Upl

1 JOHN M.
SKONBERG, BarNo 069409

RICHARD H. RAHM, BarNo. 130728
2 JOSHUA D. KIENITZ, Bar No. 244903
LITTLER MENDELSON
3 A Professional Corporation
650 California Street
4 20th Floor
San Francisco, CA 94108.2693
5 Telephone: 415.433.1940
Fax No.: 415.399.8490
6
K. WILLIAM CURTIS
7 Chief Counsel, BarNo. 095753
WARREN C. STRACENER
8 Deputy Chief Counsel, BarNo. 127921
JAMES SPURLING
9 Assistant Chief Counsel, BarNo. 109432
Department of Personnel Administration
10 State of Califomia
1515 S Street, North Building, Suite 400
Sacramento, CA 95811-7243
11 Telephone: (916)324-0512
Facsimile: (916)323-4723
12 E-mail- curtstracener(§dpa.ca.gov
13 Attorneys for Plaintiffs
STATE OF CALIFORNIA, CALIFORNIA
14 DEPARTMENT OF CORRECTIONS AND
REHABILITATION, DEPARTMENT OF
15 PERSONNEL ADMINISTRATION, AND
DEPARTMENT OF MENTAL HEALTH
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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THE STATE OF CALIFORNIA, CaseNo. 34-2010-00075552
20 CALIFORNIA DEPARTMENT OF
CORRECTIONS AND PLAINTIFFS' OPPOSITION TO EX
21 REHABILITATION, DEPARTMENT OF PARTE APPLICATION FOR AN ORDER
PERSONNEL ADMINISTRATION, and STAYING PROCEEDINGS;
22 DEPARTMENT OF MENTAL HEALTH, DECLARATION OF RICHARD H. RAHM
IN SUPPORT THEREOF
23 Plaintiffs,
Date: December 3, 2010
24 Time 9 00am
Place- Dept. 53
25 CALIFORNIA CORRECTIONAL PEACE Judge. Hon Kevin R Culhane
^ OFFICERS ASSOCIATION,
Exempt from Fees (Gov. Code § 6103)
26 Defendant.
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LITTLER MENDELSON
28
A PRorEtiiOHAi C c o i i n o N
6&0Cal>toinia Slival
?Olh Floor
.anFranciico CA 94108 2693
415 433 1940 STATE'S OPPOSITION TO CCPOA'S EX PARTE APPLICATION
1 TABLE OF CONTENTS
2 PAGE
3 I. INTRODUCTION 1
4 II FACTUAL AND PROCEDURAL BACKGROUND 1
5 A. This Court Previously Ruled On CCPOA's Argument That It Does Not Have
Jurisdiction To Hear The State's UPL Complaint ?! 1
6
B. CCPOA Files A Cross-Petition That Alleges, Contrary To The Allegations Of
7 The FAC, That The State Has Alleged A Violation Of The Expired MOU . . . 2
8 III. CCPOA'S EX PARTE APPLICATION FO^ A STAY OF DISCOVERY SHOULD

BE DENIED ...3
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A. CCPOA Fails To Demonstrate That Its Cross-Petition Concems A
10 "Controversy Which Is An Issue In The Action " 3
11 B. CCPOA Cannot Otherwise Demonstrate Good Cause Because Its Cross-
Petition Is Nothing More Than An Attempt To Have This Court Reconsider
12 Its Previous Ruling On Its Demuner . . .4
13 IV. CONCLUSION 4
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LITTLER MENDELSON
A P«orESllONJ>l COdPORkllON 1.
650 Calilomia S l i i e i
20th floor
an Fianciico CA 94108 2693
1
I. INTRODUCTION
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Defendant Califomia Correctional Peace Officers Association ("CCPOA") purports
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to file an ex parte application for a stay of all discovery pursuant to Code of Civil Procedure section
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1281.4, claiming that this Court has no jurisdiction to hear the claims of Plaintiff State ofCalifornia
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and its related entities (the "State") because such claims must be arbitrated pursuant to an expired
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Memorandum of Understanding ("MOU") between the parties. CCPOA argued the very same issue
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in its demuner to the State's breach-of-contract complaint, which this Court ovenuled because
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nowhere in that complaint does the State allege a breach' of the MOU. Nevertheless, after the
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Court's ruling, CCPOA filed a Cross-Petition, again making the same argument as it made in its
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demuner, that the State's claims must be arbitrated pursuant to the expired MOU As such,
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CCPOA's Cross-Petition is really nothing more than a motion for reconsideration of this Court's
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previous decision and cannot be the basis of an ex parte application for a stay. Indeed, although
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CCPOA claims that this Court should stay the State's discovery because whether its claims are
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governed by the MOU is a "controversy which is an issue in the action," nowhere in its ex parte
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application can it point to any allegation in the State's complaint that CCPOA violated the MOU
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Because CCPOA offers nothing in addition to its previous arguments before this Court, its ex parte
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application for a stay should be denied.
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II. FACTUAL AND PROCEDURAL BACKGROUND
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A. This Court Previously Ruled On CCPOA's Argument That It Does Not Have
20 Jurisdiction To Hear The State's UPL Complaint.
21 Plaintiff State filed its complaint against Defendant CCPOA for a breach ofthe Union
22 Paid Leave Agreement ("UPL Agreement"), which the parties entered into on November 7, 2007 '
23 See FAC Yi 5-6. The agreement provides that the State would continue to pay public funds for the
24 full salary and benefits of CCPOA-represented employees who were released on Union Paid Leave
25 on condition that CCPOA agreed to pay all past and future UPL debts. Id In particular, the UPL
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27 ' Because the Court sustained CCPOA's demurrers, with leave to amend, as to it two equitable causes of action,
citations are to the State's First Amended Complaint ("FAC"), attached as Exhibit A to the Declaration of Richard H
28 Rahm ("Rahm Decl")
LITTLER MENDELSON
A PROFEIJIOM.I CORPOR.IIOM
6S0 Calilomia Stiaal
!Oih Flooi
,an Fianciico CA 9410S 3693
1 Agreement provides that the State will invoice CCPOA for UPL, and that "Payment will normally be
2 made by CCPOA within thirty (30) business days after receipt ofthe invoice." FAC'^6, Exh B
3 (UPL Agreement) at TI 17. The State began sending out invoices for UPL in 2008 (two years after
4 the expiration ofthe MOU), which covered UPL that the State had paid for CCPOA from 2005. See
5 FAC TI 8. After CCPOA ran up debts under the UPL Agreement to approximately $4 million, the
6 State filed a complaint in this Court for, inter aha, breach of contract based on the invoices sent out
7 from 2008 pursuant to the UPL Agreement. Id
8 CCPOA demuned to the complaint, largely arguing that this Court had no jurisdiction
9 because the claims fall under a MOU that expired in 2006. See Demuner (Rahm Decl, Exh B at-
10 4:14-6:2). Specifically, CCPOA argued that because the expired MOU had a similar provision for
11 UPL, the State's "lawsuit involves a dispute about 'the interpretation, application or enforcement' of
12 MOU section 10.14 " In its Opposition, the State pointed out that nowhere in the complaint did it
13 allege a breach ofthe MOU. See Rahm Decl., Exh. C at 5:18-6:16 Nor could it. The State alleged
14 that CCPOA breached the UPL Agreement because that agreement required payment of invoices
15 within thirty days, and such invoices were not even sent to CCPOA until 2008 See FAC TI 8 As
16 such, no breach by CCPOA could have taken place before the MOU expired. In its Reply, CCPOA
17 argued that it was not "clear" that the State was suing only under the UPL Agreement. See Rahm
18 Declaration, Exh. D at 2:1-4:3.
19 The Court ovenuled CCPOA's argument that the State had alleged a cause of action
20 for a violation of the MOU. See Rahm Decl. TI 4. However, the Court sustained with leave to amend
21 CCPOA's demuner to the State's implied contract and bad faith causes of action Id When the
22 State filed its First Amended Complaint ("FAC") to amend its equitable causes of action, it took the
23 opportunity - although the Court did not require it to do so - to further clarify that it was not alleging
, 24 any cause of action under the MOU. See FAC TITI9-13 (Rahm Decl., Exh. A).
25 B. CCPOA Files A Cross-Petition That Alleges, Contrary To The Allegations Of

The FAC, That The State Has Alleged A Violation Of The Expired MOU.
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Instead of filing an answer to the State's FAC, CCPOA filed a Cross-Petition and
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then a First Amended Cross-Petition ("Cross-Petition") See Rahm Decl Ti 5 In that Cross-Petition,
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LITTLER MENDELSON
A PAOF4JIION41 CoaaoaAiioN 2.
650 California Stisai
!Oih Flooi
,an Fianciaco CA 94106 3693
415 433 1940
STATE'S OPPOSITION TO CCPOA'S £Y/'/i/?7'£; APPLICATION
1 CCPOA alleges that "A dispute has arisen between the parties conceming CCPOA's obligations
2 under the MOU to reimburse the State for UPL time as defined in section 10.14 ofthe MOU."
3 Cross-Petition at TI 13. Nowhere is there any citation to the State's FAC or even to the UPL
4 Agreement. In its Verified Response to the Cross-Petition, the State again clarified that "the breach
5 of obligafion upon which the State brings the present litigafion arose, inter aha, from the Union Paid
6 Leave Agreement ("UPL Agreement") and not the expired 2001-2006 Memorandum of
7 Understanding ("MOU")." Rahm Decl., Exh. E at 1:2-16.
8 Since CCPOA chose not to demur to the FAC, the State noticed the deposition of
9 CCPOA's Person Most Knowledgeable with respect to the issues in the FAC. See Rahm Decl. TI 5
10 Because CCPOA's understanding ofthe UPL provisions in the expired MOU could be relevant to
11 the parties intentions in drafting the provisions ofthe UPL Agreement, the State included it as one of
12 its PMK topics. See Declaration of Jonathan Yank in Support of Ex Parte Application ("Yank
13 Decl."), Exh. A at 5-1-2. None ofthe State's discovery seeks information about any alleged breach
14 ofthe MOU. See Rahm Decl. TI 5.
15 III. CCPOA'S EX PARTE APPLICATION FOR A STAY OF DISCOVERY SHOULD BE

DENIED.
16
A. CCPOA Fails To Demonstrate That Its Cross-Petition Concerns A "Controversy
17 Which Is An Issue In The Action."
18 CCPOA purports to have filed an ex parte application for a stay pursuant to Code of
19 Civil Procedure section 1281, which states in relevant part, that if a petition has been filed that
20 concems the arbitration of "a controversy which is an issue involved in an action or proceeding
21 pending before a court of this State," the court shall stay that proceeding until the petition is ruled
22 upon. See Code Civ. Pro. § 1281.4. In this respect, CCPOA asserts in its Cross-Petition that the
I
State's FAC involves such a controversy See Cross-Petition TI 13. Yet, nowhere does the Cross-
23
Petition even reference the allegations in the FAC or the UPL Agreement, and nowhere in the FAC
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does the State allege a cause of action for breach ofthe MOU.
25
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As noted above, the UPL Agreement specifically provides that CCPOA shall
27
reimburse the State for UPL provided to CCPOA "within thirty (30) business days after receipt of
,28 the invoice." UPL Agreement TI 16 (Rahm Decl., Exh. A). As such, the only way that the State can
LITTLER MENDELSON
A PoOMIIlDHItl C0(ll>OR«TION
650 Cihlomis S l i i e l
3.
20ih Floo'
.an FranciiCD CA 9410S 2693
1 allege a breach of contract under the UPL Agreement is to allege that CCPOA failed to pay the
2 invoices within thirty days. Id In this respect, "a cause of action for breach of contract accrues at
3 the fime ofthe breach." Reichert v General Ins Co., 68 Cal. 2d 822,' 831 (1968) As alleged in the
4 FAC, the State did not even begin sending CCPOA invoices for UPL until 2008, some two years
5 after the MOU expired. See FAC TI 8 Accordingly, insofar as the only breach alleged in the FAC is
6 of the UPL Agreement, which could only have taken place two years after the expiration of the
7 MOU, Plaintiff cannot maintain that there is any "controversy which is an issue involved in an
8 action or proceeding pending before a court ofthis State." See Code Civ. Pro. § 1281 4 CCPOA is
9 therefore not entitled to a stay under section 1281.4.
10 B. CCPOA Cannot Otherwise Demonstrate Good Cause Because Its Cross-Petition

Is Nothing More Than An Attempt To Have This Court Reconsider Its Previous
11 Ruling On Its Demurrer.
12 CCPOA argues that good cause exists under Code of Civil Procedure section 1281.4
13 but CCPOA is really just attempfing to have this Court reconsider its previous ruling, which is that
14 the State's breach-of-contract action does not allege a breach ofthe MOU In this regard, CCPOA
15 has offered nothing in its Cross-Petition that was not in its moving and reply papers in support of its
16 demuner on this issue. Likewise, none ofthe State's discovery requests concern any alleged breach
17 ofthe MOU. As such, CCPOA's Cross-Petition is for an improper purpose, and it cannot act as a
18 basis for the extraordinary relief sought through an ex parte application.
19 IV. CONCLUSION
20 This Court has already ruled that the State's breach-of-contract action is not based on
21 any alleged violafion of the MOU but of the parties' subsequent UPL Agreement. As such,
22 CCPOA's Cross-Pefition is essentially a motion to reconsider the Court's decision and should not act
23 as a basis for a stay pursuant to Code of Civil Procedure section 1281 4. The ex parte application for
24 a stay should accordingly be denied.
25 ///
26
In Its ex parte application, CCPOA bullet points four discovery requests that concern UPL that was paid
27 during the MOU As discussed above, the parties' UPL Agreement provides that the State would invoice CCPOA for all
past UPL, regardless of when it was used See FAC ^ 6 Nowhere in its FAC, or in any of its discovery requests, does
28 the State allege or even imply that it is seeking damages based on a violation ofthe MOU
LITTLER MENDELSON
A PltOFEt)10HI>t COKPOKMIOH
650 Calilomia Stiael
20th Floor
>an Fiancitco CA 94108 2693
1
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Dated: December 2, 2010
\U^\lX^
RICHARD H. RAHM ^
LITTLER MENDELSON
Attorneys for Plaintiffs
4 STATE OF CALIFORNIA, CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
5 REHABILITATION, DEPARTMENT OF
PERSONNEL ADMINISTRATION, and
6 DEPARTMENT OF MENTAL HEALTH
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LITTLER MENDELSON
A PlOFEIIIONtl Con PORATION 5
650 Cililo'nia StfatI
20lh Floor
•n Franciico CA 94108 2693
1 DECLARATION OF RICHARD H. RAHM
2 1. Richard H Rahm, declare the following-

