Opinion
G056502
12-19-2019
ORANGE COUNTY EMPLOYEES' ASSOCIATION, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.
Rains Lucia Stern St. Phalle & Silver, Richard A. Levine and Brian P. Ross for Plaintiff and Appellant. Leon J. Page, County Counsel, Wendy J. Phillips and Suzanne E. Shoai, Deputy County Counsel, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00581412) OPINION Appeal from a judgment of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed. Rains Lucia Stern St. Phalle & Silver, Richard A. Levine and Brian P. Ross for Plaintiff and Appellant. Leon J. Page, County Counsel, Wendy J. Phillips and Suzanne E. Shoai, Deputy County Counsel, for Defendants and Respondents.
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The Penal Code prohibits carrying concealed firearms without a permit. (§ 25400; see § 26150 et seq.) "[D]uly appointed peace officer[s]," however, are exempt from this prohibition. (§ 25450.) For over 20 years, the Orange County Sheriff-Coroner (the Sheriff) designated certain department employees, known as Sheriff's Special Officers (SSOs), as peace officers. This designation enabled SSOs to carry concealed weapons off-duty without a permit.
All undesignated statutory references are to this code.
In 2012, after learning the SSOs had not received the required peace officer training, Sheriff-Coroner Sandra Hutchens instructed all SSOs to stop carrying concealed weapons off-duty without a permit. Then, after further analysis, the Sheriff decided to redesignate SSOs as public officers rather than peace officers. Because of that redesignation, an SSO who wants to carry a concealed weapon while off-duty now must apply for and obtain a permit to carry a concealed weapon (CCW permit).
The SSOs' bargaining agency, Orange County Employees' Association (OCEA), sued the County of Orange (the County) and the Sheriff (collectively, Defendants), challenging the 2012 prohibition on SSOs carrying concealed weapons off-duty without a permit, the 2013 redesignation of SSOs as public officers, and the decision not to offer peace officer training to the SSOs. In a series of adverse pretrial rulings, and in its statement of decision following a nine-day bench trial, the trial court found in favor of Defendants on all of OCEA's 12 causes of action. For the reasons below, we affirm.
I.
FACTS
A. SSO Duties, Training, and Designation as Limited Peace Officers
The Orange County Sheriff-Coroner Department (the Department) has several officer classifications, including Sheriff, Deputy Sheriff, and SSO. The Penal Code expressly designates the Sheriff and deputy sheriffs as peace officers. (§ 830.1, subd. (a).) The issue here is whether SSOs are entitled to the same designation.
The Penal Code does not expressly reference SSOs; the classification is unique to the Department, which created the SSO job classification in the 1970's. SSOs perform a variety of functions for the Department. They work as aviation security specialists at John Wayne Airport; as bailiffs in civil, misdemeanor, and open courtrooms; and as security officers in County buildings and facilities and within the County's correctional facilities. They also maintain the Sheriff's evidence and property.
According to the Sheriff, the Department always assigned SSOs primarily security-related duties, and the primary purpose of the SSO classification is to provide security services for county buildings. For example, SSOs assigned to "court ops" at the Central Justice Center are responsible for perimeter security, screening persons entering the building, weapons screening, and serving as bailiffs in misdemeanor courtrooms.
Although SSOs undergo training at the Sheriff's Academy before assignment to active duty, the Department never has required them to complete the 664-hour Regular Basic Course (RBC) training that peace officers must complete. (See § 832, subd. (a) ["Every person described in this chapter as a peace officer shall satisfactorily complete an introductory training course prescribed by the Commission on Peace Officer Standards and Training" (POST)]; Cal. Code Regs., tit. 11, § 1005, subd. (a)(1) [requiring every peace officer, with a few exceptions, to complete RBC training before assignment to duties that include the exercise of peace officer powers]; POST Commission Training Procedures, § D-1 et seq., available at <https://post.ca.gov/commission-procedure-d-1-basic-training#d11> [describing RBC training].)
The RBC training for peace officers includes training on sex crimes, crimes involving children, juvenile law and procedure, domestic violence, victimology, crisis intervention, missing persons, controlled substances, alcoholic beverage control law, crime scenes, forensics, vehicle operations, arrests, investigative reports, firearms, and chemical agents. It also includes 36 one-hour-long physical conditioning sessions and a grueling physical fitness test that involves running a 99-yard obstacle course, dragging a 165-pound dummy 32 feet, climbing a 6-foot solid fence, and running 500 yards.
The training provided to SSOs, by comparison, is more limited. Although SSO training has varied over the decades depending on departmental needs and has incorporated some elements of the RBC training, it never has met all the stringent RBC requirements.
Despite the SSOs' lack of peace officer training, for over 20 years the Department designated SSOs as "limited peace officers." The Department believed this was an appropriate designation under sections 830.33 and 830.66, which define certain airport law enforcement officers and certain court service officers as "peace officers" who "may carry firearms only if authorized and under terms and conditions specified by their employing agency." The Department believed RBC training was neither required nor necessary for SSOs given their "limited" peace officer designation and their duties.
Because it designated the SSOs as limited peace officers, the Department permitted SSOs to carry concealed weapons off-duty without obtaining a permit. (See § 25450.) However, the Department never guaranteed it always would designate SSOs as peace officers or always permit them to carry concealed weapons off-duty. To the contrary, the various memoranda of understanding (MOUs) between the County and OCEA itemizing the terms and conditions of SSO employment expressly reserved the County's right to direct its work force, and never guaranteed SSOs ongoing peace officer status. Although an "agreed to concepts" document concerning a potential 1999 merger of the Sheriff's Department and Marshal's Department stated that the merger would not adversely impact employees' "peace officer status," the final merger agreement memorialized in 2000 had no such provision. B. The 2012 Prohibition on Carrying Concealed Weapons Without a Permit
In May 2012, POST, the commission that establishes regulations and minimum standards on peace officer training, notified the Sheriff it had no record of SSOs having completed the requisite RBC training for peace officers. The Sheriff responded the Department did not require the training because SSOs were only "limited" peace officers. However, POST maintained that all peace officers, with a few exceptions inapplicable here, must complete the RBC training.
