Agbasi v. County of Los Angeles

Filed 8/7/09 Agbasi v. County of Los Angeles CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles C. Lee, Judge. Reversed in part, remanded with directions and affirmed in part.

________

Akudinobi & Ikonte, Emmanuel C. Akudinobi and Chijioke O. Ikonte for Plaintiff and Appellant.

Albright, Yee & Schmit, Clifton W. Albright, Derek S. Yee and Lucien A. Schmit III for Defendants and Respondents County of Los Angeles and Reaver Bingham.

Johnson, Cebula & Rygh, R. Scott Johnson and Christian C. H. Counts for Defendant and Respondent Los Angeles County Office of Education.

________

Ike Agbasi filed suit against the County of Los Angeles (County), the Los Angeles County Office of Education (LACOE), and certain individual defendants, alleging claims arising out of the termination of his employment. Defendants prevailed on all claims before trial, and the trial court awarded attorneys fees of $40,000 to LACOE. Agbasi timely appealed. We reverse the award of attorneys fees but otherwise affirm.

BACKGROUND

Agbasi is a naturalized American citizen of Nigerian descent. LACOE is a public agency that oversees and manages the education of the wards of the various juvenile halls within the County.

Agbasi worked as a detention service officer on an as needed basis with the County in its Probation Department. He also worked as a substitute teacher, on an as needed and day-to-day basis, for LACOE at Central Juvenile Hall.

While substitute teaching for LACOE on May 21, 2004, Agbasi was involved in a physical altercation with a female student at Central Juvenile Hall. On the same day, another teacher at the same location submitted a suspected child abuse report and a special incident report stating that she had witnessed Agbasi holding the student by the neck and yelling while exiting the classroom, that the student punched Agbasi in the face, and that Agbasi had responded by punching the student in the face. Agbasi denies that he struck the student.

Shortly after the incident, Agbasi was informed that he could no longer accept substitute teaching assignments with LACOE pending an investigation by the Probation Department. The Probation Department investigated the incident, obtaining witness statements and affidavits from numerous individuals including Agbasi, the student involved in the altercation, 16 other students, the teacher who filed the suspected child abuse report, and other staff members.

In its report dated June 3, 2004, the Probation Department concluded that the allegation of physical abuse was not substantiated but it does appear that unnecessary force was used and Agbasi exercised poor judgment and violated the minors rights by failing to follow the departments use of force protocol. Agbasi admits that under LACOE policy, a teacher dealing with a physically aggressive student should call for assistance from the probation officer stationed in the hallway outside the classroom, and teachers themselves are not permitted to use physical force on students.

By letter dated August 20, 2004, LACOE informed Agbasi that his services as a day-to-day substitute teacher with LACOE would be no longer required effective August 23, 2004. The letter stated no basis for the decision other than that LACOE policy provides for the termination of substitute teachers at any time. (In this litigation LACOE has contended that Agbasis termination was based on the conclusions drawn in the Probation Departments report.)

On May 20, 2005, Agbasi filed suit against the County and two individuals, Reaver Bingham (superintendent of Central Juvenile Hall) and John Cotton (acting principal of LACOE). His operative fifth amended complaint also included LACOE as a defendant and alleged six causes of action. After the court ruled on defendants demurrers and motions to strike portions of the fifth amended complaint, the only remaining claims were (1) denial of liberty interest without due process of law (against the County alone), (2) conspiracy to interfere with civil rights (against Bingham alone, because Cottons demurrer to the claim was sustained without leave to amend), (3) retaliation (against the County and Bingham alone), and (4) national origin discrimination (against LACOE alone).

Bingham moved for judgment on the pleadings as to the conspiracy claim, and the court granted the motion without leave to amend. Defendants then filed motions for summary judgment on all remaining claims, and Agbasi moved for summary adjudication of the liability phase of his liberty interest claim. The County also moved for terminating, issue, evidence, or monetary sanctions on the basis of Agbasis failure to comply with a court order on a previous discovery motion. The trial court granted defendants motions (that is, the court granted the motion for terminating sanctions and in the alternative granted the summary judgment motions as well) and denied Agbasis motion. LACOE then moved for an award of attorneys fees in the amount of $72,715.50. The court awarded LACOE $40,000 in attorneys fees and entered judgment against Agbasi on all claims. This appeal followed.

