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

APPEAL from a judgment and an order of the Los Angeles County Superior Court, Judith A. Vander Lans, Judge. Affirmed in part and reversed in part with directions.

Law Offices of Shields Kowalski and Russell Shields for Appellant.

Liebert Cassidy Whitmore, J. Scott Tiedemann and Jolina A. Abrena for Respondents.

SUMMARY

This appeal is the latest flare-up in litigation that began in 1993 when appellant Deputy Sheriff Francisco Benach was fired by respondent Los Angeles County Sheriffs Department (Department), after he allegedly assaulted another deputy. This appeal involves the Departments alleged breach of an agreement resolving litigation that arose out of that and other incidents. It also involves a violation of the Public Safety Officers Procedural Bill of Rights Act (POBR), Government Code section 3300, et seq. allegedly committed by the Department by virtue of an involuntary transfer of Benach from the bureau where the Departments pilots are based.

The trial court found no violation of the POBR, and granted the Departments motion for summary adjudication. The court also found that the gist of Benachs action sought equitable relief, and denied his request for a jury trial on claims for breach of contract and breach of the covenant of good faith and fair dealing. Trial was conducted over a span of about three months, after which the court found in favor of the Department on both claims, and subsequently awarded costs to the Department. Benach filed these appeals, which we consolidated.

On the appeal from the judgment, we find no error and affirm. Summary adjudication was properly granted on the cause of action for violation of the POBR, a jury trial was properly denied on contract-related claims seeking primarily equitable relief, and Benach failed to prove the Department breached the settlement agreement in any respect. Regarding the cost award, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

Benach has been employed by the Department since 1973. From 1981 until late October 2001, Benach served at the Departments Aero Bureau at the Long Beach Airport (Aero or Aero Bureau) as a pilot. In 1993, Benach was fired after he allegedly assaulted another deputy. Benach appealed, and was ordered reinstated by the County Civil Service Commission. The Department sought a writ overturning that order and refused to reinstate Benach pending the outcome of that proceeding. Benach sued, alleging violations of his civil rights and the POBR. Both actions were ultimately resolved by a November 23, 1998 settlement agreement (agreement) between Benach and the Department.[1] The alleged breach of the agreement is the subject of this appeal.

The portion of the agreement at issue states;

5. Within one (1) year of this agreement, the Department shall provide Benach the following training to be qualified as Pilot in Command (PIC) in the following aircraft: Fixed Wing Airplanes, Long Ranger Helicopter and 600 Notar; and Load Lifting Training in the 500 Series aircraft. In addition, the Department shall provide Benach training as PIC in the Sikorsky H3 by June 30, 2000. Benach shall be checked out and provided ongoing currency in the above described aircraft in accordance with Bureau Policy . . . 

However, Benachs successful completion of such 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. Benach will be allowed the opportunity to fulfill missions (either for overtime or as a regular assignment) in the aircraft named in paragraph five (5) on the same terms and conditions as apply to similarly qualified pilots.

In addition, within eighteen (18) months of the execution of this agreement, Benach will be provided aircraft accident investigation training.

The agreement was negotiated by Benach, with assistance of counsel. Jeffrey Hauptman, the Departments former Director of Personnel and Employee Relations, was the Departments sole representative in the settlement negotiations. During the negotiations, Hauptman received some input from James DiGiovanna, the Commanding Officer of Aero Bureau, regarding technical/aviation jargon, and the time frame within which the Department could reasonably conduct the training it had agreed to provide.

Benach alleges the Department breached the agreement in six respects. It: (1) failed to provide training in the Cessna 414 on a timely basis; (2) failed to send Benach to helicopter accident investigation school; (3) failed to qualify Benach as PIC in the Sikorsky H3 (H3) helicopter; (4) failed to provide currency[2]in the aircraft identified in paragraph 5 of the agreement; (5) failed to afford him the opportunity to fulfill missions either for overtime or as a regular assignment in the aircraft identified in paragraph five of the agreement on the same terms and conditions applied to similarly qualified pilots; and (6) transferred Benach to another station and assignment in violation of the implied condition he would remain at Aero absent wrongdoing.

On October 25, 2000, approximately 16 Department employees met with Sheriff Lee Baca. The employees presented the Sheriff a memorandum signed by more than 30 Departmental personnel complaining that Benach had created an unsafe and hostile work environment at Aero by, among other things, engaging in reckless and unsafe flying, actual physical violence, and threatening behavior towards his fellow deputies and some of their families.