3 1 I am an attorney at Littler Mendelson, P C , attorneys of record for Plaintiffs
4 State of California, California Department of Conections and Rehabilitation, Department of
5 Personnel Administration, and Department of Mental Health (the "State") in the above-entitled
6 acfion. I am a member in good standing ofthe State Bar, and I make this declarafion in opposition to
7 Plainfiff California Conectional Peace Officers Associafion's ("CCPOA's") ex parte application for
8 a stay. I make this declaration based on my own personal knowledge and, if called as a witness, I
9 could and would tesfify competently thereto.
10 2. Attached hereto as Exhibit A for the Court's convenience is a true and correct
11, copy ofthe State's First Amended Verified Complaint ("FAC"). Exhibit B to the FAC is a true and
12 correct copy ofthe Union Paid Leave Agreement ("UPL Agreement").
13 3. Attached hereto as Exhibit B for the Court's convenience is a true and correct
14 copy of CCPOA's Demuner to the State's complaint. Attached hereto as Exhibit C is a true and
15 correct copy ofthe State's opposition brief to that demurrer. Attached hereto as Exhibit D is a true
16 and conect copy of CCPOA's reply brief in support of its demuner.
17 4. At the hearing on CCPOA's demurrer to the State's complaint, the Court
18 ovenuled CCPOA's demurrer based on the argument that the State had alleged a cause of action for
19 a violation ofthe MOU. However, the Court sustained with leave to amend CCPOA's demurrer to
20 the State's implied contract and bad faith causes of action When the State filed its First Amended
21 Complaint ("FAC") to amend its equitable causes of action, it took the opportunity - although the
22 Court did not require it to do so - to further clarify that it was not alleging any cause of action under
23 the MOU
24 5. Attached hereto as Exhibit E is a true and conect copy of the State's
25' Response to CCPOA's First Amended Verified Cross Pefifion ("Cross-Petition"), which CCPOA
26 filed instead of answering the State's FAC. Since CCPOA chose not to demur to the FAC, the State
27 noticed the deposition of CCPOA'S'Person Most Knowledgeable with respect to the issues in the
28 FAC. Because CCPOA's understanding of the UPL provisions in the expired MOU could be
LITTLER MENDELSON
A PooFEisiONii. CORPORATION
650 Calilomia Sliael
20iri Flooi
>an F.BUCiico CA 94)08 2693
415 433 1940
STATE'S OPPOSITION TO CCPOA'S EX PARTE APPUCkTlOYi
relevant to the parties intentions in drafting the provisions ofthe UPL Agreement, the State included
2 it as one of its PMK topics. Nevertheless, none ofthe State's discovery seeks informafion about any
3 alleged breach ofthe MOU.
4 I declare under penalty of perjury under the laws of the State of Califomia that the
5 foregoing is true and conect, and that this Declaration was executed this 2nd day of December,
6 2010, at San Francisco, Califomia.
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Richard H Rahm
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Firmwide 98963239 1 052714 1011
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LITTLER MENDELSON
A P O O F E l H O H i t l CORPORDTIOH
650 Califomia S i ' t a l
20lh Floor
.an Fiancitco CA 94108 2693
EXHIBIT A
I JOHN M . SKONBERG, Bar No. 069409
RICHARD H. RA.EM, Bar No. 130728 FfLEO
2 JOSHUA D. KIENITZ, Bar No. 244903 Superio?- Coisri Qf Califcsmi|a,
LITTLER MENDELSON Sdsrgmente
3 A Professional Corporafion 09133/21119
650 Califomia Street tnmersz
4 20th Floor
San Francisco, CA 94108.2693 ^1 __ _., Deputj^
• 5 Telephone: 415.433.1940 Casa Mombar: '
6
FaxNo.i 415.399.8490 34-2010-00076552
K. WILLIAM CUHTIS
WARREl^ C. STRACENER
8 Deputy Chief Counsel, BarNo. 127921
JAMES SPURLMG
9, Assistant Chief Counsel, Bar No. 109432
XO State of California.'
1515 S Street Nerfi Building, Suite 400
11 Sacramento, CA 95811-7243
Telephone: (916) 324-0512
Facsimile: (916)323-4723
12 E-mail: curtstraceiier@dpa.ca.gov
13 Attomeys for Plaintiffs
STATE OF CALIFORNIA, CALIFORMA
IS PERSONNEL ADMINISTRATION, ANt>
1^
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COUKTY OF SACRAMENTO
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CALIFORNIA DEPARTMENT OF
CORRECTIONS AND FIRST AMENDED VERIFIED
21 REHABILITATiail, DEPARTMENT OF COMPLAINT FOR DAMAGES
22 PERSONNEL ADMINISTRATION, and
DEPARTMENT OT MENTAL HEALTH,
23 Plaintiffs, Exempt from Fees (Gov. Code § 6103)
24
25 CALIFORNIA COIIRECTIONAL PEACE
OFFICERS ASSOCIATION,
2€
Defendant.
27
2S
UlTTLER MENOB.SON
, WClllMlimtll
4lS 433 1949 FIRST AMENDED VEI^FIED COMPLAINT FOR DAMAGES
1 NATURE OF ACTION
2 1. Plaintiff State of Califomia, through its agents. Plaintiffs Califomia
3 Department of Corrections and Rehabilitation ("CDCR"), Department of Personnel Administration
4 ("DPA"), and Department of Mental Health ("DMH") (collectively, the "State"), entered into
5 contractual agreements with Defendant Califomia Conectional Peace Officers Association
6 ("CCPOA") whereby the State would release certain CCPOA membersfi-omwork, with full pay and
7 benefits, for the purpose of engaging in CCPOA union activities. Time off under these agreements
8 is refened to as Union Paid Leave ("UPL"). The State's promise to pay for these leaves of absence,
9 however, has always been expressly conditioned on CCPOA's reimbursing the State for the monies
10 it expended on such leaves. Although the State has, on numerous occasions, demanded
11 reimbursement, CCPOA has reimbursed the State less than 5% of the approximately $4 million the
12 State has expended on UPL.
13 2. Article XVI, Section 6 of the Califomia Constitution states, in relevant part,
14 "[t]he Legislature shall have no power to give or to lend, or authorize the giving or lending, ... or
15 authorize the making of any gift, of any public money or thing of value to any individual, municipal
16 or other corporation whatever[.]" In accordance with the requirements of the California
17 Constitution, and pursuant to Labor Code section 1126, the State now seeks monetary damages
18 and/or restitution for CCPOA's refusal to reimburse it for the monies it has paid for CCPOA
19 members' UPL.
20 THE PARTIES
21
3. Plaintiff State is, and at all relevant times was, the employer of all California
22
Correctional Peace Officers, including, but not limited to. Correctional Officers^ Medical Technical
23
Assistants, and affiliated supervisory employees ("Correctional Peace Officers"). Plaintiffs CDCR
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and DMH are, and at all relevant times were, the appointing agencies for all Correctional Peace
25
Officers. Plaintiff DPA is, and at all relevant times was, the state agency designated as the
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representative ofthe Governor pursuant to Government Code section 3517, with the authority to
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LITTLER MENDELSON
A PROFEIIIONAI CORPOKATIOM 2.
650 Cslifoinia Siraet
20lh Floor
San Fiancitco CA 9410B 2693
415 433 1940 FIRST AMENDED VERIFIED COMPLAINT FOR DAMAGES
1 negotiate memoranda of understanding ("MOUs") and other contracts with labor unions such as
2 CCPOA, which are binding on the State.
3 4. Defendant CCPOA is, and at all relevant times was, an unincorporated
4 association and the exclusive and non-exclusive representative of Correctional Peace Officers
5 working in Califomia correctional facilities.
6 FACTS COMMON TO ALL CAUSES OF ACTION

7
5. The State and CCPOA entered into an MOU whereby, pursuant to Section
8
10.14, the State agreed to pay public funds for the full salary and benefits of CCPOA-represented
9
employees on UPL, in exchange for which, CCPOA expressly agreed to reimburse the State for the
10 complete and actual cost of providing such UPL within 30 calendar days of receiving a billing
11 statement. A tme and correct copy of Section 10.14 ofthe 2001-2006 MOU is attached as Exhibit A
12 to this Complaint. After the expiration ofthe 2001-2006 MOU, the parties continued to operate
13 consistent with the provisions of Section 10.14, with CCPOA continuing to request that CDCR and
14 DMH release employees for UPL, together with a request to be billed for the UPL costs, and CDCR
15 and DMH continuing to release such employees.
16 6. In the absence of a successor MOU, the parties, on or about November 7,
17 2007, entered into a written agreement regarding UPL, which included, inter aha, past and future
18 reimbursements of UPL ("UPL Agreement"). A tme and correct copy of the UPL Agreement is
19 attached as Exhibit B to the Complaint. The UPL Agreement provided that the State would continue
20 to provide UPL, in exchange for which, CCPOA would reimburse the State for the "total
21 compensation cost" of both unpaid past and future UPL, and that CCPOA would pay the State's
22 UPL invoices within thirty days after it received them. "Total compensation cost" in the UPL
23 Agreement is defined as "any cost, benefit, or obligation the State employer incurs for these
24 individuals as employees of the State, including, but not limited to, all wages, payroll related costs
25 and contributions, payroll taxes, employer paid contributions to retirement, health benefits and the
26 value ofany leave accmals eamed while on UPL." ^
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LITTLER MENDELSON
A P K O F U I W H U CanpoKtTioH
eSOC.IItorni. SK.al
20th Floor
San Franciico CA 94106 2693
1 7. The State and CCPOA initially agreed that the UPL Agreement would last for
2 12 months, but the parties expressly agreed in writing to continue it imtil January 31, 2009. A tme
3 and conect copy of that written agreement is attached hereto as Exhibit C. Thereafter, the parties
4 orally agreed to continue to operate in accordance with the provisions of the UPL Agreement, with
5 CCPOA continuing to request that CDCR and DMH release employees for UPL, together with an
6 express request that the State bill it for the UPL costs, and CDCR and DMH continuing to release
7 such employees and invoicing CCPOA for the "total compensation costs" ofthe UPL.
8 8. Beginning in 2008, the State sent invoices pursuant to the UPL Agreement to
9 CCPOA for the total compensation costs attributable to UPL from Febmary 2006 to the present. As
10 of December 2009, CDCR had unpaid invoices totaling $4,044,483.72. Consequently, on January
11 28, 2010, the State sent CCPOA a demand that, unless CCPOA paid at least $2,000,000 of the
12 outstanding UPL invoices and agreed to a payment schedule ofthe remaining UPL balance, the State
13 would file an action against CCPOA to collect the unpaid UPL balance. The State also sent another
14 demand to CCPOA on January 28, 2010, this one stating that unless CCPOA paid the last UPL
15 invoice for $56,789.92 (for October 2009 UPL), it would terminate the UPL Agreement. As of
16 March 30, 2010 the amoimt accmed for unpaid UPL invoices involving both CDCR and DMH totals
17 $4,052,046.65. UPL is currently being billed in the amoimt of approximately $56,000 per month.
18 Subsequent to the above-referenced demand letters, CCPOA has made some payments towards its
19 UPL balance, which were credited towards its unpaid UPL balance. That balance still amounts to
20 over $4 million.
21 FIRST CAUSE OF ACTION

(Breach of Express Contract)
22
23 9. The State realleges and incorporates by reference each and every allegation
24 contained in Paragraphs 1-8 as though set forth fully herein.
25 10. The State and CCPOA entered into the UPL Agreement in which the parties
26 agreed that CCPOA would reimburse the State for the actual compensation costs of CCPOA-
27 represented employees on UPL within thirty days of receipt of invoice. After the UPL Agreement
28" expired, the parties orally agreed to operate in accordance with the provisions of the UPL
LITTLER MENDELSON
A P R O F E I I I O M * L CORPORATION 4.
650 California S i r e t l
20lh Floor
1 Agreement, such that the State would continue to provide UPL to certain, requested, CCPOA-
2 represented employees to perform CCPOA business, in exchange for which, CCPOA would
3 reimburse the State for the total compensation costs of the UPL within thirty days of receipt of
4 invoice.
5 11. The State has performed all conditions, covenants, and promises required by it
6 to be performed in accordance with the terms and conditions ofthe written UPL Agreement and the
7 subsequent oral agreement, including, pursuant to CCPOA's request, providing employees with UPL
8 at a cost of approximately $4 million, for which it has invoiced CCPOA.
9 12. The State demanded that CCPOA perform its obligations under the written
10 UPL Agreement and the subsequent oral agreement and, in particular, to reimburse the State for the
11 actual compensation costs of employees on UPL. To date, CCPOA has paid less than 5% ofthe total
12 amount ofthe actual compensation costs of UPL invoiced.
13 13. As a proximate result of CCPOA's material breach ofthe contract, the State
14 has incurred damages in excess of the minimum jurisdictional amounts of this Court, the exact
15 amount to be determined at trial.
16 SECOND CAUSE OF ACTION

(Breach of Implied-In-Fact Contract)
17
20 15. For a period of at least two years prior to the filing of the present action, the
21 State and CCPOA engaged in a course of conduct whereby CCPOA requested, and continues to
22 request, the State to release CCPOA-represented employees with full pay and benefits for purposes
23 of conducting CCPOA business. The State has honored these requests and has released, and
24 continues to release, CCPOA-represented employees on UPL. In retum for the State releasing these
25 employees on UPL, CCPOA has requested, and continues to request, that the State invoice it for the
26 actual compensation costs ofthe UPL'. This course of conduct created an implied-in-fact contract.
27 16. The State demanded that CCPOA perfonn its obligations under the implied-
28 in-fact contract and, in particular, that it reimburse the State for the actual compensation costs of
LITTLER MENDELSON
A PROFEitiONKi CORPORATION 5.
650 C i l i l o i n i a Siraat
20lh Floor
San Francisco CA 94108 2693
415 433 1S40
FIRST AMENDED VERIFIED COMPLAINT FOR DAMAGES
1 CCPOA-represented employees on UPL. To date, CCPOA has paid less than 5% ofthe total amount
2 ofthe actual compensation costs of UPL invoiced.
3 17. As a proximate result of CCPOA's material breach of the implied-in-fact

4 contract, the State has incurred damages in excess of the minimum jurisdictional amounts of this
5 Court, the exact amoimt to be determined at trial.
6 THIRD CAUSE OF ACTION
(Breach ofthe Covenant of Good Faith and Fair Dealing)
7
9 contained in Paragraphs 1-8, and 10, as though set forth fully herein.
10 19. The State and CCPOA entered into the written UPL Agreement and,
11 subsequently, into an oral agreement to extend the UPL Agreement, such that CCPOA would
12 reimburse the State for the actual compensation costs of CCPOA-represented employees on UPL
13 within thirty days of receipt of invoice. Califomia law recognizes an implied covenant of good faith
14 and fair dealing in every contract. The covenant is to the effect that neither party to the contract will
15 do anything deliberately to deprive the other ofthe benefits ofthe agreement.
16 20. The State has performed all conditions, covenants, and promises required by it
17 to be performed in accordance with the terms and conditions of the contract, including, pursuant to
18 CCPOA's request, providing CCPOA-represented employees with UPL at a cost of approximately
19 $4 million, for which it has invoiced CCPOA.
20 21. The State demanded that CCPOA perform its obligations under the UPL
21 Agreement and, in particular, that it reimburse the State for the actual compensation costs of
22 employees on UPL. CCPOA has contended and continues to contend that the State's invoices are
23 inaccurate and, based on this contention, has paid less than 5% of the total amount of the actual
24 compensation costs of UPL invoiced. Nevertheless, CCPOA has refused to engage in good faith
25 discussions to resolve any alleged inaccuracies in the invoices. By continuing to dispute the
26 accuracy of the invoices, by refusing to engage in good faith discussions to resolve any disputes
27 conceming the invoices, and by using the alleged inaccuracy as an excuse not to pay the invoices,
28 CCPOA has breached the covenant of good faith and fair dealing.
LITTLER MENDELSON
A PROFfijioNAi CORPORATION 6.
650 Calilomia Sliaal
20lh Floor
San Francisco CA 9410S 2693
415 433 1940
1 22. As a proximate result of CCPOA's breach of the covenant of good faith and
2 fair dealing, the State has incurred damages in excess ofthe minimum jurisdictional amounts ofthis
3 Court, the exact amount to be determined at trial
4 FOURTH CAUSE OF ACTION

(Unjust Enrichment - Restitution)
5
6 23 The State realleges and incorporates by reference each and every allegation
8 24. At CCPOA's request, the State has provided, and continues to provide,
9 publicly-funded UPL for certain CCPOA-represented employees so that they may perform CCPOA
10 business, based on the CCPOA's promise, and the State's expectation, that CCPOA would reimburse
11 the State for the actual compensation costs of the UPL. CCPOA voluntarily accepted the benefit of
12 the State's actions by requesting and accepting the services of those employees who took UPL.
13 25 Despite its promises to reimburse the State for the actual compensation costs
14 of CCPOA-represented employees on UPL, and despite the fact that CCPOA continued to request
15 and accept the services of these employees on UPL, CCPOA failed to reimburse the State for the
16 actual compensation costs of these employees on UPL pursuant to a course of conduct established
17 between the State and CCPOA.
18 26 As a result ofthe foregoing, CCPOA has been and will be unjustiy enriched at
19 the expense of the State in excess of the minimum jurisdictional amounts of this Court, the exact
20 account to be determined at trial
21 PRAYER FOR RELIEF

22 WHEREFORE, the State prays forjudgment and relief as follows:
23 1. For actual, compensatory, and/or restitutionary damages in an amount to be
24 proven at trial;
25 2. For interest on such damages at the legal rate;
26 III
27 III
28
LITTLER MENDELSON
A P a o i E i t i o N t i COR.oa.HON
650 Calilomia S n a i l
7.
20111 Floof
•an Fiancitco CA 94106 2693
1 3. For attorneys fees and costs of suit incurred herein,
2 4 For such further or other relief as the Court deems just and proper.
3
Dated: September Z^. 2010
4
RICHARD H. RAHM
5 LITTLER MENDELSON
A Professional Corporation
6 Attorneys for Plaintiffs
REHABILITATION, DEPARTMENT
8 PERSONNEL OF ADMINISTRATION, and
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LITTLER MENDELSON
A PROrettlONAt ColtPORATIOH
650 CalilorniB SKeal
8.
70ih Flooi
>an Fiancitco CA 94108 2693
4tS 433 1940
1
2 VERIFICATION
3 I, Steve Caruso, declare:
4 I am the Assistant Secretary of Labor Relations at the California Department of
5 Corrections and Rehabilitation ofthe State ofCalifornia, which is a Plaintiff in the above-entitled
6 action, and I have been authorized to make this verification on its behalf.
7 I have read the foregoing Complaint on file herein and know the contents thereof.
8 The same is true of my own knowledge, except as to those matters which are therein stated on
9 information and belief, and, as to those matters, I believe them to be true.
11 foregoing is tme and correct.

