbitration) -promise/obligation of employer to arbitrate (nif you wish to do so..."2-7-91) -defers to Agreement as authority (“under the contract...” “the contract specifies Department of Fair Employment and Housing (DFEH) -employer cannot discriminate on the basis of race/religion (or national national origin (Title VII 42 U.S. Code 2000¢ et. seq. -Civil Rights Act) -investigation fouled by false information (doe 8: “formally observed three times...” later, doe 7: “in absence of a formal evaluation...”) 57 --- Public Employment Relations Board (PERB) (5-7) -second investigation also fouled by false information (doe 8: “nothing to indicate the contract did not expire...” ) -court: a California court held that a party to a contract may incur tort remedies when in addition to breaching the contract, it seeks to shield itself from liability by denying in bad faith and without probable cause that a contract exists (Seamans v. Standard Oil) 78 Employee/Plaintiff Became Inadvertently Privy to Embarrassing if not Incriminating Information Concerning Administrator / Inclusion of Employer's Attorneys as Does (7-8)/ Why Does 7,8 Must be Included in the Complaint/Appeal a(i)-Civil Conspiracy (1714.10)(d) “shall be appealable...” -1714.10(6) “this section shal! not apply to...” Motion to Reconsider Judge Stafford: “...you can appeal...” 9-10 ---------- The Agreement (9-10) (“nwo mutually planned observations...” ) 11-14------- Fraud (CTA) (11-14) CTA’s J.C: “Ido not recommend...” “The best you can hope for...” “I hope you think carefully...” Court: “the remedy for a denial of a pre-discharge due process right is...” 15-20----- -- Fraud (AFT) AFT'sK.B: “Under the law..." “Current law allows...” Court: “The Education Code is far less explicit...in granting exclusive discretion to the school district” Court: “The Education Code is silent on the contents of the notice to a nonretained probationary employee” 20-24 -~ Fraud (CVUSD & Does 7,8) Doe 7: “nothing that requires the absence of malice..."(2!) Appellant: "there is no justification for malice...” Bus & Prof. Code: “any act involving moral turpitude, dishonesty or corruption constitutes cause for disbarment or suspension...” (6106) ~ Discussion of Decision - Why the Court Can and Should Compel Arbitration/Grievances Pertain to Procedural Matters. (29-33) 33 - - Concerning Tort Claims a(ii)Court: “...excused exhaustion of remedies because the ultimate legal issues are better suited for determination by the court...” "the Tort Claims Act indulges late claimant 34-35 --- “No Reasons/Any Reason Defies Both Common Sense and the Apparent Intent of the Legislature” 36-38 - Discussion: Cases Harmonization The Agreement -- Concerning Tolling (39-44) -even without tolling, complaint filed well within time limit prescribed by Right- to-Sue letter -even without tolling, fraud has a three year statute of limitation -nonetheless, tolling discussed “equitable tolling has a purpose...” 45-46 -- Defendants Attempt to Dissuade Defies Authority on the Matter 46-47 --- Some Statistics -fifty-percent increase in certificated Latino employees (‘94 to “96) -five out of seven on Governing Board are Latino . -five out of __?___ shown as non-reelected on DFEH statistics are anglo names (some names were blocked out.) -four of these five are “Christian” names Al - Cases Cited/Sources of Authority (Al) a(iii)Section Index Section Topic Page No. Actions of Defendants a Pretext for Antipathy Towards “Religious Teacher’ The Agreement (1-2) Violation of agreement- evaluation procedures not followed (2-3) --- Level III Grievance Timely Filed (Request for Arbitration) (1-3) -promise/obligation of employer to arbitrate (nif you wish t0 do so..."2-1-97) -- Department of Fair Employment and Housing (DFEH) (3-5) -employer cannot discriminate on the basis of race/religion (or national national origin (Title VII 42 U.S. Code 2000e et seq -Civil Rights Act) investigation fouled by false information Public Employment Relations Board (PERB) (5-7) -second investigation also fouled by false information VIL Employee/Plaintiff Became Inadvertently Privy to Embarrassing if not Incriminating Information Concerning Administrator / Inclusion of Employer's Attorneys as Does (7-8)/ Why Does 7.8 Must be Included in the Complain/Appeal (7-8) -Civil Conspiracy (1714.10)(d) “shall be appealable...” -1714.10(c) “this section shall not apply to..." ‘VIL - Motion to Reconsider (8-9) Judge Stafford: *...you can appeal...” -- The Agreement (9-10) -- Fraud (CTA) (11-14) a(iv)CTA's J.C: “Ido not recommend...” “The best you can hope for...” “I hope you think : “the remedy for a denial of a pre-discharge due process right is..." ; -- Fraud (AFT) (15-20) AFT's K. B: “Under the law...” “Current law allows. Court: “The Education Code is far less explicit...in granting exclusive discretion to the school district” Court: “The Education Code iy silent on the contents of the notice to a nonretained probationary employee” XI --- -- Fraud (CVUSD & Does 7,8) (20-24) Doe 7: “nothing that requires the absence of malice..."(?!) Appellant: "there is no justification for malice...” Bus & Prof. Code: “any act involving moral turpitude, dishonesty or corruption constitutes cause for disbarment or suspension...” (6106) ‘XIil - --- Discussion of Decision (25-28) XIV - ~ Why the Court Can and Should Compel Arbitration/Grievances Pertain to Procedural Matters. (29-33) XV -- -- Concerning Tort Claims (33) Court: “..excused exhaustion of remedies because the ultimate legal issues are better suited for determination by the court...” ”...the Tort Claims Act indulges late claimants...” XVI -------- “No Reasons/Any Reason Defies Both Common Sense and the Apparent Intent of the Legislature” (34-35) XVII --- Discussion: (36-38) Cases Harmonization The Agreement XVIII --------- Concerning Tolling (39-44) atv)-even without tolling, complaint filed well within time limit prescribed by Right- to-Sue letter -even without tolling, fraud has a three year statute of limitation -nonetheless, tolling discussed “equitable tolling has a purpose...” Defendants Attempt to Dissuade Defies Authority on the Matter (45-46) ~ Some Statistics (46-47) -fifty-percent increase in certificated Latino employees (‘94 to ‘96) -five out of seven on Governing Board are Latino -five out of __?___ shown as non-teelected on DFEH statistics are anglo names (some names were blocked out.) -four of these five are “Christian” names XXI- - Sources of Authority (A1) ( following table of contents) a(vi)= Sources of Authority U.S. Code 42 U.S.C, 2000¢ et. seq. (Title VII-Civil Rights Act) Government Code 900 - Tort Claims 3543.2 - Educational Employment Relations Act Civil Code 1572 - Fraud 1575 - Undue Influence 1711 - Deceit 1714.10- Conspiracy Between Attorney and Client Code of Civil Procedure 338- Statute of Limitations 1280- California Arbitration Act Penal Code 125-Ungualified Statement Education Code 44664 - Concerning Evaluation Process 44949 - Concerning Procedural Matters 44929.21 - Concerning Non-reelection Procedures Employer-Employee Agreement (CVUSD/AFT) 21.1 (et. seq) Concerning Evaluation Procedures 24.1 (et seq) Concerning Grievance Procedures Superintendent's Calendar Other Eisenberg, M. & Fuller, L. Basic Contract Law Sth Edition St. Paul: West 1990 AnIntroduction This is an appeal brief filed following a Superior Court dismissal. This initial complaint was filed (9-16-98) with the Superior Court (Indio)following the closure of a Department of Fair Employment (DFEH) complaint. within the allowed time of the Right-to-Sue letter issued by their office (6-1-98). The demurs of the defendants were heard on 1-11-99, 1-26-99, and 1-27-99, and a Motion to Reconsider was heard on 3-26-99. Honorable Ch. Stafford presided over the matter(s). While there are numerous issues mentioned and discussed in the body of the complaint. the original contention was that employee/plaintiff/appellant was not properly evaluated prior to the non-reelection decision given by the District, which is stipulated by the Agreement. and Code. Subsequently he filed with Department of Fair Employment contending that the actions of the defendant(s) were prompted by an antipathy against the employee as a “religious teacher” and that all other reasons are invalid because they are/were simply not true, but even if they believed them to be true. they were not properly substantiated, and therefore have no validity. Following the complaint a number of issues were raised by the defendants, all of which are addressed in the body of the brief, herein attached. As the following should show, most, if not all of their objections are “red herrings” and, as such. have temporarily extended this matter. The fact being that none of the issues they raise bar proper process of this matter.Plaintiff continues to seek arbitration and/or judicial review of the matter. seeking a just determination. Such request is in accord with the laws and the intent of legislation, and with the Agreement of the school district as well. The trial court agreed that it is appealable (“you can appeal..."), and plaintiff has followed all proper steps in so doing. The following should make clear that the actions (or lack of) of the employer (CVUSD) and the employee organizations (AFT, CTA) , and does 7.8 were fraudulent. dishonest, and intended to do harm, and once that is clear, the reason why (?) must be asked. Plaintiff contends as he did from the beginning that their actions and stated reasons are simply a pretext for an antipathy against “religious teachers.”Appeals Brief un Request to Compel Arbitration In reference to complaint against District (CVUSD)! --it was argued that plaintiff/appellant was wrongfully terminated (6-96) without a proper evaluation process and subsequently when he spoke out in indignation about the matter he was wrongfully silenced( 3-22-96). Then, when he filed a level I and Il (5-96, 6-96) grievance no reasons were given for their denial of the grievance(s) in violation of contractual terms, and in response to the level III grievance(6-12-96) which is a request for arbitration the defendant after a long delay agreed to arbitrate( 2-97, 5-97), but then, when attempts to procure arbitration were made. the defendant, subsequently, reneged on the agreemenvobligation. The Agreement In regards to the lack of proper evaluation procedures, plaintiff filed a level I. Il, and IMI grievance, requesting arbitration of the matter. Subsequently, all defendants responded The school district responded saying they would honor their obligation to arbitrate and referred to the contract as authoritative (“...under the contract...” “...the contract | the complaint against the district was heard on 1-27-99, at which time the court noted that it was necessary to first file a Tort Claim. Such claim process has (or actually already had been commenced shortly prior in response to the same notification by the attomeys) und atthe time of the Motion for Reconsideration (3-26-99) was complet. albeit denied by the district. Plaintiff had no prior nowiedge ofthis right or obligation and contends thatthe filing (lack of or late) should not bara fair tal. especially since plaintiff had no knowlege of such but also since even though i is now completed. it appears certain tha it would have been denied, regardless, by a district who had other “pririties.” ‘There were a few brief comments about statutes of limitations which plaintiff contended that fraud has a three year statute of limitations (CCP338); and that regadless, time has been tolled during the DFEH (5-97) and PERB (7-97) investigation, which effectively halted the statute at eleven months, if the request and promise to arbitrate did not effectively halt it sooner. If this remains & contention, plaintiff has prepared a brief pertaining to tolling 1specifies...”