Following the meeting, the Sheriff ordered an internal affairs investigation to address the allegations levied against Benach. Pending completion of the investigation, Benach was temporarily transferred out of Aero in October 2000. However, he continued to be paid at the rate of a Bonus II pilot, and continued to receive ongoing currency in certain aircraft during the temporary transfer.

The investigation of the allegations against Benach occurred between November 2000 and late July 2001. More than 75 current and former employees were interviewed in the course of the investigation. On October 25, 2001, former Division Chief Kenneth Bayless notified Benach he had been permanently re-assigned out of Aero Bureau because Bayless had concluded that overwhelming evidence indicated Benachs presence at Aero coincide[d] with a less-than-harmonious working environment. Bayless informed Benach his decision was not based on a determination of fault or a finding Benach had violated any policy. He stressed the transfer was non-punitive, and informed Benach he would continue to receive the same rate of pay. Although he continued to be paid at the rate of a Bonus II pilot in his new position as a detective, Benach was no longer eligible for flight duties once he was no longer assigned to Aero.

On February 11, 2003, Benach filed this action for breach of contract, breach of the covenant of good faith and fair dealing, and violation of the POBR.[3] In the operative third amended complaint, he sought specific performance ordering the Department immediately to provide the promised training, and an injunction to stop the Department from taking further punitive action against him.

The Department moved for and obtained summary adjudication on the cause of action for violation of the POBR.

Over Benachs objection, a jury trial was denied and a bench trial conducted on the contract claims from January 19 through March 8, 2005. The court issued a statement of decision on December 6, 2005, and entered judgment in favor of the Department. This appeal followed.

DISCUSSION

1. Summary adjudication was proper on the claim of violation of the POBR.

Benach contends the trial court erred by granting the Departments motion for summary adjudication on his cause of action for violation of the POBR for two reasons: first, triable factual issues precluded granting that motion; and second, his reassignment from a Bonus II helicopter pilot position to a position routinely held by a Bonus I detective was a punitive demotion in violation of the POBR. The Department insists the motion was properly granted because undisputed facts show Benach was neither demoted nor subjected to a punitive transfer. The Department is correct.

Regarding misconduct committed by a peace officer, the POBR provides no punitive action . . . shall be undertaken for any act . . . or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agencys discovery by a person authorized to initiate an investigation of the allegation of the . . . misconduct. . . . In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within that year, except . . . . [i]f the investigation involves more than one employee and requires a reasonable extension. (Gov. Code, 3304, subd. (d)(4).) Punitive action includes any action that may lead to . . . demotion, . . . reduction in salary, . . . or transfer for purposes of punishment. (Gov. Code, 3303.)

Benach insists triable factual issues remain outstanding as to whether his involuntary transfer out of Aero was a punitive demotion. He is mistaken. Undisputed evidence in the record establishes Benach retained the same rank and rate of pay in his new position as detective. The record also reveals the transfer was not imposed for a punitive purpose. Rather, a year-long investigation revealed the working environment at Aero Bureau evinced a lack of harmony and cooperation among employees when Benach was at Aero. However, after Benach was temporarily transferred pending the outcome of the internal affairs investigation, the friction dissipated and the working environment at Aero became noticeably more harmonious, civil and respectful. Accordingly, even though Benach was found not to have violated any policy or to have committed any wrongdoing, Bayless reasonably determined it was both expeditious and in the Departments best interests to make Benachs removal from Aero permanent, rather than to transfer numerous other employees to new posts.

Relying on Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, Benach argues [c]ourts have found adverse employment action in transfers to positions of the same pay and rank where the new positions lacked the prestige or other advantages of the former jobs. In Brown, a police officer challenged the citys decision to downgrade his rank from Police Officer III to Police Officer II and to reduce his salary, actions the city admitted were punitive within the meaning of the POBR and entitled plaintiff to an administrative appeal. (Id. at p. 171.) Brown does not advance Benachs cause. Unlike Brown, Benach does not claim any due process violation, and did not suffer a downgrade in rank or rate of pay. Brown does not address the issue of whether a reassignment, without a concomitant loss of rank or pay, constitutes punitive action under the POBR.[4] Benachs reliance on Reed v. City Council of City of Roseville (1943) 60 Cal.App.2d 628 is also misplaced. First, the case was decided long before the POBR provision at issue became operative. More to the point, it involves the dissimilar circumstance in which the public agency readily admitted the employees transfer effect[ed] a demotion notwithstanding the fact that he retained the same pay rate. (Id. at p. 633.) Here, the trial court correctly determined the absence of an issue of fact that Benach was demoted.

