BENACH v. COUNTY OF LOS ANGELES
Filed 3/15/07; pub. order 4/13/07 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
FRANCISCO BENACH, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. | B189151 (Los Angeles County Super. Ct. No. NC033655) |
FRANCISCO BENACH, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. | B191036 |
Story continued from Part I.
However, DiGiovanna, who was Commanding Officer of Aero Bureau at all times pertinent, also testified that, in Aero parlance, training as PIC meant an individual was trained to be responsible for the operation of an aircraft, and that the Department could not guarantee a designation as PIC unless and until a pilot received an endorsement from a certified flight instructor. For most aircraft, a flight instructor was vested with discretion to decide when a pilot achieved a level of proficiency sufficient to justify an endorsement, and no final evaluation flight was required. However, Aero Bureau policy for the H3 is different. DiGiovanna testified that, for the H3, a pilot is required to take a final evaluation or check flight which, if conducted successfully, will result in his endorsement by a certified flight instructor.[1] Aeros March 31, 2000, training outline for the H3 was admitted in evidence. The outline requires each pilot to take a check ride and receive the endorsement of a certified flight instructor.
Deputy Jeff Steck, Benachs H3 flight instructor, testified he trained numerous pilots at Aero who ultimately qualified as PIC of the H3, each of whom underwent a final check flight at the conclusion of his training. With the exception of Benach, each deputy passed his final evaluation flight. Benach failed his check flight on June 17, 2000. Steck testified that Benach failed to conduct a records check before the flight, and performed several maneuvers during the flight in an unqualified manner.[2] Following that failed check flight, Steck recommended Benach receive two weeks of additional training, and anticipated he would be ready to take another check ride by mid-July 2000. DiGiovanna agreed and offered Benach the remedial training.
On June 23, 2000, Benach filed a grievance claiming the Department breached its obligation under the agreement to provide him training to be qualified as PIC of the H3. DiGiovanna attempted to resolve the grievance informally by offering Benach additional training in the H3 beyond the June 30, 2000 deadline, and offering to contact the Federal Aviation Administration so a neutral flight examiner could evaluate the H3 training provided to Benach. Benach rejected the Departments compromise offer, choosing instead to pursue the formal grievance.
On this record, we reject Benachs contention that the agreements use of the phrases training to be qualified as pilot in command of the H3 meant the Department was required to authorize him to fly the H3 as the PIC and perform all missions associated with that aircraft. The Department presented ample evidence it provided Benach with the training required by the agreement to become qualified as PIC of that helicopter in accordance with Aero policy. Benach was given an opportunity to demonstrate his proficiency as and entitlement to the status of PIC of the H3 in a final evaluation ride, but failed to do so. As a result, he was deemed unqualified for endorsement by a certified flight instructor. Benach was offered additional training and a chance to try again, but he rejected those offers. It is erroneous to assert the Department was required under the agreement to place a pilot in command of an aircraft, if that individual, even after receiving a full complement of training, lacks the skill and qualifications that necessarily attach to such a designation. The requirement would force the Department to extend an invitation to potential disaster. The Department was required to provide the level of training which placed Benach at the doorstep of the status he sought. A demonstration of sufficient proficiency to justify crossing the threshold was up to Benach. Substantial evidence supports the trial courts determination that the Department provided the training the agreement required. Responsibility for Benachs failure to pass the check ride and his refusal to accept the Departments good faith offer to let him re-prepare and try again rests with him. The Department did not breach the agreement by failing to qualify Benach as PIC of the H3 by June 30, 2003.
d. The Departments failure to provide ongoing currency.
Benach asserts the Department breached the agreement in that, [f]ollowing his permanent transfer of October 26, 2001, [he] was denied any flight training, including currency training to maintain his skills, in any aircraft. Apart from a bare iteration of the Departments contention that his transfer out of Aero meant he was no longer entitled to training or flight opportunities, Benachs opening brief fails to support his assertion by citation to argument or authority. This conclusory presentation, without pertinent argument or an attempt to apply the law to the circumstances of this case, is inadequate. We therefore treat the issue as abandoned and do not address it on the merits. (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873 [An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument.].)
It is a fundamental rule of appellate review that the judgment appealed from is presumed correct and all intendments and presumptions are indulged in favor of its correctness. [Citation.] (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)[3]
e. The Departments failure to provide opportunities to fly missions. Benach insists the Department breached the agreement when, after permanently transferring him out of Aero in October 2001, it denied him the [o]pportunity to fulfill missions [e]ither for overtime or as a regular assignment in the aircraft named in paragraph five on the ground that only pilots at Aero flew missions and since he was no longer assigned to that bureau, he could no longer fly missions. The trial court concluded the Department did not breach this provision of the agreement. It found that, while at Aero, Benach was permitted to fulfill missions on terms and conditions equivalent to those applied to similarly qualified pilots. However, once assigned to another bureau, those opportunities were no longer available to him or anyone else assigned outside Aero. Substantial evidence supports that conclusion.
