Opinion
B305725
04-07-2022
RICHARD OROSCO, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants.
Hausman & Sosa, Jeffrey M. Hausman and Larry D. Stratton, for Defendants and Appellants. Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski, Brian P. Ross and Gidian R. Mellk, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC720342, James C. Chalfant, Judge. Affirmed.
Hausman & Sosa, Jeffrey M. Hausman and Larry D. Stratton, for Defendants and Appellants.
Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski, Brian P. Ross and Gidian R. Mellk, for Plaintiff and Respondent.
MANELLA, P. J.
INTRODUCTION
Appellants the County of Los Angeles and related entities (collectively, the County) challenge the trial court's grant of a writ of mandate requiring the County to pay respondent Richard Orosco over $165,000 as backpay. In 2008, the County terminated Orosco, who had worked as a deputy sheriff, and the County's Civil Service Commission (the Commission) sustained his termination. Orosco challenged the decision through a petition for writ of administrative mandate, seeking reinstatement and an award of backpay and other employment-related benefits, among other relief. The court ultimately granted Orosco's petition and remanded the matter to the Commission with orders to set aside its decision, reconsider the matter in light of the court's statement of decision, and take any further action required by law. Following the court's decision, the County reinstated Orosco and paid him about $605,000 in backpay.
After Orosco was again terminated by the County (having been deemed to have resigned for failure to report for duty), he filed this petition for a writ of mandate, claiming he was entitled to additional backpay for the period during which he was unlawfully terminated, including lost health insurance contributions under the County's "Choices" benefits program and payment for accrued sick days. The trial court granted his petition in part, ordering the County to pay him for lost employer contributions and additional sick days. The court rejected the County's argument that the petition was barred for failure to comply with the claim presentation requirements of the Government Claims Act (GCA; Gov. Code, § 900 et seq.), concluding that it was essentially an action to compel compliance with the prior writ, and thus was not subject to the GCA's procedures.
The trial court rejected certain claims by Orosco that are not at issue on appeal.
On appeal, the County claims: (1) Orosco's petition was essentially a suit for money damages subject to claim presentation requirements, rather than an enforcement action, because, inter alia, the prior writ did not address compensation; (2) there was no factual or legal basis for an award of health insurance contributions, which constituted a windfall for Orosco; and (3) the evidence did not support Orosco's entitlement to compensation for additional unused sick time, in part because he did not make, and could not have made, a timely "buy-back" election during his absence from employment.
We agree with the trial court that Orosco's petition sought to enforce the prior writ, which included an award of backpay upon reinstatement, and thus did not require compliance with claim presentation requirements. Moreover, the County's contributions under the Choices program were properly included in the backpay award because Orsoco would have been entitled to receive unused contributions as cash. Finally, the trial court's award of money for unused sick days was sufficiently supported. Accordingly, we affirm.
BACKGROUND
A. Orosco's Prior Petition
Starting in 2001, Orosco worked for the County's sheriff's department as a deputy sheriff. Under applicable agreements between the County and various unions, Orosco was entitled to certain fringe benefits during his employment. These benefits included contributions under the County's "Choices" program. The Choices program is a cafeteria plan that provided eligible employees an allowance to purchase health insurance, among other benefits. Under the program, if an employee spent less than the total allowance, he or she would receive the unspent funds in taxable cash. Orosco was also entitled to 12 sick days per year, and had the option to cash out up to eight unused sick days per year by making a timely election for a "'buy back'" of those days.
"A cafeteria plan is an employee benefit plan that allows staff to choose from a variety of pre-tax benefits." (Investopedia <https://www.investopedia.com/terms/c/cafeteriaplan.asp> [as of April 5, 2022].)
In 2008, the County terminated Orosco based on allegations that he had abused anabolic steroids and lied to investigators. Orosco appealed his discharge to the Commission. Following an evidentiary hearing, a hearing officer recommended that the Commission find the allegations untrue, and that Orosco be reinstated "without a break in service." The Commission, however, ultimately rejected the hearing officer's recommendation and sustained Orosco's termination.