Executed at Sacramento, Califomia on this _f;;2_ day of September, 2010.
%-/\.n
12
13
14 Steve Caruso
15
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Firmwide 97457312 1 052714 1011
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LITTLER MENDELSON
A PkoriiiiOHU CaiPoitTiON
ISO CalKofAla S l t t i l
llitll FlMl
SanFitndtea CA I I I B I 7 6 i i
1)5 433 1940 FIRST AMENDED VERIFIED CPMPLAINT FOR DAMAGES
EXHIBIT A
""TiSSL.^
AGREEMENT
Between
STATE OF CALIFORNIA
AND
CALIFORNIA CORRECTIONAL
PEACE OFHCERS ASSOCIATION
Coveimg
BARGAINING UNIT 6
CORRECTIONS
July 1,2001
TbougK
July 2, 2006
10.14 Union Paid Leave
A. CCPOA shall have the choice of requesting an un-
paid leave of absence or a paid leave of absence
(union leave) for a CCPOA bargaining unit official
or steward. An unpaid leave of absence may be
granted by the State pursuant tothe unpaid leave
of absence provisions In this MOU A union leave
may also be granted at the discretion of the af-
fected department head or deslgriee In accordance
virlth tbe following:
1. Tbe department head or designee receives a
written request, signed by the employee and
the authorized CCPOA representative, two (2)
weeks prior to the planned effective date of
the leave.
2. A union leave shall assure an employee the
right lo his/her former position upon termina-
tion of the leave. The temi "former position"
is defined In Government Code Section
18522.
3. CCPOA agrees to reimburse the affected
department{s) for actual expenses related to
the affected employee's salary and benefits
for all tha time the employee Is off on a union
leave, withm thirty (30) calendar days of re-
ceiving a billing statement.
4. The affected employee shall have no right to
return from a union leave earlier than the
agreed upon date without the approval of tho
employee's Appointing Authority.
5 Except in emergencies or layoff situations, a
union leave shall not be terminated by the de-
partment head or designee prior to the expi-
ration date.
6. Employees on a union leave shall suffer no
loss of compensation or benefits.
7. Whether or not time for a union leave is
counted tor merit purposes shall be deter-
mined by SPB and such determination shall
not be gnevable or arbitrable.
103
8 Employees on union leave under this provi-,
sion and CCPOA shall wa/ve any and all claims
against the Stato for Worf<ers' Compensation
and Industrial Disability Leave.
9. In the event an employee on a union leave, as
discussed above, files a Wor1<ers' Compen-
sation claim against Ihe State of California or
any agency thereof, for an Injury or injuries
sustained while on a union leave, CCPOA
agrees to indemnify and hold harmless the
State of Caiifornia or agencies thereof, from
both Workers' Compensation liability and any
costs of legal defense incun-ed as a result of
tha filing of the claim.
10.15 Catastrophic Time Bank

A. If an employeefacatastrophlcally ill or Injured, or If
the spouse, child or any person residing in the
Immediate household of such an employee be-
comes catastrophlcally ill or Injured, employees
shall be allowed to donate an unlimited amount of
CTO, PLP, holiday ctedlte, or vacation credrts, per
Individual case, with the Appointing Authority's
approval, in accordance with departmental poli-
des and under the following conditions:
1. The donation must be in whole hours.
2. Transfer of vacation, CTO, PLP and holiday
credits shall be allowed to cross departmen-
tal lines In accordance with the policiea of the
receiving department.
3. Employees receiving the donations may re-
ceive an unlimited number of donations in
hours. The donated hours can only be used
after the affected employee's Isave credits
have been exhausted, and msy not exceed
one (1) calendar year. If the need still exists,' a
new Catastrophic Time Bank (CTB) may be
initiated in the following year with the Appoint-
ing Authority's approval.
4. Donations shall be made on a form to t)e de-
veloped by the State, signed by the donating
104
EXHIBIT B
.'iNov, 5. 2007 4:07PM CCPOA - Labor Department No. 6539 P. 2
Union Paid Leave Agreement
1. This agreement is entered Into between California Correctional Peace Officers'

Association ("CCPOA"), the Califomia Department of Con-ectiona and Rehabilitation
("CDCR"), the Department of Mental Health ("DMH") and the Califomia Department of
Personnel Administration ("DPA").
2. The following 13 named union officials who have been on long term union leave from
their positions with CDCR may remain off work on UPL while in their oflicial capacities
with CCPOA.
Kevin Raymond
Perry Spetli
Jim Martin
Don (Joe) Bauman
Lance Corcoran
Raul (RC) Garcia
Milce Jimenez
IVIarty Arolan
Stephen Wallcer
Chuck Alexander
Chuok Helton
Louie Adame
Len McLeod
3. None of the above union officials shall be required to submit an attendance fonn to the
State provided the tenms ofthis agreement are met. CCPOA may replace any individual
listed in paragraph 2 with another Unit 6 member. However, once removed, the union
official cannot be placed back on the list for a minimum of 120 days and is not entitled to
any short-temi release.
4. Any en^loyee on UPL will continue to be paid as if working for the State and CCPOA
agrees to reimburse the State for the "total conqsensation c o s f for each individual
Identified in paragraph 2, or a substitute, who is on long tenn UPL. "Total compensation'
includes any cost, benelit or obligation the State employer incurs for these individuals as
employees ofthe State, Including, but not limited to, all wages, payroll related costs and
contributions, payroll taxes, employer paid contributions to retirement, health benefits,
and the value of any leave accruals eamed while on UPL.
5. The individuals on long-term UPL wiil continue to accrue State sen/ice credit for purposes
of State and Bargaining Unit 6 seniority with no loss of compensation or benefits.
6. Each official on long-term UPL will be placed in a "Saturday/Sunday/Hoiiday OfT

schedule at his/her respective institution.
7. In the evenl any person who is on long-temi UPL under this agreenr^nt must return to
work with CDCR, that person shall be entitled to "bid" (i.e., exercise a right of "super-
seniority") to any rank and file position at the institution he/she was released fi-om. The I
i
•1.-
CBM-SF\SF3809695
I
i
Nov. .5. 2007 4:07PM CCPOA - labor Department No. 6539 P. 3
retuming union member shall have a right to return to his/her former position with CDCR
upon temnination of th© leave. The term "fomier position" is defined in Governnnent Code
Section 18522, as that section reads on the date ofthis agreement. However, "former
position" shall not mean a position with the identical position number that the employee
occupied before he/she went on leave.
8. CCPOA must submit a letter or memorandum to CDCR's Office of Labor Relations

stating the period of time union oflicials on UPL intend to be on long-term union paid
leave. The duration of long-term union paid leave may not exceed the duration ofthis
agreement.
9. CCPOA also agrees to reimburse the State for the "total compensation cosf fbr union
members and officials who are released on UPL on a short-term basis for union and
representational activities.
10. CCPOA may utilize RTB instead of UPL for activists on either short-tenn or long-term
union leave, consistent with the terms ofthe RTB settlement agreement in CCPOA v
State Sacramento Superior Court No. 05AS05470, so long as sufficient balances exist in
the bank.
11. Short-temi UPL is defined as a request for leave of 30 days or less.
12. Ail requests for short-term UPL wiil nomnally be made to CDCR's Office of Labor
Relations at least 48 hours in advance ofthe requested date off. CDCR Labor Relations
must approve such requests, if CCPOA requests UPL for chapter presidents of a
recurring type, such as time off one day per week, the chapter president shall submit a
monthly schedule to Oie designated management official at his/her institution reflecting
the proposed dates of leave.
13. In considering short term UPL requests, CDCR, may take into account, among other
things, the number of union officials already off on UPL from the institution, existing
vacancies at the institution, and work load at tiie institution, if the union member who is
released on short term UPL is actually filled behind as an overtime assignment, CCPOA
agrees to reimburse the State at the overtime rate on hourly salary only (i.e., the costs of
benefits will not be charged at an overtime rate)' The State agrees to provide CCPOA
with documentation showing that such a position was actually filled using overtime.
Requests for short-temn UPL shall not be unreasonably denied.
14. individuals who take short-temn UPL shall complete and submit the appropriate
attendance document requested by the designated management official at his/her
institution. Typically this is a "998" or "634° attendance form.
15. Unless this agreement is tenninated by one of the parties, the lerm of this agreement to
provide for UPL and assodated reimbursement to the State will be for 12 months or until
the Legislature approves a successor Memorandum of Understanding ("MOU"), which
CBA^SF1SF3S0969.2
Nov. 5. 2007 4:07PM CCPOA - Labor Department No. 6539 P. 4
ever occurs first. Either party may terminate this agreement upon thirty (30) calendar
days written notice to the other.
16. CCPOA agrees to make timely payment to CDCR regarding all invoices for UPL and
invoices regarding announts due under the RTB settlement agreement (wherein CCPOA's
use of "RTB leave" exceeds the amount of leave in the "bank'O. Payment will nonnaiiy be
made by CCPOA within thirty (30) business days after receipt of the invoice.
17. This agreement may aiso be terminated, officials ordered to return to work, and future
UPL denied should CCPOA fail to make timely payment on UPL Invoices submitted by
CDCR to CCPOA. DPA or CDCR shall provide CCPOA with thirty (30) calendar days
written notice in the event of temnination ofthis agreement under this provision. The
parties agree to nnake good faith efforts to resolve any disputes over Invoices or payment.
18. CCPOA and CDCR agree that within twenty-one (21) calendar days from the date this
agreement Is signed, representatives from each will meet and commence a reconciliation
ofthe Release Time Bank ("RTB") balance. Further, in accord with the RTB settlement
agreement regarding CCPOA v. State Sacramento Superior Court No. 05AS05470,
CCPOA will make payment on any amount owing to the State in the event the union has
used more leave than it had in the bank. (See paragraph 4 of the RTB Reformation
settlement)
19. In the event an employee on UPL files a Workers' Compensation claim against the State
of Caiifornia or any agency thereof, for an injury or injuries sustained while on a UPL,
CCPOA agrees to indemnlly and hold hamnless the State ofCalifornia or agencies
thereof, from both Workers' Compensation liability and any costs of legal defense
incun-ed as a result ofthe filing of the claim.
20. Nothing in this agreement is intended nor shall be construed to modify or in any way alter
the State's last best and final offer ("LBFO") orthe temns implemented by the State
following CCPOA's rejection ofthe State's LBFO. Nothing in this agreement is intended
nor shall be construed to extend or revive any temi of the parties' expired 2001-2006
MOU and this agreement shall not be used as a past practice in future negotiations for a
successor MOU.
21. CCPOA waives any claim that the State violated any provision of law, contract or past
practice by requiring the union to reimburse the State for the release of union members
or by Implementing the State's LBFO that ended various forms of union leave. Nothing in
this agreement shall be construed as an admission by either party or used as evidence in
any pending action as ofthe date ofthis agreement, If this agreemenl is ended by the
State within 180 days ofthe execution ofthis agreement this waiver will also end (unless
the State's basis for ending the agreement is CCPOA's Allure to timely pay amounts
owing under this agreement); If, however, this agreement lasts at least 180 days, then the
waiver will become penmanent.
CBM«RSF3e0969.2
.Nov, .S. 2007 4;07PM CCPOA - Labor Department No. 6539 P. 5
22. This agreement is effective October 1,2007.
/A^'0 7
Charles L. Alexander, Jr,
Stata Executive Vice-Presklent,
//. r-07
uncan Fallon, / /
JiAz^l.
/ C CDCR
l Assistantêcretary of Labor Relations
Candice Murch,
iiil±h
Employee Relations Officer, DMH
AAI
Deputy Chtef Counsel
•4.-
CBM-SRSF3B09a9.2
EXHIBIT C
UNION PAID LEAVE
EXTENSION
The undersigned hereby agree to extend the October 2007 Union Paid Leave Agreement (UPL
Agreement) that was signed by tlie respective parties in November 2007 This extension is for all
terms as outlined in ttie UPL Agreement and expires January 31, 2009
Matthew Gate, Secretary

CDCR
DPA
CCPOA agrees to the extension of the UPL Agreement but expressly DOES NOT waive the right to
raise any disputes or defenses that CCPOA may have now, or in the future, as to the interpretation
of this agreement
Charles Alexander
Executive Vice-President
CCPOA
JOHN M. SKONBERG, BaxNo. 069409
RICHARD H. RAHM, Bar ô. 130728 FfLED
JOSHUA D. KIENTTZ, Bar No. 244903 SupErior Court C3l Callfomk
AMY MORGENSTERN, Bar No. 267412 Sstfer^menlo
LITTLER MENDELSON QSl23/2lliQ
4 650 Califomia Street
20tii Floor av Deputy
5 San Francisco, CA 94108.2693 Case fûmbar:
Telephone: 415.433.1940
S Facsiinile: 415399.8490 34-2010-00975552
7 K. lÎLLLAM CURTIS
Chief Counsel, BarNo. 095753
g WARREN C. STRACENER
Deputy Chief Counsel, Bar llo. 127921
9 JAIMES SPURLING-
Assistant Chief Counsel, BarNo. 109432
10 Department of Perso3nnel Administration
State ofCalifomia
II 1515 S Street, North Euilding, Suite 400
12 Tel«phone: 916.324.0512
Facsimile: 916323.4723
13
Atbomeys for Plaintiffs
14 ST^TE OF CALIFDINIA, CALIFORNIA
15 REHABILITATION", DEPARTMENT OF
PERSONNEL ADmNISTEATION, and
IS DEPARTMENT OF MENTAL HEALTH
17
18 SUPEMOR COURT QI^THE STATE OF CALIFORNIA
19 COUNTS OF SACRAMENTO
2a THE STATE OF CALIFORNIA, CaseNo. 34-2010-00075552

CAJ.IFORNL\ DEPARTMENT OF
21 COILRECTIONS AMD PROOF OF SERVICE
REHABILITATION", DEPARTMENT OF
DEPARTMENT OF MENTAL HEALTH,
21 Complaint Filed: April 14, 2010
Plaintiffs,
24 Trial Date: None Set
V.
-25
CALIFORNIA CORRECTIONAL PEACE
26 OFPICERS ASSGCIATIOIS,
27 Defendsuit.
28
LITTLER MLNDELSCM
A PROrdltOltAL CORPOBOSMi
S&OC.liloin.a Sitae]
JOih f icot
34-2010-00075552
San F'anciico CA 9 4 1 0 t S S 3
PROOF OF SERVICE
1 PROOF OF SERVICE
2 I am a resident of the State of Califomia, over the age of eighteen years, and not a
3 party to the within action. My business address is 650 Califomia Street, 20th Floor, San Francisco,
4 Califomia 94108.2693. On September 23, 2010,1 served the within document(s):
5
> FIRST AMENDED VERIFIED COMPLAINT FOR DAMAGES
6
7 n AS A COURTESY by facsimile transmission on that date. This document was

transmitted by using a facsimile machine that complies with Califomia Rules of
8 Court Rule 2003(3), telephone number 415.399.8490. The transmission was
reported as complete and without error. The names and facsimile numbers of the
9 person(s) served are as set forth below.
10 j-] by placing a true copy of the document(s) listed above for collection and mailing
following the firm's ordinary business practice in a sealed envelope with postage
11
thereon fiilly prepaid for deposit in the United States mail at San Francisco,
12 Califomia addressed as set forth below.
13 Q by depositing a true copy of the same enclosed in a sealed envelope, with delivery
fees provided for, in an ovemight delivery service pick up box or office designated
14 for ovemight delivery, and addressed as set forth below.
15 [X] by personally delivering (First Legal Support Services) a copy of the
document(s) listed above to the person(s) at the address(es) set forth below.
16
Counsel for Defendant CCPOA
17
18 Gregg McLean Adam, Esq.

