Filed 2/3/15 Los Angeles Community College Dist. v. Gabrie CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


LOS ANGELES COMMUNITY                                               B250381
COLLEGE DISTRICT,
                                                                    (Los Angeles County
         Plaintiff and Respondent.                                  Super. Ct. No. BC483225)

                             v.

CONSTANTINO GABRIE,

         Defendant and Appellant,




         APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
Johnson, Judge. Affirmed.


         Best Best & Krieger, Kira L. Klatchko, and Irene S. Zurko for Plaintiff and
Respondent.


         Felahy Law Group, Allen B. Felahy, and Jennifer M. Yang for Defendant and
Appellant.


                                                 **************
       In this declaratory relief action brought by plaintiff Los Angeles Community
College District against its former employee, defendant Constantino Gabrie, plaintiff
sought a declaration of its duties under a settlement agreement the parties reached after
plaintiff sought to terminate defendant’s employment. The settlement agreement
provided that defendant would be placed on paid administrative leave for over one year,
and after that time, defendant would retire, and would receive “health insurance benefits
provided to retirees.” However, defendant failed to timely retire into the California State
Teachers’ Retirement System (CalSTRS), and CalSTRS determined he was ineligible for
retiree health benefits.
       Plaintiff sought a declaration that the settlement agreement did not require plaintiff
to provide defendant with a private health insurance policy, but instead required plaintiff
to obtain retiree health benefits from CalSTRS. After a one-day trial, the trial court
issued a seven-page statement of decision finding the agreement called for defendant’s
participation in CalSTRS, and that plaintiff was under no obligation to purchase private
insurance for defendant.
       We affirm the judgment.
                                     BACKGROUND
       Plaintiff’s declaratory relief complaint made the following allegations: Defendant
was a permanent academic employee of plaintiff, teaching dental technology courses at
Los Angeles City College. On September 1, 2010, plaintiff sought defendant’s dismissal
for performance issues, and filed an Accusation with the Office of Administrative
Hearings. Defendant appealed his dismissal, and a hearing on the appeal was set for
January 2011. On December 13, 2010, the parties participated in a mandatory settlement
conference with Administrative Law Judge Ralph B. Dash at the Office of Administrative
Hearings. Defendant and his attorney, Lawrence Rosenzweig, appeared at the
conference, as did several of plaintiff’s representatives and plaintiff’s counsel, Melanie
Chaney.
       The parties reached a tentative settlement at the conference. Because defendant
was too young to retire and collect benefits, plaintiff would keep defendant on paid

                                              2
administrative leave until January 31, 2012, which was a few days after his 55 th birthday.
Defendant would then resign and retire from his position, effective February 1, 2012.
Defendant agreed not to apply for or accept any employment with plaintiff, and plaintiff
agreed to remove all documents relating to his dismissal from his personnel file.
       Defendant was concerned that he was not eligible for retirement benefits until
55½, so plaintiff agreed to hold its offer open until January 3, 2011, while defendant
investigated his eligibility with CalSTRS further. On January 3, 2011, the parties
participated in a telephonic status conference with Judge Dash. Defendant’s counsel
confirmed that defendant had learned he was eligible to retire at 55, but that if he deferred
retirement until 55½, his retirement benefit would be about $200 per month greater.
Therefore, defendant proposed that plaintiff leave him on the payroll until July 1, 2012,
when defendant would be 55½. Plaintiff declined this proposal, and the parties ultimately
settled their dispute under the original terms. The settlement agreement was signed on
January 26, 2011. It provided, in pertinent part, that:
               “2.   In consideration for the promises contained here, Gabrie shall
       remain on paid administrative leave from his position as a faculty member
       through January 31, 2012. Gabrie hereby retires from his position as a
       faculty member of the District, effective February 1, 2012. Immediately
       upon execution of this agreement, Gabrie shall submit his letter of
       retirement. The letter shall be submitted in the format of the retirement
       letter attached hereto as Exhibit 1. The District will accept the letter
       immediately. The parties agree that Gabrie’s retirement is irrevocable
       immediately upon execution of this Agreement by both parties.
              “3.    Gabrie shall be entitled to the CalSTRS contributions,
       vacation, sick leave, and health and welfare benefits provided by the
       District to him as a permanent academic employee of the District through
       January 31, 2012. Upon the effective date of his retirement, Gabrie shall be
       entitled to the health insurance benefits provided to retirees.”