(2-7-97). The employee organization, CTA, responded saying, ultimately, that in regards to the contract. “they continued to roll it over...” and provided a copy (which plaintiff already had)(6-18-97). Apparently, this is an informal way of saying that the contract was extended by oral or implied consent. Meanwhile, AFT responded with a reference to the contract as authoritative (“‘...contract rights...”) (10-15-97). Appellant had been operating under the assumption that the Agreement was the authority, and all defendants in one way or another implied or directly affirmed it as such. The only exceptions are discussed within, and upon closer observation, they do not appear to be exceptions but, rather. evasive nuances meant to lead appellant to abandon his claim. It is noted that a California court held that a party to a contract may incur tort remedies when in addition to breaching the contract, it seeks to shield itself from liability by denying in bad faith and without probable cause that a contract exists (Seamans v. Standard Oil 36 Cal 3d 752, 206 Cap Rprtr 354 686, p.2d 1158 1984), III. Violation It was also contended in the original complaint that the defendant. CVUSD, in the actions they took intended to inhibit, intimidate, and harrass the plaintiff. In not completing a proper evaluation process the defendant left the plaintiff without any knowledge of what they/(he) wanted to have changed, improved, or discontinued, if anything. And at the time the “non-reelection” decision was made(2-96) , the evaluation process had not been completed. When the principal finally conducted the “formal evaluation,” (5-9-96) it was both incomplete, and came after the non-reelection decision was made.In addition, as noted, when plaintiff spoke out in indignation about the matter, a personal and public concer, he was issued a “directive” threatening discipline for any further comments(3-22-96). Me Department of Fair Employment & Housing Subsequently, when attempts to procure arbitration and/or any form of compliance from the defendant fell through, plaintiff filed a complaint with the Department of Fair Employment (DFEH) (5-97) in which he stated his concern that in addition to other unfair and unlawful practices it appeared that some of the impetus for the defendants actions were due to “reverse discrimination” , and later it was shown that over the course of the two years (94-96) in which plaintiff was employed with the District, there was a significant increase (50%) in certified Latino employees (DFEH) while a slight decrease and then levelling off of certified Caucasian employees. Plaintiff. in addition. contended that in his particular case he believed that there may have been also religious discrimination in regards to plaintiffs significant background of denominational education and affiliation, which the principal misunderstood and viewed it as something to be suspicious of, or fear. It was noted that one of the other certified employees. albeit less qualified than plaintiff, was also treated in a wrongful manner and came from the same denominational background and educational institution. It was also noted that both of these employees were hired by the previous principal (Caucasian) while the wrongful treatment arose under the new principal (Latino). Finally, it was noted that this latter principal was released shortly(7-96) 2 although he had either completed, or was near completion of an administration degree in addition to his teaching certification,after he made the wrongful decisions(3-96) , and when attempts were made to serve him(10-98), he could not be located. Then, in addition to the above, there were the comments made by others. First, the principal was heard by plaintiff saying to a third party “we don’t need any missionaries around here. “ Then, the teacher in passing who said “don’t get religion until you get tenure”; and the assistant administrator who said “next time don’t turn the other cheek”; and another teacher who thought he was Mormon, apparently in correlation to her assumption that plaintiff did not imbibe in alcohol or tobacco. Such comments indicate the ignorant presuppositions and stereotype that arose. In fact, plaintiff's denominational background neither Mormon nor revolves around the use of alcohol or tobacco (or lack of). is both “religious” and academic, which is why he could teach in a public school. What Happened to the DFEH Complaint? The DFEH subsequently investigated the matter(s) and around 5-98 they contacted the plaintiff and said they were about ready to close the case but said “this does not mean you were not wrongfully treated.” When plaintiff inquired further about the basis on which they were closing the case the investigating agent said that the defendant has assured us that you were “formally evaluated three times...” (in reference to a letter sent by the defendant to DFEH on 6-27-97 (p.3) In response to this the plaintiff assured her that this is/was not true and asked her if she had received copies of these “formal evaluations.” At that time there was no response. but apparently she returned to the defendant to verify whether these formal evaluations existed and then they, the defendant, responded “in the absence of a formal evaluation... have obtained a statement by Assistant Superintendent....explaining the reasons...”(6-3-98). However, notwithstanding the fact that they reversed their original claim of formal observation to “in absence of...” the reasonsprovided were either false (e.g. lack of English skills) or were subjective (re. classroom control) and were unsubstantiated: and/or if they had any basis they would need to be addressed properly so that plaintiff could rectify any problems or perceived problems. These problems. if existent. in fact, were not addressed properly, or at all. Then, in regards to a second important point which DFEH investigated, or tried to, in information pertaining to other certified employees who plaintiff contended were also wrongfully treated. or more importantly in regards to one specific employee. as mentioned above, who was of the same denominational and educational background as plaintiff, the defendant replied by saying that this employee was non-reelected because he had not taken the required course to maintain certification. However. plaintiff contends that this may not, in fact, be true at all; but even it it is, he notes that there were others who were less qualified or who remained on an “emergency” certificate who were retained, nonetheless. Therefore. such a basis for non-reelection is suspect. More importantly, however, the defendants apparently decided to intentionally skew the matter further by saying that this employee. subsequently, died in a “motorcycle accident” (6-27-97). In fact, this employee died in an auto accident in the San Bernardino Mountains on the way toa youth pastor convention, Nonetheless, this information, or misinformation was uncovered well after the DFEH had closed their complaint when they supplied the documents to plaintiff. ve Public Employment Relations Board it will subsequently be shown winy the attomeys for the school district were included as doe/defendants in the case as well (Doe 7, B. Bock: Doe 8. S. Gordon),Meanwhile returning to previous events, shortly after the complaint was filed with DFEH, a complaint was also filed with the Public Employment Relations Board (PERB). 4in this complaint plaintiff contended that the two employee organizations, California Teacher's Association (CTA) and American Federation of Teachers (AFT) had failed to properly assist plaintiff in his grievances and related matters. It was also contended that the district had subsequently failed to honor their obligation and promise to arbitrate. Hence, there was a subsequent investigation and the Board, without much justification, if any, acted on information provided by the defendant who gave ambiguous information about the contract (“ ...can find nothing to indicate the contract has not expired...” ), and as with DFEH used highly impressionistic language, if not plainly false, to cast the worst possible light on plaintiff. Then, it was contended that CTA did not respond properly to plaintiffs request for assistance and actually tried to dissuade employee(5-97, 6-97) from pursuing the matter by saying it would not be worth it in terms of “high cost versus low relief” (6-18-97). CTA also made ambiguous comments about the contract (“teachers working without a contract” (6-9-97)( “contract rolled over” 6-18-97) apparently in another attempt to dissuade or obfuscate. Furthermore, CTA did not respond at all until they were contacted by an attorney (6-3-97). However, they (CTA) contend that since they were not the elected organization at the time employee was employed with the district that they have no obligation to assist. Plaintiff contends they do and certainly, at minimum, that they have an obligation to not impede or dissuade, without merit. 