In 2011, Orosco filed a petition for administrative mandamus under Code of Civil Procedure section 1094.5, seeking to overturn the Commission's ruling. The petition named the Commission as the respondent and the County as a real party in interest. In his prayer for relief, Orosco requested reinstatement, "back salary," and restoration of "all other emoluments of employment" from the date of his termination to the date of his reinstatement (the termination period). The trial court ultimately granted Orosco's petition, concluding that the weight of the evidence did not support the Commission's findings. The court thus issued a writ instructing the Commission to set aside and reconsider its decision in light of the court's statement of decision, and to "take any further action specially enjoined on [it] by law," consistent with the court's decision. The County appealed, and we affirmed the judgment. (Orosco v. County of Los Angeles (Nov. 30, 2016, No. B247368) 2016 Cal.App.Unpub. LEXIS 8487, at *1.)
B. Orosco's Reinstatement
After the court issued the prior writ, the Commission set aside its initial decision and adopted the hearing officer's recommendations. In May 2017, Orosco was reinstated. The County then paid Orosco about $605,000 in backpay, which did not include payment for lost health insurance contributions. The County added to Orosco's sick-day balance the 12 unused sick days per year that he would have accumulated during the termination period. Orosco ceased to report for duty shortly after his reinstatement, and was ultimately deemed to have resigned in February 2018. Upon his separation from employment, and under Los Angeles County Code (LACC) section 6.20.030(B)(2), the County paid Orosco for 50 percent of his balance of unused sick days.
C. Orosco's Second Petition
In August 2018, Orosco filed this complaint and petition for a writ of mandate under Code of Civil Procedure section 1085. As relevant here, Orosco claimed the County had failed to comply with the first writ by, inter alia, failing to compensate him for (1) unused sick days accumulated during the termination period and (2) lost health insurance benefits. In an attached declaration, Orosco estimated his family incurred about $92,000 in out-of-pocket medical expenses during the termination period, and stated that the County had not paid him "for the 12 sick days per year to which [he] was entitled, but did not take, as a result of [his] termination."
In opposing Orosco's petition, the County argued that the proceeding was essentially an action for damages, which was precluded because he had failed to first present his claims to the County, in contravention of the GCA's claim presentation requirements. As to Orosco's claim for sick days, the County noted that Orosco would have been entitled to cash out no more than eight unused days per year during the termination period (rather than the 12 days Orosco had referenced), but argued that he could not now obtain compensation: the County contended that because Orosco was not an employee during the termination period, "there was no timely method for him to make the [buy-back] election . . . ." The County included a declaration by Doreen Garcia, the manager of personnel administration at the sheriff's department, in which Garcia explained the need for a timely buy-back election in order to cash out unused sick days.
As for Orosco's claim for health insurance benefits, the County contended the claim lacked specificity as to the amounts claimed, and lacked evidentiary support, as Orosco had provided no evidence of the details of the Choices program. The County also noted that Orosco made no election of benefits under the Choices program during the termination period, as he was not employed by the County during that time. It contended that under LACC section 6.20.100(B), which describes a reinstated employee's rights under the County's municipal code, Orosco's backpay rights were limited to his "'base rate of salary, vacation and sick leave . . . .'"
D. The Trial Court's Decision
Following a writ trial, the court granted Orosco's petition in part. Initially, it determined that the petition was a proceeding to compel compliance with the prior writ, which included a backpay award, and was not required to comply with the GCA's claim presentation requirements. As to Orsco's claim for sick days, the trial court rejected the County's argument that Orosco could not have made a timely buy-back election because he was not employed during the termination period, characterizing the argument as "spurious." The court concluded that Orosco was entitled to backpay and benefits "as if he had never been terminated," including "the right to exercise a buy back of his sick leave." It determined that Orosco was entitled to full payment for eight unused sick days per year during the termination period (in addition to 50 percent of the remainder of his balance of sick days).