This prompted the Sheriff to question the propriety of designating SSOs as peace officers, limited or otherwise. After further research, in June 2012, the Sheriff issued a memorandum to all department personnel stating in pertinent part: "POST has informed the Sheriff's Department . . . that the current SSOs' training does not meet POST's Regular Basic Course requirements for peace officers. [¶] The County and the Sheriff's Department will be meeting with [OCEA] regarding this matter. Until the issue is fully resolved, SSOs will continue to perform their assigned functions with the following exceptions. . . . [¶] . . . SSOs are not authorized to carry concealed firearms while off duty in violation of Penal Code section 25400 . SSOs may continue to carry their firearm while on duty in accordance with department policies and training requirements. Until these issues are resolved with POST, SSOs who wish to carry a concealed firearm should submit a CCW application with the professional Standards Division CCW Team. SSO CCW applications will be processed as quickly as possible." (Italics added.) To facilitate the submission of CCW applications, the Board of Supervisors, at the Sheriff's request, waived the local CCW application fee for SSOs.
One week later, OCEA sued Defendants for declaratory and injunctive relief, challenging the prohibition on SSOs carrying concealed weapons off-duty without a permit. OCEA also moved for, and obtained, a preliminary injunction enjoining Defendants from enforcing the prohibition. C. The Redesignation of SSOs as Public Officers
After several months of meeting and conferring with OCEA, the Sheriff ultimately decided to redesignate SSOs as public officers under section 831.4, which provides that a sheriff's security officer whose primary duty is security-related is a "public officer," not a peace officer. As a result, SSOs no longer enjoy the peace officer exemption and cannot carry concealed weapons off-duty without a permit. An SSO who wishes to obtain peace officer status must apply for the position of deputy sheriff trainee, and if selected, he or she must enroll in the Sheriff's Academy and undergo the RBC training.
To mitigate the redesignation's potential impact on SSOs, the Sheriff extended the procedural aspects of the Peace Officer Bill of Rights (POBAR) to SSOs, and the Board of Supervisors passed on ordinance allowing SSOs to make certain misdemeanor arrests. (Orange County Ord. § 1-2-127, Ord No. 13-004; see § 836.5.)
Although the Sheriff considered offering the requisite RBC peace officer training to its SSOs, she ultimately decided against it because the training does not relate to their job duties and would subject SSOs to a battery of rigorous and physically strenuous requirements. In the Sheriff's words, she "considered augmenting SSO training requirements," but "determined that requiring SSO personnel to complete RBC training is neither feasible nor appropriate, and could in fact be illegal. (Requiring SSO personnel to complete RBC training could subject the Department to a 'disparate impact' lawsuit, under state and federal anti-discrimination law, as the RBC requirements would not be job-related and justified by business necessity . . . .) [¶] . . . [¶] . . . Augmenting the SSO training requirements would subject SSO personnel to a battery of needless testing and superfluous standards that do not relate to whether SSO personnel can competently perform their job duties. Competent SSO personnel might even be subject to discipline or termination if they are not willing or not able to complete the additional training. I had and continue to have serious concerns about whether many of the current SSOs would be able to pass the RBC. RBC training is difficult to pass even for Deputy Sheriff Trainees. However, SSOs are not recruited to be able to endure the same level training and testing as Deputy Sheriff Trainees." D. Procedural History
After the Sheriff redesignated SSOs as public officers in May 2013, OCEA amended its complaint to add claims challenging the redesignation. Its operative Second Amended Complaint alleged 12 claims for relief: (1) declaratory relief on the unlawfulness of the Sheriff's 2012 prohibition on SSOs carrying concealed weapons off-duty; (2) injunctive relief barring the enforcement of that prohibition; (3) promissory estoppel on the SSOs' peace officer status; (4) equitable estoppel on their peace officer status; (5) injunctive relief to prevent the redesignation of the SSOs as public officers; (6) petition for writ of mandate enforcing Defendants' duty to maintain, restore, or facilitate peace officer status for SSOs; (7) declaratory relief on Defendants' impairment of contract in violation of the contracts clause; (8) injunctive relief to prevent impairment of contract; (9) damages for impairment of contract; (10) injunctive relief to prevent retaliation; (11) damages for retaliation; and (12) petition for writ of mandate enforcing the provision in the 1999 "agreed to concepts" document stating the potential sheriff/marshal merger would not adversely impact employees' "peace officer status."
Defendants filed a motion for summary judgment, or in the alternative, summary adjudication of issues, which the trial court denied in its entirety except for granting summary adjudication on OCEA's equitable estoppel cause of action. The court relied on the absence of any showing Defendants knew, but concealed, for 20 years that SSOs did not qualify as peace officers.
OCEA then filed a petition for writ of mandate on its sixth and twelfth causes of action, which the trial court denied. As for claim 6, the court found "OCEA failed to establish a clear, present, or ministerial duty" by Defendants to maintain, restore, or facilitate the SSOs' peace officer status because "nothing in Penal Code sections 830.33, 830.36, or 831.4 state SSOs must be designated Peace Officers," OCEA did not establish the existence of a contract requiring the SSOs to have peace officer status, and "nothing about the [Sheriff's] decision to re-designate SSOs from peace officers to public officers was an abuse of discretion." As for claim 12, which sought to enforce a provision in the 1999 "agreed to concepts" document, the court found the alleged agreement was not binding, nothing in it expressly bound the Sheriff to maintain the SSOs' peace officer status, and the official merger agreement from 2000 controlled, was silent on peace officer status, and expired in 2002.