DISCUSSION

I. LACOEs Motion for Summary Judgment

Agbasi argues that the trial court erred both when it refused to grant his request for a continuance of LACOEs motion for summary judgment and when it granted LACOEs motion. We are not persuaded.

The procedural background to Agbasis request for a continuance is as follows: Agbasi filed his original complaint on May 20, 2005. He served his first set of requests for production of documents on May 22, 2007. On July 10, 2007, LACOE served its response to Agbasis first set of requests for production of documents, raising a number of objections, agreeing to produce certain requested documents, and refusing to produce others. LACOE filed its motion for summary judgment on July 27, 2007, with the hearing calendared for October 12, 2007. On September 5, 2007, Agbasi noticed the deposition of LACOEs person most knowledgeable regarding the suspensions and terminations of employment. The notice provided that the deposition was to take place on September 20, 2007. On September 28, 2007, Agbasi filed his opposition to LACOEs summary judgment motion. The argument section of his memorandum of points and authorities said nothing about the merits of the motion. Instead, it argued that the motion should be denied or continued because he needed more time to conduct discovery. His counsels declaration referred to LACOEs response to the document requests and also stated that the deponent LACOE had produced on September 20 was not sufficiently knowledgeable about the appropriate areas and was instructed by LACOEs counsel not to answer certain questions regarding the particulars of persons who [the deponent] identified . . . as having battered students within the past two years. Counsels declaration went on to state that [b]ecause of LACOE[s] several violations of its discovery obligations, [Agbasi] cannot presently defend LACOEs motion for summary judgment, so Agbasi will need to conduct further discovery and hereby requests a continuance of the hearing on LAOCEs summary judgment to such a time when LACOE has submitted to discovery as required by law. Agbasi never filed any motions to compel in connection with either the document requests or the deposition, and the time to file such a motion concerning the document requests had expired by the time he filed his opposition to LACOEs summary judgment motion. The trial court denied the request for a continuance, reasoning that [p]laintiff has not shown good cause for a continuance of this motion.

Agbasi contends that the trial court erred because his counsels declaration entitled him to a continuance under Code of Civil Procedure section 437c, subdivision (h).^[1] We disagree. Counsels declaration was inadequate because it failed to explain why the discovery sought could not have been completed sooner. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255-256.) Agbasi therefore was not entitled to a continuance under section 437c, subdivision (h), and the trial court did not otherwise abuse its discretion in denying Agbasis request.

Agbasis sole argument on the merits of the motion is to point out that, of the 52 facts set forth in LACOEs separate statement of undisputed material facts, Agbasi disputed 4 and additionally disputed plus objected to [another] 14. That is not sufficient. In granting LACOEs motion, the trial court concluded that Agbasi failed to offer evidence that created a genuine issue of material fact. In order to show that the trial court erred, Agbasi cannot merely rely on his contention in the trial court that factual disputes existed. Rather, he must cite the evidence creating such disputes and explain why the trial court was wrong in finding the evidence insufficient. Agbasi cites no evidence at all, so his argument fails. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)

We need not address Agbasis challenges to the trial courts rulings on his objections to LACOEs evidence and on LACOEs objections to Agbasis evidence. Even if Agbasi is right that each of the challenged rulings was an abuse of discretion, Agbasi has still failed to identify the evidence creating disputed issues of material fact and to explain why the trial court was wrong in concluding that no such disputes existed. The trial courts conclusion was not based entirely on its rulings on the parties objections. For example, Agbasi purported to dispute LACOEs undisputed fact number 16. Agbasi did not lodge any evidentiary objections in connection with that fact. Instead, he contended that the fact was disputed because of paragraph 12 of his own declaration. LACOE objected to that paragraph of Agbasis declaration, but the court overruled the objection. Thus, the trial court rejected Agbasis contention that the fact was disputed even though the applicable evidentiary ruling was in Agbasis favor. Therefore, because the trial courts decision to grant LACOEs motion was not based entirely on its rulings on the objections, and because Agbasi has offered no cognizable argument at all on the merits of the motion, we need not address the rulings on the objections.

For all of the foregoing reasons, we reject Agbasis argument that the trial court erred in granting LACOEs motion for summary judgment.