                                              3
       The agreement also contained an integration clause, providing that “[t]his
Agreement constitutes an integration of the entire understanding and agreement by,
between, and among the parties hereto and supersedes and is in lieu of any and all other
agreements, statements or promises, written or oral, between Gabrie and the District .
Any representations, warranties, promises, understandings, or conditions, whether written
or oral, not specifically incorporated herein, shall not be binding upon any of the parties
hereto.”
       Lastly, the agreement provided that if any term of the agreement was breached, the
parties had the right to seek specific performance, or “any other necessary and proper
relief, including . . . damages. . . .”
       Defendant’s answer to the complaint alleged that there was “no present and actual
controversy” between the parties, and that “declaratory relief is not necessary or proper
under the circumstances.”
       At the one-day court trial, plaintiff’s witnesses, and even defendant, testified
consistently with the complaint’s allegations. Plaintiff’s witnesses, which included
human resources personnel, legal counsel, benefits administrators, and a union
representative, testified that the purpose of the settlement agreement was to facilitate
defendant’s retirement, as he was too young to retire at the time the district initiated
disciplinary proceedings.
       Michael Shanahan, plaintiff’s interim senior associate vice chancellor of human
resources, testified that he attended the December 2010 settlement conference. At the
settlement conference, the plaintiff informed defendant that if it succeeded in dismissing
him, he would “lose access to district contributions toward retiree health care. To remedy
that, he was offered a settlement package that included staying on salary through age 55,
which is the minimum retirement age under . . . CalSTRS.” Mr. Shanahan testified that
the “whole point” of the settlement agreement was to facilitate defendant’s retirement
into CalSTRS so that he could draw health benefits under CalSTRS. In order to receive
these benefits, a retiree must be at least 55, and must retire into the pension system
immediately after termination of employment. In order to retire into CalSTRS, a retiree

                                              4
must submit an application directly to CalSTRS. The district did not provide any
insurance benefits to retirees other than those offered through CalSTRS. There was no
discussion at the settlement conference of providing defendant with any private health
benefits.
       Kevin Jeter, plaintiff’s associate general counsel, testified that he also attended the
December 2010 settlement conference. Defendant was a member of the Los Angeles
College Faculty Guild union. Retiree benefits are governed by the Joint Labor
Management Benefits Agreement, which is incorporated into all the collective bargaining
agreements for all union employees.
       Mr. Jeter testified that plaintiff paid defendant through January 31, 2012, and
defendant was separated from his employment on February 1, 2012, as required by the
agreement. However, defendant did not immediately retire into CalSTRS. Mr. Jeter
spoke with defendant’s attorney in March 2012, to inquire why defendant had not retired.
Defendant’s counsel informed Mr. Jeter that defendant had not retired because his wife
had a lien on his pension. Mr. Jeter informed defendant’s counsel that defendant had to
retire into CalSTRS within 120 days from the date of separation from his employment in
order be eligible to receive health benefits.
       Mr. Jeter did not hear back from defendant’s counsel, and therefore the district
filed this declaratory relief action on April 26, 2012, within the 120-day CalSTRS
enrollment period.
       Defendant submitted his retirement application on May 30, 2012, within the 120-
day time limitation. However, CalSTRS would not allow defendant to retire with a
February 1, 2012 retirement date because in August 2011, defendant had taken a new job
with another CalSTRS entity, Pasadena Community College District. This was the first
time plaintiff learned that defendant had taken another job. Defendant retired into
CalSTRS with an effective date of July 1, 2012, which was more than 120 days after he
separated from plaintiff’s employment, so he was not eligible to enroll in plaintiff’s
retiree health benefits. Plaintiff has no authority to waive or extend this time period.