Defendants then moved to dissolve the preliminary injunction enjoining the enforcement of the 2012 prohibition on SSOs carrying concealed weapons off-duty without a permit, asserting the 2013 redesignation of SSOs as public officers rendered the preliminary injunction void and moot. Defendants argued the redesignation of SSOs as public officers rendered the peace officer exemption inapplicable and prevented the SSOs from legally carrying concealed weapons off-duty without a permit, and the preliminary injunction could not shield them from the applicable Penal Code provisions. The trial court granted the motion, citing its writ petition ruling that the redesignation of SSOs as public officers was not an abuse of discretion, and reasoning the redesignation rendered SSOs ineligible to carry concealed weapons off-duty without a permit. The court further noted "it is not clear what is left for this Court to decide, and it certainly does not appear that any post-trial remedy would involve ordering the Sheriff to re-designate the SSOs as peace officers so they could then carry concealed weapons."
Defendants also filed a second motion for summary judgment, or in the alternative, summary adjudication of issues, arguing the trial court's ruling on the writ petition mooted OCEA's other claims. The court denied the motion in part, but granted summary adjudication for Defendants on: OCEA's claims for declaratory relief and injunctive relief on the 2012 prohibition against carrying concealed weapons off-duty (claims 1 and 2); OCEA's claim for injunctive relief to prevent redesignation of SSOs as public officers (claim 5); and OCEA's claim for injunctive relief to prevent impairment of contract (claim 8). The court reasoned those claims were "MOOT by virtue of the Sheriff's decision to designate SSOs as public officers and not peace officers, and this Court's subsequent ruling on the WOM [writ of mandate] establishing 'nothing about the decision to re-designate SSOs from peace officers to public officers was an abuse of discretion.'"
OCEA tried its remaining claims for promissory estoppel (claim 3), declaratory relief and damages for impairment of contract (claims 7 and 9), and injunctive relief and damages for retaliation (claims 10 and 11) in a bench trial. The trial court found for Defendants on those remaining claims, reasoning OCEA failed to carry its burden of proof. It then entered judgment in favor of Defendants on all causes of action, including those resolved in the petition for writ of mandate and the motions for summary adjudication. OCEA timely appealed from the judgment.
II.
DISCUSSION
A. The Relevant Statutory Framework
1. Section 25400 and the Peace Officer Exemption
Because this case involves the interplay of several related sections of the Penal Code, we begin with a brief overview of those various sections. As noted, section 25400 prohibits the carrying of concealed firearms without a CCW license. (§ 25400, subd. (a); see § 26150 et seq. [CCW licensing procedure].) The peace officer exemption to this prohibition appears in section 25450, which declares in relevant part: "Section 25400 does not apply to, or affect, any of the following: [¶] (a) Any peace officer, listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, whether active or honorably retired. [¶] (b) Any other duly appointed peace officer . . . ." (§ 25450, subds. (a), (b); see also Stanislaus County Deputy Sheriffs' Assn. v. County of Stanislaus (2016) 2 Cal.App.5th 368, 381 (Stanislaus) [peace officer exemption applies even when peace officers are off-duty].)
2. Who Qualifies as a Peace Officer
Precisely who qualifies as a peace officer is an issue "'of statewide concern.'" (People v. Pennington (2017) 3 Cal.5th 786, 792 (Pennington).) Chapter 4.5 of title 3 of part 2 of the Penal Code (§ 830 et seq., hereafter chapter 4.5) contains an exhaustive list of the various government employees who qualify as peace officers. (See § 830 ["no person other than those designated in this chapter [4.5] is a peace officer"].) "[L]ocal authorities exceed their powers by granting peace officer status except as authorized in chapter 4.5" (Pennington, supra, 3 Cal.5th at p. 792), and courts have given chapter 4.5's provisions a "strict interpretation" (People v. Miller (2008) 164 Cal.App.4th 653, 667, fn.9).
"Chapter 4.5 contains over 100 sections and subdivisions authorizing public agencies to confer the status and powers of a peace officer on the members of a host of state and local personnel categories, subject to an intricate array of conditions and limitations. [Citations.] In this statutory scheme, only the Attorney General and special agents and investigators of the Department of Justice are defined as peace officers categorically, simply by reference to their office or job title and without further conditions. [Citations.] Most deputy sheriffs and municipal police officers are peace officers so long as they are formally appointed to and actually employed in that capacity. [Citations.] In contrast, the Legislature has defined the vast majority of peace officers by reference to their 'primary duties' or 'primary function,' and has also imposed geographic, temporal, and other limitations on these officers' authority. [Citations.]" (Pennington, supra, 3 Cal.5th at pp. 792-793.) The provisions at issue in this case, sections 830.33 and 830.36, fall into this final category and define peace officers by reference to their "primary duty."
Not all peace officers have the same powers. "'[C]hapter 4.5 names some classifications of employees as peace officers whose powers are either specified or limited, provides that other employees are not peace officers but may exercise some peace officer functions under certain circumstances, denies peace officer status to some classifications, and denies or restricts the right of some peace officers to carry firearms. [Citation.] The plain import of this statutory system is that the Legislature intended to grant peace officer status, and the powers and authority conferred with that status in particular instances, subject to carefully prescribed limitations and conditions.'" (Stanislaus, supra, 2 Cal.App.5th at p. 374.)
Chapter 4.5 does not mention SSOs; the classification is unique to the Department. Historically, however, the Sheriff designated SSOs as "limited peace officers" under two different provisions in chapter 4.5: sections 830.33 and 830.36.
