Filed 8/22/17; Certified for Publication 9/21/17 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION TWO


VALLEJO POLICE OFFICERS
ASSOCIATION,
         Plaintiff and Appellant,                               A144987

v.                                                              (Solano County
CITY OF VALLEJO,                                                Super. Ct. No. FCS042492)
         Defendant and Respondent.


         The Vallejo Police Officers Association (VPOA) petitioned the superior court for
a writ of mandate alleging that the City of Vallejo (City) engaged in bad-faith bargaining
in violation of state law and then unilaterally imposed contract terms that impaired
VPOA members’ vested rights to retiree medical benefits that covered insurance
premiums up to the full cost of a Kaiser health plan. The superior court denied the
petition, concluding that VPOA had not shown its members had a vested right to the full
Kaiser premium and that the City had not bargained in bad faith; the court therefore
declined to order the City to start new contract negotiations or to reinstate retirement
medical benefits at the level previously provided to VPOA members. We will affirm.
                      FACTUAL AND PROCEDURAL BACKGROUND
         Faced with ever-increasing employee and retiree costs that led to operating deficits
and the depletion of its general fund reserves, the City filed a petition for bankruptcy
relief in May 2008. At that time, under its existing labor agreement with the VPOA, the
City paid the full premium cost for retirees and employees of any medical plan offered



                                                          1
through the California Public Employees’ Retirement System (CalPERS or PERS) Health
Plan Services Division. The City likewise paid the full premium for other City retirees.
By virtue of offering medical benefits through CalPERS, the City is subject to PEMHCA
(the Public Employees’ Medical and Hospital Care Act; Gov. Code, § 22750 et seq.),
which governs the CalPERS health benefit system. (See Bernard v. City of Oakland
(2012) 202 Cal.App.4th 1553, 1557, 1559-1560 [providing an overview of PEMHCA].)
PEMHCA establishes a minimum level of employer contribution toward medical
premiums, and generally requires the employer to contribute the same amount for
employees and retirees. (Gov. Code, § 22892, subds. (b) & (c).)
        In June 2008, the City filed a motion seeking approval from the bankruptcy court
to reject its agreements with the VPOA and three other unions, and while the motion was
pending, the City negotiated with the VPOA to modify the VPOA labor agreement. In
late January 2009, before the scheduled hearing on the motion, the VPOA and the City
reached agreement on a new contract (the January 2009 Supplemental Agreement, or
2009 Agreement), and the City voluntarily dismissed the bankruptcy court motion to
reject as to the VPOA. (In re City of Vallejo, CA (E.D. Cal. 2010) 432 B.R. 262, 265-
266.)
A.      Health Insurance Provisions in the 2009 Agreement
        A central issue in this case is how to interpret the 2009 Agreement, under which
health insurance benefits were reduced from full coverage for any CalPERS plan to
coverage capped at 100 percent of the rate for coverage through Kaiser. The 2009
Agreement includes the following provisions for health insurance:




                                             2
       “[6.] A.      Health Insurance[1]
       “1.    The City shall provide to all eligible employees, retiree-annuitants, and
dependents, the PERS Health Benefits Program subject to the following restrictions.
       “2.    Effective January 1, 2010 and there after [sic], the City’s direct PEMHCA
contribution of medical premiums for employees and eligible dependents shall be the full
premium cost of the chosen medical plan offered through PERS Health Plan Services
Division, not to exceed the Kaiser Bay Area / Sacramento Area rate for each level of
participation – single, single plus one dependent, single plus two or more dependents.
For example, if the Kaiser family rate is $1000/month and an employee with family
coverage chooses a plan costing $1500/month, the City will pay $1,000 (the Kaiser
premium) and the employee will pay $500 (the difference between the selected plan and
the Kaiser premium) each month.
       “3.    For employees hired on or before February 1, 2009, the City will contribute
the same amount towards eligible retiree-annuitants’ PEMHCA medical premiums as it
contributes towards the PEMHCA medical premiums for current VPOA bargaining unit
employees. For example, if the City’s direct PEMHCA contribution is capped at the
Kaiser Bay Area / Sacramento Area rate for each level of participation, the City will pay
up to that same amount for eligible retirees at each level of participation. [(Italics
added.)]
       “4.    With respect to retiree-annuitants hired on or after February 1, 2009, any
benefit in excess of the PEMHCA statutory minimum will require ten (10) years of City
of Vallejo service. Any employee hired before such date shall not be subject to the


       1
        The 2009 Agreement replaced portions of the Health Insurance provisions in the
then-existing contract between the City and the VPOA, and provided that “All other
terms and conditions in the Pre-existing Labor Agreement . . . shall remain in full force
and effect unless modified by this Supplemental Agreement.” As a result, certain terms
and conditions concerning health insurance remained in effect, including provisions
specifying that “eligible retiree-annuitants” are retired City employees who “meet the
requirements of PERS retirement” and who are members of the PERS Health Benefits
Program at the time of retirement.


                                              3
vesting requirement. This vesting requirement shall not apply to any employee who is
granted a disability retirement. The benefit once vested will be the same as for retiree-
annuitants hired before February 1, 2009 (the same as the amount of the City’s PEMHCA
contribution for current VPOA bargaining unit employees).”
        The parties disagree about how to interpret paragraph 6.A.3, which concerns
medical premiums for retirees who were hired before February 1, 2009. The City argues
that paragraph 6.A.3 requires it to provide a retiree the same direct PEMHCA
contribution it provides to an active employee. The VPOA argues that paragraph 6.A.3
requires the City to provide a retiree full premium coverage, up to 100 percent of the rate
for coverage through Kaiser. Apparently, the parties’ disagreement did not come to light
until the time came to negotiate a replacement agreement, perhaps because both
interpretations led to the same result while the 2009 Agreement was in effect: the total
amount for medical premiums paid to an active employee was the full premium for the
plan that the active employee selected, capped at the amount charged by Kaiser for
coverage at the particular level of coverage (the Kaiser rate), and that amount was paid as
a direct PEMHCA contribution. Accordingly, the retirement medical benefit during the
term of the 2009 Agreement, for current employees and for existing retirees, was the full
premium for the selected plan, capped at the Kaiser rate.
        Under the 2009 Agreement, employees hired on or after February 1, 2009, are
subject to a “vesting requirement” of 10 years of service with the City, pursuant to
paragraph 6.A.4. Once that requirement is met, those new employees are entitled to
retirement benefits in the amount provided to retirees who were hired before February 1,
2009.
        The 2009 Agreement extended the VPOA’s labor contract with the City to June
30, 2012 “and from year-to-year thereafter, unless either part[y] shall have given written
notice to the other of its desire to amend or terminate the Agreement not less than six (6)
months prior to June 30, 2012, or any subsequent anniversary date of the Agreement.”
        The City exited bankruptcy in 2011.