Oriet Cohen-Supple, Esq.
19 Natalie Leonard, Esq.
Marie A. Penny, Esq.
20 Carroll, Burdick & McDonough LLP
44 Montgomery Street, Suite 400
21 San Francisco, CA 94104
Phone- (415) 989-5900 / Fax- (415) 989-0932
22 Email- sadam(a).cbmlaw com; ocohen(a),cbmlaw com:,
nleonard(^,cbmlaw com; mtennv(a),cbmlaw com
23 I am readily familiar with the firm's practice of collection and processing
24 correspondence for mailing and for shipping via ovemight delivery service. Under that practice it
25 would be deposited with the U.S. Postal Service or if an ovemight delivery service shipment,
26 deposited in an ovemight delivery service pick-up box or office on the same day with postage or fees
27 thereon fully prepaid in the ordinary course of business.
28
LITTLER MENDELSON
A PROFESSIOMAl C o R P O R l T I O K
650 Cilifotnia Suetl 2. 34-2010-00075552
20ll> Floor
San Franciico CA 9410S 2693
t \ i 433 tS40 PROOF OF SERVICE
1 I declare imder penalty of perjury under the laws of the State of Califomia that the
2 above is true and correct. Executed on September 23, 2010, at San Francisco, Califomia.
3
6
FIRMWIDE 97155378 1 052714.1011
7
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LITTLER MENDELSON
A P.OFEIilOM.l COK.OK.TION
650 C . l i f o t n i i S l i e . l 34-2010-00075552
10th f loot
S i n Franciico CA 9.10B2E93|
<15 . 3 ) 1940 PROOF OF SERVICE
EXHIBIT B
-'
1 Gregg McLean Adam, No. 203436

Oriet Cohen-Supple, No. 206781
2 Natalie Leonard, No. 236634
3
Marie A. Tenny, No. 262670
CARROLL, BURDICK & McDONOUGH LLP
"ece/ven
UA\, * . ^
Attomeys at Law -"'i/ZOn
4 44 Montgomery Street, Suite 400
5
San Francisco, CA 94104
Telephone: 415.989.5900
"^'''^mu,on '
Facsimile: 415.989.0932
6 Email: gadam(®cbmlaw.com
ocohen@cbmlaw.com
7 nleonard@cbmlaw.com
mtenny@cbmlaw. com
8
Daniel M. Lindsay, No. 142895
9 CALIFORNIA CORRECTIONAL
PEACE OFFICERS' ASSOCIATION
10 755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
11 Telephone: 916.372.6060
Facsimile: 916.340.9372
12 E-Mail: dan.lindsay@ccpoa.org
13 Attomeys for Defendant Califomia Correctional Peace
Officers' Association
14
15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 COUNTY OF SACRAMENTO
17
18 THE STATE OF CALIFORNIA, No. 34-2010-00075552
19 CORRECTIONS AND DEFENDANT CALIFORNIA CORRECTIONAL
REHABILITATION, DEPARTMENT PEACE OFFICERS' ASSOCIATION'S
20 OF PERSONNEL MEMORANDUM OF POINTS AND
ADMINISTRATION, and AUTHORITIES IN SUPPORT OF DEMURRER
21 DEPARTMENT OF MENTAL TO PLAINTIFFS' VERIFIED COMPLAINT
HEALTH, FOR DAMAGES
'^'^
22 Plaintiffs, Date: September 7, 2010
23 Time: 2:00
v. Dept.: 53
24 Judge: Hon. Loren E. McMaster
CALIFORNIA CORRECTIONAL Reservation No. 1372668
25 PEACE OFFICERS' ASSOCIATION,
26 Defendant. Complaint Filed: April 14, 2010
Trial Date: None set
27
28
CBM-SF\SF479521 2
CCPOA'S MPA IN SUPPORT OF DEMURK ER TO VERIFIED COMPLAINT FOR DAMAGES

<.
1 TABLE O F CONTENTS
2 Page
3 I INT RODucTioN AND SUMMARY OF ARGUMENT 1
4 II PEIITINENTFACIUAL ALLEGATIONS IN THE COMPLAINT 2
5 III LE(JAL ARGUMENTS 3
6 A. This Demurrer is the Appropriate Means to Challenge the Legal
Sufficiency of Plaintiffs' Improperly Pled Complaint 3
7
B. This Court Has No Jurisdiction Over the MOU-Based Claims
8
The Court Should Sustain the Demurrer to the First Cause of Action on 4
9 the Additional Grounds that the State Fails to Specify Whether the
10
c. Express Contract Was Written or Oral, or Imphed-in-Fact, and the Cause
of Action is Impemiissibly Uncertain
11 The Court Should Sustain the Demurrer to the Second Cause of Action 6
for Implied Contract on the Additional Grounds that If a Valid Express
12 D.
Matter Cannot Exist at the Same Time
13
The Court Should Sustain the Demurrer to the Third Cause of Action for 7
14 Breach of the Implied Covenant of Good Faith and Fair Dealing on the
E. Additional Ground that the State Failed to Adequately Plead the
15 Existence of a Contract 8
16 The Court Should Sustain the Demurer to the Fourth Cause of Action for
Unjust Enrichment Because It Is Defective on Multiple Additional
17 F. Grounds 8
18 IV COI•^CLUSION ...10
19
20
21
22
23^
24
25
26
27
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CBM-SF\SF47? 521 2 _[_
1 TABLE OF AUTHORITIES
2 Page(s)
3
STATE CASES
4
Ajida Technologies, Inc. v. Roos Instruments, Inc.
5 (2001) 87 Cal.App.4th 534 5
6 Blank v. Kirwan
(1985)39Cal.3d311 4
7
Durell V. Sharp Healthcare
8 (April 19, 2010) WL 1529322 -9
9 Harman v. City and County of San Francisco
(1972) 7 Cal.3d 150 4
10
International Billing Services, Inc. v. Emigh
11 (2000) 84 Cal.App.4th 1175 ;.. 2, 7
12 Kelly V. General Telephone Co.
(1982) 136 Cal.App.3d 278 7
13
Kim V. Regents of University ofCalifornia
14 (2000) 80 Cal.App.4th 160 2, 8
15 Lance Camper Mfg. Corp. v. Republic Indem. Co. ofAmerica
(1996) 44 Car.App.4th 194 1, 8, 9
16
Leon Handbag Co. v. Local 213 of Leather, Luggage and Handbag Workers
17 (1969) 276 Cal.App.2d 240 4
18 Maglica v. Maglica
(1998) 66 Cal.App.4th 442 6, 7
19'
Melchior v. TVew Zme Products, Inc.
20 (2003) 106 Cal.App.4th 779 2, 8
21 Otworth V. Southem Pacific Transportation Co.
(1985) 166 Cal.App.3d 452 6
22
Satten V. Webb
23 (2002) 99 Cal.App.4th 365 5
24 Sublett V. Henry's Turk & Taylor Lunch
Cal 273
(1942) 21 Cal.2d 6
25
Wal-Noon Corp. v. Hill
26 (1975) 45 (:al.App.3d 605 2, 8
27
28
CBM-SF\SF479521 2 -11-
(continued)
2 Page(s)
3 FEDERAL CASES
4 Litton Financial v. NLRB

(1991) 501 U.S. 190 .-... 5
5
Nolde Brothers, Inc. v. Local No. 358 Baker & Confectionary Workers
6 Union
(1977) 430 U.S. 243 ; 5
7
STATE STATUTES
8
Code of Civil Procedure
9 section 337(1) 6
section 339 6
10 section 43 0.10(a) 1,4 '•J •
section 43 0.10(e) 1,4,7
11 section 430.10(f) 1,4,7,8,9
section 430.10(e) 1,4,6,7
-^5 ^ 3 ^5 '
12 section 430.30
^ J * ^ * ^ WA. ^.B^ JL JL • fc.^ ^ ^ t î.^ X ^ • • • » # • » # » » * • • • • • » • • • • • • » • • • • • • # # • • • • • • # • • • » » • * # • # • • • » • • » » » » • • • • • • • • • » » * • • • • • • • • • • • • • • • • • • • •
4
13
14
15
16
17
18
19
20
-
21
22
'
23
24
25
26
27
28
CBM-SF\SF479521 2 ' .jji.
1 I
2 INTRODUCTION AND SUMMARY OF ARGUMENT
3 Plaintiffs, the State ofCalifomia, the Califomia Department of Corrections and

4 Rehabilitation ("CDCR"), the Department of Personnel Administration ("DPA"), and the
5 Department of Mental Health ("DMH") ("plaintiffs" or collectively, the "State") sue to
6 recover damages purportedly sustained as a result of defendant Califomia Correctional
7 Peace Officers' Association's ("CCPOA") alleged breach of agreements with the State.
8 CCPOA demurs on jurisdictional and improper pleading bases.
9 Jurisdictionally, each cause of action claims that CCPOA violated the terms of
10 its 2001 -2006 Memorandum of Understanding ("MOU") with the State and seeks
11 recovery on that basis. (See Complaint ("Compl.") at Tft 5, 9, 14, 18, and 23
12 [allegations].) But Article 6 ofthe MOU requires that all disputes conceming alleged
13 violations ofthe MOU must be arbitrated. Accordingly, the Court has no jurisdiction
14 over MOU-based claims (Code Civ. Proc. § 430.10(a)) and, ifthe State is ever able to
15 plead any valid breach of contract claim based on the MOU, CCPOA will petition this
16 Court to compel arbitration of any such claim.
17 Even those claims that are jurisdictionally proper are improperly pled. The
18 first cause of action, for example, pleads an "express contract," but it impermissibly
19 alleges written, oral, and implied-in-fact bases for the contract. (Code Civ. Proc.
20 § 430.10(e), (f) [ambiguity subject to demurrer as uncertain] and (g) ["action founded
21 upon a contract, it cannot be ascertained from the pleading whether the contract is written,
22 is oral, or is implied by conduct"]; Lance Camper Mfg. Corp. v. Republic Indem. Co. of
23 America (1996) 44 Cal.App.4th 194, 203 [cause of action alleging both express and
24 implied-in-fact contract is "intemally inconsistent" and subject to a demurrer].)
25 The second cause of action fails to adequately plead a breach of implied
26 contract; It simply incorporates by reference the allegations ofthe express contract
27 (Compl. at Y\ 14-15), and fails to allege any additional facts demonstrating that an
28 implied-in-fact contract was formed based on the parties' conduct, rather than the express
CBM-SF\SF479521 2
CCPOA'S MPA IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT FOR DAMAGES

1 terms ofthe oral or written contract. {Lance Camper Mfg., 44 Cal.App.4th at 203
2 [addressing intemally inconsistent pleading].)
3 The third cause of action for breach of the covenant of good faith and fair
4 dealing fails as matter of law by not pleading a valid contract. {See supra, explaining
5 plaintiffs' failure to plead a valid contract in the first or second cause of action, and Kim v.
6 Regents of University ofCalifornia (2000) 80 Cal.App.4th 160, 164 ["Since the covenant
7 of good faith and fair dealing is an implied term of a contract, the existence of a
8 contractual relationship is thus a prerequisite for any action for breach ofthe covenant."])
9 The fourth cause of action fails because "[tjhere is no cause of action in
10 Califomia for unjust enrichment." {Melchior v. New Line Products, Inc. (2003) 106
11 Cal.App.4th 779, 793.) And plaintiffs cannot plead a claim for restitution based on a
12 quasi-contract theory because it is impermissible to do so where the same cause of action
13 alleges that a valid express contract covering the same subject matter at the same time
14 exists between the parties. {Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, 613
15 ["There cannot be a valid, express contract and an implied contract, each embracing the
16 same subject matter, existing at the same time."].)
17 Finally, incorporating by reference the allegations of an express and implied
18 in-fact contract to recover under a quasi-contract claim renders this cause of action
19 uncertain, because it masks the true nature ofthe claim and creates ambiguity.
20 {International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175.)
21 II
22 PERTINENT FACTUAL ALLEGATIONS IN THE COMPLAINT
23 On April 14, 2010, the State filed a verified complaint seeking to recover
24 $4,052,046.65 purportedly owed to it by CCPOA as a result of alleged breaches of
25 contracts entered into with CCPOA between 2001 and 2009. (See Verified Complaint for
26 Damages, Exhibit A to CCPOA's Request for Judicial Notice.) According to plaintiffs'
27 complaint, pursuant to these allegedly overlapping contracts, certain State employees were
28 released from work with fiill pay and benefits in order to engage in union activity. (See,
CBM-SF\SF479521 2 _2_

1 e.g., Compl. t t 1, 5-7 [discussing Union Paid Leave ("UPL")].) The State alleges that its
2 release of employees under these contracts was expressly conditioned on CCPOA's
3 promise to reimburse the State for the cost ofthe employee. {Id.)
4 The complaint presents four causes of action, offering intertwined,
5 commingled facts and theories ofthe case. In paragraphs 1, 5, 6, 7 and 8 ofthe
6 Complaint, for example, the State alleges that CCPOA's contractual obligation was
7 express, oral, and implied, pursuant to several agreements entered between the parties at
8 various times between the years 2001 and 2009. However, as pled, these agreements
9 cover the same subject matter during the same timefi-ame:CCPOA's contractual
10 obligation (originated in the MOU) to reimburse the State for UPL costs within 30
11 calendar days of receiving a billing statement (Compl. at t t 1, 5-7), and breach of that
12 obligation beginning in 2008. (Compl. at t 8.)
13 In the first cause of action for breach of express contract, the State alleges two
14 different written agreements, the 2001 MOU and the 2007 UPL agreement. According to
15 the Complaint, these two contracts were entered into at different times with different
16 terms. (Compl. at t t 9-10). But it also layers the alleged formation and breach of oral and
17 implied contracts atop the express contract. (Compl. at t t 9-10).
18 The second cause of action replicates plaintiffs' "mix-and-match-a-contract-
19 theory" approach: the claim is for breach of implied contract, but the State also alleges the
20 formation and breach of an express contract. (Compl. at t t 14-15.) Similarly, in the
21 fourth cause of action for unjust enrichment, the State alleges a tapestry stitched of
22 written, oral, and implied contracts that it asserts were breached. (Compl. at t t 23-25.)
23
Ill
24
LEGAL ARGUMENTS
25
A. This Demurrer is the Appropriate Means to Challenge the Legal
26 Sufficiency of Plaintiffs' Improperly Pled Complaint
27 A complaint must set forth the "essential facts ofthe case with reasonable
28 precision and with sufficient particularity to acquaint the defendant with the nature, source
CBM-SF\SF479521 2

1 and extent ofthe cause of action." {Harman v. City and County of San Francisco (1972)
2 7 Cal.3d 150, 157.) A demurrer is appropriate where the grounds for objection appear on
3 the face ofthe complaint {Blankv. Kirwan (1985) 39 Cal.3d 311, 318; Code Civ. Proc.
4 § 430.30.)
5 Defendant demurs on four statutory grounds: (1) Code Civ. Proc. § 430.10(e),
6 which authorizes the Court to sustain a demurrer to a legally defective complaint or any
7 cause thereof that fails to state facts sufficient to constitute a cause of action; (2) Code
8 Civ. Proc. § 430.10(f), which allows the Court to sustain a special demurrer where the
9 pleading is uncertain; (3) Code Civ. Proc. § 430.10(g), which allows the Court to sustain
10 a special demurrer where it cannot be ascertained from the pleading whether an
11 alleged contract was oral, written or implied-in-fact; and (4) Code Civ. Proc.
12 § 430.10(a), which allows the Court to sustain a special demurrer where the Court has no
13 jurisdiction to adjudicate a cause of action.
14 B. This Court Has No Jurisdiction Over the MOU-Based Claims

15 In paragraphs 3 and 5 ofthe Complaint, plaintiffs allege that defendant
16 breached its obligation to reimburse the State under section 10.14 ofthe 2001-2006 MOU.
17 This allegation is repeated as a component ofeach cause of action. (Compl. at t t 9, 14,
18 18, and 23.) Pursuant to Article 6 ofthe MOU, however, any dispute between the State
19 and CCPOA over the interpretation, application or enforcement of any MOU provision
20 must be resolved through the MOU's arbitration procedure. (See Article 6 ofthe MOU,
21 Exhibit B to CCPOA's Request for Judicial Notice.) Manifestly, plaintiffs' lawsuit
22 involves a dispute about "the interpretation, application or enforcemenf of MOU section
23 10.14. It is, therefore, subject to arbitration, and the Court lacks jurisdiction to decide the
24 merits of a breach of contract claim which is based on the MOU. (Code Civ. Proc. §
25 430.10(a) [Court "has no jurisdiction of the subject of the cause of action alleged in the
26 pleading"].)
27 In Leon Handbag Co. v. Local 213 of Leather, Luggage and Handbag Workers
28 (1969) 276 Cal.App.2d 240, the trial court sustained the defendant's demurrer on the
CBM-SF\SF479521 2 _4_

1 ground that the arbitration clause in the applicable collective bargaining agreement was
2 broad enough to cover the dispute as alleged on the face ofthe plaintiffs complaint. It
3 held that, under such circumstances, the plaintiff was required to exhaust the remedy of
4 arbitration or allege facts showing waiver by the defendant ofthe right to arbitrate the
5 dispute. The Court of Appeal agreed that the dispute was covered by the collective
6 bargaining agreement and therefore arbitration was the only venue for the plaintiffto
7 litigate the dispute.
8 Plaintiffs may argue that the MOU has expired. But defendant still has a
9 contractual right to arbitrate the claim against it. In Nolde Brothers, Inc. v. Local No. 358
10 Baker & Confectionary Workers Union (1977) 430 U.S. 243, 249, md Litton Financial v.
11 NLRB (1991) 501 U.S. 190, the United States Supreme Court, applying federal law, held
12 that where the resolution of a claim hinges on interpretation of a collective bargaining
13 agreement, a dispute is deemed to arise under the agreement as long as the claim is based
14 on contractual rights contained in the agreement, even ifthe agreement has since expired..
15 (430 U.S. at 252 ["The parties' obligations under their arbitration clause survived contract
16 termination when the dispute was over an obligation arguably created by the expired
17 agreement"]; 501 U.S. at 206 [post-expiration grievance arises under a contract when it
18 involves facts and occurrences that arose before expiration].)
19 Califomia courts follow this precedent. {Ajida Technologies, Inc. v. Roos
20 Instruments, Inc. (2001) 87 Cal.App.4th 534, 546 ["in interpreting collective bargaining
21 agreements, the United States Supreme Court has determined that the parties' obligations
f
22 under their arbitration clause survived contract termination when the dispute was over an
23 obligation arguably created by the expired agreement" citing Nolde and Litton}.)
24 The MOU-based claims underlie and are incorporated into each cause of
25 action. Consequently, the Court should sustain the demurrer to each cause of action
26 without leave to amend because it lacks jurisdiction to adjudicate the merits ofany legally
27 valid MOU-based claims that the parties agreed to arbitrate. CCPOA intends to move to
28 compel arbitration on such claims. {Satten v. Webb (2002) 99 Cal.App.4th 365, 376 [A
CBM-SF\SF479521 2 .5.
1 jurisdictional defense appearing on the face ofthe complaint, or based upon judicially
2 noticeable facts, is appropriately addressed by demurrer.].)
3
C. The Court Should Sustain the Demurrer to the First Cause of Action
4 on the Additional Grounds that the State Fails to Specifv Whether
the Express Contract Was Written or Oral, or ImpIied-m-Fact, and
5 the Cause of Action is Impermissibly Uncertain
6 A claim for breach of contract is subject to a demurrer if it cannot be
7 determined from the pleading whether the alleged contract was oral, written, or implied by
8 conduct. (Code Civ. Proc. § 430.10(g).) A complaint pleading a breach of contract "must
9 indicate on its face whether the contract is written, oral, or implied by conduct." {Otworth
10 V. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458-459.) "Ifthe
11 action is based on an alleged breach of a written contract, the terms must be set out
12 verbatim in the body ofthe complaint or a copy ofthe written instmment must be attached
13 and incorporated by reference." {Id., at 459.)
14 Thus, for each agreement that was allegedly breached, the State must specify
15 whether it was written, oral, or implied-in-fact. Each ofthese types of contracts requires
16 different proof and has a different statute of limitations. For example, express written and
17 oral contracts both require proof of the material terms the parties agreed upon. {Otworth v.
18 Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459.) In addition, the
19 statute of limitations for a written contract is four years (Code Civ. Proc. § 337(1)) and
20 two years for an oral contract. (Code Civ. Proc. § 339). On the other hand, an implied-in-
21 fact contract requires proof that the parties' conduct, rather than express words, formed a
22 contractual relationship (see Maglica v. Maglica (1998) 66 Cal.App.4th 442, 456) and the
23 applicable statute of limitations is two years (Code Civ. Proc. § 339).
24 Ifthe applicable statute of limitations is only two years, it would materially

25 reduce the amount the plaintiffs may be able to recover. {Sublett v. Henry's Turk & Taylor
26 Lunch (1942) 21 Cal.2d 273, 279 ["where a written contract is alleged and an oral contract
27 is proved, the variance is material if it has resulted in misleading the adverse party by
28 depriving him ofthe defense afforded by the statute of limitations"].)