                                                5
       Darrell Eckersley is the chief grievances officer with defendant’s union. He
represents faculty members in disciplinary proceedings. In order to retire, an employee
must first end their employment with plaintiff, and then must retire separately into
CalSTRS. There is a minimum age of 55 to retire into CalSTRS. Under the union’s
collective bargaining agreement, the effective date of the retirement into CalSTRS must
be no later than 120 days after resigning from plaintiff. Defendant was subject to this
agreement. Mr. Eckersley attended the settlement conference as defendant’s union
grievance representative. The purpose of the agreement was to facilitate defendant’s
retirement into CalSTRS.
       Leila Menzies, plaintiff’s president of administrative services for risk management
and health benefits, testified plaintiff’s health benefits are governed by a master health
benefits agreement. The agreement defines “retirement” as retiring through CalSTRS.
This must be done within 120 days of separating from employment Defendant called
Ms. Menzies in March 2012, asking to receive his health benefits. Ms. Menzies informed
defendant that he had to retire through CalSTRS to receive his benefits. Defendant’s
retirement was delayed because he was receiving service credit through employment with
another CalSTRS entity. Ms. Menzies asked CalSTRS if they could make an exception
for defendant, and was told they could not, and that plaintiff had no right to waive or
extend the 120-day period.
       Defendant testified that the parties discussed keeping him on plaintiff’s payroll
until he reached the retirement age of 55. After the settlement conference, defendant
confirmed with CalSTRS that the retirement age was 55, but that he would get a larger
pension if he retired at 55½.
       Defendant started working at Pasadena City College in August 2011. When he
met with CalSTRS, he was never informed that taking another job could delay his
retirement.
       After plaintiff filed this lawsuit, defendant attempted to retire on May 30, 2012,
because “it was the only way [he] could receive [his] health benefits.” In March or
April 2012, defendant learned that his benefits had to come from CalSTRS.

                                              6
       Defendant testified that he was a member of the Faculty Guild union, and that he
was subject to the union’s collective bargaining agreement. Defendant had access to the
agreement.
       Defendant also testified that the parties did not discuss private insurance at the
settlement conference and that “there were discussions about retiree health benefits from
the district pursuant to the bargaining agreement.” He testified that plaintiff informed
him, within the 120-day period, that he had to retire into CalSTRS in order to receive his
health benefits. Defendant never asked anyone at the district about the impact of taking a
part time job. Defendant is presently receiving a pension from CalSTRS, but is not
receiving retiree health benefits through his employment with plaintiff.
       The trial court issued a seven-page tentative statement of decision, finding that the
evidence established that the only health insurance plaintiff provided to retirees was
through the CalSTRS system, and that plaintiff “was not obligated to provide anything
more to [defendant].” The trial court found that the “entire settlement agreement was
premised on the fact that [plaintiff] would continue [defendant] on its payroll until he
reached the minimum retirement age of 55 and could qualify for health insurance benefits
by arranging a timely retirement through the STRS system.” That decision became the
trial court’s final judgment after defendant failed to lodge any timely objections.
                                       DISCUSSION
A.     Trial Court’s Failure to Dismiss Declaratory Relief Action
       Code of Civil Procedure section 1060 provides that any person “interested under a
written instrument . . . or under a contract” may, “in cases of actual controversy relating
to the legal rights and duties of the respective parties,” bring an original action or cross-
complaint for a declaration of its rights or duties. Granting relief under this section is
discretionary; under section 1061, the trial court “may refuse to exercise the power
granted by [section 1060] in any case where its declaration or determination is not
necessary or proper at the time under all the circumstances.” (See also DeLaura v.
Beckett (2006) 137 Cal.App.4th 542, 545 [a decision whether to grant declaratory relief is
reviewed for abuse of discretion].)