                                              4
B.     Replacing the 2009 Agreement
       Starting in June 2012, and continuing through December 6, 2013, representatives
of the City and the VPOA had discussions and negotiations about a labor agreement to
supersede the 2009 Agreement. From the beginning of the discussions, the City’s
negotiators told the VPOA that the City’s top priority was to reduce its liability for retiree
medical costs, and that the City would be seeking agreements with all its unions to reduce
the City’s retiree medical premium contribution to $300 per month. The reduction would
be consistent with the “General Fund Five-Year Business Plan,” which the City issued in
November 2010 in the course of the bankruptcy, and which included “[r]retiree health
cost projections” that assumed the City would be able to “negotiate and implement a
$300 per month city-paid retiree health benefit for current and future retirees.” The
VPOA maintained that “each member hired prior to the effective date of an agreement,
including retired members, maintains a vested right to his/her retirement medical
benefit,” and that therefore current employees and retirees had a vested right to retiree
medical benefits capped at the Kaiser rate, as reflected in the 2009 Agreement.
       After months of discussions and negotiations, the City declared impasse in
September 2013 and gave its “last, best, and final offer” to the VPOA.2 In October 2013,
the VPOA filed a petition in the superior court for writ of mandate, declaratory relief and
injunctive relief, alleging that the City was not bargaining in good faith and was therefore
violating the Meyers-Milias-Brown Act (MMBA; Gov. Code, § 3500 et seq.).3 The
VPOA sought a declaration that its members had “a vested constitutional right to a
defined retirement medical benefit that provides [them] an amount necessary to pay the
entire cost of the member’s retirement medical premium up to the cost of the [Kaiser
rate].” The City filed a demurrer, which was set for hearing in February 2014.




       2
           We describe the negotiations in section D.2 of the Discussion, below.
       3
        The MMBA governs labor relations between public agencies, including cities
and their employees. (Gov. Code, §§ 3500, 3501, subds. (c) & (d), 3501.5.)


                                              5
       In the meantime, despite further discussions and fact-finding, the parties could not
reach agreement, and in December 2013, the City Council voted to approve staff
recommendations that the City Council unilaterally impose some of the terms in the
City’s “last, best, and final offer” to the VPOA. The resolution adopted by the City in
December 2013, and at issue in this case, imposed the following pertinent terms
concerning health and welfare benefits:
       “[-]    The City shall provide, during the applicable term,[4] to all eligible
employees, retire-annuitants, and dependents, the PERS Health Benefits Program subject
to the following restrictions[:]
       “Effective January 1, 2014:
       “[-]    For active employees, the City will contribute a ($300) PEHMCA
contribution plus the difference between that and 75% of the [Kaiser rate] through a
flexible benefits plan. The City’s contribution through the flexible benefits plan shall be
limited for use for medical premiums. The employee shall be responsible for any
premium cost in excess of the total City contributions set forth above.
       “[-]    For eligible retiree-annuitants,[5] upon retirement effective on or after
January 1, 2014, for annuitants who were hired on or prior [sic] December 31, 2013, City
shall pay a direct PEMHCA contribution of up to $300, the city will pay up to that same
amount for eligible retirees at each level of participation. [sic] . . . [¶] . . . [¶] . . .
       “[-]    For existing eligible retiree annuitants who retired prior to the effective date
of this resolution, with a 3% @50 pension formula, the City shall pay $300 per month.
For existing eligible retiree annuitants who retired prior to the implementation of a 3% at
50 pension formula, the City shall pay $300 plus the difference between that and 75% of
the [Kaiser rate].

       4
       The City Council adopted these terms and conditions of employment for the
2013-2014 fiscal year.
       5
       As under the previous agreements, eligible retiree-annuitants are retired City
employees who “meet the requirements of PERS retirement” and who are members of the
PERS Health Benefits Program at the time of retirement.


                                                   6
       “[-]   Employees first hired on or after January 1, 2014 shall receive retiree
medical benefits in the form of an individual account with a Voluntary Employee
Beneficiary Association . . . .”
       Under these terms, the City pays a total of 75 percent of the Kaiser rate each
month for active employees, with $300 paid as a PEMHCA premium and the remainder
paid through a flexible benefits plan. For retirees, except for those who retired before the
implementation of the “3% at 50” formula, the City pays $300 each month.6 Retirement
medical benefits for employees hired on or after January 1, 2014, are not at issue in this
appeal.
C.     Proceedings in the Superior Court
       In January 2014, the VPOA filed its first amended verified petition for writ of
mandate, alleging four causes of action arising from its allegations that its members had a
vested constitutional right to a defined retirement medical benefit of City-paid healthcare
premiums equal to the Kaiser rate and that the City had negotiated in bad faith to replace
the 2009 Agreement by (among other things) declaring impasse as a result of the VPOA’s
refusal to accept terms that impair VPOA’s members’ vested rights. The VPOA sought a
writ of traditional mandate requiring the City to comply with Article I, Section 9 of the
California Constitution, which prohibits any law impairing the obligation of contracts
(First Cause of Action) and declaratory relief affirming their vested right (Third Cause of
Action). The VPOA also sought a writ of traditional mandate ordering the City to
comply with the MMBA (Second Cause of Action). And the VPOA alleged that under
the doctrine of promissory estoppel the City was required to continue to provide medical
premium benefits to retirees and their dependents, because the VPOA’s members “were
promised” that benefit and reasonably relied on the promise to their detriment in




       6
         The parties do not discuss the significance of the fact that VPOA members who
retired before the implementation of the “3% at 50” formula, receive a medical benefit
equivalent to the benefit for active employees: 75 percent of the Kaiser rate.


                                             7
accepting employment or remaining employed by the City, as the City knew they would
(Fourth Cause of Action).7
         The case was tried on written briefs supported by declarations. The VPOA argued
that the City had not bargained in good faith and had violated the MMPA by engaging in
“surface bargaining” and by rushing to declare impasse; that VPOA members had a
vested, constitutional right to retirement medical benefits equal to the Kaiser rate; and
that the City should be estopped from denying the existence of VPOA members’ vested
right.
         After oral argument, the trial court denied the VPOA’s petition, concluding that
while the terms of the 2009 Agreement did “not clearly reserve [the City’s] right to
reduce the level of medical benefits in [labor agreements] covering periods beyond the
term of the [2009 Agreement], they do inject enough uncertainty such as to preclude a
finding by this court . . . that VPOA has met its ‘heavy burden’ of making a ‘clear
showing’ of the intent to provide medical benefits at the full amount of the 2010 [Kaiser
rate].” The court ruled that the “clear showing” requirement is substantially similar to the
“clear promise” element of promissory estoppel, which precluded a finding promissory
estoppel as to the Kaiser rate. As to the MMBA cause of action, the court found “an
insufficient basis for concluding that [the City] engaged in ‘surface bargaining’, or
‘rushed to declare impasse.’ ” The VPOA timely appealed.
                                       DISCUSSION
A.       Standard of Review for Writs of Mandate
         “A traditional writ of mandate under Code of Civil Procedure section 1085 is a
method for compelling a public entity to perform a legal and usually ministerial duty.
(Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 53.) The trial court reviews an
administrative action pursuant to Code of Civil Procedure section 1085 to determine
whether the agency’s action was arbitrary, capricious, or entirely lacking in evidentiary


        The trial court sustained the City’s demurrer to two additional causes of action
         7

without leave to amend.