4 the maners regarding the employee organizations were heard on 1-11-99. The court said that it is out oftheir jurisdiction. It is contended that especially with AFT the matters go beyond “DFR” Duty to Fairly Represent; and involve actions of a more subtle and nefarious nature in which representatives for AFT actually intended/engineered to do harm; while with CTA, while the actions were less proactively engineered to do harm than those of AFT, they were still responsively, intended to impede. retroactively 6Nonetheless, AFT was also included in the complaint as they were the employee organization that was primarily involved with employee during 1994-96. One of the representatives (K. Braithwaite) while portending, during this period, to be concerned about employee/plaintiff. and who actively assisted (or impeded as it may be) later claimed he was not a representative (10-15-97). While prior to this, when rising public concer in response to some of the public comments made by plaintiff. may have tempered the situation , this person (K.B.) also made authoritative-sounding comments that falsely represented the rights of employees saying, in essence. they have no rights at all (3-96). At the end of the 1996 year plaintiff informed them that he had filed a level III grievance and expected their assistance. However. following the 1994-96 year. despite frequent attempts to procure this assistance. they did not respond. In addition to their failure of Duty to Fairly Represent plaintiff contends that their actions were intended to impede and harm and thus constitute a more severe dereliction, to the extent that such actions were malicious. or nefarious. albeit subtle vir Why the Inclusion of the School District ‘s Attorneys as Defendants? In regards to the district. it was deemed necessary to include the attorneys as does in the complaint © As plaintiff compiled the complaint he realized that the misinformation (ie. “killed in motorcycle accident” “nothing to indicate contract has not expired...” and “formally evaluated three times” ) provided by the defendant. the District, was concocted in 5... for this reason and the fact that PERB, without explanation. did not pursue the complaint.plaintiff hereby requests that their decision also be reviewed per CCP 1067, 5 _the complaint against does 7 & 8. the attomeys tor the district, was heurd on 1-26-99 at which point the court said that a petition to file pursuant to 1714.10 was required prior to including them in the complaint. Subsequently, and prior tothe Motion 1o Reconsider. such petition was fled. It is contended that they must be included in such case that. in fac, the district decides to blame the false information provided on the attomeys: which appears likely, given the fact that they have retained new attomeys: and nor does it appear that 1714.10 is an absolute, and in fact appears to be ‘open to exceptions.1714.10, (a) No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is bi upon the attorney's representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. The court may allow the filing of a pleading claiming liability based upon such a civil conspiracy following the filing of a verified petition therefor accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. The court shall order service of the petition upon the party against whom the action is proposed to be filed and permit that party to submit opposing affidavits prior to making its determination. The filing of the petition, proposed Pleading, and accompanying affidavits shall toll the running of any applicable statute of limitations until the final determination of the matter, which ruling, if favorable to the petitioning party, shall permit the proposed pleading to be filed - (b) Failure to obtain a court order where required by subdivision (a) shall be a defense to any action for civil conspiracy filed in violation thereof. The defense shall be raised by the party charged with civil conspiracy upon that party's first appearance by demurrer, motion to strike, or such other motion or application as may be appropriate. Failure to timely raise the defense shall constitute a waiver thereof (c) This section shall not apply to a cause of action against an attorney for a civil conspiracy with his or her client, where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney's acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney's financial gain. rs (d) This section establishes a special proceeding of a civil nature. Any order made under subdivision (a), (b), or (c) which determines the rights of a petitioner or an attorney against whom a pleading has been or is proposed to be filed, shall be appealable as a final judgment in a civil action. (e) Subdivision (d) does not constitute a change in, but is declaratory of, the existing law. Tadorder to create a false impression and in hopes that the Board and the Department would close the complaint based on such misinformation, which. in fact, they did. The question that arose. however, was why would they go to such an extent and such risk (2) and plaintiff had to ask whether the district had given the attorneys this information or whether the attorneys, themselves, had concocted it? And if it was derived by the attomeys, why? In order to avoid the possibility that the district would blame the attorneys and thereby avoid all culpability, and/or make it necessary to file a later suit against the attorneys it was deemed prudent to include them as does, and in doing so plaintiff realized that. outside of the fact that their actions were dishonest, if not an indication of moral turpitude as well, there was at least one other possible reason for the attorneys to risk their license; and that derived from a possible ulterior motive instigated by the person or person(s) who retained these attorneys. And despite not wishing to get involved in such matters plaintiff realized he must include the possibility that his knowledge of certain matters which he had become inadvertently privy to over 1994-96 was enough to make such persons uncomfortable and therefore had feason to go to a greater extent to get these matters dismissed. Hence, it was asserted on this basis that the possibility of conspiracy existed, and that the actions of the attomeys may have or must have been inspired by monetary reasons. The school district. subsequently, retained a new law firm to represent them. VIIT Motion to Reconsider The motion to reconsider was heard on 3-26-99. Plaintiff's contention was that given that 1714.10 is of such a nature that there is not necessarily any absolute concerninga prerequisite of prior petition. And given that the actions taken by the defendant employee organizations, especially AFT. but also CTA, were sufficiently nefarious to deem consideration at the judicial level: and given that the Tort Claim process has been completed, it is/was contended that all such prerequisites had been duly fulfilled. x The Agreement As noted in the opening and discussed further along the way, all defendants referred to the _ employer-employee Agreement as authoritative. The exceptions, as appellant contends were nuances intended to dissuade employee from pursuing the matter and/or convince the investigator to close the case. On closer observation, however, it is noted that the comment by doe 8 (‘‘I can find nothing to indicate the contract is not expired” ) is not even a nuance, but simply a semantic half-truth told to the PERB regional attorney from her office in hopes that this would satisfy him (i.e. there was nothing in front of her face at the time which would indicate otherwise) ; whereas the comment by CTA (“teacher's working without a contract”6-9-97) only has a nuanced validity based on the fact that on 4-96 PERB responded to a decertification petition and agreed that decertification could proceed because the apparently the “written agreement” had not been re-written, or renewed in writing. Nonetheless, he himself (CTA) acknowledged shortly later that they “continued to roll it over..."(6-18-97). This, apparently, is an informal way of saying that the Agreement was renewed by oral or implied consent. However. if appellant had not followed up on the 6-9- 97 letter and asked for more specifics about the Agreement, it appears that CTA would have left the 6-9-97 letter as the final statement on the matter, which really is, in fact, not 7 Civil Code 1714.10(4) says that “this section establishes a special proceeding...any order shall be uppealable, whereas 1714,10(c) notes that “this section shall not upply to a cause of action where..the attorneys acts go beyond the performance of professional duty to serve the client und involve a conspiracy to violate a legal duty in furtherance ofthe attorneys financial gain it was also noted at this time that one of the procedures which is supposed to accompany the non-reelection process ‘was not followed (i.e, notification of right to hearing) 9true. Furthermore, it does not appear as if he had a sudden attack of conscience, but that he grudgingly realized he must respond to the request (albeit it is noted that no responses were given until appellant's attorney made contact).CTA/CVTA Following the letters from the assistant administrator in regards to arbitration and their subsequent response(s) (2-97; 5-97) several letters were sent by plaintiff to CTA in an attempt to procure their assistance/response in regards to the pending matters and the request for arbitration. They did not immediately respond to plaintiff. It was only after plaintiff requested attorney to send a letter (6-3-97) that they responded. In this response (6-9-97) CTA said “there are several important points that need to be made...One, the teachers in Coachella Valley were working without a contract at the time your grievance was filed...”, and says “The Public Employment Relations Board (PERB) has held that binding arbitration is not applicable under an expired contract.” Here, CTA is asserting an absolute in regards to a point of law, as if that settles the matter. While there are certainly many exceptions to such an “absolute” only one needs to be stated in order to invalidate their assertion. It is noted that in Cal State Employees Association v. State of Cal 1980 no 840-S CPER 17 it was determined that PERB would defer to arbitration an unfair practice charge of an expired contract if a dispute arises from language in the contract? * Hence, here is one exception to the “absolute” which CTA poses in their 6-9-97 letter which was an apparent attempt to dissuade plaintiff from pursuing the matter any further. 9 Penal Code 125 say equivalent t ‘an unqualified statement of that which one does not know to be true is statement of that which one knows to be false, Qa = nis noted that the district did nouhas not given any valid response to the level 1 & II grievances. and that in violation of the contract which says they must provide rationale (sec 24.4 ). If they are/were objecting or refuting the grievances, it must, therefore be something which arises from language in the contractFraud, according to Civil Code 1572(3) consists of several possibilities. including “the suppression of that which is true. by one having knowledge or belief of the fact...” One must ask then did CTA know that there may be at least one possible exception to their assertion? If so, (or even if they did not know) they committed fraud. Fraud, according to Civil Code 1572(2) is also committed when one makes “a positive assertion. in a manner not warranted by the information of the person making it, of that which is not true. though he believes it to be true” Hence. here even if CTA believed that there were no exceptions to their assertion. because there are exceptions. and therefore it is not an absolute truth. their statement is fraudulent. Undue Influence . according to Civil Code 1575, among other things, consists “in taking an unfair advantage of another's weakness of mind”. Did CTA intend to take an unfair advantage of a tired plaintiff . thinking they might persuade him to abandon his legitimate claim? If so. in addition to fraud. they are/were attempting to unduly influence. Shortly later, CTA send a second letter (6-18-97) in which they enclosed a copy of the contract and said “enclosed is a copy of the contract...for 1995-96...they continued to roll it over...” Hence. here is an opposite assertion stating that there was a current and valid contract at the time. If CTA believed the teachers were working without a contract, why did they subsequently send a copy of the contract which they said was “rolled over.” They have contradicted themself and whether it was due to their own confusion or malicious intent it is still fraud. .Then, in the same letter (the second), CTA urges plaintiff to not pursue the matter saying “I do not recommend you take this grievance to arbitration for two reasons....