Opinion
B321064
04-25-2024
TIMOTHY STURM, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES DEPARTMENT OF PROBATION, Defendant and Respondent.
Law Offices of Michael C. Murphy and Michael C. Murphy for Plaintiff and Appellant. Hausman & Sosa, Jeffrey Mark Hausman and Larry D. Stratton for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles- County No. MC025485, Stephen T. Morgan, Judge. Affirmed.
Law Offices of Michael C. Murphy and Michael C. Murphy for Plaintiff and Appellant.
Hausman & Sosa, Jeffrey Mark Hausman and Larry D. Stratton for Defendant and Respondent.
RAPHAEL, J. [*]
INTRODUCTION
In 2015, Timothy Sturm filed this breach of contract action against his former employer, the County of Los Angeles Department of Probation, claiming the Department violated a settlement agreement. The settlement provided the Department, which had terminated Sturm's employment, would reinstate him as of July 2011, and Sturm would retire effective September 2011. The parties executed the settlement agreement in December 2011. Sturm filed for retirement benefits in February 2012. The Department then retroactively reinstated Sturm, effective July 2011.
In his lawsuit, Sturm claimed the Department failed to pay him for the July to September 2011 reinstatement period. The Department argued Sturm was ineligible to work during that time because he was not reinstated until the parties signed the settlement agreement in December 2011. Because he was not yet reinstated, the Department claimed, he was ineligible to work, and because he did not work, the Department could not pay him.
Sturm also alleged the Department failed to pay him retirement benefits from the day after he was supposed to retire in October 2011 until the day Sturm actually filed for retirement benefits in February 2012. The Department asserted Sturm was not entitled to retirement pay between October 2011 and February 2012 because he did not sign the settlement agreement in a timely fashion and did not retire by the deadline in the settlement agreement.
The case proceeded to a jury trial. The jury found Sturm had not met his burden on his breach of contract cause of action because he did not "do all or substantially all of the significant things that the contract required him to do." The trial court entered judgment in favor of the Department.
On appeal, Sturm argues the trial court erred by (1) excluding evidence of his emotional distress damages, and (2) refusing to instruct the jury with his proposed jury instruction regarding the Department's obligations to provide its employees with work schedules and pay. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. After Sturm Appealed His Termination, the Parties Agreed To Settle
In 1975, Sturm started working as a probation officer for the Department. He worked with incarcerated youth. In May 2007, there was a disturbance in a dorm while Sturm was on duty. The Department found Sturm used excessive force during the disturbance and suspended him for 10 days. In March 2009, there was an incident in the bathroom at a juvenile facility, and Sturm removed one of the minors from the bathroom. The minor accused Sturm of using excessive force.
In approximately April 2010, the Department sent Sturm a letter terminating his employment. Sturm appealed his discharge to the Civil Service Commission. At the July 11, 2011 Civil Service Commission hearing, Sturm and the Department orally agreed to settle the case.
B. The Parties Exchanged Drafts for Months and Executed a Settlement Agreement in December 2011
On July 12, 2011, the day after the Civil Service Commission hearing, the attorney for the Department drafted the settlement agreement and sent it to the Department for review. The Department approved the draft and sent it to Sturm's attorney on July 25, 2011. Over the next several months, the parties exchanged drafts of the settlement agreement, and Sturm twice requested changes.
On October 19, 2011, two Department employees and the Department's attorney signed the settlement agreement. Sturm signed the signature page on November 3, 2011. On November 4, 2011, Sturm's attorney sent the Department's attorney the settlement agreement signed by Sturm and withdrew Sturm's appeal. On December 22, 2011, Sturm's attorney signed the settlement agreement and sent it to the Department. The date of the last signature was the "date of execution" and the "effective date" of the settlement agreement. Therefore, the settlement agreement became effective on December 22, 2011.
