Capolongo v. Santa Monica-Malibu Unified School Dist.

Filed 3/20/07 Capolongo v. Santa Monica-Malibu Unified School Dist. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from a judgment of the Superior Court for Los Angeles County, Gerald Rosenberg, Judge. Affirmed.

Barry M. Orlyn for Plaintiff and Appellant.

Gibeaut, Mahan & Briscoe and Lisa J. Brown for Defendant and Respondent.

Plaintiff Richard A. Capolongo appeals from the dismissal of his complaint against defendant Santa Monica-Malibu Unified School District following the sustaining of a demurrer without leave to amend. All three causes of action alleged in the complaint -- for breach of contract, common count, and declaratory relief -- were based upon a purported contract, consisting of several documents, that Capolongo attached to the complaint. Because those documents do not constitute a contract as a matter of law, we affirm the judgment.

BACKGROUND

Capolongo filed his original complaint against the District alleging causes of action for breach of contract, common count (account stated in writing), and declaratory relief, using Judicial Council forms. The form breach of contract cause of action alleged that Capolongo and the District entered into a written contract on or about February 1, 2002. Rather than set forth the essential terms of the alleged agreement, Capolongo attached a copy of it as an exhibit to the complaint. He alleged that the District breached the agreement on or about July 31, 2002 by failing to make payments in accordance with the agreement, and that he suffered damages in the amount of $31,814.48. The common count cause of action alleged that the District became indebted to Capolongo because an account was stated in writing in which it was agreed that the District was indebted to Capolongo, and that he is owed $31,814.48. In the declaratory relief cause of action, Capolongo asked for a determination of his rights under the alleged early retirement agreement reflected in Exhibit A to the complaint, and a declaration as to which partys interpretation of the agreement is correct.

There are four documents attached to the original complaint as Exhibit A. The first is a document sent by the Districts Director of Human Resources to Capolongo on December 15, 2001, with the following subject line: Early Retirement Incentive Program SURVEY OF POTENTIAL INTEREST. The document states that the Board of Education is considering offering an early retirement incentive program to qualified employees, and that the District is conducting a survey of potentially eligible employees to determine the level of interest in the possible program. It asks Capolongo to complete the bottom portion of the document by indicating whether he might be interested in participating in the program if it were offered. It also notes that by completing and returning the document, Capolongo is not making any final decisions and [is] not in any way obligated to accept this option. This information is for survey purposes only. Capolongos signature appears on the bottom portion of the document, dated 2/02, with the following statement checked: I will likely take advantage of the program, assuming I meet all eligibility requirements.

The second document attached as Exhibit A is what appears to be a portion of the Santa Monica-Malibu Unified School District Personnel Commission Merit Rules, relating to resignation and retirement. Among other things, the attached rules provide that an employee who intends to retire must submit a Separation Form to the District and must meet certain eligibility requirements.

The third document is a letter from an attorney representing Capolongo to the Deputy Superintendent and the Director of Human Resources for the District. In the letter, the attorney states that Capolongo completed and returned the survey, and that the Board of Education subsequently voted to accept the early retirement of those individuals who had indicated their interest in taking advantage of the program. He asserts that because of these events, Capolongo is entitled to retirement and health benefits in accordance with the survey and a provision of the union Agreement with the District that sets forth the amount of health and dental benefits owed to retirees under the age of 65.

The fourth document appears to be the portion of the union agreement to which the attorney referred.

The District filed a demurrer to each of the causes of action on two grounds, including that the document Capolongo relies upon is not an enforceable contract. In his opposition to the demurrer, Capolongo stated that the contract was a valid contract which he elected and relied on at the time that he accepted the defendants offer which was acted upon by the Board thereafter. He did not seek leave to amend, asserting that his allegations, liberally construed, were sufficient. The trial court sustained the demurrer to the breach of contract cause of action, with leave to amend. The court found that although Capolongo alleged a written contract, the documents he attached to the complaint consisted of a survey and several unrelated documents; therefore, the court found that he did not show the existence of a written contract. The court also found that Capolongo failed to allege his performance, i.e., his retirement in reliance on the alleged contract. The court granted Capolongo leave to amend, however, because it also found that his attorneys letter attached to the complaint shows that he could correct these deficiencies.