Section 830.33 provides: "Any person regularly employed as an airport law enforcement officer by a city, county, or district operating the airport" is a peace officer "if the primary duty of the peace officer is the enforcement of the law in or about properties owned, operated, and administered by the employing agency or when performing necessary duties with respect to patrons, employees, and properties of the employing agency." (§ 830.33, subd. (d).) It further specifies those persons "may carry firearms only if authorized and under terms and conditions specified by their employing agency." (§ 830.33.)
Section 830.36 provides: "Court service officers in a county of the second class," such as Orange County (see Gov. Code, § 28023), are peace officers "if the primary duty of the peace officer is the enforcement of the law in or about properties owned, operated, or administered by the employing agency or when performing necessary duties with respect to patrons, employees, and properties of the employing agency." (§ 830.36, subd. (c).) Section 830.36 further specifies those persons "may carry firearms only if authorized and under terms and conditions specified by their employing agency." (§ 830.36.)
Sections 830.33 and 830.36 are no model of legislative drafting. What Justice Kruger observed in discussing a different subsection of section 830.33 is equally true here: "'There are many problems with this statute. First and foremost is that it purports to define a peace officer but uses the term peace officer in the definition.'" (Pennington, supra, 3 Cal.5th at p. 802 (conc. & dis. opn. of Kruger, J.).)
3. Who Qualifies as a Public Officer
Chapter 4.5 also "'provides that other employees are not peace officers but may exercise some peace officer functions under certain circumstances.'" (Stanislaus, supra, 2 Cal.App.5th at p. 374.) That is, chapter 4.5 "permit[s] agencies to confer a subset of the powers of peace officers, such as the power to arrest, write citations, serve warrants, and/or carry firearms, on designated personnel who are not peace officers." (Pennington, supra, 3 Cal.5th at p. 793, italics added.)
For example, some sections in chapter 4.5 define certain personnel as "public officers." (See, e.g., §§ 830.14, 831, 831.4, 831.5, 831.6.) As is relevant here, section 831.4 provides: "A sheriff's or police security officer is a public officer, employed by the sheriff of a county, . . . whose primary duty is the security of locations or facilities as directed by the sheriff or police chief. The duties of a sheriff's or police security officer shall be limited to the physical security and protection of properties owned, operated, controlled, or administered by the county . . . or necessary duties with respect to the patrons, employees, and properties of the employing county, city, or contracting entities. . . . [¶] . . . (b) A sheriff's or police security officer is neither a peace officer nor a public safety officer as defined in Section 3301 of the Government Code. A sheriff's or police security officer may carry or possess a firearm, baton, and other safety equipment and weapons authorized by the sheriff or police chief while performing the duties authorized in this section, and under the terms and conditions specified by the sheriff or police chief. These persons may not exercise the powers of arrest of a peace officer, but may issue citations for infractions if authorized by the sheriff or police chief." (Italics added.) As noted, the Sheriff relied on this section in redesignating the SSOs as public officers. B. Denial of Writ Relief
This statutory framework informs our review of the trial court's denial of OCEA's petition for a writ of mandate commanding the Sheriff to restore the SSOs' peace officer status and provide them RBC training. OCEA sought writ relief under Code of Civil Procedure section 1085, which authorizes a trial court to issue a writ of mandate "to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station." (Code Civ. Proc., § 1085, subd. (a).) OCEA based its petition on Defendants' alleged duty to maintain, restore, or facilitate peace officer status under sections 830.33 and 830.36 and per the Department's past practices and alleged promises (claim 6), and it also relied on a provision in the 1999 "agreed to concepts" document that the potential sheriff/marshal merger would not adversely impact "peace officer status" (claim 12).
"To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty." (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 103.) "A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment." (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.)
The trial court denied OCEA's petition, finding "OCEA failed to establish a clear, present, or ministerial duty on the part of respondent which respondent failed to do." It reasoned "nothing in Penal Code sections 830.33, 830.36, or 831.4 state SSOs must be designated Peace Officers," "nothing about the [Sheriff's] decision to re- designate SSOs from peace officers to public officers was an abuse of discretion," OCEA did not establish the existence of a contract requiring the SSOs to have peace officer status, and the 1999 "agreed to concepts" document did not require the Sheriff to maintain the SSOs' peace officer status.
"In reviewing the trial court's denial of the writ, we must determine whether its findings and judgment are supported by substantial evidence. However, where the facts are undisputed and a question of law is involved, we may exercise our independent judgment." (Riverside Sheriff's Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285, 1289.)
1. Writ Petition to Restore or Facilitate Peace Officer Status (Claim 6)
We agree OCEA failed to establish Defendants had a clear, present, or ministerial duty to redesignate SSOs as peace officers, or to train and certify them as peace officers.
OCEA identifies no provision in chapter 4.5 under which SSOs universally qualify as peace officers. Sections 830.33 and 830.36, which the Department cited as the basis for the SSOs' limited peace officer designation until 2013, do not support OCEA's argument. By their own terms, these provisions only confer peace officer status on airport and court services personnel whose "primary duty . . . is the enforcement of the law." (§§ 830.33, subd. (d), 830.36, subd. (c), italics added; see also Pennington, supra, 3 Cal.5th at p. 799 [section 830.33, subd. (b) does not apply "'without regard to whether [the officer's] primary duty is enforcement of the law'"; "officer must have the primary duty of law enforcement to be a peace officer"].)
OCEA's evidence in support of its writ petition failed to establish the SSOs' primary duty is law enforcement. Although OCEA's writ petition included evidence that SSOs perform some law enforcement functions, the mere performance of some law enforcement duties does not mean a person qualifies as a peace officer. Indeed, several provisions in chapter 4.5 "confer a subset of the powers of peace officers, such as the power to arrest, write citations, serve warrants, and/or carry firearms, on designated personnel who are not peace officers." (Pennington, supra, 3 Cal.5th at p. 793, italics added.)