                                              7
       Declaratory relief is available only “in cases of actual controversy relating to the
legal rights and duties of the respective parties.” (Code Civ. Proc., § 1060; see also City
of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 [“ ‘The fundamental basis of declaratory
relief is the existence of an actual, present controversy over a proper subject’ ”]; BKHN,
Inc. v. Department of Health Services (1992) 3 Cal.App.4th 301, 308-310.)
       Defendant contends there was not an actual controversy between the parties
because he submitted his retirement application to CalSTRS after the declaratory relief
action was filed. However, plaintiff filed this action to obtain a declaration that
defendant’s timely retirement into CalSTRS was required in order to receive retiree
health benefits under the settlement agreement, and a declaration that plaintiff had no
duty to provide defendant with any health insurance other than that provided by
CalSTRS. Clearly, defendant’s submission of his retirement application did not resolve
the controversy, as his status as a retiree had not yet been determined, and his enrollment
in retiree health benefits had not been secured.
       Defendant also contends this action was not “necessary or proper” because it was
filed “preemptively . . . for a strategic purpose in order to prevent a potential breach from
actually materializing.” (See, e.g., Osseous Technologies of America, Inc. v.
DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 376 [“California trial courts
may consider in their section 1061 analysis whether the timing of the declaratory relief
action suggests litigation strategy motivated the filing rather than a concern that judicial
guidance was needed and would not be forthcoming absent the filing of a declaratory
relief action.”].) We are not persuaded. Here, there was an actual dispute regarding
plaintiff’s obligations to defendant, and plaintiff filed this complaint promptly in an effort
to avoid harm to defendant; that is exactly the purpose of section 1060.
B.     Merits
       Defendant contends this appeal turns on the interpretation of the settlement
agreement, and therefore the standard of review is de novo. Plaintiff, in contrast, argues
that we must apply the substantial evidence rule.



                                              8
       In construing a contract, “[w]hen no extrinsic evidence is introduced, or when the
competent extrinsic evidence is not in conflict, the appellate court independently
construes the contract. [Citations.] When the competent extrinsic evidence is in conflict,
and thus requires resolution of credibility issues, any reasonable construction will be
upheld if it is supported by substantial evidence. [Citations.]” (Founding Members of the
Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003)
109 Cal.App.4th 944, 955-956.)
       Here, there is no material dispute in the evidence. All of the witnesses testified
consistently. The only disagreement between the parties is how their contract is to be
interpreted. Therefore, our review is de novo.
       “ ‘ “The fundamental rules of contract interpretation are based on the premise that
the interpretation of a contract must give effect to the ‘mutual intention’ of the parties.
‘Under statutory rules of contract interpretation, the mutual intention of the parties at the
time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to
be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.)
The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and
popular sense,” unless “used by the parties in a technical sense or a special meaning is
given to them by usage” (id., § 1644), controls judicial interpretation. (Id., § 1638.)’
[Citations.] A [contract] provision will be considered ambiguous when it is capable of
two or more constructions, both of which are reasonable. [Citation.] But language in a
contract must be interpreted as a whole, and in the circumstances of the case, and cannot
be found to be ambiguous in the abstract.” [Citation.]’ ” (TRB Investments, Inc. v.
Fireman’s Fund Ins. Co. (2006) 40 Cal.4th 19, 27.)
       Defendant argues that the contract did not specify that he was required to retire
into CalSTRS to receive health benefits, as there was no mention of CalSTRS in the
contract. He therefore reasons that the contract is “unambiguous,” and is not susceptible
to the interpretation urged by plaintiff. He also argues that the contract’s integration
clause prohibits reliance on any outside agreements such as the collective bargaining
agreement governing retiree benefits. Lastly, defendant contends that he “should not be

                                              9
deprived of his health insurance benefits as a result of a technicality through no fault of
his own.”
       We find no ambiguity in the settlement agreement. The settlement agreement
clearly provided that “Upon the effective date of his retirement, Gabrie shall be entitled
to the health insurance benefits provided to retirees.” The undisputed evidence
established the only health benefits plaintiff provided to retirees were those administered
through CalSTRS. The integration clause does not change our analysis of this undisputed
fact. The whole purpose of the agreement was to facilitate defendant’s retirement, and
plaintiff repeatedly acted to safeguard defendant’s interests, urging him to timely retire.
Defendant knew he had to timely retire, as demonstrated by his submitting a retirement
application to CalSTRS within 120 days of his separation from plaintiff. The only reason
he did not receive the promised benefits was because he had taken employment with
another CalSTRS entity, which extended the date on which he was eligible to retire, a
circumstance of his own making.
                                      DISPOSITION

       The judgment is affirmed. Respondent is to recover its costs on appeal.


                                                  GRIMES, J.


We concur:

              BIGELOW, P. J.



              RUBIN, J.




                                             10