The settlement agreement stated in relevant part that, "[u]pon execution of this agreement," Sturm would provide the Department a letter stating he was retiring effective September 30, 2011, and that the Department would "rescind the discharge (CSC Case No. 10-233), effective June 3, 2010, of Sturm." The Department agreed Sturm would be "made whole for four (4) months and ten (10) days from June 3, 2010 to October 12, 2010, in accordance with the applicable provisions of [the] County Code. In addition, the Department will reinstate Sturm to his position of Deputy Probation Officer II, effective July 12, 2011."
The agreement also stated, "Sturm's assignment from his reinstatement on July 12, 2011 until his retirement from the Department and County service on September 30, 2011 will be at the discretion of the Probation Department." Both parties agreed that the contract represented the entire agreement, that they had discussed the agreement with counsel, and that they had carefully read and understood the agreement.
C. Sturm Belatedly Retired, and the Department Retroactively Reinstated Him
On November 23, 2011, Sturm sent a letter to the Department stating he "intend[ed] to retire from the Probation Department as of September 30, 2011." In February 2012, Sturm filed for retirement benefits with the Los Angeles County Employees Retirement Association (LACERA). Sturm purposely waited until after the September 30, 2011 retirement date specified in the settlement agreement to send his retirement letter because he knew he could not use the Civil Service Commission to enforce the settlement agreement after he retired and lost his status as an active civil servant.
Neither the Department nor LACERA, an entity distinct from the Department, paid Sturm retirement pay or benefits from the September 30, 2011 retirement date until February 17, 2012, when Sturm completed his retirement paperwork at LACERA.
In November 2012 the Department retroactively reinstated Sturm, effective July 12, 2011. In January 2014, Sturm received backpay for the period from June through October 2010.
Sturm never received pay for the reinstatement period of July 12, 2011 through September 30, 2011. Department officials initially determined Sturm would receive reinstatement pay and issued Sturm a check. But in December 2015, before the Department sent the check to Sturm, a Department official told the Department payroll manager to hold the check because Sturm had initiated litigation. Department officials stated that, after they determined Sturm would receive reinstatement pay, they learned Sturm did not work during the reinstatement period. The Department claimed it could not pay Sturm because he did not work during the reinstatement period.
D. The Trial Court Excluded Sturm's Emotional Distress Damages Evidence
In May 2015, Sturm sued the Department based on his termination and the settlement agreement. Before trial, the Department moved in limine to exclude evidence of Sturm's emotional distress for his breach of contract cause of action. After hearing argument, the court granted the Department's motion, ruling the settlement agreement was not the type of contract that permitted recovery of emotional distress damages.
E. The Trial Court Rejected Sturm's Proposed Jury Instruction
The case proceeded to a jury trial in December 2021. The trial focused solely on a breach of contract cause of action concerning two issues. The first issue was whether the Department breached the settlement agreement by failing to pay Sturm for the reinstatement period from July 12, 2011 (the day on which he was retroactively reinstated) until September 30, 2011 (the day on which he was supposed to retire). The second issue was whether Sturm was entitled to retirement pay from October 1, 2011 (the day after he was supposed to retire) until February 17, 2012 (the day he filed for retirement benefits).
On November 22, 2021, Sturm lodged with the court his amended joint list of jury instructions, including his requested special instructions. Sturm's Special Instruction No. 1 related to the rights of reinstated employees, the Department's obligation to assign salaried employees work schedules, and the Department's duties regarding paying employees. This is the only instruction at issue in this appeal.
Before instructing the jury, the court held a hearing regarding the proposed jury instructions. The court determined Sturm's supporting authorities for Special Instruction No. 1 did not warrant the instruction and refused to give the instruction.
On December 15, 2021, the jury returned a special verdict, finding that the parties had a binding contract, but Sturm did not "do all or substantially all of the significant things that the contract required him to do." The court entered judgment for the Department, and Sturm timely appealed.