                                              8
support, contrary to established public policy, unlawful, procedurally unfair, or whether
the agency failed to follow the procedure and give the notices the law requires. (Kreeft
[v. City of Oakland], supra, at p. 53; Lewin v. St. Joseph Hospital of Orange (1978) 82
Cal.App.3d 368, 387.) ‘Although mandate will not lie to control a public agency’s
discretion, that is to say, force the exercise of discretion in a particular manner, it will lie
to correct abuses of discretion. [Citation.] In determining whether an agency has abused
its discretion, the court may not substitute its judgment for that of the agency, and if
reasonable minds may disagree as to the wisdom of the agency’s action, its determination
must be upheld. [Citation.]’ (Helena F. v. West Contra Costa Unified School Dist.
(1996) 49 Cal.App.4th 1793, 1799.)
       “ ‘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.’ (Kreeft v. City
of Oakland, supra, 68 Cal.App.4th at p. 53.) Thus, foundational matters of fact are
conclusive on appeal if supported by substantial evidence. (Clark v. City of Hermosa
Beach (1996) 48 Cal.App.4th 1152, 1169-1170.) However, we exercise our independent
judgment about legal questions. (Kreeft [v.City of Oakland], supra, at p. 53; Saathoff v.
City of San Diego (1995) 35 Cal.App.4th 697, 700.)” (Klajic v. Castaic Lake Water
Agency (2001) 90 Cal.App.4th 987, 995-996, fn. omitted.)
B.     Vested Right to the Full Kaiser Rate under the 2009 Agreement
       We begin with the VPOA’s argument that the trial court erred in ruling that the
2009 Agreement did not give VPOA members a vested right to retiree medical benefits at
the full Kaiser rate.8
       1.      Applicable Law
       “Under the [MMBA], local governments are authorized to meet and confer with
their employees’ authorized bargaining representative regarding wages, hours, and other

       8
         The VPOA frames the issue for review as whether the City unconstitutionally
impaired its members’ vested right to those benefits. Because we find no error in the trial
court’s conclusion that the members had no vested right to those benefits, we do not
reach the question of impairment.


                                                9
terms and conditions of employment, and to enter into and approve written memoranda of
understanding to memorialize their agreements.” (Retired Employees Association of
Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 1182 (REAOC).)
These memoranda of understanding (MOU’s) can be enforced as contracts. (Id. at p.
1182-1183.) Absent any statutory prohibition, MOU’s, like other contracts, can have
implied terms. (Id. at p. 1176.) The implied terms cannot be “ ‘at variance with the
terms of the contract as expressly agreed or as prescribed by statute.’ (Huong Que, Inc. v.
Luu (2007) 150 Cal.App.4th 400, 412, italics omitted . . . .)” (Id. at p. 1181.)
       Like other contracts, MOU’s ordinarily cover distinct periods of time, and the
obligations associated with them ordinarily terminate with the agreement. (Litton
Financial Printing Div., a Div. of Litton Business Systems, Inc. v. N.L.R.B. (1991) 501
U.S. 190, 207 (Litton).) A party asserting that contract rights are survive the contract
term (that is, that the rights are vested rights) must overcome the presumption that an
MOU does not create such rights. (REAOC, supra, 52 Cal.4th at pp. 1185-1186.)
Overcoming the presumption against vested rights requires a “clear showing” of the
intent of the parties to create such a right from “a clear basis in the contract or convincing
extrinsic evidence.” (Id. at pp. 1188-1189, 1191.) The “clear showing” requirement
“ensure[s] that neither the governing body nor the public will be blindsided by
unexpected obligations.”9 (Id. at pp. 1188-1189.)



       9
         The City cites the United States Supreme Court’s decision in M&G Polymers
USA, LLC v. Tackett (2015) ___ U.S. ___ [135 S.Ct. 926, 935-936] for the proposition
that clear and express language is required to overcome the presumption that benefits will
not continue after the agreement’s expiration. In M&G Polymers the Supreme Court
explained that collective bargaining agreements are interpreted according to ordinary
principles of contract law, and that the parties’ intentions control. (Id. at p. 933.) Under
those principles, a court may not infer that retiree benefits vest for life from a contract’s
silence as to the duration of those benefits. (Id. at p. 937.) However, M&G Polymers
says nothing to prohibit the use of extrinsic evidence to determine the parties’ intent, and
says nothing to undermine the Supreme Court’s earlier observation that “ ‘[C]onstraints
upon the employer after the expiration date of a collective-bargaining agreement’ . . .
may be derived from the agreement’s ‘explicit terms,’ but they ‘may arise as well

                                             10
       The existence of a vested right is a question of law subject to our independent
review. (Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1129.) We
apply the general rules of contract interpretation to a labor agreement between a city and
its employees absent any contrary provision in the Civil Code. (REAOC, supra, 52
Cal.4th at pp. 1178-1179.) We determine de novo the meaning of the 2009 Agreement
and its adoption by the City Council to the extent there is no conflicting extrinsic
evidence as to its meaning. (Santa Clara County Correctional Peace Officers’
Association, Inc. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1027.)
However, to the extent the interpretation of the 2009 Agreement turns on the resolution
of conflicting extrinsic evidence, we defer to the trial court’s interpretation if it is
supported by substantial evidence. (Beverly Hills Firemen’s Association, Inc. v. City of
Beverly Hills (1981) 119 Cal.App.3d 620, 629.)
       2.      Analysis
       The effect of the 2009 Agreement was to provide fully-paid retiree medical
premiums capped at the Kaiser rate. The VPOA argues that the language of the 2009
Agreement and extrinsic evidence show that the benefit, in the amount of the full Kaiser
rate, survived the expiration of the 2009 Agreement, such that any employee hired before
February 1, 2009, is entitled to that benefit as a retiree. The VPOA also argues that any
employee hired on or after February 1, 2009, is entitled to that benefit as a retiree if the
employee is on active status for 10 years, or is granted a disability retirement.
       We conclude that the language of the 2009 Agreement does not provide a vested
right to a retiree medical benefit at the full Kaiser rate, and that substantial evidence
supports the trial court’s conclusion that the VPOA did not prove that convincing
extrinsic evidence establishes that the parties intended the 2009 Agreement to provide
that vested right.




from . . . implied terms of the expired agreement.’ ” (Id. at p. 938 (conc. opn. of
Ginsburg, J., quoting Litton, supra, 501 U.S. at pp. 203, 207).)


                                               11
                a.     The Contract Language
       The 2009 Agreement by its terms was in effect from February 1, 2009 through
June 20, 2012, and from year to year after that, absent six months’ advance notice by
either party of a desire to amend or terminate it. As we set out above,10 the 2009
Agreement describes retiree medical benefits for then-existing employees and retirees in
paragraph 6.A.3, and for employees hired on or after February 1, 2009, in paragraph
6.A.4. Even though both paragraphs include language that might indicate the parties’
intent that some retiree medical benefit will continue beyond the term of the 2009
Agreement and be tied to the medical benefit provided to active employees, the language
is clear that any such benefit would not necessarily extend to the full Kaiser rate.
       Under the 2009 Agreement, retirees receive a medical benefit of PEMHCA
premiums in the same amount as active employees. The intent that this benefit will
extend beyond the term of the 2009 Agreement is arguably reflected in the inclusion of
an example: “For example, if the City’s direct PEMHCA contribution is capped at the
[Kaiser rate] for each level of participation, the City will pay up to that amount for
eligible retirees at each level of participation.” Because the 2009 Agreement is
unambiguous that the Kaiser rate cap applies to PEMHCA contributions for active
employees throughout the term of the 2009 Agreement, the fact that the agreement
includes an “example” that begins with “if” to show how the benefit is to be calculated
could lend support to an interpretation that the retiree medical benefit extends beyond the
term of the 2009 Agreement, as the VPOA argues. But if it does support that
interpretation, it also shows that the amount of the retiree medical benefit will not
necessarily be the full Kaiser rate after the 2009 Agreement expires, contrary to the
VPOA’s position.
       Further, under the 2009 Agreement, employees hired on or after February 1, 2009,
are subject to a “vesting requirement” of 10 years employment before they may receive
any benefit in excess of the statutory minimum PEMHCA contribution. The 2009