[high] cost versus [low] relief...” Here he is making a positive assertion of law clearly attempting to dissuade. The question. then, must be asked. is his assertion true and absolute? Itis noted that in Skellev v, State Personnel Board (1975) 15 Cal 3d 194,27 CPER 37 (p.10,38) they determined that the “remedy for for the denial of a pre-discharge due process right is back pay for the period of time from when the employee was removed from the payroll until a post-discharge evidentiary hearing. This is one exception. Again one must ask did CTA make such an assertion knowing that this is not an absolute? Again fraud, according to Civil Code 1572(3) is “the suppression of that which is true, by one having knowledge of belief [otherwise]...” Or did CTA make their statement in full conviction of it being an absolute? If so , fraud, according to Civil Code 1572(2) is the positive assertion. in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true. Whether CTA knew their assertions were not true or ignorantly made such assertions. in either case they committed fraud, The fact that they did not respond to plaintiffs inquiries until they were addressed by an attorney, and given the fact that they either knew or should know that their statements were not absolutes, or even true at all, suggests that their actions were acts “fitted to deceive” (1572(5). Finally, CTA concluded their correspondence with a rather ominous tone (“I hope you think carefully...”). The only potential shade of truth to their assertions is that the contract was being ratified at the time of plaintiff's employment, which is what PERB calls the “window period.” This only means that a decertification process and organizational election can proceed, it does notclauses are treated as separable parts of a contract so that a breach or repudiation does not preclude the right to arbitration (6 C.J.S. 172 271 F. 2d 402). However, the main point here is that CTA made assertions in an attempt to convince plaintiff to abandon his legitimate claim and rights. These assertions had no sound or absolute basis and therefore were fraudulent and an attempt to deceive and unduly influence. If they had wished to remain uninvolved the least they could have done is not try to delude the plaintiff. By asserting false claims they chose to involve themselves in fraud and are therefore as culpable as any other. Furthermore, before CTA’s J.C. began corresponding, although it was brief and in passing, around 6-12-96, CTA’s(CVTA) MR, a site agent, also told plaintiff, without qualification, that “unfortunately, they don’t have to give you reasons...” Again, if they wished to remain uninvolved they should not have attempted to dissuade as if they were authorities on the matter, by giving false information.“ AFT /CVFT Before, following, and at the same time as the letters from the assistant administrator in regards to arbitration and their subsequent response(s) (2-97; 5-97) in which they, the district, first promised to arbitrate and facilitate, and then subsequently, to arbitrate but not facilitate, plaintiff attempted to contact the employee organization (AFT) who had assisted during the 1995-96 year and who was aware of the level III grievance. They did not respond at all, despite several attempts. Even after CTA had been contacted and had responded they (AFT) remained silent. It was not until 10-97 that one of the AFT representatives who had actively assisted and represented employee ( or, as it may be actually impeded) responded saying that plaintiff must have been mistaken to think that he was an actual representative, and proceeded to claim that he may have assisted and gave advice, but was not an actual representative. This representative for AFT actively assisted and made authoritative comments (“law allows site administrators to make arbitrary decisions without formally evaluating their personnel” * (KB) to the extent that he presented himself as, and appeared to be, the primary representative.’ Ata crucial meeting in regards to the directive of 3-22-96, in which the employer issued a warning to employee to not state his employment concerns) he accompanied the plaintiff and appeared to be working as an advocate for plaintiff (albeit it "in fact, in both Bellflower Education Association v. Bellflower Unified School District (1991)and in Paramount Unified ‘School District v. Teachers Association of Paramount.(1994) the arbitrator determined otherwise. In the latter, in response to the district's contention of the monetary award, the court stated that “the record demonstrates that the award is consistent with several public policies...” whereas in the former (Bellflower) a similar finding/award was determined, although partially overtumed (the debate centered on whether the arbitrator had the authority to reinstate) 15is said “appeared” because in hindsight it seems clear that he was not actually concerned as a fiduciary for the welfare of plaintiff). From what plaintiff now knows about AFT’s political agenda and what he now knows about how this representative perceived plaintiff, it appears clear that this representative had less than honest intentions in his interactions with and/or for plaintiff. Following the meeting which occurred with the principal in which a “directive” was issued stating that plaintiff should not make any comments about his employment concerns, concerns which were also public concerns, this representative sat down with the employee/plaintiff and plaintiff asked him “can they actually do this?”™'Is this something to be concerned about?” The representative affirmed that he should be careful, and insinuated that one never knows what he (the principal) (or they, the administration ) might do. At the same time the other representative for AFT (A. DelaCruz) remained silent. It was learned later that this representative is the “president” for the local AFT. Although he did approach plaintiff in regards to the matter, or was directed to plaintiff by original representative (K.B.) at no time during these proceedings did he inform plaintiff of his title/capacity other than that he was an AFT representative, and at no time did he inform plaintiff that the other representative (K.B.) was not an actual representative. Plaintiff contends that representative 1 (KB) had/has a duty to inform employee of his knowledge/agenda/title/capacity if he intends to assist (or impede as it may be) and/or must not become involved if not intending to act as fiduciary, or to work towards the interests of the employee (as opposed to engineering his own agenda) , but if so, in doing so, must realize that he is assuming responsibility for his actions.Fraud according to Civil Code 1573 consists of any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault..by misleading another to his prejudice. Was this representative sincere in his effort to “assist?” Did he really care if plaintiff retained his position? was given adequate representation? Plaintiff contends not. Nonetheless, meanwhile,the other representative(AD) remained silent and while participating in one short representative meeting(6-96) , he has subsequently not responded at all, and allowed plaintiff to belie ve that representative 1 (KB) was an actual representative. In the KB letter it is stated that “Mr. A. Delacruz has assured me that you were represented and assured me that he informed you in detail of how the union handled your grievance...” Again, there has been no correspondence or any communication from A. DelaCruz. Plaintiff contends that while one of the representatives (AD) is primarily guilty of breach of duty, the other (KB) went beyond that and actually impeded and attempted to thwart the success of plaintiff. It was noted that at the time that public concern was rising in regards to the unfolding issues which they (the public) were alerted to by plaintiff, this person made publicly printed counter-statements (3-96) intended to lessen such concerns. These counter-statements consisted, among other things, of the following: “under the law principals do not have to state their reasons...” and “current law allows site administrators to make arbitrary decisions without formally evaluating their personnel” ; and the entire tenor of the piece was to convince the public that he was sympathetic to the problem but that the Jaw was absolute on the matter and unfortunately, while needing to be changed, was the way itis.In fact section 44664 (a) of the Education Code says that “in the event an employee is not performing his or her duties in a satisfactory manner according to the standards prescribed by the governing board, the employing authority shall notify the employee in writing of such fact and dscribe such unsatisfactory performance...” . Plaintiff contends that a description of such unsatisfactory performance and opportunity to improve entails “reasons”, and that if this is done properly, by the time a re-election, or non-reelection decision is made, the employee will be well aware of his deficiencies or adequacies. Such was not done for plaintiff. This also makes the assertions made by AFT. false. Also, sec 44949(g) states that “if a governing board notifies a probationary employee that his or her services will not be required for the ensuing year, the board shall, within 10 days after delivery to it of the employee's written request, provide that employee with a statement of its reasons for not reemploying him or her for the ensuing school year.” This makes the blanket assertions by AFT, false. Furthermore, the employer-employee Agreement extensively details the evaluation procedure expected to be followed. This also includes a requirement of a “formal evaluation” (two. in fact) and the Superintendents calendar indicates that such procedures are to be completed prior ( by March 1) toanon-reelection decision (by March 15). Hence, even if it was construed that one could reasonably conclude something otherwise from the Education Code, the AFT representative would/should know that the Agreement is clear. To misinform the public (and plaintiff, and others) is dishonest. Fraud, according to Civil Code 1572(2) is “the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true” Did the AFT representative believe his statements to be true? Fraud, according to Civil Code 1572(3) is the “suppression of that which is true, by one having knowledge orbelief