DISCUSSION
Sturm makes two arguments. First, he argues the trial court erred by excluding evidence relating to his emotional distress damages for his breach of contract cause of action. The jury found Sturm did not perform under the parties' contract and did not reach the issue of damages, however, and Sturm has therefore failed to show prejudicial error. Second, Sturm asserts the court incorrectly refused his proposed jury instruction regarding the Department's obligations towards paying and assigning work schedules to its employees. The trial court did not err because Sturm's proposed instruction was a misstatement of the law.
A. Sturm Fails To Show Prejudice Because the Jury Found He Did Not Establish All of the Elements of a Breach of Contract and Did Not Reach Damages
"'"Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion."'" (Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 50.) "To the extent the ruling is based on the trial court's conclusion of law, we review the legal conclusion de novo." (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) A "judgment will not be reversed due to the erroneous exclusion of evidence unless it appears, upon examining the entire cause, including the evidence, a miscarriage of justice has resulted." (California Crane School, Inc. v. National Com. for Certificate of Crane Operators (2014) 226 Cal.App.4th 12, 24, citing Cal. Const., art. VI, § 13 and Evid. Code, § 354.) A miscarriage of justice occurs when "'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
Sturm has not shown it is "'reasonably probable'" he would have obtained a more favorable result "'but for the error'" in excluding his emotional distress damages evidence because the jury did not reach the issue of damages. (In re S.G. (2021) 71 Cal.App.5th 654, 673.) "It is elementary a plaintiff suing for breach of contract must prove it has performed all conditions on its part or that it was excused from performance." (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380; see also CACI No. 303 [plaintiffs must prove they "did all, or substantially all, of the significant things that the contract required [them] to do"].)
The jury found that Sturm did not "do all or substantially all of the significant things that the contract required him to do." Sturm does not challenge that finding. Accordingly, Sturm has not shown a ruling admitting his emotional distress damages evidence "would have made any difference in the outcome" of his case. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282; see also Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 637-638 [exclusion of evidence was not prejudicial where irrelevant to dispositive element of the cause of action]; Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 308-310 [reversal not required where appellant failed to meet its burden to show prejudicial error of exclusion of documents from administrative record]; Coorough v. DeLay (1959) 171 Cal.App.2d 41, 48 ["where a jury returns a verdict in favor of the defendant on the main issue, errors in instructions bearing solely on the amount of damages present no ground for reversal"].)
To the extent Sturm asserts the jury would have found he substantially performed under the contract had the trial court read his proposed jury instruction, that argument fails. As discussed below, Sturm's proposed jury instruction misstates the law.
B. Sturm's Proposed Jury Instruction Is an Inaccurate Statement of Law
1. Applicable law and standard of review
"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) "A court may refuse a proposed instruction that incorrectly states the law or is argumentative, misleading, or incomplete." (Caldera v. Department of Corrections &Rehabilitation (2018) 25 Cal.App.5th 31, 44.) A "trial court in a civil case has '"'no duty to instruct on its own motion'"' [citation] and no duty to revise incorrect instructions." (Drink Tank Ventures LLC v. Real Soda in Real Bottles, Ltd. (2021) 71 Cal.App.5th 528, 544.) An instruction that clarifies the application of a law may not "'add to the words'" of a statute or ordinance. (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003-1004.)
"Because an appealed judgment is presumed correct and an appellant has the burden to show error, we cannot conclude that the refusal to give an instruction was error absent an adequate showing that the proposed instruction was proper." (Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80.) We independently review the refusal to give a proposed instruction, "'"viewing the evidence in the light most favorable to the appellant."'" (Ilczyszyn v. Southwest Airlines Co. (2022) 80 Cal.App.5th 577, 608.)
2. Sturm's proposed instruction misstates the law because it imposes obligations on the Department for situations the law does not address
The court properly rejected Sturm's proposed instruction because it was an inaccurate statement of law. At trial, Sturm argued the Department breached the settlement agreement by failing to pay him from July 12, 2011, the date he was retroactively reinstated to his job, until September 30, 2011, the date on which he was supposed to retire under the settlement agreement. The Department argued it was not obligated to pay Sturm for the reinstatement period because he did not work between July and September 2011. The Department maintained Sturm could not work until he was reinstated, and he was not reinstated until his attorney executed the settlement agreement in December 2011. Because the reinstatement period had passed, the Department could not assign Sturm work. Because Sturm did not work, the Department did not have to pay him for the reinstatement period.