       10
            See section A of the Factual and Procedural Background.


                                             12
Agreement states that once the benefit is vested for these new employees, the benefit will
be the same as for retirees who were hired before February 1, 2009, which is once again
described as the same amount as the City’s PEMHCA contribution for active employees.
The fact that the 2009 Agreement describes benefits that would not vest or be paid within
the term of the agreement could lend support to an argument that the benefits for new
employees extend beyond the term of the 2009 Agreement. And the fact that the
retirement benefits for new employees are defined by reference to benefits for existing
retirees and employees could provide further support to an argument that the benefits for
existing retirees and employees extend beyond the term of the 2009 Agreement.
       The VPOA, however, argues not only that the contract language shows that
retirement benefits continue beyond the term of the 2009 Agreement, but also that the
language shows that those benefits will always extend to the full Kaiser rate. We are not
persuaded. The VPOA argues that the language in paragraph 6.A.2 of the 2009
Agreement providing medical benefits for active employees in the form of a PEMHCA
contribution at the full Kaiser rate “[e]ffective January 1, 2010 and there after,” combined
with language in paragraphs 6.A.3 and 6.A.4 linking retiree medical benefits to active
employee medical benefits, means that the right to retiree medical benefits at the Kaiser
rate extends beyond the expiration of the agreement. The VPOA analogizes the phrase
“and there after” in the 2009 Agreement to the phrase “in the future,” which was included
in the MOU at issue in International Brotherhood of Electrical Workers v. City of
Redding (2012) 210 Cal.App.4th 1114 (Redding). There, the Court of Appeal concluded
that “language in . . . MOUs promising payment of 50 percent of the medical insurance
premiums ‘for each retiree in the future’ . . . was a sufficiently clear showing, for
pleading purposes, that . . . the ratification of the MOUs by the city council [ ] was
intended to create an obligation that survived the expiration of the MOUs.” (Id. at pp.
1120-1121.)
       But in Redding the language allegedly conferring the vested right was not limited
to the phrase “ ‘in the future.’ ” The pertinent phrase was “ ‘each retiree in the future.’ ”
(Redding, supra, 210 Cal.App.4th at p. 1120.) Here, in contrast, the phrase “and there


                                             13
after” appears only in paragraph 6.A.2, in connection with medical benefits for active
employees, and is not included in the paragraphs describing retiree medical benefits.
       Also, in Redding the court concluded that if the parties had intended the medical
insurance premium benefit to apply only during the term of the MOU, the phrase “ ‘in the
future’ ” would be surplusage. (Redding, supra, 210 Cal.App.4th at p. 1120.) VPOA
makes a similar argument for the phrase “and there after” in the 2009 Agreement and the
continuation of a benefit at the Kaiser rate in the 2009 Agreement. But when we look at
the 2009 Agreement as a whole, the VPOA’s argument loses its force. Rather than being
surplusage, the phrase “and there after” clarifies that the Kaiser rate benefit, which
becomes effective January 1, 2010, continues through the entire remaining term of the
2009 Agreement. Some provisions of the 2009 Agreement, specifically the provisions
concerning salary, are subject to change during the term of the agreement. Those
provisions are introduced with the phrases “Effective July 1, 2008,” “Effective July 1,
2009,” “Effective July 1, 2010,” and “Effective July 1, 2011.” By contrast, the phrase
“Effective January 1, 2010 and there after,” in connection with medical benefits
emphasizes that the medical benefit that takes effect January 1, 2010, does not change
during the remainder of the term.
       In sum, we conclude that the language of the 2009 Agreement does not explicitly
confer a vested right to retiree medical benefits in the amount of the Kaiser rate, nor does
it provide a clear basis for implying such a vested right.
              b.     Extrinsic Evidence
                     i.      The Parties’ Previous Agreements and Bargaining History
       The VPOA argues that the parties’ agreements before 2009 and their bargaining
history back to 1988 show that “an implied term of the [2009 Agreement] require[s the
City] to provide VPOA members fully-paid retiree medical benefits (capped at the Kaiser
Rate) notwithstanding the expiration of the 2009 Agreement.” The trial court stated that
because the City’s bankruptcy “creates some uncertainty as to the continued
enforceability of contracts entered into by the City prior to that filing,” it would not rely
on the parties’ earlier agreements. The VPOA argues that the trial court erred in


                                              14
excluding the parties’ earlier agreements and bargaining history from evidence.
Assuming, without deciding, that the VPOA can show error by the trial court, the VPOA
nevertheless fails to show that any error was prejudicial.
       The VPOA does not identify any explicit language in the parties’ previous MOU’s
that created a vested right to retiree health benefits of full payment for medical premiums.
Instead, the VPOA argues that when negotiations for the 2009 Agreement began, its
members had a long-standing vested right to retiree medical contributions in an amount
sufficient to pay the full cost of health insurance premiums. The VPOA claims this
vested right arises from a 1988 arbitration award that endorsed an approach to health
benefits that required the City “to provide retirees, like employees, with enough
contribution to provide a fully paid, basic [health] plan” and is reflected in 1988 and 1996
City resolutions to increase health plan contributions for retirees until they equaled the
contributions for employees. In other words, the VPOA argues that the vested nature of
the right in the earlier MOUs was implied and then imported (by implication) into the
2009 Agreement for retiree medical benefits because nothing in the 2009 Agreement or
the bankruptcy proceeding altered the vested nature of the right.
       This argument is not persuasive for two reasons. First, the VPOA does not
identify any language in the 1988 arbitration award or the 1988 and 1996 resolutions
demonstrating a clear intent that full coverage for a basic health plan for retirees or
identical treatment for retirees and employees, once achieved, would be maintained
forever. Second, any vested right to a retiree health benefit that provided full coverage of
medical premiums was eliminated by the 2009 Agreement, in which VPOA and the City
agreed to change that benefit.
                     ii.     Subjective Understandings of the Parties’ Intent
       The VPOA argues that declarations of the individuals who signed the 2009
Agreement as representatives of the parties constitute evidence of the parties’ intent to
provide a vested retiree health benefit at the Kaiser rate. We disagree. These
declarations, prepared for the trial on the merits, state the declarants’ own subjective
understanding that they understood the 2009 Agreement preserved VPOA members’