By comparison, Defendants presented substantial evidence in opposing the writ petition that SSOs' primary duty is not law enforcement, but rather providing security services. That evidence included the Sheriff's declaration in opposition to the writ petition, and the description of the SSO job classifications. According to the Sheriff, "[t[he Department has always assigned SSOs primarily security-related duties." The original SSO job classification from 1976 lists "patrol[ling] and guard[ing] County or Special District property against theft and illegal entry" as the first duty of an SSO, and the most recent SSO job classification from 1994 similarly lists "patrol[ling] and provid[ing] security for properties against theft and illegal entry" as the first duty of an SSO. Additionally, an August 2000 letter from the Sheriff to POST (which OCEA relied on in its writ petition) lists the SSOs' "primary duties" as "Jail Security," "Building/Property Security," "Airport Security," "Transit Security," "Court Security," and "Property and Evidence Control."
Perhaps sections 830.33 and 830.36 could apply to those SSOs who work exclusively at the airport or in court services if their primary duty is law enforcement. We need not address that issue, however, because sections 830.33 and 830.36 do not mandate peace officer status for the many other SSOs who work in county buildings, facilities, or jails, or who maintain property and evidence for the Sheriff. In the trial court's words, sections 830.33 and 830.36 do not "mandate[ ] that all SSOs irrespective of where they work (jail, courthouse, airport), are peace officers," and the statutes provide "more authority for the Sheriff to designate all SSOs as public officers, than authority to designate all SSOs as peace officers."
In denying writ relief, the trial court noted "[t]here may be some further debate as to whether the 'primary duty' of SSOs working at the court and airport are 'law enforcement' versus 'security.'"
To recap, sections 830.33 and 830.36 would require Defendants to designate SSOs as peace officers if OCEA had established (1) all SSOs are airport law enforcement officers or court service officers, and (2) the primary duty of all SSOs is law enforcement. But OCEA's evidence satisfied neither element for the entire class of SSOs on whose behalf the OCEA filed suit. The Penal Code thus does not require Defendants to designate all SSOs as peace officers.
The fact SSOs mistakenly were designated as peace officers in the past does not create a legally mandated duty by Defendants to continue erroneously designating them as peace officers. To the contrary, "local authorities exceed their powers by granting peace officer status except as authorized in chapter 4.5." (Pennington, supra, 3 Cal.5th at p. 792.)
OCEA relies on a 1997 Attorney General opinion declaring that peace officers who do not complete RBC training are still peace officers, but cannot exercise peace officer powers like carrying a concealed weapon off-duty without a permit. (80 Ops.Cal.Atty.Gen. 293 (1997).) From this, OCEA suggests the SSOs' lack of training should not have resulted in SSOs losing their peace officer status. This argument puts the proverbial cart before the horse. SSOs should never have been designated as peace officers in the first place. Their lack of training and their ability to exercise peace office powers are secondary to the threshold issue of their appropriate classification under chapter 4.5.
Similarly, we see no basis for interfering with the Sheriff's decision not to provide peace officer training to SSOs. Again, the fact SSOs were erroneously designated as peace officers in the past does not create a legally mandated duty on the part of Defendants to now train them as peace officers.
Further, the Sheriff was under no obligation to modify the SSOs' duties so they could qualify and train as peace officers under chapter 4.5. The Sheriff has discretion on the type and classification of employees to utilize within the restrictions of the Department's budget, and on the duties assigned to various classifications of employees. (See Brandt v. Board of Supervisors (1978) 84 Cal.App.3d 598, 602 ["the sheriff has control of and responsibility for distribution and training of personnel and the specific use of the funds allotted to him"].) Indeed, the various MOUs between the County and OCEA have expressly reserved the County's right "to manage the County and direct the work force, including the right to hire, select, discipline, transfer and assign work."
The Sheriff presented legitimate reasons for not requiring SSOs to undergo RBC peace officer training. As the trial court noted, the Sheriff's declaration in opposition to the writ petition "fully explain[ed] her reasoning for the re-designation—all of which appears credible and none of which appears arbitrary or capricious. She believes requiring more training would be a waste of time because the job duties of SSOs do not need that much training. She is concerned requiring training could open the Department up to a lawsuit. She is concerned the SSOs could not pass the training anyway."
OCEA contends Defendants' refusal to provide peace officer training was an abuse of discretion because Defendants' conduct and promises led the SSOs to believe they always would have peace officer status. Consequently, OCEA concludes the redesignation violated the contracts clauses in the state and federal constitutions. (See U.S. Const., art. I, § 10, cl. 1 ["No State shall . . . pass any . . . Law impairing the Obligation of Contracts"]; Cal. Const., art. I, § 9 [a "law impairing the obligation of contracts may not be passed"].) This theory lacks support in the record. Although OCEA cites some evidence county representatives told SSO applicants they would be peace officers, OCEA cites no evidence of any contract giving SSOs permanent peace officer status. (See San Diego Police Officers' Assn. v. San Diego City Employees' Retirement System (9th Cir. 2009) 568 F.3d 725, 736-737 (San Diego) [in determining whether a law violates the contract clause, court must first consider "whether a contract exists as to the specific terms allegedly at issue"]; Medina v. Board of Retirement (2003) 112 Cal.App.4th 864, 871 (Medina) [the contracts clause does not "protect expectations which are based upon legal theories other than contract, such as quasi-contract or estoppel," but rather must be based on "'a valid contract'"].)