CBM-SF\SF479521 2 -6-
1 Here, paragraph 10 ofthe Complaint alleges that the express contract was
2 "both oral[] and in writing." But plaintiffs cannot, as matter of law, plead in one cause of
3 action that the contract was both written and oral. (Code Civ. Proc. § 430.10(g).)
4 Further, the first cause of action is impermissibly uncertain because the State
5 incorporates by reference the allegations of an implied-in-fact contract into an express
6 breach of contract cause of action. (Complaint, t t 5, 6, 7 and 9.) A cumulative style of
7 pleading is a "disfavored shotgun (or 'chain letter') style of pleading ... which ofi:en
8 masks the tme causes of action." {International Billing Services, Inc. v. Emigh (2000) 84
9 Cal.App.4th 1175, 1179.) It "should be avoided as it tends to cause ambiguity and creates
10 redundancy." {Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 287; Leader v.
11 Health Industries ofAmerica, Inc. (2001) 89 Cal.App.4th 603, 608 [the trial court
12 sustained defendants' special demurrer for uncertainty to the breach of contract claim
13 finding that the allegations of multiple contracts within a single cause of action rendered
14 the pleading uncertain as to the operative terms ofthe various agreements, and as to
15 whether those agreements were written, verbal or implied in fact or law].)
16 If this is a cause of action for an express contract, incorporating the allegations

17 of an implied-in-fact contract causes ambiguity and renders it uncertain. (Code Civ. Proc.
18 § 430.10(f) ["As used in this subdivision, 'uncertain' includes ambiguous and
19 unintelligible."].) Consequently, the Court should sustain the demurrer to the first cause
20 of action because, as pled, it is defective. (C.C.P § 430.10(e), (f), and (g).)
21
D. The Court Should Sustain the Demurrer to the Second Cause of
22 Action for Implied Contract on the Additional Grounds that If a
Valid Express Contract Is Alleged to Exist, an Implied Contract on
23 the Same Subject Matter Cannot Exist at the Same Time
24 "[A]n implied-in-fact contract entails an actual contract, but one manifested in
25 conduct rather than expressed in words. The tme implied contract, then, consists of
26 obligations arisingfiroma mutual agreement and intent to promise where the agreement
27 and promise have not been expressed in words." {Maglica v. Maglica (1998) 66
28 Cal.App.4th 442, 4'56 [intemal citations omitted].)
CBM-SF\SF479521 2 -^ . 7 .

1 Here, plaintiffs impermissibly incorporate express contract allegations
2 (complaint, t t 5-10) into a cause of action for breach of an implied-in-fact contract,
3 comingling the two. They fail to specify whether the parties' conduct (that purportedly
4 establishes the implied-in fact contract) was something other than the express terms of a
5 contract (oral or written). (Complaint, 114-15.) This is invalid, because "[t]here cannot
6 be a valid, express contract and an implied contract, each embracing the same subject
7 matter, existing at the same time." {Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605,
8 613.) Plaintiffs "must allege that the express contract is void or was rescinded in order to
9 proceed with its implied-in-fact contract claim." {Lance Camper Mfg. Corp. v. Republic
10 Indem. Co. ofAmerica (1996) 44 Cal.App.4th 194, 203.)
11 For the same reasons, plaintiffs' second cause of action, like the first, is subject
12 to demurrer for uncertainty and ambiguity. (Code Civ. Proc. § 430.10(f) and cases supra.)
13
E. The Court Should Sustain the Demurrer to the Third Cause of
14 Action for Breach ofthe Implied Covenant of Good Faith and Fair
Dealing on the Additional Ground that the State Failed to
15 Adequately Plead the Existence of a Contract
16 Plaintiffs' third cause of action—for violation ofthe covenant of good faith
17 and fair dealing—can only proceed once the existence of a contractual relationship is
18 established. {Kim v. Regents of University ofCalifornia (2000) 80 Cal.App.4th 160, 164.)
19 As demonstrated supra, because the allegations in the first and second cause of
20 action purporting to establish a contractual relationship are defective. Plaintiffs have failed
21 to adequately plead the existence of any valid contractfi-omwhich the covenant of good
22 faith and fair dealing can be implied.
23 F. The Court Should Sustain the Demurer to the Fourth Cause of
Action for Unjust Enrichment Because It Is Defective on Multiple
24 Additional Grounds
25 First, "[t]here is no cause of action in Cahfomia for unjust enrichment."
26 {Melchior v. New Line Products, Inc. (2003) 106 Cal.App.4th 779, 793.) "[T]he phrase
27 'Unjust Enrichment' does not describe a theory of recovery, but an effect: the result of a
28 failure to make restitution under circumstances where it is equitable to do so. Unjust
CBM-SF\SF479521 2 _8_
CCPOA'S MPA IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT FOR DAMAGES "

1 enrichment is a general principle, underlying various legal doctrines and remedies rather
2 than a remedy itself It is synonymous with restitution."^ {Id.) On that ground alone, this
3 cause of action fails as a matter of law.
4 Second, and assuming that this claim was pled sufficiently as a cause of action
5 for restitution on a quasi-contract theory (and it is not), in paragraph 23 of the Complaint,
6 the State incorporates by reference the express written, express oral, and implied-in-fact
7 contract allegations into the unjust enrichment cause .of action. The State cannot so plead
8 as matter of law. Indeed, "[i]t is well settled that an action based on unjust enrichm'ent
9 resulting in a quasi-contract cannot lie where there exists between the parties a valid
10 express contract covering the same subject matter." {Lance Camper, supra, 44
11 Cal.App.4th at 203.) Thus, plaintiffs fail to state a valid cause of action.
12 For the same reasons, this cause of action is also uncertain. Like the first and
13 second causes of action, the State incorporates by reference the express and implied-in-
14 fact contract allegations into a quasi-contract claim, rendering the claim intemally
15 inconsistent and incomprehensible. As such it is subject to a demurrer as uncertain under
16 CodeCiv. Proc. §430.10(f).
17 W
18 W
19 w
20 w
21 w
22 w
23 w
24
25 "There are several potential bases for a cause of action seeking restitution. Restitution
may be awarded where the defendant obtained a benefit from the plaintiff by fraud,
26 duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue
in tort, but instead to seek restitution on a quasi-contract theory.... In such cases, where
27 appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to
the parties' intent, in order to avoid unjust enrichment. {Durell v. Sharp Healthcare
28 (April 19, 2010) WL 1529322 at =^10-11 [intemal citations omitted].)
CBM-SF\SF479521 2

1 IV
2 , CONCLUSION
3 For the forgoing reasons, CCPOA requests that the Court sustain its demurrer
4 to each cause of action in the Complaint.
5 Dated: May 14,2010
6 CARROLL, BURDICK & McDONOUGH LLP

7
8 By. mvuivGregg McLean Ada
9 Oriet Cohen-SuppI
Natalie Leonard
10 Marie A. Tenny
Attomeys for Defendant Califomia Correctional
11 Peace Officers' Association
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CBM-SF\SF479521 2 •10-
CCPOA'S MPA IN SUPPORT OF DEMURRER TO VEFUFIED COMPLAINT FOR DAMAGES
EXHIBIT C
1 >
1 JOHN M. SKONBERG, BarNo. 069409

RICHARD H. RAHM, Bar No. 130728
AMY MORGENSTERN, BarNo. 267412
3 LITTLER MENDELSON
4 650 Califomia Street
20th Floor
5 San Francisco, CA 94108.2693
Telephone: 415.433.1940
6 Facsimile: 415.399.8490
7 K. WILLIAM CURTIS
Chief Counsel, BarNo. 095753
8 WARREN C. STRACENER
Deputy Chief Counsel, BarNo. 127921
9 JAMES SPURLING
Assistant Chief Counsel, Bar No. 109432
10 Department of Personnel Administration
Stateof Califomia
11 1515 S Street, North Building, Suite 400
12 Telephone: 916.324.0512
Facsunile: 916.323.4723
13
Attomeys for Plaintiffs
15 REPLÎLITATION, DEPARTMENT OF
17
18
COUNTY OF SACRAMENTO
19
CORRECTIONS AND PLAINTIFFS' OPPOSITION TO
21 REHABILITATION, DEPARTMENT OF DEFENDANT'S DEMURRER TO
PERSONNEL ADMINISTRATION, and VERIFIED COMPLAINT FOR DAMAGES
22 DEPARTMENT OF MENTAL HEALTH,
Date: September 13,2010
23 Plaintiffs, Time: 2:00 p.m.
Dept.: 53
24 V. Judge: Hon. Loren E. McMaster
Reservation No. 1372668
25 CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION, Complaint Filed: April 14,2010
26 Trial Date: None set
Defendant.
27 Exempt from Fees (Gov. Code § 6103)
28
LITTLER MENDELSON
A PttOKtUCIIK CoKnUtiUOH
dSOCililarma &U»»t
20ih Floor
S»n Fraitcbco CA 9410B 2693
4IS 433 1940
THE STATE'S OPPOSITION TO CCPOA'S DEMURRER TO VERIFIED COMPLAINT
1 TABLE OF CONTENTS
2 PAGE
3 I. INTRODUCTION 1
4 n. FACTUAL ALLEGATIONS 3
5 A. The Parties Entered Into The Written UPL Agreement, Which Superseded
6 The Terms Of The MOU On The Same Subject 3
B. After The Written UPL Agreement Ended, The Parties Orally Agreed To
7 Continue To Abide By The Terms Of The UPL Agreement 4
8 C. CCPOA Reimbursed The State Only Sporadically And, After CCPOA
Refused To Pay Even Half Of The Unpaid Balance, The State Filed The
9
Present Action 4
10 III.
CCPOA'S GENERAL AND SPECIAL DEMURRERS SHOULD BE OVERRULED 4
11
A. To Sustain Its Demurrers, CCPOA Must Demonstrate That The Complaint
12 Fails To Apprise It Of The State's Causes Of Action 4
B. CCPOA's Demurrer On Jurisdictional Groimds Should Be Overmled Because
13 The State's Action Is Based On The Subsequent UPL Agreement And Not
The Expired MOU 5
14
C. The Union's Demurrer To The State's First Cause Of Action For Breach of
15 Express Contract Should Be Overraled 6
16 1. The First Cause Of Action Alleges A Breach Of The Written UPL

Agreement And A Subsequent Oral Extension Of That Agreement 6
17
2. The State's Incorporation By Reference Of The Previous Allegations
18 Clarifies The Complaint, And The Demurrer For Uncertainty Should
Be Overraled 8
19
D. CCPOA's Demurrer To The Second Cause Of Action For Breach of Implied-
20 ' In-Fact Contract Should Be Overraled Because The Express And Implied
Contracts Are Alleged In Different Causes Of Action 10
21
E. CCPOA's Demurrer To The Third Cause Of Action For Breach Of The
22 Implied Covenant Should Be Overruled Because The State Has Alleged A
Valid Contract 12
23
F. The Union's Demurrer To The Fourth Cause Of Action For Unjust
24 Enrichment Should Be Overraled Because, As With The Second Cause Of
Action, The State Can Allege Altemative Theories Of Recovery 13
25
IV. CONCLUSION \ 14
26
27
28
LITTLER MENDELSON
^ pROfdSioMAi. CORPORATION 1.
650 Calirornii Stiaat
20ih Floor
San Frincitce CA S4108 2693
415 433 1940 THE STATE'S OPPOSITION TO CCPOA'S DEMURRER TO VERIFIED COMPLAINT
2
PAGE
3
CASES
4,
Cal-West National Bank V. Superior Court,
5 185 Cal. App. 3d 96 (1986) 8,11,14
6 Daar v. Yellow Cab Co.,

67 Cal.2d 695 (1967) 4
7
Day V. Aha Bates Medical Center,
8 98 Cal. App. 4th 243 (2002) 13
9
FDIC V. Dintino,
10 167 Cal. App. 4th 333 (2008) 13
11 Hoyden v. Collins,
1 CaL App. 259 (1905) 14
12
International Billing Services, Inc. v. Emigh,
13 84 CaL App. 1175 (2000) 9, 10
14
Jackson v County ofLos Angeles,
15 60 CaL App. 4th 171 (1997) 12, 14
16 Kajima Engineering and Construction, Inc v City of Los Angeles,

95 Cal. App. 4th 921 (2002) 9
17
Kelly V. General Telephone,
18 136 CaL App. 3d 278 (1982) 9,10
19
Khoury v. Maly 's ofCalifornia, Inc.,
20 14 CaL App. 4th 612 (1993) 5, 9,11
21 Kim V Regents ofthe Umversity ofCalifornia,

80 CaL App. 4th 160 (2000) 12
22
Lance Camper Manufacturing Corp v. Republic Indemnity Co.,
23 44 Cal. App. 4th 194 (1996) 12
24 Leader v. Health Industries ofAmerica, Inc.,
25 89 Cal. App. 4th 603 (2001) 10
26 Ludgate Ins. Co. v. Lockheed Martin Corp.,

82 Cal. App. 4th 592 (2000) 4
27
28
LITTLER MENDELSON
A pRO'ElttOHKl CORPQllATION 1.
6S0 Calilornii Sliaoi
20lh Floor
Strt Frineitco CA 94106 2693
(CONTINUED)
2
PAGE
3 McBride v Boughton,
123 Cal. App. 4th 379 (2004) 14 _
4
McGough V. Umversity ofSan Francisco,
5 214 Cal. App. 3d 1577 (1989) 11
6
Melchior v. New Line Products, Inc.,
7 106 Cal. App. 4th 779 (2003) 13, 14
8 Otworth V. Southern Pacific Transportation Co ,

166 Cal. App. 3d 452 (1985) 7, 8
9
Pasadena Live, LLC v. City of Pasadena,
10 114 Cal. App. 4th 1089 (2004) 12
11
Perkins v. Sup Ct.,
12 117 CaL App. 3d 1(1981) 4
13 Quelimane Co. v. Stewart Title Guaranty Co.,

19 CaL 4th 26 (1998) 5
14
Rader Co. v. Stone,
15 178 Cal. App. 3d 10 (1986) 11
16
Reichert V. General Ins. Co.,
17 68 CaL 2d 822 (1968) 7
18 Skelly V Richman,
10 CaL App. 3d 844 (1970) 11
19
Stolt-Nielsen SA. v. AnimalFeeds Int'l, Corp.,
20 130 S. C t 1758 (2010).... 6
21
Wal-Noon Corp v. Hill,
22 45 Cal. App. 3d 606 (1975) 11, 12
23 Williams v Beechnut Nutrition Corp.,

185 Cal. App. 3d 135 (1986) 5, 9
24
STATUTES
25
Cal. Code Civ. Proc. § 3528 14
26
CaL Code Civ. Proc. § 430.10(f) 5, 8
27
28 CaL Code Civ. Proc. § 430.10(g) 7