The agreement obligates the Department to act in accordance with Aero policy and provide Benach the opportunity to fulfill missions on the same terms and conditions as it applies to other similarly situated pilots. Bayless and DiGiovanna each testified Aero policy requires the assignment of deputies to that bureau in order to fly its aircraft. Accordingly, once Benach was permanently removed from Aero, he was no longer similarly situated to equivalently qualified pilots; he was no longer assigned to the only bureau from which sheriffs deputies may be assigned to fly Aero aircraft or missions.
Benach argues the Departments self-serving logic serves only as a disguise for a means to avoid performance of the Agreement. Again, the trial court found otherwise. It concluded that Bayless made a rational decision to transfer Benach to best serve the Departments needs, and Benachs lateral transfer from Aero was neither a punitive action nor a demotion. That finding is amply supported by the evidence. There is no evidence Bayless decision to transfer Benach was motivated by a desire to avoid the Departments contractual obligations. Indeed, with the exception of the dispute over the H3 training, the Department had fulfilled the training obligations owed to Benach before his permanent transfer was effected.[4] The Department did not breach the agreement by refusing to permit Benach to fly missions in Departmental aircraft after he was permanently transferred out of Aero.
f. The Departments breach of an alleged implied promise Benach would remain at Aero indefinitely.
Benach claims the sixth and final breach of the agreement committed by the Department was its alleged breach of an implied promise to permit him to remain indefinitely at the Aero after completing flight training so he could participate on the same basis as similarly qualified pilots in missions performed by aircraft at that bureau.
Benachs argument is premised entirely on his own intention, which he never articulated when the agreement was negotiated, and speculation by DiGiovanna who said one [can] only assume that would have been the intent when asked if it had not been implied [or] expected that [Benach] would remain at Aero Bureau after receiving the training so [he] could fulfill the missions . . . ? However, DiGiovanna did not participate in the substantive negotiations leading to the agreement.
Hauptman was the sole representative for the Department during the negotiations. Although he consulted with DiGiovanna, the consultations were limited to technical questions, the amount of training Benach would receive, and establishing a reasonable time frame for completion of the training. Hauptman was quite clear that DiGiovanna did not participate in negotiating any term of the agreement.
More to the point, Hauptman explicitly testified that Benachs assignment to Aero was never discussed at any point and the issue never crossed his mind. Hauptman also testified it was never contemplated that the agreement constituted a commitment by the Department for the remainder of Benachs career. Rather, while Benach was assigned to Aero, the agreement represented only the Departments commitment to provide him a certain amount of training over a specified period of time, and to treat him like other similarly situated pilots with regard to assignments and overtime opportunities. To that end, the agreement specifically provides that Benachs successful completion of [the] training shall not imply any right to a specific flight assignment or to a type of flight assignment. Such assignments are in the sole discretion of the Department. Hauptman assumed Benach would remain at Aero during the training. However, that issue and the issue of Benachs assignment once the training was completed was never discussed, let alone agreed upon, and Hauptman never gave the point much, if any, thought. Benach testified that, during negotiations, he expressed his intention to remain at Aero until he retired. Still, he concedes the agreement reflects no promise on the part of the Department that he would remain at Aero for any period of time. And, as Benach points out, Hauptman said none of Benachs requests was excluded from the settlement agreement. The logical inference from the evidence is that, even if Benach always hoped and intended to remain at Aero, he neglected to mention that fact or to extract from the Department a promise to ensure his hope would be realized.
On this conflicting evidence, and the express language of the agreement, the trial court reasonably concluded the Department never made an express or implied promise not to transfer Benach out of Aero Bureau absent wrongdoing, and did not breach the agreement by permanently transferring Benach out of Aero in October 2001. Ample evidence supports those findings.[5]
5. Benach has not shown the award of costs was an abuse of discretion.
Benach contends the trial court abused its discretion by denying his motion to tax costs as to the Departments photocopying costs for its trial exhibits, messenger service and court reporter fees, because the Department failed to satisfy its burden of demonstrating these costs were reasonable and necessary. The contention lacks merit.
In awarding costs, a trial courts first determination . . . is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation.] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation.] (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 (Nelson).)
a. Photocopies of the Departments exhibits not used at trial.