In the absence of a contract for permanent peace officer status, and in the absence of a provision in Chapter 4.5 mandating peace officer status for all SSOs, OCEA failed to establish a clear and present ministerial duty by Defendants to designate or train all SSOs as peace officers. The trial court therefore properly denied OCEA writ relief on claim 6.
2. Writ Petition to Enforce 1999 Merger Agreement (Claim 12)
OCEA also sought a writ of mandate enforcing a provision in the 1999 "agreed to concepts" document concerning the potential sheriff/marshal merger stating the merger would not adversely impact employees' "peace officer status." This theory for writ relief also fails.
On its face, the "agreed to concepts" document is simply an agreement to agree concerning the "potential" merger of the Sheriff's Department and Marshal's Department; it is not a binding contract. (See Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 213 ["Because essential terms were only sketched out, with their final form to be agreed upon in the future (and contingent upon third party approval), the parties had at best an 'agreement to agree,' which is unenforceable under California law"].) And even if it were binding, nothing in the "agreed to concepts" document specifically required the Sheriff to maintain the SSOs' designation as peace officers indefinitely.
What's more, the contemplated merger was later memorialized in 2000 in a document entitled "Agreement Sheriff/Marshal Merger." This agreement is silent on the protection of peace officer status and does not expressly incorporate the "agreed to concepts" document. It therefore cannot be read to protect peace officer status. (See Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 66 [incorporation by reference of terms from one document into another must be clear and unequivocal].) Moreover, even if the final merger agreement had incorporated the "agreed to concepts" document or provided for ongoing peace officer status, the final merger agreement expired in 2002 and thus would not support OCEA's contracts theory.
The 2000 sheriff/marshal merger agreement states: "the provisions of this Agreement cover the transition period of a merger, which unless noted as an exception shall cover a two-year period from the point the Board of Supervisors determines to merge the Office of the Marshal and the Sheriff-Coroner Department."
The 1999 "agreed to concepts" document therefore did not create an ongoing contractual obligation on the part of Defendants to designate SSOs as peace officers indefinitely. For these reasons, we affirm the trial court's denial of OCEA's writ petition. C. Summary Adjudication of Claims Mooted by the 2013 Redesignation
We next consider the trial court's grant of summary adjudication for Defendants on: OCEA's claims for declaratory relief and injunctive relief on the 2012 prohibition on SSOs carrying concealed weapons off-duty (claims 1 and 2); its claim for injunctive relief preventing the redesignation of SSOs as public officers (claim 5); and its claim for injunctive relief to prevent impairment of contract based on the unlawful removal of peace officer status (claim 8). As noted, the court reasoned those claims were "MOOT by virtue of the Sheriff's decision to designate SSOs as public officers and not peace officers, and this Court's subsequent ruling on the [writ of mandate] establishing 'nothing about the decision to re-designate SSOs from peace officers to public officers was an abuse of discretion.'" We review that ruling de novo. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
OCEA contends the motion violated the rule that "[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." (Code Civ. Proc., § 437c, subd. (f)(2).) Not so. A party may bring a second motion for summary judgment based on issues not addressed in the earlier motion. (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 72.) Because the second motion was based on a new issue (mootness) and new facts (the intervening denial of writ relief), it was permissible.
Moot cases "are '[t]hose in which an actual controversy did exist but, by the passage of time or a change in circumstances, ceased to exist.'" (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.) "A case is considered moot when 'the question addressed was at one time a live issue in the case,' but has been deprived of life 'because of events occurring after the judicial process was initiated.'" (Id. at p. 1574.) "When events render a case moot, the court, whether trial or appellate, should generally dismiss it." (Ibid.)
When OCEA filed its lawsuit in 2012, the SSOs still carried a peace officer designation, but were prohibited from carrying concealed weapons off-duty without a permit. In 2013, while the case was pending, the Sheriff redesignated the SSOs as public officers, thus rendering the peace officer exemption (§ 25450) inapplicable to them. In 2016, the trial court ruled the Sheriff had no duty to restore the SSOs' peace officer designation.
These intervening circumstances mooted claims 1, 2, and 5. Claim 1 sought declaratory relief that the 2012 prohibition on SSOs carrying concealed weapons off-duty was unlawful, and claim 2 sought injunctive relief against that prohibition. The legal basis for both claims was that the SSOs, as peace officers, fall within the peace officer exemption to the prohibition on carrying concealed weapons. After the SSOs lost their peace officer status in the 2013 redesignation, and after the trial court upheld that redesignation in its writ ruling in 2016, the SSOs had no legal basis to argue the peace officer exemption should apply to them, and thus no basis to seek declaratory relief or injunctive relief on the applicability of the peace officer exemption. Thus, claims 1 and 2 were rendered moot.
Similarly, claim 5 sought injunctive relief preventing the redesignation of SSOs as public officers. After the 2013 redesignation of SSOs as public officers, and after the court upheld that redesignation in its 2016 writ ruling, the SSOs had no legal basis for challenging or enjoining the redesignation. Summary adjudication on claims 1, 2, and 5 was therefore proper.
Claim 8 warrants further discussion because it implicated OCEA's contracts clause theory, and because, in denying summary adjudication on claims 7 and 9, which also related to the contracts clause theory, the trial court found there were disputed issues of fact concerning whether SSOs had a vested contractual right to peace officer status. In claim 8, which the Second Amended Complaint described as a claim "for Injunctive Relief for violation of the Impairment to Contracts Clause," OCEA sought an injunction against "the unlawful action of removing the [SSOs'] peace officer status." In granting summary adjudication for Defendants on claim 8, the court held that, notwithstanding any triable issues that may have existed on whether SSOs had a vested contractual right to peace officer status, the court had "no interest in forcing the Sheriff to re-designate the SSOs since it has already found the decision was not an abuse of discretion."