II. The County and Binghams Motion for Summary Judgment

Agbasi argues that the trial court erred when it granted the County and Binghams motion for summary judgment on the liberty interest claim and the retaliation claim. We disagree.

Agbasi contends that his liberty interest claim has only the following three elements: (1) that he contested the accuracy of a stigmatizing charge against him, (2) that there was a public disclosure of the charge, and (3) that the disclosure was made in connection with an adverse employment action. Assuming for the sake of argument that Agbasis statement of the elements is correct, the County and Binghams motion was still properly granted as to that claim because Agbasi introduced no evidence of a public disclosure.

Agbasis arguments to the contrary lack merit. First, Agbasi argues, as he did in the trial court, that the Countys transmission of the Probation Departments report to LACOE constitutes a public disclosure. In their motion for summary judgment, their reply in support of the motion, and their respondents brief on appeal, the County and Bingham rebutted that argument by citing Burton v. Town of Littleton (1st Cir. 2005) 426 F.3d 9, for the proposition that interagency disclosures of this sort do not constitute public disclosures. Agbasi never addressed that argument in his opposition to the motion (he merely attempted to distinguish Burton v. Town of Littleton on the ground that it did not involve compelled self-publication, which is irrelevant), and he does not address it on appeal, either in his opening brief or in his reply brief. He has consequently failed to show that the trial court erred. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631 [the trial courts rulings are presumed to be correct]; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [the appellant bears the burden of demonstrating error].)

Second, Agbasi argues that the placement of stigmatizing documents in his employment records or personnel file constituted public disclosure. The argument fails because the record contains no evidence that stigmatizing documents were placed in Agbasis personnel file. The County and Bingham introduced evidencein the form of a declaration from the custodian of recordsthat the relevant documents were not placed in Agbasis file. Agbasis only contrary evidence is his own declaration and exhibits thereto, none of which in fact contradicts the custodian of records declaration. Thus, Agbasi failed to introduce evidence creating a factual dispute.^[2]

Third, Agbasi argues that his compelled self-publication of the stigmatizing charge satisfies the public disclosure requirement. Insofar as the argument is based on the alleged placement of documents in Agbasis personnel file, it fails for the reasons already given. And insofar as the argument is based on Agbasis oral disclosure of the charges in job interviews, it fails as a matter of law. Both in the trial court and on appeal, the County and Bingham have cited federal case law holding that compelled oral self-publication does not satisfy the public disclosure requirement for liberty interest claims of the kind at issue here. Neither in the trial court nor on appeal has Agbasi cited any federal authority to the contrary. Instead, he cites a state defamation case and also federal cases that deal with personnel records rather than oral disclosures. Thus, Agbasi has cited no federal authority supporting his position on this issue of federal law. He has therefore again failed to show that the trial court erred. (See Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [We need not consider an argument for which no authority is furnished].)

Agbasis retaliation claim alleged that he was terminated in retaliation for making a police report against the student involved in the incident. On appeal, Agbasis argument against summary judgment on that claim merely identifies three facts that he purported to dispute. But the facts Agbasi identifies have nothing to do with two of the arguments that the County and Bingham advanced in support of their motion in the trial court, namely, that (1) Agbasis police report was not a matter of public concern, and (2) the County and Bingham would have made the same decision concerning Agbasis employment whether or not he made the police report. Agbasis opening brief does not address either of those arguments, and, although he does briefly address both of them in his reply brief, he does not make (or attempt to make) a showing of good cause for his failure to have addressed them earlier. We therefore deem the points waived. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)

For all of the foregoing reasons, we conclude that the trial court did not err in granting the County and Binghams motion for summary judgment.

III. Agbasis Motion for Summary Adjudication

Agbasi argues that the trial court erred in denying his motion for summary adjudication of the liability phase of his liberty interest claim. We disagree. For the reasons already stated in connection with the County and Binghams motion for summary judgment, we conclude that Agbasi did not establish the public disclosure element of his liberty interest claimthe Countys disclosure of the Probation Departments report to LACOE was not a public disclosure, there is no evidence that stigmatizing documents were placed in Agbasis file, and Agbasi has cited no relevant authority for the proposition that the doctrine of compelled oral self-publication is applicable.

IV. Binghams Motion for Judgment on the Pleadings

Agbasi argues that the trial court erred when it granted, without leave to amend, Binghams motion for judgment on the pleadings as to the conspiracy claim. We disagree.

