Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SCVSS139460. Bob N. Krug, Judge. (Retired judge of the San Bdno. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Lackie & Dammeier, Dieter C. Dammeier and Steven J. Brock for Plaintiffs and Appellants.
Best Best & Krieger, J. Michael Summerour and Bradley E. Neufeld for Defendant and Respondent.
OPINION
Gaut, J.
Matt Tyson (Tyson) and the Fontana Police Officers Association (FPOA) appeal from a judgment denying their petition for writ of mandate. They challenge the trial court’s holding that the Memorandum of Understanding between the FPOA and the City of Fontana (City) excluded persons who were involuntarily terminated from city employment from receiving retirement health benefits intended for employees, although they may be eligible to draw from the Public Employees Retirement System (PERS). We affirm the judgment.
1. Background
Tyson was employed as a police officer by the City of Fontana since July 1986, and worked in that capacity until he was involuntarily terminated on September 13, 2005. He was not yet 50, retirement age, at the time of his termination, but reached retirement age on September 25, 2005, at which time he began drawing from his PERS account. He applied for, and was denied, retiree health benefits.
Section 4 of article XX of the operative Memorandum of Understanding (MOU) between the City and FPOA provides, “All employees hired prior to June 30, 1990, who retire (i.e. begin to draw from their PERS retirement accounts) shall continue to be eligible for retiree health benefits.” However, the City found Tyson was ineligible for retiree health benefits because he was terminated from employment for cause before he was eligible to retire, and did not voluntarily retire. Tyson was therefore required to pay his own health insurance premiums for himself and his dependents.
Tyson and the FPOA filed the instant petition for writ of mandate, which included a cause of action for declaratory relief, seeking a determination he was entitled to retiree health benefits. On Tyson’s motion, the trial court conducted a hearing on the petition. It interpreted the MOU to provide that one must be eligible to retire and must voluntarily retire to be entitled to retiree health benefits; merely receiving PERS benefits is insufficient.
The City presented documentation in opposition to the motion/petition demonstrating in the form of prior MOU’s, declarations, and correspondence (1) that effective 1986, retiree health benefits were inapplicable in the event an employee was terminated from employment prior to drawing retirement contributions; (2) the added parenthetical reference to drawing from PERS retirement accounts to section 4 of article XX was intended to prevent employees from “retiring” from service with the City before they were 50 years old, when they were eligible to work for another agency; (3) the retiree health benefit was intended to be limited to employees hired prior to June 30, 1990, who voluntarily retire after 20 years of service, and who are eligible to draw from their PERS account at the time of retirement.
After considering the evidence presented at the hearing, the court found Tyson was terminated for cause prior to becoming eligible to retire and collecting PERS benefits. The court concluded Tyson was not entitled to the retiree health benefits, available for continual good service until voluntary retirement, because he did not retire voluntarily. Therefore, it denied the petition for writ of mandate without reaching the issue raised in the cause of action for declaratory relief. Judgment for the City of Fontana, denying the petition for writ of mandate, was filed on October 2, 2006.
Tyson and the FPOA appeal the denial of the petition. We affirm.
2. Discussion
A. Standard and Scope of Review
On appeal from a trial court’s judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the trial court’s factual findings; such foundational matters of fact are conclusive on appeal if supported by substantial evidence. (American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 261.) The scope of review of the denial of a petition for a writ of mandate is to determine whether the judgment of the trial court was supported by substantial evidence and whether it constituted a proper exercise of discretion by that court. (Sullivan v. Calistoga Joint Unified School Dist. (1991) 228 Cal.App.3d 1313, 1317.) In such cases, we view the evidence in the light most favorable to the denial of the writ, indulging in all intendments and reasonable inferences to sustain the denial. (Ibid.)
Tyson and FPOA argue that a different standard of review is applicable: that of independent review. However, the cases cited by the appellants involve situations where facts were undisputed. Where the trial court relies on extrinsic evidence that is not in conflict and is not disputed, we review the trial court’s interpretation de novo. (Sappington v. Orange Unified School Dist. (2004) 119 Cal.App.4th 949, 953.) In this case, however, the extrinsic evidence was in conflict and there was a dispute as to whether the term “retire,” as used in the MOU, had been given a “special meaning” by virtue of the insertion of a parenthetical term referring to the drawing of benefits from the retiree’s PERS account. The court received extrinsic evidence on this issue to aid its interpretation, and the appellants challenge the trial court’s findings.
Because the facts relating to the parties’ intention to change the commonly understood meaning of “retire” in the MOU were disputed, de novo review is inappropriate here.
B. The Trial Court’s Judgment Denying the Petition for Writ of Mandate Is Supported by Substantial Evidence.
Tyson and FPOA argue the judgment denying the petition for writ of mandate should be reversed. We disagree.
In reviewing a trial court’s judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the trial court’s factual findings. (Klajic v. Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 995-996.) There are two basic requirements for a traditional writ of mandate to issue: (1) a clear, present and usually ministerial duty on the part of respondent; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540.)
Tyson’s right to relief was contingent upon a determination that he “retired” because he began drawing from his PERS account approximately two weeks after being terminated for cause. However, neither Tyson nor FPOA presented any evidence to support this construction of the term. On the other hand, the City presented documents showing the City’s policies and practices were to deny retiree health benefits to any person who is terminated for cause, and to any person who retires prior to becoming eligible (i.e., reaching retirement age) to draw from his or her PERS account.