The trial court awarded the Department $1,943.25 for models, blowups and photocopies of exhibits. Benach insists the award was in error because (1) most of the exhibits were not used at trial, and thus were not helpful to the court, and (2) the Department failed to prove that its actual cost of photocopying (as opposed to the amount billed to the client) was 15 cents per page, or that the cost was reasonable.
In Ladas v. CaliforniaState Auto. Assn. (1993) 19 Cal.App.4th 761, 774 (Ladas), on which Benach primarily relies, the court held: [i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.] Benach interprets this language to mean his objection automatically shifted the burden to the Department to demonstrate its costs were reasonable and necessary. His reading of Ladas is incorrect.
The objecting party made a similar mistake in Nelson. Our colleagues in Division Seven clarified the standard: the mere filing of a motion to tax costs may be a proper objection to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, [i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party]. [Citations.] (Nelson, supra, 72 Cal.App.4th at p. 131.)
The authority for an award of the photocopying and exhibit costs is Code of Civil Procedure section 1033.5, subdivision (c)(4).[6] The Departments counsel presented her declaration stating the parties specifically agreed to and completed a mutual exchange of exhibits in advance of trial, and prepared exhibit binders for use by the court, witnesses and Benach. Although the Department did not use the majority of its exhibits at trial, nothing indicates it could have anticipated that they would not be used. An experienced trial judge would recognize that it would be inequitable to deny as allowable costs exhibits any prudent counsel would prepare in advance of trial.
Moreover, Benach has not made a specific showing that the 15 cents cost per page was excessive.[7] Benachs ability to obtain photocopies for six cents per page at a large retail establishment, which has multiple branches and certainly does a significant volume of retail photocopying business, is not dispositive of the propriety of the costs paid by the Department for copying exhibits in preparation for trial. Benach has not shown that his circumstances as an individual shopping at such an establishment are analogous to those of a large law firm performing photocopying tasks in-house. Given the law firms equipment, overhead and personnel expenses, the trial court could certainly conclude the 15 cent fee was reasonable. The firms billing statements are adequate documentation of the photocopying costs. The Department established its initial burden by properly stating this item in the verified cost bill. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-1114; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Under the circumstances, we cannot find that Benach has met his burden of demonstrating the particular exhibits were unnecessary or unreasonable in cost, or that the court abused its discretion in allowing the costs to be charged to him under section 1033.5, subdivision (c)(4). (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 [When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court].)
b. Messenger service fees.
Benach challenges the trial courts award to the Department of $2,821.98 for messenger service fees.
Messenger fees are not expressly authorized by statute, but may be allowed in the discretion of the court. [Citations.] (Nelson, supra, 72 Cal.App.4th at p. 132.) Generally, items of cost consigned to the courts discretion are allowable only if they are reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. ( 1033.5, subd. (c)(2).) In Ladas, an award of messenger fees was upheld because sufficient evidence indicated they were related to trial preparation, and were incurred for such matters as filing documents with the court, complying with appellants document demands, and transporting exhibits to and from the courtroom. (Ladas, supra, 19 Cal.App.4th at p. 776.)
The Departments counsel submitted evidence that its messenger fees were incurred for court filings and obtaining return service of conformed copies and various court documents. Benach contends these expenses were not authorized by statute and were merely convenient or beneficial expenses that were neither reasonable nor reasonably necessary, and could have been avoided by using less costly alternatives such as filing documents earlier and use of the postal service. He also insists the messenger costs may not be recovered because the Department failed to delineate which costs were for service of process, or who served process.
We are persuaded the costs incurred by the Department for messengering documents were reasonably incurred. Messenger fees may be allowed in the discretion of the court. (Nelson, supra, 72 Cal.App.4th at p. 132; Ladas, supra, 19 Cal.App.4th at p. 776.) Generally speaking, cost items consigned to the trial courts discretion are allowable only if they are reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. ( 1033.5, subd. (c)(2).) The Departments counsels declaration constitutes substantial evidence that the messenger services were necessary because the complexity of legal issues involved in this action, sheer volume of motions and pleadings filed and served, and the heavy workload maintained by the two attorneys assigned to the case which often prevented them from filing documents in advance of court deadlines. The trial court found the fees were reasonable and reasonably necessary to the Departments conduct of its defense of this litigation, rather than merely beneficial or convenient to its preparation. Benach has provided no basis for concluding that determination was an abuse of judicial discretion.
c. Court reporter fees.
Benachs finally challenges the trial courts award of a discrepancy of $135 in court reporter fees to the Department. He insists he paid $3,930 for court reporter fees, which should be equal to the costs incurred by the Department.