The conspiracy claim in the fifth amended complaint was alleged against all individual named defendants, namely, Cotton and Bingham. Cotton demurred, and the court sustained the demurrer without leave to amend, reasoning that Agbasi has failed to allege facts supporting the allegation that the parties conspired to violate [Agbasis] civil rights and has neither pled any agreement nor has he sufficiently delineated the precise unlawful conduct or civil wrong committed by Cotton or Bingham. Bingham then moved for judgment on the pleadings as to the same claim, arguing that because the demurrer was sustained as to Cotton, the allegations must be insufficient as to Bingham as well, and also that with Cotton no longer a party to the lawsuit, there could be no conspiracy because there was no second co-conspirator. Agbasi filed no opposition to the motion. Instead, he amended his fifth amended complaint by substituting certain named individuals for several Doe defendants, but he did not alter or add any factual allegations. The trial court granted the motion without leave to amend.

On appeal, Agbasi argues that his addition of several named individual defendants cured the defect of failing to allege any co-conspirators. Agbasi does not, however, challenge the trial courts basis for sustaining Cottons demurrer, so we must assume that the basis was sound, i.e., that the fifth amended complaint does not allege sufficient facts to show either an agreement or the precise unlawful conduct allegedly committed by the co-conspirators. We therefore must conclude that the court properly granted Binghams motion for judgment on the pleadings, notwithstanding Agbasis substitution of additional named defendants. The substantive flaws in Agbasis pleading remained uncorrected.

Agbasi also asserts that he could easily have amended his complaint to further flesh out his conspiracy claim, but he does not indicate any of the factual allegations that he could have added that might cure the deficiencies identified by the trial court. It is the appellants burden to show that the defects in the pleading could have been cured by amendment. (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 876 [The standard of appellate review of a judgment on the pleadings is . . . identical to that on a judgment following the sustaining of a demurrer]; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [appellant has the burden of showing that an amendment could cure the pleadings defects].) Agbasis mere assertion that he could have flesh[ed] out his conspiracy claim is not sufficient to carry that burden.

For all of the foregoing reasons, we conclude that the trial court did not err when it granted Binghams motion for judgment on the pleadings without leave to amend.^[3]

V. The Countys Motion to Compel

On March 16, 2007, the County moved to compel further responses to certain form interrogatories, requests for admission, and special interrogatories. Agbasis responses to the form interrogatories consisted almost entirely of objections on the ground that discovery is ongoing so all the information is not in the plaintiffs possession. His responses to the special interrogatories consisted almost entirely of objections on the ground that the interrogatories were boilerplate, oppressive, burdensome, ambiguous and unintelligible. His responses to the requests for admission likewise failed to provide certain rudimentary informationfor example, he was unable to admit or deny the month of his birth, his name, and that he has previously gone by certain other names.

At the hearing on the Countys motions to compel, Agbasi argued that because he had been deposed and had provided much of the requested information in his depositions and elsewhere, the written discovery was abusive. The trial court disagreed with Agbasi, granted the motion, and awarded sanctions totaling $2,947.50.

On appeal, Agbasi renews the arguments he advanced in the trial courtthe discovery was propounded in bad-faith and was intended to intimidate and harass him in addition to unduly increasing the cost of the litigation because he has already been deposed twice on the issues. The trial courts ruling on a motion to compel discovery is reviewed for abuse of discretion. (2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1387.) We see no abuse of discretion here. Agbasis objections to the discovery rest primarily on his contention that the County was seeking discovery of facts that the County already knew. One legitimate purpose of discovery, however, is to narrow the issues for trial by obtaining written confirmation from the opposing party of facts one already knows or believes to be true. (See generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009)  8.1.) Agbasis objection that the County was seeking to discover things the County already knew is therefore specious.^[4] The trial courts conclusion that the discovery was not improper and that Agbasis responses were inadequate was not an abuse of discretion.

Agbasi also argues that sanctions were inappropriate because he acted with substantial justification or . . . other circumstances make the imposition of the sanction unjust. ( 2030.300, subd. (d).) The imposition of discovery sanctions too is reviewed for abuse of discretion. (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123.) For the reasons already given, the trial courts conclusion that Agbasi acted without substantial justification was not an abuse of discretion.