                                             15
vested right to receive a fully-paid retirement medical benefit at the Kaiser rate. These
statements, however, are irrelevant to the issue before us. As the trial court explained,
the City’s intent determines the rights, express or implied, created by the 2009
Agreement. (REAOC, supra, 52 Cal.4th 1171.) Therefore, statements made by City staff
or others to the City Council prior to its approval of the 2009 Agreement would be
admissible as evidence of the City’s intent. But the VPOA does not identify any
statement made to or by the City Council in the course of its approval of the 2009
Agreement that constitutes clear evidence that the City Council intended to confer a
vested right to the full Kaiser rate. As the trial court correctly observed, citing Tuchscher
Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th
1219, 1240, “statements such as ‘all parties understood . . .’ are, without foundational
evidence in support, merely conclusory and argumentative statements that add nothing to
the court’s interpretation of those terms.” The subjective understandings of individuals,
as well as understandings communicated outside the approval process, are not admissible
as evidence of the City’s intent. (Aguiar v. Superior Court (2009) 170 Cal.App.4th 313,
326, fn. 7.)
                      iii.   Negotiations for the 2009 Agreement
       Substantial evidence supports the trial court’s conclusion that the VPOA failed to
show that the negotiations over the 2009 Agreement constitute convincing evidence of a
vested right to the full Kaiser rate.
       The City began negotiating with VPOA to modify the existing labor agreement in
September 2008. The City sent the VPOA an initial proposal in which paragraphs 5 and
6 addressed medical benefits:
       “5.     HEALTH AND WELFARE BENEFITS
       “Commencing January 1, 2010 City medical benefits shall be provided by a
comprehensive medical and flexible benefit plan developed in conjunction with the
City’s designated employee organizations providing for caps on the City’s contribution
toward employee and medical premiums at current levels of coverage. The initial dollar
value of the cap would be Kaiser North rate at each level (i.e., employee only, employee


                                             16
plus one, or employee plus two or more) effective January 1, 2010. Subsequent dollar
changes to the cap would be subject to negotiations and not tied to an automatic escalator
in the Kaiser North rate.
       “6.    RETIREE HEALTH
       “[-]   Current retirees grandfathered (i.e., they get full payment of medical) but
they are capped at the Kaiser North rate for whatever plan level (single, retiree plus one,
or family) they are in at City Council adoption of the new agreement.
       “[-]   Current employees grandfathered (i.e., they get full payment of medical)
but they are capped at the Kaiser North rate for the plan level (single, retiree plus one, or
family) they are in at retirement.”11
       The VPOA rejected the City’s initial proposal, the parties engaged in negotiations,
and on January 5, 2009, the parties reached a tentative agreement. The City prepared a
term sheet, which was provided to the VPOA and the City Council. With respect to
medical benefits, the term sheet stated only, “1/1/10 – Capped at Kaiser North rate for
each level (actives plus retirees).”
       On January 13, 2009, the City sent a draft agreement to the VPOA. It stated that
for active employees, the amount of the City’s contribution effective January 1, 2010,
would be limited to the Kaiser rate for the level of coverage. The draft stated that,
“[c]urrently the City contributes towards the cost of health care premiums for eligible
retiree-annuitants per [PEMHCA],” and proposed that for eligible retirees, the amount of
the City’s contribution would contribute “the same as the amount of the City’s PEMHCA
contribution” for active employees. The City proposed that for new hires, retiree benefits



       11
          The parties dispute the significance of the term “grandfathered” in the City’s
proposal. A declarant for the VPOA states that “all parties understood that the reference
to ‘grandfather’ the retirement medical benefits of certain classes of individuals meant
that the fully paid retirement medical benefit would be preserved and maintained in
perpetuity.” A declarant for the City states that the City used the word “grandfather” “to
mean the benefit would be retained under the new labor agreement, not that it would be
maintained in perpetuity as it existed in that agreement.”


                                             17
would be limited to the statutory maximum until they served at least 10 years, at which
point they would have the same retiree medical benefits as other retirees.
          VPOA sent edits to the draft two days later. The trial court concluded that the
VPOA’s proposed revision arguably guaranteed funding for the full Kaiser rate in
perpetuity, but emphasized that the City did not accept the VPOA’s edits. Instead, on
January 17, 2009, the City proposed language tying retiree benefits to the City’s
PEMHCA contribution for active employees, and that language was incorporated in the
2009 Agreement.
          The City’s rejection of the VPOA-proposed language that could be read to provide
a vested right to the full Kaiser premium, and the inclusion instead in the final agreement
of language the City proposed constitutes substantial evidence that the negotiating history
of the 2009 Agreement does not show an intent by the City to provide a vested right to a
retiree medical benefit at the full Kaiser rate.
                       iv.    Other Extrinsic Evidence
          The VPOA contends that the City’s “uninterrupted history” of paying the full cost
of retiree medical premiums constitutes extrinsic evidence of the existence of a vested
right to that level of benefit. This argument, unsupported by any citation to authority,
lacks merit. “[A] practice or policy extended over a period of time does not translate into
an implied contract right without clear legislative intent to create that right.” (Retired
Employees Association of Orange County, Inc. v. County of Orange (9th Cir. 2014) 742
F.3d 1137, 1142, citing REAOC, supra, 52 Cal.4th at pp. 1186-1187.) Accordingly, the
fact that the City paid the full cost of retiree medical premiums over a period of years
does not imply a right that such payments will continue, absent a showing of legislative
intent.
          The VPOA argues that after the 2009 Agreement was implemented, the City
informed employees they would receive fully-paid medical benefits upon retiring, but the
VPOA does not identify any such statements made by the City or by any individual
authorized to bind the City. Instead, the VPOA relies on a PowerPoint presentation to the
City Council by the “City’s representatives” at the meeting where the 2009 Agreement


                                               18
was approved. The presentation describes the 2009 Agreement as providing medical
benefits for active employees and retirees at the Kaiser rate effective January 1, 2010, but
says nothing to indicate that the benefits will extend beyond the term of the contract. The
VPOA also relies on declarations from individuals who testified to their understanding of
promises that employees would receive fully-paid medical benefits after they retired, but
the VPOA provides no evidence of any specific promise, much less evidence of a
promise made by a person authorized to bind the City. As a result, the VPOA’s citation
to Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809 is
unavailing. There, express promises made by a state university on its website and in its
catalogues promising not to raise certain fees were held to be terms of implied contracts.
(Id. at pp. 828-829, 831.)
       Nor are we persuaded by the VPOA’s argument that the City’s November 2009
Resolution 09-275 confirms the City’s intention to provide retirees with the full Kaiser
rate beyond the term of the 2009 Agreement. The resolution says that, effective January
1, 2010, the City’s PEMHCA health plan contribution for employees and retirees would
be “the amount necessary to pay the full cost of . . . enrollment . . .in a health benefit plan
up to a maximum of the [Kaiser rate] for each level of coverage.”12 This is an accurate
description of the benefit provided by the 2009 Agreement, but does not state or imply
that the contribution will continue at that level in perpetuity. Moreover, this resolution is
itself a modification of a previous resolution, and nowhere states that it cannot be
modified.
       In sum, the trial court did not err in ruling that VPOA did not meet its burden to
show “a clear basis” in the 2009 Agreement or “convincing extrinsic evidence” (REAOC,
supra, 52 Cal.4th at p. 1191) of a vested right to retiree medical benefits in the full
amount of the Kaiser rate.




       12
         Under PEMHCA, the City’s contribution is to be “fixed from time to time by
resolution of the governing body of the agency.” (Gov. Code, § 22892, subd. (a).)