The decision in Orange County Employees Assn. v. County of Orange (1988) 205 Cal.App.3d 1289 (OCEA), isinstructive. In that case, the director of a county facility for delinquent boys was transferred from a post he held for 16 years based on a supervisors concerns about his performance. Notwithstanding the concerns that precipitated his replacement, the director retained the same compensation and benefits and even received a raise shortly after his transfer. (Id. at p. 1291.) The director was denied an administrative hearing under the POBR, based on the countys contention the transfer was a routine measure, not intended as discipline or punishment. (Id. at p. 1292.) The appellate court affirmed, rejecting the directors contention the transfer was necessarily punitive because it resulted from concerns about deficiencies in his performance. The court stated: Deficiencies in performance are a fact of life. Right hand hitters sit on the bench against certain pitchers, some professors write better than they lecture, some judges are more temperamental with criminal cases than others. The manager, chancellor or presiding jurist must attempt to find the proper role for his personnel. Switching Casey from shortstop to second base because he cant throw to first as fast as Jones is not in and of itself a punitive transfer. (Id. at p. 1294.)

In OCEA, the court aptly observed there is a difference between a transfer intended to punish for a deficiency in performance, versus one that is intended to compensate for deficient performance. Such was the case here. Although Bayless did not find Benach violated any Departmental policy, he did conclude his continued presence at Aero impliedly deficient in the sense it was not conducive to a cooperative, productive working relationship with approximately 30 other members of that bureaus personnel, and exercised his supervisorial discretion to make a change to address that unique circumstance to best serve the Departments needs. The reassignment was effected without any loss of pay or rank to Benach. Notwithstanding Benachs assertion that his work as a detective is less heroic than his job as a pilot, the record supports the trial courts conclusion Benach suffered no punitive action. Summary adjudication was properly granted.[5]

2. Denial of jury trial on breach of contract and covenant of good faith claims.

The trial court granted the Departments motion and conducted a bench trial on the causes of action for breach of contract and breach of the covenant of good faith and fair dealing. Benach insists he was entitled to a jury trial on these claims. He is mistaken.

It is a well-established principle that [t]he jury trial is a matter of right in a civil action at law, but not in equity. [Citations] (C&K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8.) In classifying a given action as legal or equitable, the court looks to its substance, viz., the nature of the rights at issue and the remedy sought. The label attached to a complaint or cause of action does not control. (Fearey v. Gough (1943) 61 Cal.App.2d 778; Paularena v. Superior Court (1965) 231 Cal.App.2d 906, 911.) Although . . . the legal or equitable nature of a cause of action ordinarily is determined by the mode of relief to be afforded [citation], the prayer for relief in a particular case is not conclusive [citations] . . . .  (C&K Engineering Contractors v. Amber Steel Co., supra, 23 Cal.3d at p. 9; Walton v. Walton (1995) 31 Cal.App.4th 277, 287.) Rather, the practice of the court is to examine also the allegations of the complaint in reaching its determination as to the kind of action the plaintiff is bringing. (3 Witkin, Cal. Procedure (4th ed. 1996), Actions, 119, p. 186.) An accurate indication may often be gleaned from a combined review of the caption, prayer and allegations. (Ibid.)

Our review of the caption, allegations and prayer of Benachs third amended complaint readily reveals that the gist of this action is equitable. The first cause of action is entitled breach of settlement agreement and for specific performance thereon. In allegations related to that claim and the cause of action for breach of the covenant of good faith and fair dealing, Benach complains vociferously about lost flight and currency training he suffered as a result of the Departments continuing breaches, and his inability to obtain such training or to participate in rewarding workplace activities unique to those performed by pilots at Aero Bureau. He asserts [m]onetary damages are insufficient to compensate [him] for [the breaches] by DEPARTMENT, and accordingly specific performance and injunctive relief to prevent future harassment is requested in addition to any other remedies the court deems just and proper. In his prayer for relief on each of these claims, Benach seeks an injunction enjoining the Department from erecting further impediments to the promised pilot training, and specific performance of the agreement, by means of an Injunction directing [the Department] to immediately provide the training promised in the settlement agreement.