Special Instruction No. 1, Sturm argues, supported his claim the Department had to pay him for the reinstatement period, whether or not he worked. The instruction read as follows: "All rights acquired by a reinstated employee prior to his separation shall be restored. The County has the obligation to assign a work schedule to its employee if it wants him to work and as determined by the Department head. The County can only refuse to pay a salaried employee wages for work that is to be performed by the employee for scheduled hours the County provided to the employee to work and when the employee failed to work those scheduled hours."
Sturm asserts that a Los Angeles County Civil Service Rule and two sections of the Los Angeles County Code support his proposed instruction:
(1) Los Angeles County Civil Service Rules, rule 17.02 states: "Upon reinstatement, all rights acquired by an employee prior to his separation from the service shall be restored."
(2) Los Angeles County Code section 6.09.030, subdivision (B)(1), states: "Salaried Employees shall be assigned to a Work Schedule as determined by the department head."
(3) Los Angeles County Code section 6.24.060 states: "[A]n employee's monthly pay is required to be reduced on an hourly basis for scheduled hours not worked or not covered by paid leave benefits provided for in Titles 5 and 6 of the Los Angeles County Code."
Sturm argues that, collectively, these ordinances stand for the proposition that "the county department head has the obligation to assign a work schedule to its employee if it wants him to work and the county can only refuse to pay an employee for work that is not performed by him that is scheduled by it for him to work."
This is incorrect. Los Angeles County Civil Service Rules, rule 17.02 provides that employees regain the rights they previously had upon reinstatement. But Sturm had no rights under the cited County Code provisions because neither provision applied to him.
Los Angeles County Code section 6.09.030, subdivision (B)(1), requires the Department to give "Salaried Employees" work schedules, but Sturm was not a "Salaried Employee" from July to September 2011. Rather, he was retroactively reinstated once the settlement agreement was executed in December 2021. By this time, the July to September 2011 reinstatement period had already passed. Under the circumstances here, it would be unreasonable to interpret this provision as applying to employees who were retroactively reinstated. (See Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 363 ["If the language is clear and a literal construction would not result in absurd consequences that the Legislature did not intend, the plain meaning governs"].) After the fact, the Department could not assign Sturm work during a period he was ineligible to work.
Similarly, Sturm's argument misinterprets Los Angeles County Code section 6.24.060, which concerns only employees who fail to work scheduled hours. This provision states that the Department must reduce pay for employees who fail to work scheduled hours. It does not mean the Department is required to pay employees who were not scheduled to work. The Department did not schedule Sturm to work during the reinstatement period. Thus, section 6.24.060 has no application to this case.
Sturm's Special Instruction No. 1 was therefore incorrect in stating the Department could "only" refuse to pay employees for failing to work scheduled hours. (See Torres v. Parkhouse Tire Service, Inc., supra, 26 Cal.4th at pp. 1003-1004 [an instruction may not "'add to the words'" of a statute or ordinance].) Because the Special Instruction misstated the applicable law, Sturm has not demonstrated reversible error. (See Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 595 [trial court properly refused special instructions where the instructions "had the potential of misleading the jury and did not provide a clear statement of the law"]; see also Ruiz Nunez v. FCA U.S. LLC (2021) 61 Cal.App.5th 385, 396 [trial court erred in giving a special instruction that was incomplete, misleading, and did not comport with the law, rather than the applicable CACI pattern instruction]; Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209 ["Irrelevant, confusing, incomplete or misleading instructions need not be given"].)
Because Sturm has not demonstrated reversible error, we do not reach the Department's remaining arguments.
DISPOSITION
The judgment is affirmed. The Department is entitled to recover its costs on appeal.
We concur: SEGAL, Acting P. J., MARTINEZ, J.
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice under article VI, section 6 of the California Constitution.