As prevailing party, the Department was statutorily entitled to recover court reporter fees. ( 1032, subd. (b), 1033.5, subd. (a)(11); see Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1298.) To that end, the declaration by the Departments attorney was accompanied by attachments reflecting the amount of costs incurred for court-ordered transcripts. This evidence was adequate to substantiate the Departments cost bill. (See Jones v. Dumrichob, supra, 63 Cal.App.4th at pp. 1267-1268 and fn. 5 [burden of proving costs satisfied by counsels declaration accompanied by documentation of items claimed and copies of bills; court rule does not specify type of documentation required and abbreviated nature of cost proceedings does not impose extensive evidentiary burden].) If the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses were necessarily incurred by the defendant. The burden of showing an item is not properly chargeable or is unreasonable falls on the objector. (Nelson, supra, 72 Cal.App.4th at p. 131.) Benachs unsubstantiated declaration fails to satisfy this burden. The trial court did not err in awarding court reporter fees.
DISPOSITION
The judgment in Case No. B189151 is affirmed, and costs are awarded to respondents in that action. The judgment in Case No. B191036 is reversed and the matter remanded to the trial court with instructions to vacate its order denying Benachs motion to tax costs as to Item No. 11 of respondents cost memorandum and to enter a new order reducing the amount of costs awarded respondents in Item No. 11 by $892.05 ($842.55 + $49.50). In all other respects the judgment in Case No. B191036 is affirmed, and each party is to bear his or its own costs of appeal in that matter.
BOLAND, J.
We concur:
COOPER, P.J.
RUBIN, J.
Filed 4/13/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
FRANCISCO BENACH, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. | B189151 (Los Angeles County Super. Ct. No. NC033655) ORDER CERTIFYING OPINION FOR PUBLICATION NO CHANGE IN JUDGMENT |
FRANCISCO BENACH, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. | B191036 |
THE COURT:
The opinion in the above-entitled matter filed on March 15, 2007, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.
________________________________________________________________________ COOPER, P. J. RUBIN, J. BOLAND, J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Property line Lawyers.
[1] Benach points to the training and practices of another deputy, Bruce Stephenson, Aeros current training officer for the H3, to support his argument that no check flight is required for that helicopter. That reliance is misplaced. Stephenson said he never took a formal check ride to qualify as PIC of the H3. However, he received his training from a private company in the Sikorsky 61, a civilian equivalent of the H3. Moreover, even though Stephenson does not conduct a single consolidated finalized checkride for student pilots, he does perform a series of evaluations, each of which a pilot must successfully complete in order to receive an endorsement as PIC of the H3.
[2] Benach asserts Steck failed to endorse him as PIC of the H3 in retaliation for filing a grievance challenging Stecks placement on an eligibility list of Aero pilots. The evidence is otherwise. Benach filed the grievance on June 23, 2000, the same day as Steck became aware of it and six days after Benach failed the check flight. The record contains no hint Steck had advance notice Benach intended to file a grievance. Benach insists Stecks animus preceded that flight because, among other things, he resisted Stecks efforts to be a pilot at Aero. The record also does not support this contention. The trial court specifically found Benach failed to prove retaliation.
[3] Benach devotes more attention to this point in his reply brief. It is too late. An appellants duty attaches at the outset. It would be unfair to permit an appellant to wait to argue his substantive points until after the respondent exhausts its only opportunity to address an issue on appeal. As a general rule, points not addressed until a reply brief will not be considered unless good reason is shown for failing to address them earlier. (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 fn. 21.) None has been shown here. We treat the issue as abandoned.
[4] When he was temporarily transferred, Benach sued the Department challenging the legality of that move. The superior court ruled the reassignment did not violate the POBR and denied Benachs request for an injunction. That ruling is final.
[5] We need not resolve Benachs arguments regarding the Departments breach of the implied covenant of good faith and fair dealing. Benachs failure to prevail on the contract claim also dooms this claim.
Breach of a specific contractual provision is not a prerequisite to asserting this cause of action. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373.) However, [i]t is universally recognized the scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract. [Citations.] . . . [U]nder traditional contract principles, the implied covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract . . . . [Citation.] (Ibid.) In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other partys rights to the benefits of the contract. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.) The covenant thus cannot be endowed with an existence independent of its contractual underpinnings. [Citations.] It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350.)
[6]All remaining statutory references are to this code.
[7] The Department concedes its cost bill contains erroneous charges of $49.50 for copying its closing trial brief, and $842.55 for trial documents. On remand the judgment must be adjusted to account for these mistakes.