of the fact”. Did AFT know that reasons can and will be provided by the employer? Why did they withold this knowledge? Did AFT know that an employee can arbitrate the matter? Why did they withhold such knowledge? Did they know the Agreement calls for a formal evaluation prior to a non-reelection decision? Why did they insinuate otherwise? Did they know that an employee can file a writ of mandamus? Why did they withhold such knowledge? Whether they knew or not fraud was committed, to the harm of the plaintiff. Judging by the subsequent response of AFT in which the representative claims he was not actually a representative. and the complete silence of the other representative, and what appears to be withholding of knowledge while at the same attempting to convince the public of something which is less than truthful, it appears clear that AFT had other intentions. Undue Influence, according to Civil Code 1575, involves “taking an unfair advantage of another's weakness of mind. or anothers necessity or distress...” Did AFT intend for plaintiff to believe he had no legal rights. no recourse? Did they intend to lead him to believe that this was truly unfortunate. but nonetheless, nothing could be done? Plaintiff contends they did.M1 XII CVUSD After the first letter from CVUSD in which they promised to arbitrate and facilitate (2- 7-97) plaintiff resumed efforts to procure arbitration. However, as numerous letters went unanswered, plaintiff became more concerned. Hence, he simultaneously began contacting other agencies for assistance. During this period one of the agents at EEOC said “they're trying to run out the statute...” in reference to the fact that there are statutes of limitations for filing complaints with these agencies. It was not until almost four months later (5-22- 97) at which time they reconfirmed their intent to arbitrate but withdrew their offer/promise to facilitate. '* Fraud, according to Civil Code 1572(4) includes making a promise “without any intention of performing it” In this case one must ask if the district had any intention of honoring their promise/obligation. It appears not. Later in attempts to procure arbitration, the district having already withdrew their promise to facilitate, subsequently, tried to withdraw their promise/obligation to arbitrate (10-10-98; 1-99). Not only did the district appear to be insincere about their promise, later( 10-20-97) , they began to repeat the refrain that they did not have to give reasons, citing California law as an absolute to their defense. In fact, California Education Code (sec 44664) says that the evaluation “shall include recommendations, if necessary, as to areas of improvement in the performance of the employee.” Such recommendations, if not followed, would or should 1 Coachetia Valley Unified School District 4 2-at which time they also withdrew their offer to facilitate and suggested plaintiff contact a (non-existent) arbitration firm. 20make clear, if the district subsequently decided to non-reelect, what their concerns or “teasons” are, if, that is, they are able to articulate their concerns. ‘The California Education Code in the same section(44664) proceeds to say that “in the event an employee is not performing his or her duties in a satisfactory manner according to the standards prescribed by the governing board, the employing authority shall notify the employee in writing of such fact and describe such unsatisfactory performance.” Again, such notification would entail providing the employee with some specific understanding of their concerns, Subsequently, if the employee does not act upon such an understanding, and is later non-reelected, he or she at that time would/should have some understanding of the reasons, or concerns, if the employer was able to, and had, articulated such concerns California Education Code in the same section (44664) continues saying “the employing authority shall thereafter confer with the employee making specific recommendations as to areas of improvement..and endeavor to assist the employee in such performance...” Again, if the employer had followed a consistent and non-biased evaluation procedure, the employee, with such “specific recommendations” would be well aware, in the event of a non- reelection decision, what concerns or “reasons” the employer had for their decision, if they were able to, and had, articulated them during the evaluation process. Other sections of the California Education Code (44949) also mention the prerequisite of a need for reasons, and at least the possibility for the employee to be given the specific reasons at the time of non-reelection. While such section has some provisions as to the release of such reasons, to say blankly that “by law we do not have to give reasons” would defy the reading of the code, and as others have noted, the intent of legislature.Fraud, according to Civil Code 1573(2) is “the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he or she believes it to be tue.” Did the district, and their attorneys, believe that the law considered the administrators to be so discerning, so intelligent, so wise, that they could make employment decisions without articulating their concerns? without having fully evaluated the employee? That the law would support judgment decisions by persons who had never spoken to the object of their decision,nor ever visited the site of concern? Or were they so confident in the discretion and authority of the sole person who did evaluate, and upon whose judgment the administration appeared to be relying? Then why did they remove him from his position shortly thereafter?! (7-96). Common sense should make it clear that something went awry at the administrative level. And again, even without the commentary on administrative mishaps, their subsequent assertions neither seem to be the intent of the legislation, nor a viable reading. Finally, section 44949(b) of the Education Code also says that “the employee may request a hearing...” and that “the notice provided for in subdivision (a) shall advise the employee of the provisions of this subdivision...” Itis noted that the employee was never advised of such provisions, and at the 3-26-99 Motion to Reconsider plaintiff noted that a copy of such, which defendant, CVUSD, purports to have given to plaintiff was never received, and that it was only informally that plaintiff was advised of his right to address the board, but no other aspects of his rights were addressed. The Attorneys for CVUSD (does 7,8) '* During the ensuing months following the correspondence with the district and their promise to arbitrate (2-97; 5-97) the district apparently retained some attorneys to handle 13 ste original atiomeys (S. Gordon,doe 8; B. Bock, doe 7) 22the matter(s) and all subsequent correspondence came from them. In their letters, the attorneys apparently in an attempt to assuage the employee said 1) “there is a clause that allows the district to remove an evaluation from the file...” What clause they are/were referring to is not apparent, and this was not all that plaintiff was concerned about. ‘Then, later, they said “CVUSD is a no-cause district. apparently in defense of making employment decisions without giving reasons, and apparently attempting to defend that even the most barbarous actions of an employer in such a district are, unfortunately, immutable. While the Education Code has many sections and provisions, there is nothing to indicate that such dictatorial actions are allowable, nor intended. Later, as noted the attorneys first informed the Department of Fair Employment that the employee had been “formally evaluated three times..."(6-27-97); then when the Department requested copies of such evaluations, the attorneys responded “in absence of a formal evaluation...” (6-3-98); Fraud, according to Civil Code 1572(2) is “the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he or she believes it to be true” Did the attorneys believe that the information they were provided to the Department was true? If so, why? Had they been misinformed by the District? Or was this their own concoction? At the time they made such assertions, had they even seen an evaluation of plaintiff? Whereas fraud, according to 1572(1) is “the suggestion, as a fact, of that which is not true, by one who does not believe it to be true...” Later, in further information provided by the attorneys to the Department, as the Department was attempting to compare some of the other employees with plaintiff, the attorneys said that one employee who had subsequently died in a “motorcycle accident” had 23been non-reelected because he had not taken the requisite classes to remain certified. In fact, this employee had not died in a motorcycle accident, but in a auto accident in the San Bernardino Mts on the way to a youth pastor convention. Furthermore, there were other(or at least one other) “emergency” teachers who were retained, with similar or less qualifications than this one. Fraud, according to California Civil Code 1572, among other things, is “any act fitted to deceive.” Did the attorneys randomly decide to suggest that this other employee was killed ina motorcycle accident, or was such misinformation provided for other reasons? Did the attorneys not know there were other emergency teachers retained? or was the assertion provided as such for a reason?” ‘There was the possibility that the attorneys were only passing on information provided them by the district. However, while this still remains a slim possibility, it should be noted that subsequently, and inexplicably, when the attomeys were included as does in the complaint, they responded by saying, among other things, in regards to the complaint, that “there is nothing that requires the absence of malice” (1-99). It appears that, in their mind, if a statute or code or agreement does not specifically prohibit something, it is allowable (2!) Or, in essence, they are admitting to malfeasance, or the intent to do harm, Needless to say, there are somethings which are malum in se, which only need to be explained to those who are morally turpitude. Itis inexplicable how they can use this to defend or justify their actions. Subsequently, they retained their own legal counsel. The court (Judge Ch. Stafford) responded to this seemingly not sure what to do about it either, and thus rather tentatively said “they're just doing what attomeys do...” Plaintiff contends the intent to do harm goes beyond what they are supposed to do and assumes the court was temporarily deflecting the matter rather than actually defending their 24statements/actions. He also asked, pointedly, if there was a contract between plaintiff and does 7,8. Granted there is not a contract, plaintiff contends there need not be a contract in order to uphold aspects of law that all persons are entitled to, including the right to remain free from libel. Producing false information under the penalty of perjury is simply unlawful. Also noted in-the-index are the false statements made directly to appellant by doe(s) in regards to what the courts have said on the matter(s) relating to non-reelection and the Education Code. In contrast to the employee organizations false statements which simply assert , the attorneys proceed to summarize court decisions which are almost the complete opposite of what the court(s), in fact, decided. Penal Code 125 says “an unqualifed statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false.” Business and Profession Code says, in regards to the actions/practices of attorneys that “any act involving moral turpitude, dishonesty, or corruption consitutes cause for disbarment or suspension (6106). 