VI. LACOEs Motion for Attorneys Fees

The trial courts order awarding LACOE $40,000 in attorneys fees was based on the grounds set forth in the moving papers and the express finding that Agbasis suit against LACOE was not brought or pursued with reasonable cause or in good faith. Agbasi argues that the award was an abuse of discretion. We agree.

LACOE sought fees under both section 1038 and Government Code section 12965. On appeal, Agbasi argues that section 1038 does not apply. Be that as it may, LACOE contends (and Agbasi does not deny) that the standards for an award of fees under the two statutes are roughly the same: Fees may be awarded only if the action was brought without reasonable cause or in bad faith. (See Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 855; Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1386-1388.) We review the award for abuse of discretion. (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center, supra, 19 Cal.4th at pp. 855, 862; Cummings v. Benco Building Services, supra, 11 Cal.App.4th at p. 1387.)

As expressed in his declaration submitted in opposition to LACOEs motion for summary judgment, the theory of Agbasis case was that teachers at Central Juvenile Hall are frequently involved in physical altercations with students and frequently defend themselves against battery by students, but Agbasi knows of only one other teacher who has been disciplined or terminated for such conduct, and both Agbasi and that other teacher are Nigerian. Agbasi neither denied the altercation of May 21, 2004, nor denied that his termination was purportedly based on it. Rather, he contended that the purported basis for his termination must be pretextual, because such altercations happen all the time but, to his knowledge, only Nigerians are disciplined for them. The record contains no evidence that Agbasis theory was incorrect or that he lacked a reasonable and good-faith belief in it. Indeed, apart from Agbasis declaration, the record contains no evidence for or against Agbasis pretext theory, in part because LACOE successfully resisted discovery on the issue. LACOE prevailed on summary judgment because Agbasi merely requested a continuance and offered essentially no opposition on the merits of the motion (his separate statement purported to dispute some facts, but his memorandum of points and authorities contained no argument on the merits). But LACOE never attempted to prove that student-teacher altercations do not happen all the time or that teachers other than Nigerians have been disciplined or terminated for them. We consequently see no basis for the trial courts determination that the action was not brought or pursued with reasonable cause or in good faith.

On appeal, LACOE argues that the trial courts ruling was amply supported by such facts and evidence as: the numerous individuals witness statements alleging improper use of force by Agbasi; Agbasis participation in the investigation into the incident and his failure to adequately explain his actions; Agbasis failure ever to deny abusing a second student, . . . ; Agbasis deposition testimony wherein he was unable to identify anything particularly discriminatory that he had previously witnessed at LACOE; and his repeated allegations since April 18, 2006 (and later verified discovery responses) stating that LACOEs termination decision was based on the Department of Probations conclusion that Agbasi had violated use-of-force protocols and on the child abuse allegations. For the reasons already explained, none of those facts rebuts Agbasis theory.

Because we find no basis in the record for the trial courts determination that Agbasis suit against LACOE was not brought or pursued with reasonable cause or in good faith, we conclude that the court abused its discretion. We therefore reverse the award of attorneys fees.

DISPOSITION

The award of attorneys fees is reversed, and the trial court is directed to enter a new and different order denying the Los Angeles County Office of Educations motion for an award of attorneys fees. The judgment is otherwise affirmed. Respondents shall recover their costs of appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

MILLER, J.^*

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^[1] All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] On appeal, Agbasi also argues that the motion should have been denied on the basis of section 437c, subdivision (e), which provides that even if a party is otherwise entitled to summary judgment, summary judgment may be denied in the discretion of the court[] where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact[.] But Agbasi never explains how the trial court could possibly have abused its discretion by relying on an uncontroverted declaration from the custodian of records as proof of the contents of certain records. We conclude that it was not an abuse of discretion for the trial court to do so.

^[3] Because we conclude that Binghams motion for judgment on the pleadings, the County and Binghams motion for summary judgment, and LACOEs motion for summary judgment all were properly granted, we need not consider whether the trial court abused its discretion by granting the Countys motion for terminating sanctions.

^[4] Agbasis assertion that he had been deposed on some of the relevant issues does not advance his argument, because the County argued at the hearing that at his deposition Agbasi was unable to answer some of the questions, objected to others, and qualified his answers to others with phrases such as Thats all I can think of right now. Agbasi has not rebutted that argument, either in the trial court or on appeal.

^* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.