We agree that OCEA could not pursue injunctive relief to prevent a breach of contract. (See Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 49-50 ["An injunction to enforce the terms of a contract may only be issued if the contract is specifically enforceable"]; Civ. Code, § 3423, subd. (e) ["[a]n injunction may not be granted . . . [¶] [t]o prevent the breach of a contract the performance of which would not be specifically enforced"]; Code Civ. Proc., § 526, subd. (b)(5) [same].) Thus, unlike OCEA's claims for declaratory relief and damages for alleged contract impairment (claims 7 and 9), claim 8 for injunctive relief could be disposed of summarily. In any event, even if the court erred in granting summary adjudication on claim 8, the error was not prejudicial because OCEA's other impairment of contract claims, which relied on the same facts, failed at trial. We therefore affirm the trial court's grant of summary adjudication on claims 1, 2, 5, and 8. D. Summary Adjudication of the Equitable Estoppel Claim
OCEA also challenges the trial court's grant of summary adjudication against OCEA on its claim for equitable estoppel (claim 4). OCEA sought an order directing Defendants to maintain or restore peace officer status under sections 830.33 and 830.36 and provide RBC training based on Defendants' past promises that SSOs would be conferred peace officer authority. After a de novo review, we conclude summary adjudication for Defendants on this claim was proper because California does not recognize a stand-alone cause of action for equitable estoppel. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 782 ["California does not recognize an independent cause of action for equitable estoppel"]; Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1463 ["a stand-alone cause of action for equitable estoppel will not lie as a matter of law"].) Although the trial court granted summary adjudication on this cause of action for other reasons — the absence of any showing Defendants knew, but concealed, for 20 years that SSOs did not truly qualify as peace officers — the result was correct, and we therefore affirm it. (See Young v. Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1192-1193 ["if a judgment is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning"].) E. Defense Judgment on the Remaining Causes of Action
Finally, we consider the trial court's ruling for Defendants on the remaining causes of action tried via bench trial: OCEA's claims for promissory estoppel on peace officer status (claim 3), declaratory relief and damages for Defendants' impairment of contract (claims 7 and 9), and injunctive relief and damages for retaliation (claims 10 and 11). We review the court's rulings, which it explained in a 13-page statement of decision, for substantial evidence. (Whitney v. Montegut (2014) 222 Cal.App.4th 906, 912.)
1. Promissory Estoppel (Claim 3)
In OCEA's third cause of action for promissory estoppel, it alleged the County represented to SSO applicants and SSOs they would be peace officers and would be conferred peace officer authority under sections 830.33 and 830.36, and on that ground sought an order directing Defendants to maintain or restore peace officer status. To succeed on this claim, OCEA had to establish "(1) a clear promise, (2) reliance, (3) substantial detriment, and (4) damages." (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 692.) The trial court found OCEA did not establish by a preponderance of evidence any element of promissory estoppel and thus entered judgment for Defendants.
We agree OCEA failed to present evidence of a clear and unambiguous promise of continued and ongoing peace officer status. As the trial court explained: "OCEA offered no credible evidence to show a clear and unambiguous promise of perpetual peace officer status. While OCEA presented the testimony of a small sample of current and former SSOs . . . who recounted at trial their experiences during the hiring process and during their years of employment as SSOs, none of them offered evidence of any 'promise' as to continued peace officer status. Certainly, there was no evidence of any 'clear and unambiguous' promise to that effect. The Court was left with a smattering of personal and widely varying accounts of different experiences of SSO personnel who testified they believed they would enjoy peace officer status because something that was said to them during the hiring process, and/or during training, and/or from policies that were in place during their employment that referred to the SSOs as peace officers. . . . OCEA offered no credible evidence that anyone with authority to bind the County made any promise to any SSO much less a collective promise to the nearly 300 SSOs that OCEA represents as a bargaining unit." (Italics added.)
The trial court elaborated further: "OCEA's attempt to establish a clear promise based upon certain past Sheriff policy manual sections . . . that referenced SSOs as peace officers failed to establish the existence of a clear promise of continued peace officer status. . . . [T]here was no consistent testimony from the SSOs about the policy manuals or how or why they had interpreted the manuals as promising peace officer status into the future. At most, this evidence showed the Sheriff actually believed its early classification of SSOs as 'peace officers' was correct, even without completion of the [RBC training]. Nothing in any of this material reflects any indication and/or promise of peace officer status in perpetuity. At trial, some of the SSOs who took the stand candidly admitted no such promise was made to them." (Italics added.)
For example, SSO Glenn Lockerby testified as follows: "Q: And when you started the job, no one made you a promise that the SSO job would even exist 20 years from that date, did they? A: No. Q: And when you started the job, no one made you a promise that if the job did exist in the future it would forever be classified as a peace officer position under Penal Code section 830.33 or 830.36, did they? A. No one made any promises like that, no." SSO Daniel Edwards similarly testified: "Q: But nobody expressly ever said to you will have peace officer status for the entirety of your career, did they? A. No, nobody has ever said that."
OCEA contends no substantial evidence supports the trial court's rulings, but cites nothing in the record establishing a clear and unambiguous promise to all SSOs of continued and ongoing peace officer status. Although OCEA relies on the trial testimony of a few SSOs who were told they would be conferred peace officer authority, OCEA presented no evidence that all SSOs were promised they would be peace officers indefinitely. Because OCEA failed to establish this first element of its promissory estoppel claim, we need not consider whether it satisfied the remaining elements, and therefore affirm the court's finding for Defendants on this claim.
2. Impairment of Contract (Claims 7 and 9)
We next consider the trial court's ruling for Defendants on OCEA's claims for declaratory relief on Defendants' impairment of contract (claim 7) and damages for impairment of contract (claim 9). In these claims, OCEA alleged Defendants violated the contracts clauses in the state and federal constitutions by conferring peace officer status on SSOs as an inducement for employment. The court ruled for Defendants, finding "OCEA offered no credible evidence to show that any law was passed that impaired a contract" bestowing peace officer status on the SSOs.