Capolongo filed an amended complaint that was almost identical to the original complaint, except that the amended complaint (1) includes references to a purported attorney fee provision, (2) alleges in the declaratory relief cause of action that the early retirement agreement was entered into on or about February 20, 2002 (rather than Feb. 1, 2002, as alleged in the original complaint), and (3) includes additional documents in Exhibit A (and excludes the letter from Capolongos attorney). The new Exhibit A includes the survey, the portion of the merit rules, and the portion of the union agreement that were included in the former Exhibit A. The new Exhibit A also includes the entire union agreement and the agenda for the February 20, 2002 Board of Education meeting, a memorandum from the Superintendent to the Board of Education recommending that the Board authorize a classified retirement incentive option at that meeting, and a memorandum indicating that the Board adopted the recommendation.

The District filed a demurrer to the amended complaint, once again asserting, among other grounds, that the documents Capolongo relied upon do not constitute an enforceable contract. In opposition to the demurrer, Capolongo asserted that he had corrected the deficiencies of the original complaint by attaching documents showing the contract entered on February 2002 when the acceptance by the defendant was formally adopted by the defendant Board. The trial court sustained the demurrer without leave to amend as to all three causes of action on the ground that the documents Capolongo asserts comprise the written agreement upon which all three claims are based do not constitute a contract.[1]Capolongo timely filed a notice of appeal from the dismissal order.

DISCUSSION

Capolongo argues on appeal that the trial court erred by dismissing the common count and declaratory relief causes of action because the court overruled the Districts demurrer to those claims as alleged in the original complaint, and because the existence of a contract is not essential to a declaratory relief claim. Capolongos arguments have no merit.

First, Capolongo presents no authority in support of his assertion that the trial courts overruling the demurrer to the common count and declaratory relief claims in the original complaint precludes the court from sustaining a subsequent demurrer to those claims in the amended complaint. We deem that argument to be abandoned. (People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 [Their discussion on this point is conclusory and fails to cite any authority to support the claim. Such a presentation amounts to an abandonment of the issue].)

Second, even if Capolongo were correct that an existing contract generally is not required for a declaratory relief claim, the declaratory relief claim in the present case specifically seeks a determination of Capolongos rights under a purported contract that he attaches to the amended complaint. Moreover, under Code of Civil Procedure section 1060, a complaint for declaratory relief must set[] forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument. . . . [Citations.] However, the controversy must be a real one; the mere allegation of a disagreement is not sufficient if there is no legal basis for it. There must be an actual, justiciable controversy. (Cherry v. Home Sav. & Loan Assn. (1969) 276 Cal.App.2d 574, 578.)

In the present case, there is no justiciable controversy. As the trial court correctly found, the documents attached to the amended complaint do not constitute a contract. A contract is an agreement to do or not to do a certain thing (Civ. Code,  1549), and requires the consent of both parties to the contract (Civ. Code,  1550). Capolongo asserts that the documents attached to the amended complaint show that he agreed to accept the benefits of the early retirement program and that the District accepted his agreement when it adopted the recommendation to offer the program to qualified employees. The documents do not, however, show these alleged facts. Instead, they show only that Capolongo indicated that he would likely take advantage of the program if the District offered the program and if he met all eligibility requirements, and that the Board of Education decided to offer the program. The documents do not show there was any agreement between the parties, and therefore there is no actual controversy relating to the parties contractual rights or duties that is subject to a declaratory relief claim. (Code Civ. Proc.,  1060; Escondido Mutual Water Co. v. George A. Hillebrecht, Inc. (1966) 241 Cal.App.2d 410, 412-413 [no valid declaratory relief claim seeking declaration of rights under contract where contract is contingent on the occurrence of something that has not yet occurred].) Accordingly, the trial court properly sustained the Districts demurrer to that claim.

DISPOSITION

The order of dismissal is affirmed. The District shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J. SUZUKAWA, J.

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[1] Capolongo filed a motion for reconsideration of the trial courts ruling, but the court entered an order of dismissal before ruling on the motion. The court subsequently issued a minute order noting that it no longer had jurisdiction to rule on the motion, but also stating that the motion was improper in that it offered no new facts, circumstances, or law but instead merely argued that the courts ruling on the demurrer was erroneous.