                                              19
              c.         The VPOA’s New Argument on Appeal
       The VPOA argues for the first time on appeal that paragraph 6.A.3 requires the
City to provide a retiree the same total amount for medical premiums that it provides for
an active employee, and that even if its members do not have a vested right to a
retirement benefit in the amount of the full Kaiser rate, they nevertheless have a vested
right to receive the same total amount dedicated to medical premiums that they would
receive as active employees, and the benefit is not limited to the amount paid as a direct
PEMHCA contribution for active employees.13 The VPOA concedes that this argument
is new, but argues that it is “derivative” of its primary argument and was therefore
somehow implicitly raised below. The City argues that the VPOA has forfeited this
argument for purposes of appeal, and we agree.
       The VPOA’s writ petition was premised on the claim that the 2009 Agreement
provided a vested right to retiree medical benefits “equal to the cost of the Kaiser health
plan.” The VPOA sought a declaration to that effect. The VPOA cannot now advance a
new theory of its case. “As a general rule, theories not raised in the trial court cannot be
asserted for the first time on appeal; appealing parties must adhere to the theory (or
theories) on which their cases were tried. This rule is based on fairness—it would be
unfair, both to the trial court and the opposing litigants, to permit a change of theory on
appeal; and it also reflects principles of estoppel and waiver.” (Eisenberg et al., Cal.
Practice Guide: Civil Appeals & Writs (The Rutter Group 2016) ¶ 8:229, pp. 8-172 – 8-
173, italics omitted.)

       13
          The City contends that the 2009 Agreement requires it to provide a retiree a
medical benefit that is equal to the direct PEMHCA contribution it would make if the
employee were not retired. Under the December 2013 resolution, this amount is $300,
but active employees receive additional medical benefits in the form of payments to a
flexible benefit plan. The VPOA argues on appeal that the City cannot “avoid its
obligation to provide matching contributions by splitting the actives’ PEMHCA
contribution,” that is, by providing active employees a medical benefit partly as a direct
PEMHCA contribution and partly through a flexible benefit plan. The VPOA does not
contend that the City violates PEMHCA’s equal contribution rules by splitting active
employees’ benefits.


                                             20
        We are not persuaded by the VPOA’s contention that its new argument is
“derivative” of its argument below. In the trial court, the VPOA took the position that the
2009 Agreement provided a vested retirement medical benefit at the full Kaiser rate,
which was more than the medical benefit provided for active employees under the
December 2013 resolution. The VPOA argued that contract language and extrinsic
evidence demonstrate the existence of this vested right. It is not clear how that argument
leads to, or is even compatible with, the VPOA’s new argument that the very same
contract language and extrinsic evidence also demonstrate the existence of a different
vested right—the right to the same benefit as active employees.14
C.      Promissory Estoppel
        The trial court declined to rule that the City was estopped from denying a promise
to provide retiree medical benefits at the full Kaiser rate, explaining that the “clear
promise” element of promissory estoppel is substantially similar to the “clear showing”
required to establish a vested right and citing Poway Royal Mobilehome Owners
Association v. City of Poway (2007) 149 Cal.App.4th 1460, 1471. Thus, the trial court’s
ruling on the VPOA’s promissory estoppel claim followed from its determination that the
VPOA did not demonstrate a vested right to retirement medical benefits at the full Kaiser
rate.
        Because the promissory estoppel claim is derivative, we can dispose of it quickly.
The VPOA argues that by meeting the “clear showing” requirement it has demonstrated
the existence of a clear promise. From our conclusion that the trial court did not err in
ruling that the VPOA failed to meet the clear showing requirement with respect to
benefits at the full Kaiser rate, we necessarily conclude that the trial court did not err in
ruling that the promissory estoppel claim had no merit.




        14
          The VPOA states that its new argument raises purely legal issues, and invites us
to exercise our discretion to address them on appeal even though they were not addressed
below. Assuming that the VPOA’s statement is accurate, we decline the invitation.


                                              21
D.     Violations of the MMBA
       We turn now to the VPOA’s argument that the trial court erred in rejecting the
VPOA’s claims that the City engaged in surface bargaining and rushed to declare
impasse and bargained in bad faith to replace the 2009 Agreement.15
       1.     Applicable Law
       “The MMBA imposes on local public entities a duty to meet and confer in good
faith with representatives of recognized employee organizations, in order to reach binding
agreements governing wages, hours, and working conditions of the agencies’
employees.” (Coachella Valley Mosquito and Vector Control Dist. v. Public Employment
Relations Board (2005) 35 Cal.4th 1072, 1083, citing Gov. Code, § 3505.)
       “The question of good or bad faith is primarily a factual determination based on
the totality of the circumstances [citations] and therefore on appeal the trial court’s
finding must be upheld if it is supported by the record as a whole.” (Placentia Fire
Fighters v. City of Placentia (1976) 57 Cal.App.3d 9, 25 (Placentia).) “In general, good
faith is a subjective attitude and requires a genuine desire to reach agreement.
[Citations.] The parties must make a serious attempt to resolve differences and reach a
common ground. [Citation.] The effort required is inconsistent with a ‘predetermined
resolve not to budge from an initial position.’ ” (Id. at pp. 25-26.) This does not mean
that the MMBA imposes on employers a duty to agree. (Id. at pp. 22-23.)
       An “ ‘employer may have either good or bad reasons, or no reason at all, for
insistence on the inclusion or exclusion of a proposed contract term. If the insistence is
genuinely and sincerely held, if it is not mere window dressing, it may be maintained
forever though it produce a stalemate. . . . [¶] The obligation of the employer to bargain
in good faith does not require the yielding of positions fairly maintained. . . . [¶] On the
other hand, while the employer is assured these valuable rights, he may not use them as a

       15
          The VPOA also argues that the City violated the MMBA by insisting to impasse
that the VPOA waive members’ legal rights, but concedes that its argument depends on
the existence of a vested right to premium contributions in the amount of the Kaiser rate.
Because we conclude that there was no such vested right, we do not reach this argument.


                                              22
cloak. In approaching it from this vantage, one must recognize as well that bad faith is
prohibited though done with sophistication and finesse. Consequently, to sit at a
bargaining table, or to sit almost forever, or to make concessions here and there, could be
the very means by which to conceal a purposeful strategy to make bargaining futile or
fail. Hence, we have said in more colorful language it takes more than mere “surface
bargaining,” or “shadow boxing to a draw,” or “giving the Union a runaround while
purporting to be meeting with the Union for purpose of collective bargaining.” ’ ”
(Placentia, supra, 57 Cal.App.3d at p. 23, quoting N.L.R.B. v. Herman Sausage Co. (5th
Cir. 1960) 275 F.2d 229, 231-232.)
       A negotiating party is entitled to stand on its position on a particular issue, and
therefore to engage in “hard bargaining.” (William Dal Porto & Sons, Inc. v.
Agricultural Labor Relations Board (1984) 163 Cal.App.3d 541, 549 (Dal Porto)
[“ ‘hard bargaining’ . . . is found where a party genuinely and sincerely insists on
provisions that the other party deems unacceptable, even though it may produce a
stalemate”].) The Public Employment Relations Board (PERB), has found an employer
to engage in hard bargaining, as opposed to refusing to bargain, where its position is
supported by rational arguments that were communicated to the union during the course
of negotiations. (Regents of the University of California (2010) PERB Dec. No. 2094-H
[34 PERC ¶ 41, pp. 190-191] (Regents 2010).)16
       An “impasse exists where the parties have ‘considered each other’s proposals and
counterproposals, attempted to narrow the gap of disagreement and have, nonetheless,
reached a point in their negotiations where continued discussion would be futile.’ ”
(Regents of the University of California (SUPA) (1985) PERB Dec. No. 520-H [9 PERC
¶ 16207, p. 887] (SUPA).) “Those who bargain collectively are normally under an
obligation to continue negotiating to impasse on all mandatory issues. [Citation.] The
law relieves them of that duty, however, when a single issue looms so large that a


