Bulanon v. Dept. of Corrections
Filed 10/2/07 Bulanon v. Dept. of Corrections CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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MANUEL BULANON, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION,[1] Defendant and Respondent. | C054564 (Super. Ct. No. 05AS01004) |
Plaintiff Manuel Bulanon filed this action seeking to compel the defendant, the Department of Corrections and Rehabilitation (Department), to provide a defense and indemnification for any damages in a wrongful death action premised on the death of a prisoner while in his care as a doctor in the defendants employ. The court granted the Departments motion for summary judgment. It found that the plaintiffs waiver of all claims against the Department, which he executed in connection with a settlement of the Departments disciplinary proceedings against him, embraced any claim for defense or indemnification in the wrongful death action that was already pending at the time of the settlement. The plaintiff filed a timely notice of appeal from the notice of entry of judgment. We shall affirm.
Facts
The issue involves the legal significance of undisputed facts. We therefore will not follow the usual paradigm for review of a ruling on a motion for summary judgment (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 734-735), as we do not need to determine whether the respective evidentiary showings of the parties satisfied their burdens of production and proof.
The plaintiff had been a doctor at the Mule Creek State Prison (Mule Creek) since 1983. In May 2001, a Mule Creek inmate collapsed. The plaintiff and a medical technician responded. According to the conclusions of a Mule Creek personnel officer who investigated the matter, the plaintiff abandoned his duties by leaving the medical technician to tend to the inmate without a physicians supervision. The inmate eventually died of a heart attack. In May 2002, the Mule Creek warden sent a preliminary notice of an intended adverse action. In June 2002, Mule Creek notified the plaintiff that the officer overseeing the Skelly hearing[2]had upheld the initial recommendation to dismiss the plaintiff from service on various grounds, including inexcusable neglect of duty.[3] The plaintiff appealed this adverse action to the State Personnel Board (SPB).
In the meantime, the survivors of the inmate filed a wrongful death action in May 2002. On June 29, 2002, the plaintiff executed a form that a litigation coordinator at Mule Creek had sent him for requesting Department representation and indemnification in the lawsuit.
On July 1 and 3, 2002, respectively, the plaintiff and his representative executed a settlement with the Mule Creek personnel officer and an administrator of the health care services division of the Department. Mule Creek withdrew its adverse action, and the plaintiff agreed to retire effective as of his original dismissal date. The plaintiff did not admit the truth of any allegations in the adverse action. In the language that is the focus of this appeal, the plaintiff agreed that in exchange for such consideration as set forth . . . [, he] releases, acquits and forever discharges the . . . [Department] of and from any and all demands, actions, causes of action, claims of any kind or nature whatsoever, known and unknown, anticipated or unanticipated, past or present, which may exist as of the date hereof, including but not limited to those connect[ed] with or arising out of the actions taken by the Department in connection with the Notice of Adverse Action in this matter and those arising under state or federal law, including but not limited to various statutes that proscribe employment discrimination. (Italics added.)
The parties include the declarations of the Mule Creek personnel officer and the plaintiff regarding their subjective understandings regarding the scope of this waiver. At most, these establish that the issues of the costs of defending the wrongful death action, or indemnification of any resulting judgment against the plaintiff, were not the subject of any express discussion. Their subjective understandings are otherwise irrelevant to our interpretation of the waivers scope. (Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44, 54-55.)
The SPB approved the settlement in August 2002. The Mule Creek personnel officer did not notify anyone in the Departments legal affairs division of the settlement of the SPB proceedings. In October 2002, a Mule Creek litigation coordinator sent another form to the plaintiff for requesting representation in the wrongful death action after the complaint was served on the prison.[4] The plaintiff executed and returned it. However, in March 2003, an assistant chief counsel of the legal affairs division notified him that the Department declined to defend him, citing statutory authority for this decision if there are acts outside the scope of employment or presenting a conflict of interest. Although the plaintiffs attorney continued to tender the defense of the wrongful death action on more than one occasion, staff counsel for the legal affairs division reasserted its statutory discretion to refuse the defense. The plaintiff filed the present action in March 2005.