24(a)XIIT The Problem With the Defendants’ Assertion(s) and the Subsequent Decision In regards to the matters against the employee organizations and the employer, (and for the moment setting aside the involvement of does 7,8) the assertions of the defendants and the court's subsequent decision(s) do not follow previous orders of other judicial bodies. First, there is/was the contention by the employee organizations that this matter, or the subject matter, lies solely in the jurisdiction of the Public Employment Relations Board (PERB), and one of the defendants (CTA’s D. Wolf) argued, at the time, that the plaintiff had not exhausted all administrative remedies with PERB. In Department of Personnel Administration v Superior Court (1992) it was noted that “given the lack of policy support of the application of the exhaustion doctrine, it behooves us to examine the exceptions...” and proceeded to say “the exhaustion doctrine does not implicate subject matter jurisdiction but rather is a procedural prerequisite...” ‘The question is why is/was it determined to be a procedural prerequisite? They proceed to say that it was a procedural prerequisite “originally devised for convenience and efficiency and now followed under the doctrine of stare decisis” (17 Cal 2d pp288, 291) . However, and most importantly, they go on to say that “While Abelleira indicates that the rule of exhaustion of administrative remedies has become a fundamental rule of procedure (17 Cal 3d, 293) courts have repeatedly recognized it is not inflexible dogma.” 25‘They continue to say “There are numerous exceptions to the rule including situations where the agency indulges in unreasonable delay...fand] ...where pursuit of administrative remedies would result in irreparable harm...” Itis noted that in Kok v, CVUSD the agency, PERB, did take an unusually long time(7-97 through 8-98, and beyond) in their “investigation” and that plaintiff petitioned several times to the investigator's superior for the matter to be accelerated. Plaintiff had been informed that normally the initial decision whether to issue a complaint or not only takes a few months. Then, when a decision was finally made, it did not seem rational. By 9-98, plaintiff had already realized he would need to address the matter in a more expedient and judicious forum if it were to be addressed properly, and therefore filed the complaint with the Superior Court. Returning to Department of Personnel Administration v. Superior Court, it is noted that in this case the Superior Court “excused exhaustion of administrative remedies because the ultimate legal issues are better suited for determination by the courts.” Plaintiff, Kok, contended in the complaint with the superior court and in the answers to the defendants responses the same, that the matters which had evolved are better suited for determination by the court. As noted in the review of what has transpired, there are/were too many non-legal tactics which occurred to skew the truth or present a less than truthful picture. This is true for both PERB and DFEH. In both cases, the defendant(s) gave or suggested less than truthful, or non-substantiated responses. (to PERB: “I can find nothing to indicate the contract had not expired”; to DFEH: 261 “formally observed three times” “killed in motorcycle accident...” “had not taken the required classes...” (etc) ) There is no way to satisfactorily ~ refute such misinformation and tactics with these agencies. With PERB the defendants are not even required to serve their answer to the initial complaint on the charging party, and therefore one can only hope that the PERB regional attorney is trustworthy, or is not bamboozled; while one must also wonder if the defendants suspected the same was true with DFEH, and thereby supplied false information up to a certain point, until plaintiff received copies of their responses and questioned them about it. Nonetheless, by the time he did, DFEH had virtually closed their investigation, Plaintiff, therefore, contends that the court can assume jurisdiction, will assume jurisdiction, and should assume jurisdiction in this matter because of the nature of the matters which go beyond failure to duly represent, and , as noted, was an active attempt to deceive (fraud). Such fraudulence not only affected a employee, it affected a citizen; and as a citizen, thus affecting citizens as a whole. California Civil Code 1711 says that “one who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit...” r bie Returning to the matter with the district, the new attorneys for the district argued that a Prerequisite to the action filed is a “tort claim.” (Govt. Code 900) Plaintiff until that time, had not been aware of such right/obligation and contends that had he been made aware of such righobligation he could have/would have acted on it. !4 (He also noted on 3-26-99 at the motion to reconsider that he did not receive a copy of that which the defendant (district) 4 ie siso noted on 3-26-99 a the motion wo reconsider that he di uot receive a copy ofthat which the defendant (istrict) purports to have sent to plaintiff as a prerequisite to non-reelection, He was informally notified by a colleague-friend ofthe right tow heuring, and although he exercised that right (2-28-96) , no action or response was ‘given to his complaint. 27purports to have sent to plaintiff as a prerequisite to non-reelection. He was only informally notified by a colleague-friend of the right to a hearing, and although he exercised that right (2-28-96) it seemed to be received in a perfunctory manner.) Subsequently, with the tort claim he did so; the claim was denied, and the late claim was denied, © In Department of Personnel Administration v Superior Court (1992) , it was noted that “the Tort Claims Act indulges late claimants” and that “a late claim suggests late discovery of the proper means of seeking redress...” and that a court can make an order relieving a party from the government tort claim requirement. They point to Fritss v. County of Kern 1982 135 Cal App 3d 303, 306 185 Cal Rprtr 212 and Hunter (262 Calf App. 2d p.82) 15 When the employee organizations and the distri, andthe districts orginal attr claimed they need not sive or assert reasons, and made it appear asi that summed up the whole mater, were they aware that there were other Possibilities and other remedies, and that their assertions, us such, were less than truthful? California Civil Code 1572 Says that fraud is “both the suppression of that which is ue. by one having knowledge or belief ofthe fact” or Positive assertion, in a manner not warranted bythe information of te person making it of that which is ot true, even though he {or she] believes it vo be true.” 28XIV Why the Court Can and Should Compel Arbitration? As plaintiff has continued to learn more about the process of compiling a legal case, he has become more and more aware of what has transpired. Included in the complaint was a request that the court compel arbitration and that they had the right to do so according to the California Arbitration Act( CCP sec 1280 et seq). At the time, the judge instead said that the Government Code(sec 3548.7) has priority. In the Motion to Reconsider it was argued that the Government Code defers to the Civil Code. (“Where a party to a memorandum of understanding is aggrieved by the failure. neglect. or refusal of the other party to proceed to arbitration, the aggrieved party may bring proceedings pursuant to Title 9 (commencing with section 1280 ) of part 3 of CCP for a court order...” No clear answer was given. First, before proceedi into a legal analysis, plaintiff must return to the matters that initiated the complaint. Primarily, beyond all other matters. the grievance that arose while employee was employed with the school district was that he had not been properly evaluated. This was the subject of his level I, II. and ITI grievance, for which he requested proper response. and subsequently arbitration. Plaintiff contends that had he been properly evaluated according to the contractual agreement (which generally concurs with the Education Code ) he would have been able to improve his performance, if needed; or respond as indicated according to the evaluator’s written and oral comments, and dialogue between evaluator and evaluatee. 23As noted, contrary to what the defendants original attorneys stated to DFEH that plaintiff, was “formally evaluated three times” (6-27-97), plaintiff was not formally evaluated three times, and the one so-called “formal evaluation” (5-9-96) did not take place until after the non-reelection decision had been made(2-96). It is noted that in addition to this evaluation coming after the non-reelection decision, thus making the later reasons given to DFEH unsubstantiated, the evaluation was not done in accordance with the procedures outlined in the agreement. There was no pre-conference. the evaluator did not come at the agreed-upon time, and there was no post-conference. Furthermore, the Superintendents’s calendar indicates that the last observation should be conducted on or before March 1. Later. the original attorneys who were handling the matter for the district asserted to plaintiff that the district need not assert reasons, and also made some unclear comments about the district being a “no-cause district” . Later,(6-2-99) plaintiff discovered that these attomeys not only knew plaintiff had more rights than the defendant was honoring, they tried to persuade him otherwise. In fact, the attorneys (or their firm) represented a non- tenured teacher in a similar case. In Paramount Unified School District v Teachers Association of Paramount (26 Cal. App 4th 1371; 1994 Cal App LEXIS 760) a probationary teacher had been awarded compensatory damages by an arbitrator for the district's failure to follow the evaluation provisions provided by the agreement. What was appealed was whether the arbitrator had the authority to reinstate as well. There does not seem to be any question about whether plaintiff had a right to arbitrate which is what plaintiff (Kok) is seeking the court to compel. In fact had the defendants assisted and complied and honored their obligation as originally requested, this matter probably would not have come before the court. 