       16
         Courts may look to PERB decisions for guidance. (See Burke v. Ipsen (2010)
189 Cal.App.4th 801, 809.)


                                             23
stalemate as to it may fairly be said to cripple the prospects of any agreement.” (N.L.R.B.
v. Tomco Communications, Inc. (9th Cir. 1978) 567 F.2d 871, 881.) Thus, “impasse may
exist when the parties are deadlocked on one or several major issues, even if the parties
continue to meet and even if concessions on minor issues are possible.” (SUPA, supra,
PERB Dec. No. 520-H [9 PERC ¶ 16207, p. 888].) A premature declaration of impasse
would support a finding of bad faith. (Kings In-Home Supportive Services Public
Authority (2009) PERB Dec. No. 2009-M [33 PERC ¶ 52, p. 237].)
       2.     Additional Background
       In June, July and September 2012, representatives of the City and the VPOA had a
total of four “off the record” discussions about a labor agreement that would supersede
the 2009 Agreement. From the outset, the City’s negotiators told the VPOA that the
City’s top priority was to reduce its liability for retiree medical costs, and that the City
sought agreements with all its unions to reduce the City’s retiree medical premium
contribution to $300 per month, consistent with the November 2010 business plan.
       In October 2012 the City made an initial written proposal to the VPOA. The City
proposed reducing its PEMHCA contribution for active employees to $300 per month.
The City proposed contributing an additional $600 to active employees through a
“Section 125 Cafeteria/Health Benefits Account,” to be “used for any purpose permitted
by a Section 125 plan including health premiums and co-pays, dental premiums and co-
pays, and other qualified benefits.” The City also proposed that any retiree who was
hired on or before July 1, 2013 would receive “$300 per month as the City’s contribution
towards medical premiums.” The proposal included additional cost-saving measures as
well, and the City explained it did not seek agreement on every possible cost-saving
measure in the proposal, and was proposing more savings than needed in order to provide
alternative ways to achieve the savings the City was seeking. Although the discussion
here focuses solely on negotiations concerning medical benefits, other issues were being
negotiated at the same time.
       The parties held three formal negotiating sessions starting in January 2013, before
exchanging proposals at a session in February. Two further negotiating sessions took


                                              24
place in March. At the second of those, the VPOA made a “package proposal” under
which the City would pay 80 percent of health care premiums for current VPOA
members, including both active employees and retirees. In April, the City modified its
proposals in response to the VPOA’s proposal. “[O]ff the record” discussions followed
in late April and early May, with formal negotiations resuming on May 5.
       After formal sessions in mid-June and early July, the parties met in mid-July and
the VPOA presented a counterproposal stating that “each member hired prior to the
effective date of an agreement, including retired members, maintains a vested right to
his/her retirement medical benefit.” Notwithstanding that asserted right, the VPOA
proposed that the City pay 75 percent of Kaiser rate for retirees, with the City’s
contribution to be offset in part by members’ contributions to a trust of 3 percent of their
base pay. The City then had “off the record” discussions with VPOA representatives on
eight different dates in August and early September. The VPOA did not change its
position regarding vested rights to retirement medical benefits.
       On September 19, 2013, the City’s negotiator declared an impasse in negotiations,
and provided VPOA with the City’s last, best, and final offer, in which the City offered
the following, effective January 1, 2014: For active employees, the city would make a
“direct PEMHCA contribution” of medical premiums not to exceed $300 per month, and
would “contribute the difference between the PEMHCA contribution ($300) and 75% of
the [Kaiser rate] through a flexible benefits plan,” with the flexible benefit plan
contribution “limited for use for medical premiums.” As retirees, current VPOA
members would receive the “same amount” as the City contributed “towards the
PEMHCA medical premiums for current VPOA bargaining unit employees,” so if the
“direct PEMHCA contribution” for current employees was capped at $300, the City
would pay up to that amount for eligible retirees. The proposal was accompanied by a
letter in which the City wrote, “Despite the substantial movement in the City’s [last, best,
and final offer], we have no illusions that this proposal will result in an agreement. The
VPOA made it clear in its last offer on July 18, 2013, that it believes ‘The VPOA
specifically notes that each member hired prior to the effective date of an agreement,


                                             25
including retired members, maintains a vested right to his/her retirement medical benefit.
Nothing in this proposal shall be interpreted to constitute a waiver of such members’
individual vested rights.’ As we have communicated to you, the City does not believe
that a vested benefit exists today for VPOA members. Moreover, having recently exited
the Chapter 9 bankruptcy process, the city will not consent to any language which would
establish a long term, unrestricted, unknown growth of an employee or retiree benefit.
[¶] Based on the foregoing, the City believes that the parties are now at impasse. While
we remain open to a counterproposal from the VPOA which breaks that impasse, the
parties have been very frank in their needs over the past few months and we remain
significantly apart.”
       Between September 30 and October 15, 2013, the City and the VPOA had four
further “off the record” discussions. On October 15, the VPOA filed a verified petition
for writ of mandate, declaratory relief and injunctive relief in the superior court. A few
days later, the VPOA demanded that outstanding issues be submitted to formal
factfinding pursuant to Government Code section 3505.4.17 The factfinding hearing was
held on November 14 and 15, 2013, and the factfinding panel released a written report
and recommended terms of settlement on November 30.
       In the meantime, the parties had another “off the record” discussion in late
October. On November 11, the VPOA presented a counterproposal to the City’s last,
best, and final offer, in which the VPOA maintained its position as to vested rights, and
proposed that for active employees the City pay 75 percent of the Kaiser rate, as a direct
contribution or as a flexible benefits contribution; for retirees hired before February 1,
2009, the City pay “the greater of 100% of the least expensive premium among the
[CalPERS] plans provided in the Bay Area/Sacramento options, or 66.7% of the [Kaiser
rate].” Retirees hired between February 1, 2009 and the ratification of the new agreement

       17
          The MMBA requires a public agency to participate in factfinding upon request
by the union when an impasse has been declared. (Gov. Code, § 3505.4, subd. (a).) The
factfinding panel’s findings of fact and recommended terms of settlement are “advisory
only.” (Gov. Code, § 3505.5, subd. (a).)


                                             26
would receive the minimum PEMHCA contribution if they retired with less than 10 years
of service. With 10 years of service, they would receive the same benefits as retirees
hired before February 1, 2009. The VPOA proposed that the benefit be funded by a trust
to which the City and employees would contribute, with employees contributing 3.5
percent of their base salary. On November 12, 2013, the City modified its proposal to the
VPOA in some respects, but did not change its position on medical benefits.
       The factfinding panel took no position on the merits of the VPOA’s argument
regarding its members’ vested rights to medical benefits. The panel issued a total of 16
recommendations on a range of contested issues, including wages, longevity pay,
employee retirement contributions, and sick leave. One of its recommendations was to
accept the VPOA’s proposal as to retiree medical benefits.
       The VPOA and the City met “off the record” on December 6, 2013, to discuss the
factfinder’s recommendations, but did not reach a deal on a new labor agreement. On
December 12, the City informed the VPOA that the City Council would consider
imposing terms and conditions of employment at its December 16 meeting. The City
wrote that it understood the “VPOA’s strong desire to protect the wages of its current
members for purposes of retention. Accordingly, . . . City staff has recommended that the
City Council only impose the highest priority terms of its last, best and final offer,
including the proposed changes to the City’s direct PEMHCA contribution and related
impacts to retiree medical benefits.”
       The City Council approved the staff recommendations, and passed the December
2013 resolution discussed above.
       3.     Analysis
       The VPOA argues that the City violated the MMBA by engaging in impermissible
surface bargaining, as shown by the City’s “predetermination to reduce retiree medical
benefits” and its premature declaration of impasse. We conclude that substantial
evidence supports the trial court’s findings to the contrary.