The plaintiff successfully moved for nonsuit during the trial of the wrongful death action. That court entered judgment in his behalf in July 2006 (mooting the issue of indemnification in the present proceeding). The plaintiff incurred legal costs in excess of $34,000 in litigating the action.
Discussion
The plaintiff takes three tacks in tackling the basis of the judgment. First, he contends his action against the Department did not exist (in the words of the settlement) until after his execution of the settlement. He next contends that the language of the waiver as a matter of law gives rise to the reasonable interpretation that it excludes any claim for reimbursement of defense costs in the wrongful death action. Finally, he contends the language is at best ambiguous, and extrinsic evidence gives rise to a triable issue on its meaning.
A
His first argument rests on the premise that his cause of action for breach of the obligation to provide him a defense did not arise until the March 2003 letter from the legal affairs division. However, while this remedy may not have arisen until the later date, he nonetheless had an existing right under state law for a defense that arose on the filing of the wrongful death action (Gov. Code, 995) in May 2002. This preexisted the waiver, and was therefore an anticipated claim at the time he executed the waiver.
B
The plaintiff contends that the reasonable interpretation of the waiver, in the context of the settlement as a whole, is that it released only employment-related claims against the defendant and did not release any claims involving the wrongful death action. Although the release does not contain any express mention of the wrongful death action, as highlighted above, the broad language of the release include[ed], but [was] not limited to claims related to the disciplinary proceedings, and any claims arising under state or federal law, not just those involving remedies for employment discrimination. If we are to treat this language as having meaning and not being mere surplusage, we must read it as including claims beyond the context of employment-related claims.
C
The plaintiffs alternate argument does not fare any better. He contends the extent to which the waiver was intended to embrace claims beyond the employment context is ambiguous, and extrinsic evidence on the issue presents a triable issue of fact on the defendants intent in agreeing to the language of the waiver.
He derives ambiguity from a ruling of the trial court denying the Departments motion for judgment on the pleadings, which refused to accept the Departments interpretation as a matter of law.[5] This ruling is not binding on this court.
As for the extrinsic evidence, he relies on the October 2002 offer to defend him, and the failure of either the March 2003 or May 2004 refusals to defend to cite the waiver as a basis. It is undisputed, however, that the Mule Creek litigation coordinator was unaware of the waiver when he sent the request form upon receipt of the wrongful death complaint. Moreover, neither the litigation coordinator nor the attorneys in the legal affairs division were competent to provide any evidence of the intent of the actual Department signatories to the settlement agreement, or that they were even aware of its existence (in light of the undisputed evidence that the Mule Creek personnel officer never notified the legal affairs division of the settlement). Therefore, these communications cannot act as some species of admission attributable to the Department on the scope of the waiver.
Disposition
The judgment is affirmed. The Department shall recover its costs of appeal. (Cal. Rules of Court, rule 8.276(a)(1).)
DAVIS , J.
We concur:
SIMS , Acting P.J.
HULL, J.
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[1] We have amended the caption to reflect the defendants name as presently described in Penal Code section 5000.
[2]Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly).
[3] Before the effective date of any adverse action, a member of the state civil service is entitled to notice of the proposed action and its grounds, a copy of the formal charges and the evidence on which they are based, and an opportunity to respond to the appointing agency imposing the adverse action. (Skelly, supra, 15 Cal.3d at p. 215.)
[4] The litigation coordinator asserted in a declaration in support of the Departments motion for summary judgment that he would not have sent the form had he been aware of the settlement and waiver in the disciplinary proceedings.
[5] He also cites a ruling of the referee in the judicial arbitration of this matter; however, the Departments request for a trial de novo renders this ruling inadmissible. (Code Civ. Proc., 1141.11, 1141.25.)