LITTLER MENDELSON
A PROfEltlONM CORPORAIION
650 California S t i t a l
ii.
20th Floor
S a n F r a n o t c o CA 94108 2693
4)5 433 1940 THE STATE'S OPPOSITION TO CCPOA'S DEMURRER TO VERIFIED COMPLAINT
(CONTINUED)
2
PAGE
3 Cal. Code Civ. Proc. § 452 4
4 Cal. Lab. Code § 1126 2, 6

5 OTHER AUTHORITIES
6 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading § 402 at p. 543 7, 11
7
Weil & Brown, Cal. Practice Guide: Califomia Civil Procedure Before Trial (Rutter,
8 2010) §§ 7:85-86...: ; ; 5,12
9
10
Firmwide 95542257 4 052714 1011
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 •
26
27
28
LITTLER MENDELSON
A PROrEttlOH.L COHPOR.TIOH 111.
650 C.lifomia S l K . t
!Oth Floor
Son F f i n c i t c o CA 94108 2693
1 I. INTRODUCTION
2 Since 2001, Defendant Califomia Correctional Peace Officers Association
3 ("CCPOA") has had an agreement with Plaintiff State ofCalifomia (the "State")' whereby the State
4 agreed to pay public funds for the full salary and benefits of CCPOA-represented employees on
5 Union Paid Leave ("UPL"), in exchange for which, CCPOA agreed to reimburse the State for the
6 complete cost of providing the UPL. Although the agreement originated in a 2001-2006
7 Memorandum of Understanding ("MOU") between CCPOA and the State,^ after the MOU
8 terminated, the parties entered into a separate, "stand-alone" written agreement in 2007, now
9 referred to as the "UPL Agreement" (attached as Exhibit 2 to the Complaint), in which the State
10 agreed to continue to fimd UPL for CCPOA-represented employees, provided that CCPOA agreed to
11 pay all past and future UPL debts. The UPL Agreement formally terminated in 2009, but the parties
12 orally agreed to continue the terms of the UPL Agreement (while they attempted to arrive at a new
13 agreement), with CCPOA continuing to request both that the State fund UPL and that it bill CCPOA
14 for the costs. Unfortunately, CCPOA has seldom paid any ofthe State's invoices, which now total
15 to over $4 million. This money is owed to the State. Because Article XVI, Section 6 of the
16 Constitution prohibits the making of gifts of public funds and, indeed, because State officials have
17 an obligation to the taxpayers to collect such debts, the State now brings the present action against
18 CCPOA for its failure to reimburse the State as promised.
19 The above facts, which are pleaded in detail in the Complaint, give rise to several
20 separate and altemative theories of recovery. Although CCPOA's counsel and Vice President signed
21 the UPL Agreement, CCPOA now demurs claiming that the alleged causes of action based on the
22 UPL Agreement are so "uncertain" as to be"incomprehensible." Dem. 9:12-16. It is indeed
23 unfortunate that instead of moving forward with the litigation - let alone paying the State back the
24 money it owes - CCPOA has filed the present demurrer, based on hypertechnical and ill-favored
25 "State" includes all ofthe Plaintiffs to this action: The State ofCalifomia, Califomia Department of
Corrections and Rehabilitation, Department of Personnel Administration, and Department of Mental Health.
26
^ The duty of CCPOA to reimburse the State for the costs of releasing various employees to conduct
27 union business has existed in all the MOUs with CCPOA since the 1987-88 MOU. The reference to the
2001-2006 MOU is simply a reference to the last full MOU existing between the parties and is provided for
28 historical context only.
LITTLER MENDELSON
A PHOFtttiON.i CORPORATION
650 C i h l o i n i . S l i t . t
L
20lh Flooi
Son Frinciico CA 94109 2693
415 433 1940
\Z7^
1 groimds, to continue to keep needed funds away from the State. In any event, each of CCPOA's
2 demurrers fails as a matter of law and, for this reason, should be overraled.
3 Valid Jurisdiction. CCPOA argues that all ofthe State's causes of action are
4 alleged to be based on an expired MOU, thus depriving this Court of jurisdiction. See Dem.
5 4:14-6:2. Yet, the Complaint is very clear that the State is suing on the subsequent UPL
6 Agreement and nowhere does the State allege that it is suing for a breach ofthe MOU. See,
7 e g, Compl. 1 8 . The UPL Agreement is alleged to be a separate agreement from the MOU,
8 and Labor Code section 1126 expressly provides that an agreement between a union and an
9 employer may be enforced "in the courts of this State." CCPOA's jurisdictional challenge
10 thus has no basis.
11 Valid Breach Of Express Contract Claini. CCPOA argues that the first
12 cause of action is improperly pleaded and "uncertain" because both an express written and an
13 express oral contract are alleged. See Dem. 6:4-7:20. However, the Complaint clearly
14 alleges that the written UPL Agreement (attached to the Complaint) continued to 2009, after
15 which the parties had a non-written agreement to abide by the same terms. See Compl. 1 7 .
16 The fact that the State incorporated the factual allegations into its cause of action actually
17 clarifies the two separate contracts, rather than making the Complaint uncertain. CCPOA's
18 argument is frivolous.
19 Valid Breach Of Implied-In-Fact Claim. CCPOA does not dispute that the
20 Complaint adequately alleges a claim for breach of implied-in-fact contract as an altemative
21 to the first cause of action. Rather, CCPOA argues that, because the State incorporated all of
22 its previous allegations as background into its second cause of action, it is "uncertain"
23 whether the State is alleging a cause of action for a breach of an express contract or a cause
24 of action for breach of an impHed-in-fact contract. See Dem. 7:22-8:12. Incorporation by
25 reference for informational purposes is an accepted practice, and CCPOA cannot seriously
26 argue, as a demurrer based on "uncertainty" demands, that it is unable to respond to the cause
27 of action.
28
LITTLER MENDELSON
A PROFEIIIONAI CORPORAUON
650 Cillfornia Stivet
2.
lOlh Floor
San Ffancitco CA 94106 2693
415 433 1940
1 Valid Breach Of The Implied Covenant Claim. CCPOA challenges the
2 Complaint's third cause of action for breach of the implied covenant of good faith and fair
. 3 dealing solely on the basis that it does not believe that the State has previously alleged a valid
4 cause of action. See Dem. 8:14-22. Because the State's first cause of action alleges a valid
5 breach-of-contract claim, the State's breach of implied covenant claim is also valid.
6 Valid Unjust Enrichment Claim. CCPOA first argues that the State cannot
7 bring its fourth cause of action for "unjust enrichmenf' because it should have been titled
8 "restitution," even though it acknowledges that courts use "unjust enrichment" and
9 "restitution" synonymously. See Dem. 8:23-9:3. CCPOA next argues, again, that because
10 the State incorporated the previous allegations "by reference," technically the State has
11 pleaded equitable and non-equitable claims in the came cause of action. See Dem. 9:4-16.
12 The argument is fatuous as it is clear from the allegations that the State is pleading a claim
13 for restitution as an equitable altemative to its legal causes of action.
14 II. FACTUAL ALLEGATIONS
15
A. The Parties Entered Into The Written UPL Agreement, Which Superseded The
16 Terms Of The MOU On The Same Subject.
17 The State alleges in the Complaint that it entered into an MOU with CCPOA whereby
18 the State agreed to pay for the full salary and benefits of CCPOA-represented employees who were
19 on UPL, provided that CCPOA reimburse the State for the complete cost of funding the UPL within
20 30 days of receiving a billing statement. See Compl. 1 5 , Exh. 1. The MOU expired in 2006 and, in
21 the absence of a successor agreement, the parties entered into a new written stand-alone agreement
22 goveming UPL on November 7, 2007, superseding the MOU, whereby the State agreed to continue
23 funding UPL pursuant to the same terms, provided that CCPOA agreed to reimburse the State for the
24 "total compensation cost" of both unpaid past and future UPL. See Compl. t 6, Exh. 2.
25 Pursuant to the UPL Agreement, CCPOA requested that the State release employees
26 for UPL, together with a request that the State bill CCPOA for the UPL costs. See Compl. t 7. The
27 State, for its part, complied by releasing employees and funding their UPL. Ibid. Beginning in
28 2008, the State sent CCPOA invoices for the total compensation costs attributable to UPL, pursuant
LITTLER MENDELSON
A PROFCItlONAL C O R P O R A I I O H
650 California Sirael
3.
20lh Floor
Sin Franciico CA 94108 2693
415 433 1940
V3''
1 to the UPL Agreement. Id. at 18.

2 B. After The Written UPL Agreement Ended, The Parties Orally Agreed To
Continue To Abide By The Terms Of The UPL Agreement.
3
4 The UPL Agreement had a 12-month term, but the parties agreed in writing to
5 continue it until January 31, 2009. See Compl. 17. Although the written UPL Agreement was not
6 renewed in writing after January 31, 2009, the parties orally agreed to continue to abide by the terms
7 of that agreement. Ibid. To this end, CCPOA continued to request both that employees be released
8 on UPL and that the State invoice it for the costs of funding the UPL. Ibid.
9 C. CCPOA Reimbursed The State Only Sporadically And, After CCPOA Refused
To Pay Even Half Of The Unpaid Balance, The State Filed The Present Action.
10 As of December 2009, the State had unpaid invoices totaling over $4 million from its
11 funding of UPL pursuant to both the written UPL Agreement and CCPOA's oral agreement to
12 continue to abide by the written agreement. See Compl. t 8 . On January 28, 2010, the State
13 demanded that CCPOA pay at least half of the $4 million it had been invoiced by the State for UPL
14 costs. Ibid. This CCPOA failed to do and, consequently, the State filed the present action based on
15 the UPL Agreement and its oral extension. Ibid.
16
III. CCPOA'S GENERAL AND SPECIAL DEMURRERS SHOULD BE OVERRULED.
17
A. To Sustain Its Demurrers, CCPOA Must Demonstrate That The Complaint
18 Fails To Apprise It Of The State's Causes Of Action.
19 On demurrer, a court must accept all material factual allegations as trae. See Daar v.
20 Yellow Cab Co., 67 Cal.2d 695, 713 (1967). Further, a court must constrae the allegations in the
21 complaint "with a view to substantial justice between the parties." Code Civ. Proc. § 452.
22 Califomia's liberal pleading rales require a plaintiff only to allege facts sufficient "to acquaint a
23 defendant with the nature, source and extent of his cause of action." Ludgate Ins. Co v. Lockheed
24 Martin Corp., 82 Cal. App. 4th 592, 608 (2000); accord Perkins v. Sup. Ct., 117 Cal. App. 3d 1, 6
25 (1981) (the complaint must simply be sufficient to apprise the defendant ofthe basis upon which the
26 plaintiff seeks relief).
27
28
LITTLER MENDELSON
A PaOFIltlOHAl CORPONAtlOH
650 CilitorniB Sltial
20ih Floor
San Fianciico CA 94108 2693
1 A complaint will not be deemed impermissibly uncertain unless it is "ambiguous and
2 unintelligible." Code Civ. Proc. § 430.10(f). Courts disfavor demurrers based on "uncertainty"
3 because the discovery process can clarify any ambiguities. See Khoury v. Maly's ofCalifornia, Inc.,
4 14 Cal. App. 4th 612, 616 (1993); Weil & Brown, Cal. Practice Guide: Califomia Civil Procedure
5 Before Trial (Rutter, 2010) §§ 7:85-86. Indeed, a demurrer on the grounds of "uncertainty" should
6 be overraled if the "complaint contains substantive factual allegations sufficiently apprising
7 defendant ofthe issues it is being asked to meet." Williams v. Beechnut Nutrition Corp., 185 Cal.
8 App. 3d 135, 139, n. 2 (1986). See also Weil & Brown at § 7:85 ("Demurrer for uncertainty will be
9 sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he
10 cannot reasonably determine what issues must be admitted or denied, or what counts or claims are
11 directed against him."). Moreover, a "demurrer for uncertainty should be overraled if facts [are]
12 presumptively within defendant's knowledge," as they are here, insofar as both CCPOA's counsel
13 and Vice President signed the UPL Agreement. Khoury, 14 Cal. App. 4th at 616.
14 Should this Court sustain any part of the demurrer, the State requests leave to amend
15 the Complaint to cure any deficiencies. See Quelimane Co. v. Stewart Title Guaranty Co., 19 Cal.
16 4th 26, 39 (1998) (where there is even a reasonable possibility that a defect can be cured by
17 amendment, leave to amend the complaint must be granted liberally).
18 B. CCPOA's Demurrer On Jurisdictional Grounds Should Be Overruled Because