Substantial evidence supports this finding. As the trial court noted, the only evidence of a contract between OCEA and the County regarding the SSOs were the MOUs, which were silent on the subject of peace officer status. In the absence of evidence of a contract protecting SSOs' peace officer status indefinitely, OCEA failed to establish a contract was impaired in violation of the contracts clause.
OCEA insists "a contract is not a necessary element of a claim for impairment," citing California League of City Employee Associations v. Palos Verdes Library Dist. (1978) 87 Cal.App.3d 135, 139, for the notion that ongoing public employment can give rise to a contract for vested rights. We are not persuaded. California League did not concern peace officer status; its analysis has been criticized as faulty and unpersuasive (see San Diego, supra, 568 F.3d at p. 740); and it is inconsistent with more recent authority, which holds a valid contract must exist to state a contracts clause claim.
"When a claim is presented under the contract clause, it must first be determined 'whether there is a valid contract to be impaired. The contract clause does not protect expectations that are based upon contracts that are invalid, illegal, unenforceable, or which arise without the giving of consideration. [Citations.] Nor does the contract clause protect expectations which are based upon legal theories other than contract, such as quasi-contract or estoppel." (Medina, supra, 112 Cal.App.4th at p. 871.) In evaluating a contracts clause claim, "courts undertake a threshold inquiry to determine whether contract rights have been impaired, first examining 'whether the state law has, in fact, operated as a substantial impairment of a contractual relationship' [citation]. That inquiry includes (1) whether a contract exists as to the specific terms allegedly at issue, (2) whether the law in question impairs an obligation under that contract and (3) whether the discerned impairment can fairly be characterized as substantial." (San Diego, supra, 568 F.3d at pp. 736-737.) Per these authorities, OCEA's failure to produce evidence of a binding contract for indefinite peace officer status proved fatal to its contract impairment claims.
3. First Amendment Retaliation (Claims 10 and 11)
Finally, substantial evidence supports the trial court's finding on OCEA's First Amendment retaliation claims. In these claims, OCEA alleged Defendants retaliated against OCEA and the SSOs in violation of the First Amendment for engaging in political activity. According to OCEA, certain SSOs advocated for the passage of legislation on benefits for surviving spouses and dependent children of SSOs killed on duty, and that same day, the Sheriff issued her 2012 memorandum prohibiting SSOs from carrying concealed weapons off-duty without a permit. Additionally, the Sheriff redesignated the SSOs as public officers on the same day the court signed the preliminary injunction enjoining Defendants from enforcing the prohibition on SSOs carrying concealed weapons off-duty without a permit. According to OCEA, the timing of the Sheriff's memorandum and redesignation establishes Defendants' actions were retaliatory or motivated by the SSOs' protected speech.
We are not persuaded. "In order to establish a prima facie case of retaliation . . . , 'a plaintiff must show (1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.' [Citation.] If any employee presents a prima facie case of retaliation, the court then employs the three-stage McDonnell Douglas burden shifting analysis to the employee's claim." (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244.) Under that test, "the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to 'raise [ ] a genuine issue of fact' and to 'justify a judgment for the [employer],' that its action was taken for a legitimate, nondiscriminatory reason. [Citations.] [¶] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for [retaliation], or to offer any other evidence of [retaliatory] motive." (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355-356.)
In rejecting OCEA's retaliation claims, the trial court found "no credible evidence support[ing] the notion that the OCEA's actions in this lawsuit were a 'substantial motivating factor' for the Sheriff's decision to re-designate the SSO's as public officers," and found Defendants "offered credible evidence (testimony of the Sheriff, Nighswonger, Byerley, Meier, and Decker) to show legitimate, non-retaliatory reasons to support their decision to re-designate the SSOs." We are bound by the court's credibility determinations. "'[I]t is not our role to reweigh the evidence, redetermine the credibility of the witnesses, or resolve conflicts in the testimony, and we will not disturb the judgment if there is evidence to support it.'" (Williamson v. Brooks (2017) 7 Cal.App.5th 1294, 1300.)
In the trial court's words: after the initial communication from POST, "the Sheriff did not immediately re-designate the SSO's. [Citations.] Instead, the office launched an investigation into the accuracy of the POST report and spent time exploring possible options. [Citations.] The Sheriff's testimony on this issue was credible and indicated that she and/or her staff at her direction did the following: (1) investigated whether SSOs were properly trained to be appointed as peace officers (they were not), (2) engaged in meetings with POST to explore options for designating the SSOs (POST made it clear to the Sheriff that without RBC the SSOs could not continue to be designated as peace officers), (3) reviewed with her staff the SSOs classification and the duties they actually performed and concluded that most of the RBC training was inapplicable to the SSOs job duties, . . . [and] contemplated the possibility that there might be disparate treatment claims if the Sheriff imposed new training requirements on already employed individuals."
OCEA insists the timing of Defendants' actions constitutes substantial evidence of retaliation and pretext, but the trial court discounted that as "mere temporal coincidence." "[T]emporal proximity, although sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the adverse employment action, does not, without more, suffice also to satisfy the secondary burden borne by the employee to show a triable issue of fact on whether the employer's articulated reason was untrue and pretextual." (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112; see Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 357 ["temporal proximity by itself, while sufficient to establish a prima facie case, is not adequate to show pretext"].) Because there is substantial evidence Defendants had legitimate, nonretaliatory reasons for redesignating the SSOs, and because OCEA failed to establish pretext, we find no error in the court's ruling for Defendants on the First Amendment retaliation claims.
III.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.