The trial court considered all the documentary evidence presented at the hearing prior to denying the petition. There was substantial evidence to support the judgment. We now address some additional specific points raised by appellants.
C. The MOU Does Not Ascribe a Special Meaning to the Term “Retire.”
Tyson and FPOA assert the trial court erred in interpreting the language of the MOU with respect to eligibility for retiree health benefits. Their entire premise is that the parenthetical phrase in section 4 of article XX of the MOU constitutes an agreement that the term “retire” be given a special meaning. Pursuant to this construction, employees “retire” when they “begin to draw from their PERS retirement accounts,” irrespective of how or when their employment ceases. We disagree with the premise that the parenthetical phrase constitutes a “special meaning” to be ascribed to the term “retire,” within the meaning of Morrison v. Wilson (1866) 30 Cal. 344, 348, on which appellants rely. We agree with the trial court’s determination that the additional retiree health benefits were never intended for employees who are terminated for cause before they are eligible to retire.
The general rule is that the terms of a writing are presumed to have been used in the “primary and general acceptation,” although “evidence is nevertheless admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.” (Code Civ. Proc., § 1861.) Parol evidence is admissible to establish such usage. (Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1358.) Tyson and FPOA acknowledge the general rule, but argue that the parenthetical phrase “(i.e., begin to draw from their PERS retirement accounts)” “clarifies” the term “retire,” and thus constitutes an agreement to give a “special meaning” to the term.
It is true that parties to a written contract have the right to set aside the general sense of the words which they use and to assign another and different meaning to them. In Morrison, supra, the Supreme Court observed that parties have the right to “insert a clause in their contract to the effect that the language used by them should be taken in a certain sense which had become provincial, or in the meaning borne by it in a particular trade, and particularly if they should proceed to state the agreed definition in detail, and the definition turned out to be clear and unambiguous, the general meaning would have to give way; . . .” (Morrison v. Wilson, supra, 30 Cal. at p. 348.)
However, nowhere in the MOU do the parties acknowledge that there is a customary use attributed to the term “retire” which they expressly agree to reject, and nowhere in the agreement do the parties state that the parenthetic phrase is intended to replace the commonly accepted definition of the term “retire.” Because no such clause was inserted in the MOU, the parenthetical phrase does not constitute a “clause . . . to the effect that the language used by them should be taken in a certain sense” within the meaning of the Morrison rule.
Of note is the fact appellants did not introduce extrinsic evidence that the parenthetical phrase contained in the MOU reflected an intention to extend retiree health benefits to employees who were terminated for cause prior to becoming eligible to “retire,” as that term is generally understood. Further, any attempt to introduce such evidence would have been unsuccessful because the “special meaning” ascribed by Tyson and FPOA conflicts with Article II of the MOU. Evidence of usage may not be introduced where it would vary or contradict a term in the agreement, or where the evidence establishes there was no discussion regarding the disputed term by the parties. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 889-890.)
In article II, the parties mutually agreed that “there exists within the City, in written or unwritten form certain personnel rules, policies, practices and benefits.” These policies, according to the City’s evidence, included a longstanding policy to deny retiree health benefits to persons who were terminated for cause. The City also explained the reasons for including the parenthetical statement at issue, which was to prevent situations in which an employee would “retire” from one City position while remaining eligible to work for another agency. There was also evidence that Tyson did not “retire” because at the time he was terminated, he was not yet eligible for retirement because he was not 50 years old.
Tyson and FPOA offered no evidence to the contrary. Therefore, there is nothing in the record to support an inference that a “special meaning” was intended by the inclusion of the parenthetical phrase to extend retiree health benefits to employees terminated for cause prior to reaching retirement age. The trial court properly relied on the City’s evidence in deciding that the MOU required that an employee hired prior to 1990 must be voluntarily retired at the time of drawing from his or her PERS account, to be eligible to receive retiree health benefits.
We find substantial evidence to support the judgment, which constituted a proper exercise of discretion by the trial court. Although Tyson was able to draw from his PERS account after he reached the age of eligibility, having been hired prior to 1990, he did not voluntarily “retire” when he reached the age of 50. By his own admission, he was terminated for cause prior to reaching retirement age. Since he did not “retire” as the term is commonly understood, he was not eligible for the retiree health benefits. We therefore affirm the trial court’s judgment denying the petition for writ of mandate.
D. The City’s Denial of Retiree Health Benefits Did Not Deprive Tyson of Vested Pension Benefits.
Tyson and FPOA devote a substantial portion of their argument to authorities holding a public employee’s pension constitutes an element of compensation, that the right to these benefits is vested immediately upon acceptance of employment, and that it cannot be destroyed without impairing the contractual obligation of the employing public entity. (Betts v. Board of Administration (1978) 21 Cal.3d 859, 863; San Bernardino Public Employees Assn. v. City of Fontana (1998) 67 Cal.App.4th 1215, 1221.) However, Tyson was drawing from his PERS account and there was no evidence the City challenged his eligibility to draw PERS pension benefits.
The retiree health benefits were a separate benefit, offered to retiring employees who were hired prior to 1990, worked continuously until they were eligible to draw from their pension accounts, and voluntarily retired. No violation of Tyson’s right to pension benefits occurred and neither Tyson nor the FPOA offered any evidence to the contrary.
3. Disposition
The judgment is affirmed. Respondent is entitled to costs on appeal.
We concur: Hollenhorst, Acting P. J., McKinster, J.