The State's Action Is Based On The Subsequent UPL Agreement And Not The
19 Expired MOU.
20 CCPOA argues that this Court lacks jurisdiction to hear the State's clauns because
21 such claims are subject to the arbitration agreement in the expired MOU. See Dem. 1:12-16, 4:14-
22 6:2. There is no foundation to CCPOA's demurrer.
23 The Complaint is clear that the State is not suing for any breach of the MOU but of
24 the obligations arising out of the UPL Agreement and subsequent promises. Although the State
25 alleges that the last MOU-based agreement conceming UPL was memorialized in the 2001-2006
26 MOU, the allegation merely provides historical context to the subsequent UPL Agreement and, in
27 any event, nowhere does the State allege that it is suing on a breach ofthe MOU. See Compl. 1 5 .
28 Although CCPOA asserts that the State has alleged in Paragraphs 3 and 5 of the Complaint that
LITTLER MENDELSON
A PROFEIIIOKAL CORPORATION
650 Cslitornia S I r i a i
5^
20lti Floor
1 Specifically, the State alleges that "[i]n the absence of a successor MOU," the parties entered into
2 the written UPL Agreement, in which CCPOA obligated itself to "reimburse the State for the 'total
3 compensation cost' of both unpaid past and further UPL, and that CCPOA would pay the State's
4 UPL invoices within thirty days after it received them." See Compl. 1 6 . In this respect, the State
5 does not allege that it sent any invoices pursuant to the MOU but rather alleges that it began sending
6 invoices to CCPOA in 2008, during the term ofthe stand-alone UPL Agreement and long after the
7 MOU had expired.'* See Compl. 1 8 . Yet, a party may be required to arbitrate a dispute only if it has
8 expressly consented to do so. See Stolt-Nielsen S.A. v. AnimalFeeds Int'I, Corp., 130 S. Ct. 1758,
9 1773 (2010) (arbitration "is a matter of consent, not coercion"). The UPL Agreement, however, has
10 no arbitration clause. See Compl., Exh. 2. Labor Code section 1126 provides that a breach of
11 contract between a union and an employer "shall be enforceable in law or in equity ... in the courts of
12 this State." Lab. Code § 1126. Accordingly, this Court has jurisdicfion over the State's claims.
13 The State specifically alleged that CCPOA breached the UPL Agreement, which has
14 no arbitration clause. The State has not alleged a cause of action based on the expired MOU. This
15 Court has jurisdiction over this dispute pursuant to Labor Code section 1126, and CCPOA's general
16 demurrer should be overruled.
17 C. The Union's Demurrer To The State's First Cause Of Action For Breach of
Express Contract Should Be Overruled.
18
The Union demurs to the first cause of action for breach of express contract on the
19
grounds that (1) the Complaint fails to state whether the express contract alleged to have been
20
breached was oral, written, or implied by conduct, and (2) the State's incorporation by reference of
21
all background facts renders it "impermissibly uncertain." See Dem. 6:4-7:20. Neither ground for
22
CCPOA's demurrer is valid.
23
24
CCPOA violated the MOU, these paragraphs are, on their face, completely devoid of any such allegations.
25 See Dem. 4:15; Compl. t t 3 , 5. Thus, the arbitration provision ofthe expired MOU has absolutely no
relevance here.
26
•* The UPL Agreement provides that the agreement would terminate //the "Legislature approve[d] a
27 successor Memorandum of Understanding." Compl., Exh. 2, 115. This further confirms that both parties
understood that no MOU was in place at the time the UPL Agreement was executed, and the parties have not
28 subsequently entered into another MOU.
LITTLER MENDELSON
A PROFEIIIONAI CORPORATION
650 Calilomia Siraal
) 6.
20lh Floor
415 433 1940
1 1. The First Cause Of Action Alleges A Breach Of The Written UPL
Agreement And A Subsequent Oral Extension Of That Agreement.
2
To plead a cause of action for damages arising from a breach of contract, the Supreme
3
Court has held that a party need only allege "(1) the contract, (2) plaintiffs performance or excuse
4
for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff" Reichert v
5
General Ins. Co., 68 Cal. 2d 822, 830 (1968). In this respect, there can be no dispute that the State
6
has pleaded the requisite elements of a contract claim: the written UPL Agreement and oral
7
extension; payment by the State of UPL to employees; CCPOA's failure to reimburse the State the
8
UPL, as per the UPL Agreement; and the State's incurrence of over $4 million in damages as a result
9
of CCPOA's breach. See Compl. t t 9-13. CCPOA argues that the Complaint is deficient, pursuant
10
to Califomia Code of Civil Procedure section 430.10(g), because it is not clear whether the State's
11
first cause of action is for the breach of written contract or an oral contract. See Dem. 6:4-7:3.
12
CCPOA is simply wrong.
13
The State's breach of express contract claim incorporates the previous paragraphs,
14
which make clear that the State is alleging a breach of the written UPL Agreement, in addition to a
15
breach of an oral agreement to extend the terms ofthe UPL Agreement after January 31, 2009. See
16
Compl. t t 6-8. Moreover, a party alleging a breach of contract may copy the contract verbatim into
17
a complaint, attach a copy of the contract, or simply plead a written contract by alleging the
18
substance of its relevant terms. See 4 Witkin, Cal. Procedure (5th ed. 2008), Pleading, § 519 at
19
p. 651. Here, the State has both set forth the relevant substantive terms of the written UPL
20
Agreement and its oral extension, and it has attached an actual copy of the contract. See Compl.
21
t t 6-8, Exh. 2. Insofar as section 430.10(g) provides a challenge to the Complaint only if "it cannot
22
be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct,"
23
CCPOA's demurrer must fail.
24
Nor is the holding in Otworth v. Southern Pacific Transportation Co., 166 Cal. App.
25
3d 452, 458-59 (1985), cited by CCPOA, to the contrary. There, an employee sued his employer for,
26
inter alia, withholding taxes fi-om his wages, which it paid to the IRS, contrary to plaintiffs
27
instractions. The Court of Appeal stated that to bring a contract action, a plaintiff must state the
28
LITTLER MENDELSON
A P.OFIISIOII.L COHPDR.TION
650 C.liloinii Slr.ol
20th Ftooi
SinFi»ncitci> CA 94109 2693
415 433 1940 THE STATE'S OPPOSITION TO CCPOA'S DEIVIURRER TO VERIFIED COMPLAINT
1 elements of the claim, indicate whether the contract is written, oral or implied, and, if written, quote
2 the terms ofthe contract verbatim or attach the contract to the complaint. Ibid. The court found that
3 the plaintiff (1) made no mention of whether the contract was written or oral, (2) set forth none of
4 the alleged contract's terms, (3) made no assertion of whether the plaintiff performed or was excused
5 from performing the contract, and (4) made no allegation that the contract contained a provision
6 requiring the employer not to withhold taxes, which the court intimated would probably be invalid as
7 against public policy. Ibid. Because the plaintiff failed to do any ofthe above, i.e., because the
8 plaintiff failed to allege the existence of^ any contract, the Court of Appeal upheld the trial court's
9 sustaining the employer's demurrer to that cause of action. Ibid.
10 As noted above, because the State has alleged the elements of the cause of action,
11 attached the written contract to the Complaint, specified what provisions were breached, and
12 specified which agreement was oral, the State has complied with all of the terms set forth in
13 Otworth The demurrer should be overraled.
14 2. The State's Incorporation By Reference Of The Previous Allegations
Clarifies The Complaint, And The Demurrer For Uncertainty Should Be
15 Overruled.
16 As a second ground, CCPOA demurs to the first cause of action pursuant to Code of
17 ' Civil Procedure section 430.10(f), arguing that the breach of contract claim is "impermissibly
18 uncertain" because the State's incorporation by reference of its previous allegations makes the cause
19 of action "ambiguous and unintelligible." See Dem. 7:4-20. Not only is "incorporation by
20 reference" not a ground to demur, but the State's incorporation of its previous allegations actually
21 clarifies - to the extent that clarification was needed - which agreement was written and which
22 agreement was oral. CCPOA's demurrer for uncertainty must accordingly fail.
23 Incorporation-by-reference is an accepted practice under Califomia's liberal pleading
24 mles. For instance, in Cal-West National Bank v. Superior Court, 185 Cal. App. 3d 96, 100 (1986),
25 the court considered a demurrer to a complaint which named a party as a defendant only to one cause
26 of action (the 24th), yet incorporated by reference all of the previous allegations made in the second
27 through 23rd causes of action. The court rejected the movant's uncertainty arguments based on
28 section 430.10(f) as "[njonsense" and held that "[i]t is axiomatic that a civil plaintiff may for the
LITTLER MENDELSON
A PHOPeitlOM.t CoR.OK.tlON
650 C . l i f o i n l . S l r . . l
8^
20Ih Flooi
San FiBociico CA 94108 2693
415 433 1940
1 sake of convenience incorporate by reference prior portions of his pleading for informational
2 purposes only." Id. at 100-101. See also Kajima Engineering and Construction, Inc. v. City of Los
3 Angeles, 95 Cal. App. 4th 921, 931-32 (2002) (noting that the "general" practice of incorporating
4 allegations fi-om previous causes of action avoids repetitive complaints); Clark v. Berlin Realty Co.,
5 33 Cal. App. 50, 53 (1917) ("contention that the allegations ofthe first cause of action ... could not
6 by reference be incorporated in the subsequent alleged causes of action, is not supported by the
7 Califomia cases").
8 More importantiy, the relevant facts alleged in the State's Complaint lend themselves
9 well to incorporation-by-reference pleading. Each of the four causes of action in the Complaint is
10 based on the Union's failure to reimburse the State for UPL costs, and several ofthe claims have
11 common elements. With respect to the first cause of action for breach of express contract, far from
12 making the cause of action "ambiguous" or "unintelligible," the State's incorporation by reference
13 clarifies which agreement is alleged to be oral and which agreement is alleged to be written. As
14 such, CCPOA carmot meet its burden of demonstrating that the Complaint fails to contain
15 "substantive factual allegations sufficiently apprising [it] ofthe issues it is being asked to meet." See
16 Williams, 185 Cal. App. 3d at 139, n. 2. As discussed above, this is particularly the case because
17 CCPOA's Vice President and counsel both signed the UPL Agreement, thus making the facts
18 "presumptively within [their] knowledge." Khoury, 14 Cal. App. 4th at 616. The demurrer for
19 uncertainty should be overraled.
20 Again, the cases cited by CCPOA are not to the contrary. For instance, CCPOA cites
21 International Billing Services, Inc. v. Emigh, 84 Cal. App. 1175, 1179 (2000), which concemed a
22 post-judgment proceeding for attorneys' fees and which made no reference, whatsoever, to
23 demurrers. Rather, the court, in passing, simply referred to the complaint (which was sufficient to
24 take the parties through trial) as the "disfavored shotgun (or 'chain letter') style of pleading ... which
25 often masks the trae causes of action." Ibid. Likewise, while CCPOA cites Kelly v General
26 Telephone, 136 Cal. App. 3d 278, 285 (1982), for the same proposition, the court sustained the
27 demurrer because the plaintiff had failed to adequately plead a cause of action for negligent
28 infliction of emotional distress - by incorporation or otherwise - because the plaintiff had made no
LITTLER MENDELSON
A P n o r E i i i o N . i CORPORATION
650 CRliform. S l i . a l
20th FIooi
S i n Fianciico CA 94108 2693
1 allegations regarding the sufficiency ofthe employer's investigation, which was an essential element
2 to the cause of action. Id. at 285. In other words, the demurrer that was sustained was not made on
3 the ground of "uncertainty." Indeed, the court actually overraled the demurrer for uncertainty in the
4 case, which was for slander. Id. at 285. Finally, CCPOA cites Leader v. Health Industries of
5 America, Inc., 89 Cal. App. 4th 603 (2001). Yet, Leader concemed the plaintiffs' failure tofilean
6 amended complaint within the time limits provided by the court after the demurrers to their third
7 amended complaint were sustained. Id at 607. There is no discussion of the standard with respect
8 to a demurrer on the ground of uncertainty, and it merely references the fact that the trial court had
9 sustained such a demurrer as to the breach of contract claim because plaintiffs' allegation of multiple
10 contracts within a single cause of action in the third amended complaint "rendered the pleading
11 uncertain as to the identity of and the parties to and the operative terms ofthe various agreements,
12 and as to whether those agreements were written, verbal or implied in fact or law," in a case that
13 involved several parties on each side. Id. at 608.
14 In summary, Emigh did not even reference a demurrer, and Kelly overraled the
15 demurrer for uncertainty in the case before it. Even if these cases were applicable, nothing in the
16 State's Complaint "masks" any causes of action it is bringing. Leader likewise is inapposite insofar
17 as the present action does not involve multiple parties on each side in which, after four rounds of
18 pleadings, it is still uncertain who was suing whom for what under the terms of what agreements.
19 Instead, in the present cause of action, the incorporation by reference makes clear the single written
20 contract and the single oral extension of that contract, entered into by the State and CCPOA, which
21 was signed by both CCPOA's officer and counsel. Accordingly, there is no basis for CCPOA's
22 demurrer on the ground of "uncertainty."
23 D. CCPOA's Demurrer To The Second Cause Of Action For Breach of Implied-In-

Fact Contract Should Be Overruled Because The Express And Implied
24 Contracts Are Alleged In Different Causes Of Action.
25 As an alternative to its first cause 6f action for breach of express contract, the State's
26 second cause of action is for breach of implied-in-fact contract. See Compl. t t 15-17. The essential
27 elements of an implied-in-fact contract and an express contract are the same, i.e., mutual assent and
28 consideration. See, e.g, McGough v. University of San Francisco, 214 Cal. App. 3d 1577, 1584
LITTLER MENDELSON
651} Cililornia Siraat
10
20111 Floor
415 433 1940
1 (1989). In this regard, the State has alleged that the parties created an implied-in-fact contract by
2 engaging "in a course of conduct whereby the State released employees with fiill pay and benefits,
3 and the Union informed the State that it would pay the actual compensation costs of the UPL."
4 CompLtl5.
5 CCPOA does not challenge that the State has alleged the requisite elements of the
6 cause of action. Rather, CCPOA is claiming that, based on the incorporation-by-reference
7 allegation, the State is alleging both an express contract and an implied-in-fact contract in the same
8 cause of action, thus rendering it "uncertain." See Dem. 8:1-12. As the court in Cal-West stated,
9 "nonsense." Cal-West, 185 Cal. App. 3d at 100. The State has alleged a valid cause of action for an
10 implied-in-fact contract, and the State's incorporation-by-reference allegation is a valid means of
11 incorporating the factual context for informational purposes. See Cal-West, 185 Cal. App. 3d at 100-
12 101. Furthermore, the State "is not precluded from alleging in one cause of action the breach of a
13 contract and an inconsistent theory of recovery in another cause of action." Rader Co v. Stone, 178
14 Cal. App. 3d 10, 29 (1986). See also Skelly v. Richman, 10 Cal. App. 3d 844, 856 (1970) ("a
15 plaintiffis permitted to plead inconsistent or ... altemative counts"); 4 Witkin, Cal. Procedure (5th
16 ed. 2008) Pleading § 402 at p. 543. Again, even if CCPOA were genuinely confused because it
17 thought the State was attempting to allege a claim for breach of express contract and breach of an
18 implied-in-fact agreement in the same cause of action - which is clearly not the case - the demurrer
19 should still be overraled because the facts are presumptively within the knowledge of CCPOA
20 because its officer and counsel signed the UPL Agreement. See Khoury, 14 Cal. App. 4th at 616.
21 CCPOA cites Wal-Noon Corp v Hill, 45 Cal. App. 3d 606, 613 (1975), for the
22 holding that there cannot be a valid express contract and an implied contract, each embracing the
23 same subject matter, existing at the same time. While that is trae, Wal-Noon has nothing to do with
24 a demurrer or with pleading altemative theories. Instead, the parties in Wal-Noon went to trial
25 entirely oh a breach of contract theory, and although the trial court found a breach of contract, it
26 awarded equitable remedies. The Court of Appeal found that "[a]t trial, neither party sought to
27 invoke the equitable powers of the court," and that "both parties proceeded on the theory that the
28 lease was a valid, subsisting, enforceable contract between them." Id. at 612-613. The Court of
LITTLER MENDELSON
A PROFEIIIONAL CORPORATION
650 Calilomia S t i a a l
LL
20th FlQoi
San F i a n c i i c o CA 94108 2693
415 433 1940
1 Appeal tiius reversed the trial court's decision to award the plaintiff equitable relief on a contract
2 theory.^ Ibid. In other words, while a plaintiff typically may uhimately recover only upon one legal
3 theory, a plaintiff may/»/eac/ claims which are antagonistic to one another. See Jackson v. County of
4 Los Angeles, 60 Cal. App. 4th 171, 181 (1997) (plaintiff may simultaneously advance "in the same
5 action inconsistent claims or defenses which can then, under appropriate judicial control, be
6 evaluated as such by the same tribunal, thus allowing an intemally consistent final decision to be
7 reached"). See also Weil & Brown at 16:242.
8 CCPOA does not contest that a plaintiff can allege altemative, inconsistent theories of
9 recovery based on the same core set of facts. Although the second cause of action generally
10 incorporates tiie previous allegations by reference, this does not render "unintelligible" the State
11 cause of action for a breach of an implied-in-fact contract. The demurrer for uncertainty should be
12 overraled.
13 E. CCPOA's Demurrer To The Third Cause Of Action For Breach Of The Implied
Covenant Should Be Overruled Because The State Has Alleged A Valid
14 Contract.
15 In every contract there is implied a covenant of good faith and fair dealing, which
16 requires that neither party to the contract do anything deliberately to deprive the other ofthe benefits
17 ofthe agreement. See Pasadena Live, LLC v. City of Pasadena, 114 Cal. App. 4th 1089, 1092-94
18 (2004). As good faith is an implied term of a contract, the existence of a contractual relationship is
19 thus a prerequisite of any action for breach of the covenant. See Kim v. Regents ofthe University of
20 California, 80 Cal. App. 4th 160, 164 (2000). In this respect, the State has alleged that it had a valid
21 agreement with CCPOA to be reimbursed for the funds the State expended on UPL for CCPOA's
22
23 CCPOA also cites to Lance Camper Manufacturing Corp. v. Republic Indemmty Co., 44 Cal. App.
4th 194, 203 (1996), for the proposition that to proceed on a theory of quasi-contract, as in Wal-Noon, a
24 plaintiff must proceed on a theory that the contract was not valid. However, in Lance Camper, the trial court
granted a workers compensation insurer its motion forjudgment on the pleadings because the insured had not
25 exhausted its administrative remedies. Id. at 196-97. The Court of Appeal reversed the trial court's order of
dismissal, holding that the insured was not required to exhaust its administrative remedies. Id. at 204. The
26 Court of Appeal, relying on Wal-Noon, noted that the insured had expressly realleged the existence of a valid
contract in its cause of action for quasi-contract, and that this was "intemally inconsistent." Id. at 203.
27 Although the Court of Appeal did not dismiss the quasi-contract claim, it stated that for the insured to proceed
with the quasi-contract claim, it would ultimately be required to allege that the contract was void. Id. The
28 case did not concern alleging altemative theories at the pleading stage.
LITTLER MENDELSON
650 Calltoinia Stiaal
VL .
20lh Floor
San Franciico CA. n 94108
B. luo 2693
415 433) 11940
..aa THE STATE'S OPPOSITION TO CCPOA'S DEMURRER TO VERIFIED COMPLAINT
\_ '
1 members. The State also alleged that, instead of abiding by the conti-act, CCPOA found excuses not
2 to reimburse the State for the costs ofthe UPL. See Compl. t t 19-22. The State has thus alleged a
3 valid claim for breach ofthe implied covenant.
4 Nevertheless, CCPOA demurs on the ground that the State has failed to state a cause
5 of action for breach of the implied covenant because it claims that the first cause of action fails to
6 allege a valid express contract. See Dem. 8:16-22. As discussed above, tiie State has alleged a valid
7 express conti-act in its first cause of action and, as such, CCPOA's demurrer should be overraled.
8 F. The Union's Demurrer To The Fourth Cause Of Action For Unjust Enrichment
Should Be Overruled Because, As With The Second Cause Of Action, The State
9 Can Allege Alternative Theories Of Recovery.
10 "Whether termed unjust enrichment, quasi-contract, or quantum merait, the equitable
11 remedy of restitution when unjust enrichment has occurred" has been held to be an "obligation"
12 created by law and "designed to restore the aggrieved party to his or her former position by retum of
M3 the thing or its equivalent in money." FDIC v. Dintino, 167 Cal. App. 4th 333, 346 (2008). To
14 recover for the reasonable value of services under such a cause of action, a plaintiff must establish
15 both (1) "that he or she was acting pursuant to either an express or implied request for services from
16 the defendant," and (2) "the services rendered were intended to and did benefit the defendant." Day
17 V. Aha Bates Medical Center, 98 Cal. App. 4th 243, 248 (2002) (emphasis in the original). To this
18 end, the State alleged that it provided, at "CCPOA's request," UPL for certain employees, "based on
19 CCPOA's promise, and the State's expectation, that CCPOA would reimburse the State for the
20 actual compensation costs ofthe UPL." Compl. 124. The State has thus stated a cause of action for
21 restitution.
22 CCPOA demurs on two separate grounds. First, CCPOA argues that there is no cause
23 of action called "unjust enrichment," which should more properly be termed, "restitution." See
24 Dem. 8:25-9:3. Nevertheless, the case on which CCPOA relies, Melchior v New Line Products,
25 Inc., 106 Cal. App. 4th 779, 793 (2003), expressly held that unjust enrichment "is synonymous with
26 restitution."^ In this regard, courts should "not [be] concemed with technical questions as to the
27 Moreover, the Court of Appeal in Melchior was not considering a demurrer to the cause of action of
"unjust enrichment." Rather, after discovery, the trial court had granted summary judgment to the defendant,
28 holding that the since plaintiffs "cause of action for unjust enrichment has the same basis as his cause of
LITTLER MENDELSON
A PKOrtftlOUtt CORPOItATfOH
6S0 California Slra«i
13^
20ih Floor
San Franciico CA 941 OQ 2693
1 proper designation of an action," but instead with "determin[ing] whether the complaint states any
2 cause of action" on any available legal theory. Hayden v. Collins, 1 Cal. App. 259, 261 (1905). See
3 also Civ. Code § 3528 ("The law respects form less than substance."). Accordingly, a court ignores
4 "[ejrroneous or confusing labels ... ifthe complaint pleads facts which would entitle the plaintiffto
5 relief" McBride v. Boughton, 123 Cal. App. 4tii 379, 387-88 (2004) (based on the allegations in the
6 complaint, court constraed cause of action for unjust enrichment as a "cause of action giving rise to a
7 right to restitution"). Because the State has pleaded a cause for restitution, CCPOA's demurrer
8 should be overraled.
9 Second, CCPOA renews its argument against the second cause of action that the
10 State's incorporation by reference of the previous allegations makes the fourth cause of action
11 "uncertain" because a cause of action for an express breach of contract and quasi-contract cannot be
12 pleaded in the same action. See Dem. 9:4-16. Again, as previously discussed, incorporation by
13 reference for informational purposes is an acceptable means of pleading, and the State is entitled to
14 assert an equitable cause of action as an altemative to its legal causes of action. See, e.g, Cal-West,
15 185 Cal. App. 3d at 100; Jackson, 60 Cal. App. 4th at 181. There is no basis to CCPOA's demurrer
16 to the fourth cause of action.
17 IV. CONCLUSION
18 The State has for several years been funding the costs of UPL to employees on leave
19 to perform union work for CCPOA on the promise that the State would be reimbursed for those
20 costs, which CCPOA has failed to do. While CCPOA signed the vîtten UPL Agreement and is
21 familiar with the terms and the dispute between the parties, CCPOA now asserts that the Complaint
22 is so "unintelligible" that it carmot respond to the allegations. Based on these core facts, the State
23 has alleged four causes of action, each asserting a different theory of recovery of the unpaid UPL
24 costs. Instead of answering the Complaint, CCPOA filed the present demurrer and set the hearing
25 almost four months out. For the reasons discussed above, CCPOA's demurrers should be overraled
26
27 action for conversion, the Copyright Act also preempts it," which was affirmed on appeal. Melchior, 106 Cal.
App. 4th at 793. The Court of Appeal also noted that although unjust enrichment "is synonymous with
28 restitution," the plaintiff "did not plead this theory of recovery" before the trial court. Id.
LITTLER MENDELSON
650 CaliloiniN Sliaat
14^
20th Flooi
415 431 1940
1 in their entirety and the litigation should be allowed to proceed. In the altemative, the State requests
2 leave to file an amended Complaint.
3 Dated: August 30, 2010
4
5 RICHARD H. RAHM
LITTLER MENDELSON
7 THE STATE OF CALIFORNIA, et al.
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LITTLER MENDELSON
S50 California Siraal
15.
20lh Floor
1 JOHN M. SKONBERG, Bar No. 069409
RICHARD H. RAHM, BarNo. 130728 !LED/EfJDORSED
AMY MORGENSTERN, Bar No. 267412
3 LITTLER MENDELSON AUG 2 7 2010
4 650 California Sti-eet By: L KENNEDY
20th Floor DEPUTYCLERK
5 San Francisco, CA 94108.2693
I Telephone: 415.433.1940
6 I Facshmle: 415.399.8490
I K. WILLIAM CURTIS
7 Chief Counsel, Bar No. 095753
WARREN C. STRACENER
8 Deputy Chief Counsel, Bar No. 127921
JAMES SPURLING
9 Assistant Chief Counsel, Bar No. 109432
10 State ofCalifomia
1515 S Stireet, North Building, Suite 400
11 Sacramento, CA 95811-7243
Telephone: 916.324.0512
12 Facsimile: 916.323.4723
14 REHABILITATION, DEPARTMENT OF
16
19 THE STATE OF CALIFORNL\, CaseNo. 34-2010-00075552