30In Bellflower Education Association v Bellflower Unified School District (228 Cal. App 3d 805; 1991 Cal. App. LEXIS 261) a similar scenario took place in which a non-tenured teacher grieved the districts failure to follow the evaluation procedures. Subsequently the arbitrator found that the “District had violated the evaluation procedures with respect to gtievant, ordered the District to cease and desist from conducting further evaluations in violation of the Agreement, and ordered that grievant be reinstated...” The subsequent argument was whether the arbitrator had the authority to reinstate. At this point Plaintiff notes that, at minimum, he is seeking that his right and district's obligation (and promise) to arbitrate be compelled. and that any contentions that might arise from the arbitrators decision be addressed at that time. And he continues to make clear that the issue, as he contended from the start. to be resolved by the arbitrator pertains to the lack of proper evaluation procedures. 31Continued Barring any surprises arbitration would have. should have, and perhaps still can satisfactorily resolve this issue; but since the defendant would not comply and since they subsequently proceeded to add insult to injury, plaintiff knew no other way to address the matter(s). With the false, less than truthful, or misleading information that was being provided by the defendant(s) they were potentially, if not actually, libeling the plaintiff. Whereas prior to that the actions by the defendants were deceitful, harmful, and, as it appears, intentionally so. The same concerns, as noted previously, are that the district has an obligation to follow proper evaluation procedures and to not only adequately address, but adequately articulate their concerns in the process. An employee cannot be expected to guess at their intentions, but if the employer has difficulty articulating their concerns, such difficulty should not operate towards the harm of the employee. Such concerns seem to be prevalent in other districts as well (see-exhibit- ). Arbitrators, the courts, and legislators are in agreement in regards to the need/requirement that an employee be evaluated properly especially according to the employee-employer agreement, but also in harmony with the Education Code. Then, for the employee organizations and the attorneys for the district as well as for the district itself to continue to imply that a non-tenured employee has no rights at all (AFT: “no reasons ..."; AFT: “current law allows...arbitrary decisions without formally evaluating {the] personnel...” (3-96); Does 7,8 “need not assert reasons..."( 10-29-97) ; District: “by law we do not have to give reasons..."(10-20-97) or that pursuing the matter would be pointless (CTA: “Ido not recommend...”) (AFT: “my best advice. is simply taking the law and 32intentions out of context, for their own advantage, either perhaps because they have their own political intentions or biases. or perhaps because they are unable to articulate their concerns. Either way, it is wrong, and as noted, is in fact, unlawful. To be truthful the defendants would have to say that they do not know all the legal points and issues which arise in this regards. and, at most, recommend legal consultation. To state anything further other than to respond to concrete requests is an attempt to dissuade, manipulate, influence. or induce plaintiff to act in opposite to that which is, in fact, in his best regard. To make statements that lead a person astray, abandon a legitimate claim, assume he or she has no legitimate claim. or any other. even slight suggestion which is less than truthful is. by law. fraud: whether the defendants are speaking according to what they think is true, or whether it is maliciously intended itis fraud. Tort Claims Revisited While the Tort Claims Act applies to filing a complaint against a public entity it was noted in Paramount Unified School District v, Teachers Association of Paramount (supra) that “the submission of a dispute to arbitration as an alternative to judicial adjudication is a matter of contract...; id concluded “were the issue properly before us, we would conclude that the instant arbitration award is not barred by the Tort Claims Act.” Hence, aside from the argument for relief if this is to proceed to trial, any opposition by the defendants in regards to arbitration in relation to the Tort Claims Act is “superfluous.” While plaintiff would like to see a punitive response in regards to the actions of the defendants, he will pursue whichever legitimate channel of resolution is available, and has been faithfully from the Start. 33“No Reasons/Any Reasons..Defies Both Common Sense and the Apparent Intent of the Legislature” ‘An explanation/discussion must be made concerning the Education Code. While the various references to the CCalifomia Education Code by the employer in which they assert they do not have to give reasons, and the public reference to the code by the American Federation of Teachers “official” (KB) are alluding to section§44929.21 which allows for non-reelection without cause, the problem with this is that they are asserting the most narrow interpretation of this section and abusing it. It does not appear that the spirit of the law, of the legislature, was to allow for dictatorships to arise within the public school system, and to allow for them to use the code however they please; thus for them to blankly state “we do not have to give reasons” they are being dishonest to the intent of the law, and in this case dishonest to the letter of the contract (21.1-22.7), Both the code (sec §44664) and the contract (21.1-22.7) give guidelines for evaluation procedures which ‘ust precede a non-reelection decision (either for cause or without cause). This is how, by continuing to assert they do ‘not have to give reasons they are committing fraud. They are intentionally ignoring the fact that it is only after they hhave exhausted evaluation procedures, that they may then “simply” decide to non-reelect. They did not do so in this case, They know that, and their attempt to try to make this an issue of code confusion is an attempt to confound the matter(s). ‘The Court of Appeal (Cousins v. Weaverville, 3rd District, 5-23-95, No Co13345, 1994/30 Cal Rprtr 2d 310) also determined something similar, saying, in regards to an issue of reason/no reason that “such a reading of the stanates (ie, any reason or no reason) defies both common sense and the apparent intent of the legislature which we are ‘constrained to uphold” (314-315). For the union official, subsequently, to in essence, “defend” the employer, while supposedly lamenting the legislation that alowed it to be this way (see exhibit) , and thereby present to the public and the emplyee an unfair reading of the code, defies his position to fairly represent employees, and presents part of the law in its most narrow sense, and. falsely laments that this is an absolute. If anything, to be fair, he should have said, “the employer can non-reelect without cause, but only after a fair evaluation process has been given. and only if other illegitimate factors were not present...” Furthermore. a union official is supposed to be like an attorney for a client, and a fiduciary relationship should be upheld, by which the official does everything to support the employee. The union did not only not do this, they impaired the employee's relationship with employer, and contravened his rights, actually adding to the confusion, and for the moment was believable as an undue influence. Later, this same “official” attempted to say he was not an ‘actual official, ‘Returning to the code issue, what really defies logic is that the employer is attempting to say to the employee that they ‘made a non-reelection decision without cause (and therefore provided no reasons), while at the same time after telling the Department of Fair Employment (DFEH) that plaintiff was “formally observed three times” they retracted their statement and gave a list of reasons saying they non-reelected for unsatisfactory performance (ie. cause). They cannot hhave it both ways. ‘They either dismissed without cause, in which case, if they had been honest in their disclosure, the DFEH would have been obliged to affirm the discrimination complaint, given the overwhelming evidence; or they dismissed for unsatisfactory performance, in which case they did not provide reasons, or opportunity for a hearing (sec 44948.3) ‘Again. even without the “code issue” they still violated the contract which requires certain evaluation procedures which must be followed before an employee can be non-reelected or dismissed. In some ways, albeit different issues, they are doing the same thing that was attempted by the district in Cousins v. Weaverville falsely attempt to assert their right to dismiss or non-reelect for any reason or no reason at all. The court denied them this right. They are not a dictatorship. 34‘The decisions by the arbitrators in Teachers Association of Paramount v. Paramount Unified School District (supra) and ‘Bellflower Education Association v Bellflower Unified School District (supra) concur. For all these reasons, when the employee refers to both the employer and the union officials reference to “no reasons needed” who know full well that there is much more to it than tht (or, a is stated in Cousins v, Weaverville *.non- reelection without cause in no way undermines the protections afforded probationary employees by other provisions of the Education Code.” i.e. fair evaluation, (et.) as fraud, be is referring to the fact that they are not fully disclosing the contents and intent ofthe law, and in so doing are unduly influencing employee(s) and the public. 35Continued XVII In elaboration on the above, it should be noted that in Cousins v. Weaverville the question and decision was related to the non-tenured teacher being non-reelected for economic reasons, and whether protections offered by other parts of the statute should be afforded her in such case. The court determined that they should. Nonetheless, what stands out is that the court affirms reading the statutes as a whole, in “pari materia.” They note City of Huntington Beach v. Board of Administration (1992) 4 Cal. 4th 462 [14[*1854] Cal Rptr. 2d 514, 841 P. 2d 1034] as saying “In this regard, all parts of a statute should be read together and construed in a manner that gives effect to each, yet does not lead to disharmony with the others.” This is what the plaintiff has been arguing in earlier parts of the brief. Hence, for the defendants to make absolute or unqualified statements based on one part of the code is a misrepresentation to the statute as a whole. Furthermore, Cousins goes on to say, or quote, that “Moreover, every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. If possible,significance should be given to every word, phrase, ( Sanitation Di y.Harbor Ins. Co (1993) 17 Cal. App. 4th 1622, 1636 [22 Cal. Rptr. 2d 90].) As noted in the sentence and part of an act in pursuance of the legislative purpose. above single-spaced synopsis they conclude by saying “‘the enactment of section 44929.21 permitting non-reelection of probationary employees without cause in no way undermines the protections afforded terminated probationary employees by other provisions of the Education Code.” Plaintiff contends that this extends to evaluation procedures aswell of the Education Code (44664) as well as the Agreement (21.1 -22.7). 