                                             27
              a.       Surface Bargaining
       The City stood firm on its position that it would contribute only $300 per month
toward retiree medical premiums, but that does not in itself constitute surface bargaining.
The City emphasizes that although it maintained its initial position on this issue, it moved
on other significant proposals, and the VPOA does not contend otherwise. The City’s
position on this issue was supported by a rational argument that was communicated to the
VPOA from the beginning of negotiations: the City wanted to reduce its contribution for
retiree medical benefits, for all employees, to $300 per month as a way of achieving
savings and maintaining fiscal stability.18 This constitutes substantial evidence to support
the trial court’s finding. (See Regents 2010, supra, PERB Dec. No. 2094-H [34 PERC
¶ 41, pp. 190-191].)
       In essence, the VPOA argues that even though the City changed its positions on
several of the issues in contention over the course of negotiations, the City’s failure to
move on one of those issues—retiree medical benefits—constitutes surface bargaining.
The VPOA cites no authority to support such an extreme position.
       The VPOA argues that the City’s business plan did not absolve the City of its
obligation to bargain over retiree medical proposals. The obligation to bargain, however,
does not impair the City’s right to stand on an issue. (Dal Porto, supra, 163 Cal.App.3d
at p. 549.) And even if the City’s business plan did not absolutely require the City to
insist on a contribution of $300 per month toward all employees’ retiree medical benefits,
it provided a rational justification for the City’s position. The City’s refusal to accept the
VPOA’s proposal that the City pay 75 percent of the Kaiser rate for retirees, to be funded
in part by VPOA member’s contributions to a trust, was accompanied by a rational




       18
         During the course of the negotiations, the City’s negotiators also explained to
the VPOA that the City was trying to equalize health and welfare benefits across
employee groups. The retiree medical proposal was identical to terms that other unions
accepted during the bankruptcy and to terms applied to unrepresented City employees
under a 2009 resolution.


                                              28
justification: “the city will not consent to any language which could establish a long
term, unrestricted, unknown growth of an employee or retiree benefit.”
       The VPOA also argues that the City’s insistence on obtaining the same terms for
retiree medical benefits across unions was improper. The argument lacks merit. An
employer may engage in hard bargaining by seeking the same concessions from its
unions without violating the MMBA. (County of Solano (2014) PERB Dec. No. 2402-M,
pp. 9-10 [39 PERC ¶ 78].)
              b.     Rush to Impasse
       Substantial evidence also supports the trial court’s finding that the City did not
rush to impasse. The parties engaged in negotiations and discussions over a period of
more than a year before the City declared impasse in September 2013. During that period
the parties exchanged and modified proposals several times, with the last counterproposal
from the VPOA in July 2013. With no further progress, despite additional discussions,
after two more months the City provided its last, best, and final offer and declared
impasse. The extended period of negotiation, the parties’ exchanges of proposals and the
two-month period between the last exchange of proposals and the declaration of impasse
constitute substantial evidence that the City did not rush to impasse, but rather declared
impasse in response to a deadlock.
       The VPOA contends that the parties were not at impasse because further
bargaining was not futile. This position lacks merit. All the evidence before us suggests
that retiree medical benefits was a primary issue of contention for both the City and the
VPOA, and that the VPOA was as committed to its view that retirees had a vested right to
the full Kaiser rate as the City was to its view that the VPOA should accept a retiree
medical benefit of $300 per month.
       The VPOA also argues that the parties were not at impasse because the City still
had room to move, as evidenced by the City’s subsequent modification of the sick leave
buy-back proposal in the City’s last, best, and final offer. We are not persuaded, in view
of the City’s detailed explanation in its letter to the VPOA of why it believed there was
an impasse. Finally, the VPOA contends that the City’s statement in its declaration of


                                             29
impasse that it remained open to a counterproposal from the VPOA is evidence that there
was no impasse. But there can be impasse when the parties are deadlocked on a major
issue, even if the parties continue to meet and even if movement is possible on other
issues. (SUPA, supra, PERB Dec. No. 520-H [9 PERC § 16207, p. 888].)
       In sum, substantial evidence supports the trial court’s findings that, considering
the totality of the circumstances, the City did not engage in surface bargaining or rush to
declare impasse. The VPOA did not establish that the City violated the MMBA, and
therefore we need not reach the VPOA’s argument that it is entitled to a remedy.
                                     DISPOSITION
       The judgment is affirmed. The City shall recover its costs on appeal.




                                             30
                                 _________________________
                                 Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




                            31
Filed 9/21/17

                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


VALLEJO POLICE OFFICERS
ASSOCIATION,
        Plaintiff and Appellant,                  A144987

v.                                                (Solano County
CITY OF VALLEJO,                                  Super. Ct. No. FCS042492)
        Defendant and Respondent.



BY THE COURT:
        The opinion in the above-entitled matter filed on August 22, 2017, was not
certified for publication in the Official Reports. For good cause and pursuant to
California Rules of Court, rule 8.1105, it now appears that the opinion should be
published in the Official Reports, and it is so ordered.




Dated: _______________________                    ________________________________
                                                  Kline, P.J.




                                              1
Trial Court: Superior Court of Solano County

Trial Judge: Hon. Paul L. Beeman


Attorneys for Appellant                        Mastagni Holstedt
                                               David E. Mastagni
                                               Isaac S. Stevens
                                               Tashayla D. Billington

Attorneys for Amici Curiae:
Los Angeles Retired Fire & Police Association, Inc.
Retired Employees Association of Orange County
Sacramento Area Firefighters, International Association
   of Firefighters, Local 522, AFL-CIO
Palo Alto Firefighters, International Association
   Of Firefighters, Local 1319, AFL-CIO
Sacramento Police Officers’ Association
Los Angeles Airport Peace Officers’ Association
Sacramento County Deputy Sheriff’s Association
San Mateo County Deputy Sheriff’s Association
in support of Appellant                           Rosen Bien Galvan & Grunfeld LLP
                                                  Ernest Galvan
                                                  Margot Mendelson
                                                  Jenny S. Yelin

Attorneys for Amicus Curiae Coalition of Public Safety
Labor Associations in support of Appellant     Messing Adam & Jasmine LLP
                                               Gregg McLean Adam
                                               Gary M. Messing

Attorneys for Respondent                       Renne Sloan Holtzman Sakai LLP
                                               Jonathan V. Holtzman
                                               Charles D. Sakai
                                               Erich W. Shiners

Attorneys for Amicus Curiae League of California Cities
in support of Respondent                      Liebert Cassidy Whitmore
                                              Steven M. Berliner
                                              Michael D. Youril


                                          2