Clearly, the gist of this action seeks specific performance of the 1998 settlement agreement to compel the Department to provide the flight training specified. A claim for specific performance is an equitable one. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1241; Caira v. Offner (2005) 126 Cal.App.4th 12, 27.) Benachs prayer for incidental monetary damages is insufficient to convert an equitable action into one at law for which a jury trial is required. (C&K Engineering Contractors v. Amber Steel Co., supra, 23 Cal.3d at p. 11; Olson v. Foster (1941) 42 Cal.App.2d 493, 498 [request for incidental relief will not alter the gist of an action].) An action seeking specific performance and/or injunctive relief is, of course, equitable in nature. (Crouser v. Boice (1942) 51 Cal.App.2d 198, 204 [no right to jury trial in contract action seeking specific performance]; Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 125; 3 Witkin, supra, Actions, 120, p. 187.) Indeed, even Benach, who appeared pro. per. below, expressly conceded this action is predicated on a claim of breach seeking specific performance of the agreement when he told the court the primary theory of [his] case has always been that working at Aero Bureau is a unique irreplaceable position that cannot be found in the civilian sector. [And] [n]o amount of money can allow [him] to fly as a police officer doing rescues. Any damages he sought were merely incidental to Benachs principal request for specific performance and injunctive relief. The trial court did not err in ordering a bench trial on the claims for breach of contract and the covenant of good faith and fair dealing.[6]

3. Contract interpretation and the standard of review.

On issues of contractual interpretation where there is no conflicting extrinsic evidence, the appellate court is not bound by the trial courts interpretation and will decide the issue de novo. (City of Chino v. Jackson (2002) 97 Cal.App.4th 377, 386; Southern Pacific Land Co. v. Westlake Farms, Inc. (1987) 188 Cal.App.3d 807, 817.) However, even in a contract that appears facially unambiguous, an ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is reasonably susceptible. (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 40 & fn. 8; Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1140-1141.) Ambiguity exists when a contractual provision is susceptible of two or more reasonable constructions. (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d at p. 912.) The trial courts determination of whether an ambiguity exists is a question of law, subject to independent review on appeal. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165.)

The initial question of whether an ambiguity exists is one of law. If the court determines a contract is ambiguous, a party is entitled to introduce extrinsic evidence to aid the interpretation of the contract. (Appleton v. Waessil (1994) 27 Cal.App.4th 551, 554-555; Pacific Gas & Electric Co. v. Zuckerman, supra, 189 Cal.App.3d at pp. 1140-1141.) Where, as here, the interpretation of a contract turns on the credibility of conflicting extrinsic evidence, the trier of fact must determine the meaning of language in the contract. (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912-913.) If substantial evidence supports that interpretation, we will not overturn it on appeal. (Roden v. Bergen Brunswig Corp. (2003) 107 Cal.App.4th 620, 625.)

The meaning of key terms and phrases actually or allegedly implied in the settlement agreement is hotly disputed. Although it never explicitly said so, the statement of decision makes it clear the trial court found the agreement was ambiguous in material respects. We agree. The meaning of key phrases such as qualified as PIC and aircraft accident investigation training, among others, is not defined. These terms are reasonably susceptible to more than one interpretation. Both parties presented extrinsic evidence that those terms and others may be subject to various meanings in the context of aviation parlance or Aero Bureau policy. Accordingly, the court considered voluminous amounts of frequently contradictory extrinsic evidence to aid its interpretation of key contract terms. It construed the instrument as a whole and in light of the circumstances of the case. (See Civ. Code, 1641; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1265.) For reasons discussed below, we conclude substantial evidence supports the courts reasoned conclusions. (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746-747 [where parties present conflicting evidence to resolve interpretation of writing, so long as judgment is supported by substantial evidence, evidentiary conflict must be resolved in favor of the prevailing party and any reasonable construction of the writing by the trial court will be upheld]; Appleton v. Waessil, supra, 27 Cal.App.4th at p. 556 [same].)

4. Benachs specific claims of breach of contract.

a. The Departments failure to provide timely training in the Cessna 414.

Under the terms of the agreement, the Department agreed to provide Benach training to enable him to qualify as PIC in the Cessna 414, a fixed wing aircraft, by November 23, 1999. Benach was trained and qualified as PIC of that aircraft, even though those tasks were not completed until February 4, 2000.

Benach contends the Department could have met the contractual deadline, but chose instead to assign him routine duties rather than provide the training. The trial court found Benach failed to meet his burden to prove calculable damages as a result of the delay in completing the training in the Cessna 414. As a result, no actionable breach was shown. That finding was correct. At trial, Benach expressly conceded any harm he suffered by virtue of the Departments delay was not quantifiable: I was certainly injured to some extent, but I cannot qualify it or quantify it. Mere delay, without proof of actual harm suffered as a result of the delay, is not an actionable breach. (See CACI 303; see also Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388 [imposition of liability for breach of contract requires an unexcused failure to perform and resulting damages].)

b. The Departments failure to train Benach to investigate helicopter accidents.