36And this returns plaintiff to the discussion of evaluation process, which is what the filed grievances originally alluded to, and about which. arbitration was sought. The agreement between the employee organization and the employer says that the employee shall be provided a calendar of events (i.e. noting the schedule for evaluation) and specifically notes the requirement of at least one “planned observation” (22.3); and also requires that “in the event that the evaluator issues an unsatisfactory rating...responsibilities shall rest with the supervisor to enlist resource aid...if at any point during this procedure, mutual agreement cannot be reached, then the Grievance Procedure may be employed “(22.6). Finally, “if the grievant is not satisfied with the disposition at Level Two, he/she may within five days following the written decision by the Superintendent. submit the grievance to the Superintendent, in writing, for arbitration of the dispute. Federation representation may be requested by the grievant.” (244). All steps were properly followed by the employee/plaintiff. In Board of Education of the Round Valley Unified School District (et, al.) v. Round Valley Teachers Association (44 Cal App 4th 410; 1995 Cal. App LEXIS 480) the second year probationary teacher faced a similar situation as Kok. He filed a grievance saying the agreement had been violated. In contrast to Cousins V. Weaverville, and in similarity to Kok, the nonreelection was not related to a layoff. Kok received a notice of non-reelection pursuant to Education Code section 4929.21 (albeit not the notification of right to a hearing purported to have been sent) before the proper evaluation procedures had been conducted or concluded (i.e. the non-reelection notice was given 2-96, while the so-called “formal observation conducted 5- 9-96. Itis also noted that the Superintendent's Calendar of Events indicates that the final observation of an employee should be completed by March 1 ) 37The court determined that the question was whether the school district may, through collective bargaining, agree, to give greater procedural protections to probationary employees than those set out in Education Code section 44929.21. Their response was “We conclude it may, “ and that “there is nothing in Education Code section 44929.21 which precludes the school district from agreeing to create additional procedures to protect the probationary employees.” They also point to Bellflower Education Assn. v, Bellflower Unified School District (supra) in which the appeals court said that “violation of the bargained-for evaluation procedures was a proper subject of collective bargaining under Government Code 3543.2, and accordingly, was an arbitrable grievance. They conclude by saying that “we disagree with the foregoing dictum, as well as the court's declaration that the discretion of school boards to reelect or non-reelect probationary teachers may not be “relegated to the collective bargaining process.” They also discuss at length a related case (Eontana Teachers Assn. v. Fontana Unified School Dist. (1988) 201 Cal App 3d 1517 and sa that Fontana erred by assuming that nonreelection of a probationary employee is equivalent toa dismissal. As noted in section XV , the district cannot have it both ways (i.e. “any reason no reason defies logic...”). While Round Valley does not discuss the matter of harmonization of statutes to the extent of Cousins, plaintiff contends here that the harmonization of the statutes should integrate the evaluation procedures of the Education Code (44664) along with section 44929.21, thus with or without an additional collective bargaining agreement, an employee is afforded certain procedural protections prior to the “simple” decision to non-reelect without cause. In the case of Kok v. CVUSD then, with such a proper synthesis the plaintiff is afforded protection by both the Code and the Agreement, and although he is/was seeking arbitration over the violation of evaluation procedures, a right which, as shown, is supported by the courts, it appears that even if it is construed, ultimately, as arbitration of the non-reelection decision itself, that there is support for such. 38eae Tolling Plaintiff has thus far been actively and diligently pursuing the matters but was never aware nor made aware of obligation or right to file tort claim, hence he was surprised when he was made aware of right/obligation (Sec 900 et seq allows some allowance for surprise , etc...) albeit, he also argues that defendant has been less than truthful in his disclosures to plaintiff of any helpful information even though what is/was a fiduciary relationship should compel defendant to be more open (“the essence of a fiduciary relationship is that the fiduciary agrees to act as his principals altar ego...” 691 Eisenberg/Fuller'® ). In fact, plaintiff contends that defendant attempted to prolong and stall plaintiff from filing a complaint with agencies that investigate discrimination and was successful in such efforts as statute of limitations pertains to EEOC; albeit, plaintiff was fortunate enough to file with DFEH just within the limitation period. Please note that defendant responded affirmatively about arbitrating the matter on 2--97, but then despite several attempts to secure a specific time the defendant did not respond. They finally responded on 5-97 and while the offer to arbitrate remained, they retracted their offer to facilitate. Plaintiff contends the delay was purposeful, in hopes of detaining plaintiff from seeking other remedies within the limitation period. It is noted that if the defendants again raise statute of limitations as an objection that plaintiff contends that defendants evasive tactics bar any 16 -isenberg, M. & Fuller, L. Basic Contract Law Sth Edition St. Paul: West 1990 39contentions otherwise. An examination of the intent of equitable tolling will clarify as to why this should be so. In one source (npf) it was stated that “equitable tolling has a purpose...as stated by the U.S. Supreme Court more than 100 years ago, it is intended to prevent defendants from concealing a fraud, or committing a fraud in a manner such that the fraud concealed itself, until such time as they could plead the statute of limitations as an affirmative defense (see Bailey v. Glover 88 U.S. 342 1874). In Cohn v. Flushing 68 F3d 64. 69 2d Cir 1995 it was noted that “fraudulent concealment is predicated on a defendant deliberately misleading the plaintiff about a [claim for relief] which he failed to discover during the limitations period despite due diligence. Here it is noted that both the employee organizations and employer were contacted for assistance but either did not respond or remained evasive. Another aspect of fraud noted by Eisenberg/Fuller is that “in the common law sense, deceit is committed by deliberately misleading another by words, acts, or notably, where there is a fiduciary relationship, by silence.” (690) From the time plaintiff left the district he never stopped pursuing potential remedies. First, he left a level III grievance pending with the district on 6- 12-96 and was promised by the employee organization (AFT) that they would help, by to “be patient.” Then, when it became more clear that the employee organizations had no intent to fulfill their promise/obligation to assist, and when it began to be clear that the employer was being evasive, 40and was not being honest, the realization that there was more underlying the defendants actions than simply negligence. Plaintiff has noted these concerns in the petition to file pursuant to 1714.10. Nonetheless, he filed with the Department of Fair Employment (DFEH) (5- 97) and Public Employment Relations Board (PERB)(7-97) and waited, while still corresponding with defendant (CVUSD) and their attorneys, pursuing arbitration. When defendants and/or their attorneys began to fabricate information (or, that is, when plaintiff received a copy of the information the defendant gave to agency, DFEH,) he realized that there was more to this, especially given the aggressively invective-and-innuendo filled language of the defendants response, which was also factually inaccurate (one example is noted in exhibits in which defendants first stated that plaintiff was “formally evaluated three times..."(6-27-97) but later when asked for copies of such they could not provide any and responded “in absence of a formal evaluation...” (6-3-98) and proceeded to give a list of reasons. These reasons were either false, subjective, (and were neither heretofore provided to the plaintiff so as to allow him to respond. correct, or explain any potential misperceptions,) nor substantiated by a proper evaluation process. . Hence, the discrimination which began while employee was with the district continued beyond that time as the defendants continued to try to mislead, misdirect, and unduly influence the plaintiff. and/or those who had the potential /power to assist. Again, arguendo that tolling needs to be considered (given that plaintiff has a right-to-sue letter from the DFEH (6-1-98) and that he has diligently a1followed the administrative remedies, and filed the Superior Court complaint well within the one-year limit (9-16-98), arguendo that it need be considered, it appears that the primary consideration of equitable tolling is whether the plaintiff has diligently pursued his rights. One court noted that “three principal but not exclusive situations in which equitable tolling may be appropriate are 1) where defendant has actively misled plaintiff respecting the plaintiff's cause of action; 2_ where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; and 3) where the plaintiff has timely asserted his or her rights in the wrong forum. (NPF)* With this in mind plaintiff notes that it should be considered reasonable that he timely pursued his rights with DFEH and PERB and made attempts with a conciliation firm before turning to the Superior Court. Albeit, if this is/was the wrong forum it should not be held against him. In Benito-Pons v Puerto Rico 2/12/98 No 96-2254 it is noted that there are five factors for consideration of equitable tolling: 1) the lack of actual notice of filing requirement: 2) the lack of constructive notice of filing requirement; 3) diligence in pursuing one’s rights: 4) absence of prejudice to the defendant; and 5) plaintiff's reasonableness in remaining ignorant of the filing requirement (see Kale v. Combined Ins. Co, of America 861 F. 2d 746. * Plaintiff assures the court that these are legitimate references and apologizes that some of them we mislocated prior to preparing this brief. 42