The trial court additionally concluded that Orosco was entitled to lost health insurance contributions during the termination period. The court rejected the County's argument that LACC 6.20.100 precluded this remedy, stating that such a reading would be inconsistent with state law and would therefore be preempted. While the court agreed that Orosco's claim lacked specificity, it concluded the necessary evidence, including the specifics of the Choices program, was evidence the County should have had readily available, and the burden of producing evidence on the issue therefore shifted to it. The court ultimately awarded Orosco about $9,800, plus interest, for unused sick days and about $155,000, plus interest, for health insurance contributions.The County timely appealed.
The trial court ordered the parties to meet and confer to calculate the County's health insurance contributions for the termination period.
As noted, the trial court rejected other claims by Orosco that are not pertinent to this appeal.
DISCUSSION
The County reasserts its argument that Orosco's petition was essentially an action for money damages and was therefore barred due to his failure to comply with applicable claim presentation requirements. Alternatively, the County challenges the trial court's award. It claims that its contributions under the Choices program should not have been included in a backpay award, and that the award of money for Orosco's unused sick days was unsupported because he had made no timely buy-back election. As explained below, we conclude that Orosco's petition sought to enforce the prior writ, which included an award of backpay, and thus did not require compliance with claim presentation requirements. Additionally, under the circumstances of this case, the County's contributions under the Choices program were properly included in the backpay award because Orsoco would have been entitled to receive unused contributions as cash. Finally, the trial court's award of money for unused sick days was sufficiently supported.
A. Claim Presentation Requirements
"Under the [GCA], 'no suit for "money or damages" may be brought against a public entity until a written claim has been presented to the entity and the claim either has been acted upon or is deemed to have been rejected. ([Gov. Code, ] §§ 905, 945.4.)'" (Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794, 798.) This claim presentation requirement generally applies to all actions in which the plaintiff seeks monetary relief, including a mandamus action seeking monetary reimbursement. (Ibid.) "The failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity." (Ibid.) "The purpose of the claims statutes is not to prevent surprise, but 'to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.'" (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738.)
Although "[c]laims by public employees for fees, salaries, wages, mileage, or other expenses and allowances" are generally exempted from claim presentation requirements (Gov. Code, § 905, subd. (c)), local governments may establish claim procedures for exempted claims, provided they are consistent with the GCA's general procedures (id., § 935, subd. (a)). The County has established such a procedure. (See LACC, § 4.04.020 et seq.)
Orosco argues that his current petition was merely a means to enforce the prior writ's award of backpay and thus did not constitute a monetary claim subject to claim presentation requirement. (See Asimow et al., Cal. Practice Guide: Administrative Law (The Rutter Group 2021) ¶¶ 21:296, 21:311, 21:315 [petitioner may seek enforcement of writ through motion or supplemental petition in same docket, or file petition in new docket].) The County does not dispute that a proceeding to enforce a prior judgment or writ need not comply with claim presentation requirements. It contends, however, that the prior writ included no award of backpay, and thus that Orosco's current petition cannot be said to seek to enforce it. We agree with Orosco, and conclude that the prior writ, which the County does not and cannot challenge, included an award of backpay and all other benefits of employment.
"The meaning and effect of a judgment are determined according to the rules governing the interpretation of writings generally. If a judgment is ambiguous, we may examine the entire record to determine its scope and effect, including the pleadings." (Rancho Pauma Mutual Water Co. v. Yuima Municipal Water Dist. (2015) 239 Cal.App.4th 109, 115.) We review the trial court's decision on this legal issue de novo. (See Nava v. Mercury Casualty Co. (2004) 118 Cal.App.4th 803, 805 [interpretation of writing is generally question of law reviewed de novo].)
The prior writ instructed the Commission to reconsider its decision to sustain Orozco's termination in light of the court's statement of decision, and "to take any further action specially enjoined on [it] by law." This language was broad enough to provide for backpay and all other benefits attendant to reinstatement. (See Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1133 (Davis) [wrongfully terminated employee is entitled to backpay]; Lowe v. California Resources Agency (1991) 1 Cal.App.4th 1140, 1144, fn. 3 ["Back pay includes . . . fringe benefits . . . and all other compensation that would have been obtained but for the [employer's wrongful conduct]"].) To the extent the writ's instruction could be deemed ambiguous, we note that in his first petition, Orozco sought "back salary" and "all other emoluments of employment," supporting the conclusion that the prior writ encompassed this requested relief.