The agreementrequires the Department to provide Benach with aircraft accident investigation training. Benach attended a course entitled Aircraft Accident Investigation in June 2000, which covered only the investigation of airplane accidents. Benach insists he always intended to be trained to investigate both airplane and helicopter accidents on a level equivalent to that of the most qualified aircraft accident investigator, and the Department breached the agreement by failing to train him to investigate helicopter accidents. The trial court correctly found otherwise.  

The record does not reflect the parties mutually intended that Benach would receive both airplane and helicopter accident investigation training. Indeed, even Benach, whom the court found actively participated in the wording of the settlement agreement, acknowledged the document was not clearly worded in this regard. Several factors support the courts conclusion. First, the integrated agreement nowhere states Benach would be trained to investigate helicopter accidents. Evidence at trial established there was a separate course of training for helicopter - as opposed to airplane - accident investigations. Second, Hauptman testified no portion of any request or demand made by Benach regarding the training he wanted to receive was excluded from the agreement. If Benach had initially demanded training to conduct helicopter accident investigations, the demand would have been addressed in the agreement. Third, although DiGiovanna understood Benach wanted to receive a level of accident investigation training the same as the most qualified aircraft accident investigator at Aero, no deputy at Aero was qualified to investigate helicopter accidents in 2000. Fourth, the contention that the term aircraft in the agreement was meant to include planes and helicopters is belied by evidence that Benach himself employed the term aircraft to mean different things at different times.[7] Finally, DiGiovannas offer to provide helicopter training as additional consideration to Benach in the course of negotiations to resolve a dispute regarding the belated Cessna training supports the Departments contention it did not intend to provide that training initially. Substantial evidence supports the trial courts conclusion that the Department satisfied its obligation to provide aircraft accident investigation training to Benach.

c. The Departments failure to train and qualify Benach as PIC of the H3.

Benach asserts the Department breached the portion of the agreement which requires it to provide Benach training as PIC in the Sikorsky H3 by June 30, 2000, and states he shall be checked out . . . in the above described aircraft in accordance with Bureau Policy . . . . Specifically, Benach contends the Department was required to train him as a PIC of the H3 and to confer on him the status of PIC, with all privileges attendant that designation. He maintains the Department breached the agreement by failing to qualify him as PIC of the H3 by requiring he pass a final check ride. The trial court found otherwise, a finding with which we concur.

Vast amounts of trial time were devoted to testimony regarding the Departments obligation under the agreement to train Benach as an H3 pilot in connection with Benachs pilot training for the H3. Benach produced evidence, by way of his own testimony and that of two other deputies, that the phrase training to be qualified as PIC refers to training that results in a pilot being qualified to operate an aircraft, not merely training that results in the possibility of a qualification. DiGiovanna testified he understood Benach did not just want to be trained as PIC of the H3, but to be qualified to fly as PIC of the H3 to enable him to participate in missions performed in that helicopter.

Story continued as Part II.

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[1]^{RespondentCountyof Los Angelesis actually the party to the agreement. For purposes of discussion, we refer to respondents, collectively, as the Department. A law firm was also party to the agreement, but that portion of the settlement is not at issue.}

[2] ^{Currency is the Aero Bureau requirement that each pilot complete a certain number of rides per type of aircraft per year. Aero Bureau pilots may only operate bureau aircraft in which they are both qualified and current.}

[3] ^{Benach also sued for conspiracy and violation of his right to equal protection under the federal constitution through the vehicle of 29 U.S.C. 1983; those claims are no longer at issue.}

[4] ^{Benach also asserts he lost compensation by virtue of the fact he was not eligible for overtime after his transfer. However, the record contains no evidence supporting Benachs claim he had an entitlement to overtime.}

[5] ^{Our resolution renders it unnecessary to resolve the parties alternative arguments regarding the viability of Benachs POBR claim. (See Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65 [appellate courts will not address issues whose resolution is unnecessary to disposition of the appeal].)}

^{In addition, because Benach failed to prevail on his claim of violation of the POBR, we need not address his claim of entitlement to attorney fees under the private attorney general theory. (Code Civ. Proc., 1021.5.)}

[6] ^{We need not resolve the Departments contention that Benach would be barred from recovery of damages on his contract related claims because he failed to comply with the Tort Claims Act. Our conclusion, as discussed in section 3, that Benach failed to prove the elements of his contract-related claims, renders moot any issue of his potential entitlement to incidental damages. (See Palermo v. Stockton Theatres, Inc., supra, 32 Cal.2d at p. 65.)}

[7] ^{Evidence at trial revealed that, in other contexts, Benach interpreted aircraft to exclude helicopters.}