The County notes that the court's statement of decision addressed only the issues surrounding Orosco's discharge, making no mention of compensation. But this shows only that Orosco's entitlement to backpay if reinstated was not a point of contention between the parties. Once the court found for Orosco on his first petition, it was entirely appropriate for the court to provide for the backpay that Orosco had requested and to which he was entitled upon his reinstatement.
The County suggests that the language of the prior writ should be construed in light of the court's limited jurisdiction under Code of Civil Procedure section 1094.5, subdivision (f). Under that provision, the court's judgment in an administrative mandate proceeding must not "limit or control in any way the discretion legally vested in the respondent." (Code Civ. Proc., § 1094.5, subd. (f).) The payment of backpay, however, was not subject to the discretion of any agency or body (see Davis, supra, 152 Cal.App.4th at 1133), and the County does not explain how any discretion vested in the Commission might have limited the court's authority to order backpay.
The County also asserts that to the extent this was a proceeding to enforce the prior writ, the trial court lacked continuing jurisdiction under Code of Civil Procedure section 1097. However, whether Orosco's petition seeks to enforce the prior writ does not depend on the court's continuing jurisdiction. The court had jurisdiction over this matter as a petition for a writ of mandate under Code of Civil Procedure section 1085. (See TrafficSchoolOnline, Inc. v. Superior Court (2001) 89 Cal.App.4th 222, 237 [under article VI, section 10 of the California Constitution and Code of Civil Procedure section 1085, superior court has jurisdiction over claim that person must comply with legal obligation].) For purposes of claim presentation requirements, the relevant issue is whether Orosco's right to backpay and related benefits had already been judicially established, meaning that his subsequent claims derived from the original proceeding (for which compliance with presentation requirements is not at issue).
The County mistakenly asserts that the trial court claimed to be applying continuing jurisdiction under Code of Civil Procedure section 1097. In fact, the court merely noted that Orosco could have brought a motion to compel compliance with the prior writ under that provision.
The County attempts to raise a number of new arguments that we deem forfeited for failure to raise below or in its opening brief. First, the County notes that the prior writ was directed solely at the Commission, while the current petition and the ensuing judgment are directed at the County. While the County recognizes that as the employer, it was the party who was to bear the burden of the writ's instructions -- indeed, the County was the named real party in interest and litigated Orosco's first petition -- it contends the distinction between it and the Commission precludes the court from treating the current petition as an attempt to enforce the prior writ. In a letter to the parties' counsel, we invited supplemental briefs addressing whether the County forfeited this argument for failure to raise it below. In its supplemental brief, the County contends it sufficiently raised this argument below by: (1) quoting the writ in its opposition's factual background section; (2) dedicating a section of argument to the general issue whether this was an enforcement proceeding; and (3) arguing that the writ included no monetary award. Yet none of these included the argument that this was not a proceeding to enforce the prior writ because the County was not subject to that writ, as the County now seeks to assert. The County further claims that its new argument concerns the trial court's continuing jurisdiction and thus cannot be forfeited. But as explained, the trial court had jurisdiction over the matter under Code of Civil Procedure section 1085, and whether the proceeding enforces a prior writ does not depend on the court's continuing jurisdiction. The County's new claim that it was not subject to the prior writ relates to the merits of the argument that this was not an enforcement action, but does not implicate the trial court's jurisdiction. Accordingly, we conclude the County has forfeited this argument. (People v. Redd (2010) 48 Cal.4th 691, 718 [contention not raised in trial court was forfeited].) For this reason, we also need not consider the County's contention that the Commission lost jurisdiction over Orosco's claim for backpay following his constructive resignation. Similarly forfeited for failure to raise below is the County's contention that the Commission, which is not a party to this proceeding, is an indispensable party. (See Redd, supra, 48 Cal.4th at 718.)
Additionally, in its reply brief, the County asserts for the first time that Orosco's request for compensation for unused sick time cannot be seen as part of an enforcement effort because his entitlement to such compensation was dependent on a buy-back election that he had not made at the time of the prior writ. The County has forfeited this contention by failing to raise and develop it in his opening brief. (Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 (Aptos Council) ["Issues not raised in the appellant's opening brief are deemed waived or abandoned"].) Regardless, the County offers no reason why the prior writ's award of backpay and related benefits should not be read to include the right to buy-back elections that Orosco had been precluded from making during the termination period.
Finally, for the first time in its reply brief, the County claims we should not deem Orosco's petition an enforcement action for policy reasons. It asserts that it was precluded from investigating Orosco's claims, contrary to the purpose of the claim presentation requirement, and argues that deeming this petition an enforcement action would invite repeated litigation due to successive petitions. These contentions, too, have been forfeited. (See Aptos Council, supra, 10 Cal.App.5th at 296, fn. 7.) Moreover, the County's complaint about Orosco's failure to comply with claim presentation requirements belonged in the prior proceedings, at which the court awarded his requested relief. (See City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 972 [respondent in enforcement action may not challenge validity of judgment granting writ that petitioner seeks to enforce].) Nothing in the record suggests the County raised the issue then, let alone that any such objection was sustained. And the County points to no unique feature of Orosco's petition that might incentivize successive, piecemeal litigation. In short, we conclude that Orosco's petition did not require compliance with claim presentation requirements.
B. The County's Challenges to the Trial Court's Award
The County challenges the trial court's award of employer contributions under the County's Choices benefits plan and money for unused sick days. "In reviewing a judgment on a petition for writ of mandate under Code of Civil Procedure section 1085, we apply the substantial evidence test in assessing the court's factual findings but exercise independent judgment on purely legal issues . . . ." (Rivero v. Lake County Bd. of Supervisors (2014) 232 Cal.App.4th 1187, 1193-1194.) Under the substantial evidence standard, "'"[w]e must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court's decision."'" (Lake v. Reed (1997) 16 Cal.4th 448, 457.)
1. Health Insurance Contributions Under the County's Choices Program
We find no error in the trial court's conclusion that Orosco was entitled to lost health insurance contributions during the termination period. "Back pay serves to make an employee whole for the employer's wrongdoing." (Davis, supra, 152 Cal.App.4th at 1133.) It is intended to return the employee to the financial position he or she would have been in absent the wrongful termination. (Ibid.)
The parties point to no California precedent addressing whether the cost of health insurance premiums to the employer is a proper measure of backpay, and we are aware of none. Federal courts are apparently divided on the issue. (Compare Kossman v. Calumet County (7th Cir. 1986) 800 F.2d 697, 703, overruled on other grounds by Coston v. Plitt Theatres, Inc. (7th Cir. 1988) 860 F.2d 834 ["Including the cost of insurance coverage in a backpay award when the [employee] fails to secure alternative coverage allows the victim to recover an unwarranted windfall"]; Galindo v. Stoody Co. (9th Cir. 1986) 793 F.2d 1502, 1517 [loss of medical insurance benefits should be measured by the cost of plaintiff's substitute coverage or any out-of-pocket medical expenses]; Pearce v. Carrier Corp. (5th Cir. 1992) 966 F.2d 958, 959 [similar] with Blackwell v. Sun Electric Corp. (6th Cir. 1983) 696 F.2d 1176, 1185 [employee entitled to back payments of health insurance premiums].) But even assuming an employer's health insurance contributions are generally excluded from backpay, that rule would not apply here.
The Choices program was a cafeteria plan that allowed eligible employees to use the County's contributions to purchase health benefits, with any remaining allowance to be added to the employee's paycheck as taxable cash. Unused benefits are properly considered part of the employee's pay. (Cf. Flores v. City of San Gabriel (9th Cir. 2016) 824 F.3d 890, 901 (Flores) [payments of "cash-in-lieu of benefits" included in employees' regular rate of pay for purposes of overtime calculation under federal Fair Labor Standards Act].) During the termination period, Orosco did not waive or decline qualifying insurance, but was precluded from using County contributions to buy such insurance due to his wrongful termination. The County, which has the burden to establish error in the trial court's award, offers no reason why his lost health benefits should not be included in an award of backpay, nor does it offer any alternative way to determine the portion of those benefits that would have been added to his pay. (See Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 383 (Ruelas) [trial court's judgment is presumed correct, and appellant has burden to affirmatively demonstrate error].) Accordingly, we find no error in the trial court's award of health insurance contributions under the Choices program as backpay. (See Davis, supra, 152 Cal.App.4th at 1133; Flores, supra, at 901.)
The County contends that Orosco should receive no more than his out-of-pocket medical expenses during the termination period, which he estimated at about $92,000, but this contention fails to account for unused benefits that would have been payable to Orosco and were unrelated to his out-of-pocket expenses. The County additionally asserts that a benefit plan must limit cash-in-lieu of benefits payments in order to qualify as a "bona fide" plan excluded from employees' regular rate of pay under federal law. It states that for that reason, the County "now caps cash-in-lieu payments." (Italics added.) But the county does not suggest that these payments were capped during the termination period. Under the County's own approach, the fact that payments of cash in lieu of benefits were uncapped supports the conclusion that they should be deemed part of Orosco's regular rate of pay. (See Flores, supra, 824 F.3d at 901.)
2. Payment for Unused Sick Days
The trial court did not err in concluding that Orosco was entitled to full payment for eight unused sick days per year during the termination period. It is undisputed that Orosco would have been entitled to elect a buyback to cash out eight sick days per year during the relevant period. In his declaration, Orosco complained that the County never paid him for the sick days "to which [he] was entitled, but did not take, as a result of [his] termination." While, as the County notes, Orosco did not expressly invoke his right to make a buy-back "election," the trial court reasonably could have read his declaration to imply that he would have made timely yearly elections had he not been terminated. His declaration therefore sufficiently supported the trial court's award.
The trial court's implied finding that Orosco would have made timely buy-back elections negates the County's claim that the court's award depended on the incorrect view that a buy-back election was categorically advantageous to the employee. The County additionally contends that the trial court should not have used the County's own evidence regarding the need for an election against it. This contention lacks merit. (See Evid. Code, § 312 [trier of fact must determine effect and value of evidence presented]; cf. CACI No. 200 [jury should consider all evidence, no matter which side produced it].)
The County argues, as it did below, that Orosco could not have made a timely buy-back election because he was not employed during the termination period. The trial court rightly rejected this contention by the County as "spurious." As noted, backpay is meant to make reinstated employees whole and return them to the financial position they would have been in absent the wrongful termination. (Davis, supra, 152 Cal.App.4th at 1133.) Thus, the wrongful termination itself -- and the attendant result that the employee was not working for the employer during the termination period -- cannot preclude the employee from receiving the rights to which he otherwise would be entitled. Accordingly, the fact that Orosco was not employed by the county during the termination period cannot prevent him from redeeming the unused sick days he would have earned during that time.
In its reply brief, the County appears to suggest, for the first time, that Orosco was at least required to make an election after his reinstatement. The County has forfeited any such contention by failing to raise and develop it in its opening brief. (See Aptos Council, supra, 10 Cal.App.5th at 296, fn. 7.)
The County suggests that LACC section 6.20.100 prevents a reinstated employee from making "retroactive" elections to redeem unused sick days during the termination period. However, the County offers no argument challenging the trial court's conclusion, albeit in the context of health insurance contributions, that the County code would be preempted if interpreted to restrict an employee's rights under state law. Accordingly, the County has forfeited any contention in this regard. (See Ruelas, supra, 235 Cal.App.4th at 383.)
DISPOSITION
The judgment is affirmed. Orosco is entitled to his costs on appeal.
We concur: COLLINS, J., CURREY, J.