20 CORRECTIONS AND PROOF OF SERVICE
DEPARTMENT OF MENTAL HEALTH,
22
Plaintiffs,
23 Complaint Filed: April 14,2010
24 Trial Date: None Set
CALIFORNIA CORRECTIONAL PEACE
25 OFFICERS ASSOCIATION,
26 Defendant.
27
28
IJTTLER MENDSLSOl^
A PROFtlltONAl CORPOAAIIOH
650 Ctldoinla S i n a l
lOlh Float
34-2010-00075552
S*n Franciico CA 94I0S 26&3
PROOF OF SERVICE
1 PROOF OF SERVICE
2 I am a resident of the State of Califomia, over the age of eighteen years, and not a
3 party to the within action. My business address is 650 Califomia Street, 20th Floor, San Francisco,
4 Califomia 94108.2693. On August 27, 2010,1 served the within document(s):
5
> PLAINTIFFS' OPPOSITION TO DEFENDANT'S DEMURRER TO VERIFIED
6 COMPLAINT FOR DAMAGES
7
• AS A COURTESY by facsimile transmission on that date. This document was
8 transmitted by using a facsimile machine that complies with Califomia Rules of
Court Rule 2003(3), telephone number 415.399.8490. The transmission was
9 reported as complete and without error. The names and facsimile numbers of the
person(s) served are as set forth below.
10
[-] by placing a trae copy of the document(s) listed above for collection and mailing
11
following the firm's ordinary business practice in a sealed envelope with postage
12 thereon fully prepaid for deposit in the United States mail at San Francisco,
Califomia addressed as set forth below.
13
[-] by depositing a trae copy of the same enclosed in a sealed envelope, with delivery
14 fees provided for, in an ovemight delivery service pick up box or office designated
for ovemight delivery, and addressed as set forth below.
15
ig by personally delivering (First Legal Support Services) a copy of the
16
document(s) listed above to the person(s) at the address(es) set forth below.
17
Counsel for Defendant CCPOA
18
Gregg McLean Adam, Esq.
19 Oriet Cohen-Supple, Esq.
Natalie Leonard, Esq.
20 Marie A. Tenny, Esq.
Carroll, Burdick & McDonough LLP
21 44 Montgomery Street, Suite 400
22 Phone: (415) 989-5900 / Fax: (415) 989-0932
Email: sadam(a).cbmlaw com; ocohen(a),cbmlaw.com;
23 nleonard(S),cbmlaw com; mtennv(S),cbmlaw. com
24 I am readily familiar with the firm's practice of collection and processing
25 correspondence for mailing and for shipping via ovemight delivery service. Under that practice it
26 would be deposited with the U.S. Postal Service or if an ovemight delivery service shipment,
27 deposited in an ovemight delivery service pick-up box or office on the same day with postage or fees
thereon fully prepaid in the ordinary course of business.

28
LITTLER MENDELSON
650 Calilornit Sliaat 2. 34-2010-00075552
20th Floor
415 433 1940 PROOF OF SERVICE
2 above is true and correct. Executed on August 27, 2010, at San Francigco, Califomia.
3
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FIRMWIDE-97155378.1 052714.1011
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LITTLER MENDELSON
A PROFtitioNAL CORPORATION
650 Calilornia S t r t a l
3. 34-2010-00075552
) 0 l h Floor
San Franciico CA 94t08 2693
41S 433 1940
PROOF OF SERVICE
EXHIBIT D
1 Gregg McLean Adam, No. 203436
Oriet Cohen-Supple, No. 206781
2 Marie A. Tenny, No. 262670 t .
CAItROLL, BURDICK & McDONOUGH LLP *^/>7^.
3 Attomeys at Law
4 San Francisco, CA 94104
Telephone: 415.989.5900
5 Facsimile: 415.989.0932
Email: gadam@cbmlaw.com
6 ocohen@cbmlaw.com
mtenny@cbmlaw.com
7
Daniel M. Lindsay, No. 142895
8 CALIFORNIA CORRECTIONAL
PEACE OFFICERS' ASSOCIATION
9 755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
10 Telephone: 916.372.6060
Facsimile: 916.3140,9372
11 E-Mail: dan.lindsay@ccpoa.org
12 Attomeys for Defendant Califomia Correctional Peace
Officers' Association
13
16
17 THE STATE OF CALIFORNIA, ^No. 34-2010-00075552
CALIFORNIA DEPARTMENT OF'
18 CORRECTIONS AND DEFENDANT CALIFORNIA CORRECTIONAL
REHABILITATION, DEPARTMENT PEACE OFFICERS' ASSOCIATION'S REPLY
19 OF PERSONNEL MEMORANDUM OF POINTS AND
ADMINISTRATION, and AUTHORITIES IN FURTHER SUPPORT OF
20 DEPARTMENT OF MENTAL DEMURRER TO PLAINTIFFS' VERIFIED
HEALTH, COMPLAINT FOR DAMAGES
^ 1
21 Plaintiffs, Date: September 13, 2010
22 Time: 2:00 p.m.
V. Dept.: 53
23 Judge: Hon. Loren E. McMaster
CALIFORNIA CORRECTIONAL Reservation No. 1372668
24 PEACE OFFICERS' ASSOCIATION,
25 Defendant. Complaint Filed: April 14, 2010
Trial Date: None set
26
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CBM-SF\SF490246 5
CCPOA'S REPLY MPA IN FURTHER SUPPORT OF DEMURRER TO VERIFIED COMPLAINT FOR DAMAGES
I TABLE OF CONTENTS
2 Page
3 A. Because all Counts ofthe Complaint Expresslv Incorporate and Allege
Breach ofthe Terms ofthe Former Memorancium of Understanding, the
4 Demurrer Should be Sustained for Lack of Jurisdiction 2
5 B. The State Cannot Get Around the Requirement That It Specify Whether a
Conti-act "Is Written, Is Oral, or Is Implied by Conduct" by Instead
6 Pleading That It Is All Three 4
7, C. The Demurrer to the Second Cause of Action Should Be Sustained
Because a Valid Express Conti-act Cannot Co-Exist With an Implied
8 Contract Covering tne Same Subject Matter 6
9 D. The Court Should Sustain the Demurrer to the Third Cause of Action for
Breach ofthe Implied Covenant of Good Faith on the Additional Ground
10 that the State Failed to Adequately Plead the Existence of a Contract 7
11 E. The Fourth Cause of Action for Unjust Enrichment is Defective for the
Same Reasons as the Second Cause of Action for Breach of An Implied-
12 In-Fact Contract 8
13 COI•^CLUSION 8
14
15 -
16
17
18
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20
21
22
23
24 -
25
26
^27
28
-i-
2 Page(s)
3
STATE CASES
4
Cal- West Nat. Bank v. Superior Court
5 (1986) 185 Cal.App.3d 96 5
6 Campbell v. Rayburn
(1954) 129 CA 2d 232 7
7
Clark V. Berlin Realty Co.
8 (1917) 33 Cal.App. 50 6
9 Hills Transp. Co. v Southwest Forest Industries, Inc.
(1968) 266 Cal.App.2d 702 4
10
Holland v. Morse Diesel Intern., Inc.
11 (2001) 86 Cal.App.4th 1443 3
12 Kajima Engineering and Const, Inc. v. City of Los Angeles
(2002) 95 Cal.App.4th 921 6
13
Lance Camper Mfg. Corp. v. Republic Indem. Co. of America
14 (1996) 44 Cal.App.4th 194 i. 7, 8
15 Maglica v. Maglica
(1998) 66 Cal.App.4th 442 6
16
Moya V. Northrup
17 0970) 10 Cal.App.3d 276 ' 4
18 Wal-Noon Corp. V. Hill
(1975) 45 Cal.App.3d 605 5, 7
19
Zumbrun v. University of Southern California
20 (1972) 25 Cal.App.3d 1 , 1, 4
21 STATE STATUTES
22 Code of Civil Procedure

section 430.10(g) 1, 4, 5, 7, 8
23
Govemment Code
24 section 3517.8 3
25
26
27
28
-11-
1 CCPOA's demurrer should be sustained (1) with leave to amend as to each of
2 the State's ostensible causes of action that are impermissibly uncertain and intemally
3 contradictory as pled, but (2) without leave to amend as to any claims arising under the
4 parties' former MOU—^because this Court has no jurisdiction over them. (CCPOA is
5 sometimes also referred to herein as "defendant.")
6 Contrary to the State's repeated contention that it is "clear" from the Complaint
7 that the State is not suing for breach ofthe parties' Memorandum of Understanding
8 ("MOU") but only for breach, of the November 2007 UPL Agreement and "subsequent
9 agreements," the allegations in each cause of action prove otherwise. Indeed, the MOU is
10 attached to the Complaint and incorporated by reference into each cause of action, each
11 cause of action asserts a breach ofthe MOU, and the State seeks to recover for so-called
12 "UPL" debts incurred when only the MOU was in effect. (The State, et al. are also
13 sometimes collectively referred to herein as "plaintiffs.")
14 Defendant also demurred based on plaintiffs' sloppy drafting of their
15 complaint. And while not disputing plaintiffs' right to plead altemative, even
16 inconsistent, causes of action, or to incorporate by reference earlier-pled allegations in
17 subsequent portions of their pleading, defendant demurs based on plaintiffs' improper
18 claims ofthe existence and breach of written, oral, and implied contracts within a single
19 cause of action and/or to plead inconsistent and contradictory facts within a single cause
20 of action. Plaintiffs' "defendant-should-know-what-our-claims-are" argument in
21 opposition won't suffice: Under Code of Civil Procedure section 430.10(g), commingling
22 allegations of breach of written and oral and implied-in-fact contract in one cause of
23 action is subject to a special demurrer. {Zumbrun v. University of Southern California
24 (1972) 25 Cal.App.3d 1, 9 ["special demurrer upon the ground that it cannot be
25 ascertained whether the contract upon which plaintiff bases her action is written or oral
26 was well taken"].)
27
28
CBM-SF\SF490246 5
1 A. Because all Counts of the Complaint Expressly Incorporate and
Allege Breach ofthe Terms ofthe Former Memorandum of
2 Understanding, the Demurrer Should be Sustained for Lack bf
Jurisdiction
3
The opposition baldly asserts that the complaint is "clear" that "the State is not
4
suing for any breach ofthe MOU but ofthe obligations arising out ofthe UPL Agreement
5
and subsequent promises." (Opp'n at p. 5:23-24.) The State further argues that the
6
allegations conceming the 2001-2006 MOU, "merely provide[] historical context to the
7
subsequent UPL Agreement and, in any event, nowhere does the State allege that it is
8
suing on a breach ofthe MOU." (Opp'n at p. 5:26-27.) But these arguments are not
9
credible because they are contrary to the allegations in the complaint.
10
For example, under "facts common to all causes of action," plaintiffs cite and
11
attach a copy of Section 10.14 ofthe MOU and allege in paragraph 5 ofthe Complaint:
12
After the expiration ofthe 2001-2006 MOU, the parties continued
13 to operate in accordance with the provisions of Section 10.14, with
CCPOA continuing to request that CDCR and DMH release
14 employees for UPL, together with a request to be billed for the UPL
costs, and CDCR and DMH continuing to release such employees.
15 (Complaint at t 5, p. 3:9-13.) They then incorporate this allegation and the MOU
16 agreement—Exhibit A to the Complaint—into each cause of action. By (1) attaching the
r
17
MOU, (2) alleging in paragraph 5 that the parties continue to operate under section 10.14
18
as if it were still enforceable, and (3) reincorporating these allegations into every cause of
19
action in their complaint, plaintiffs clearly allege breach ofthe MOU together with breach
20
of the UPL agreement.
21
Moreover, the State's assertion that it "does not allege that it sent any invoices
22
pursuant'to the MOU" (Opposition at p. 6:4-6) is—again—flatly contradicted by the
23
complaint—see paragraph 8:
24
Beginning in 2008 the State sent invoices pursuant to the UPL
25 agreement to CCPOA for the total compensation costs attributed to
UPL from February 2006 to the present (emphasis added).
26
27
28
CBM-SF\SF490246 5 _2.
1 The UPL agreement' was inked on November 7, 2007. (Complaint at t 6.) Thus, debt
2 under the UPL agreement can only have been incurred after November 7, 2007, and any
3 demand for payment of UPL debt existing prior to that must have been made pursuant to
4 section 10.14 of the MOU—the only other contractual term referenced in the relevant time
5 period. By suing for recoupment ofpre-\J?h agreement expenses, the State necessarily
6 seeks to recover for past debts allegedly incurred under the MOU.
7 After the demurrer raised the jurisdictional defense, the State argues in
8 opposition that the UPL agreement obligates defendant to "reimburse the State for the
9 'total compensation cost' of both unpaid past and future UPL debts." (Complaint at 16;
10 Opposition at p.6:1-3 [emphasis added].) But plaintiffs are not shooting straight—
11 nowhere does the UPL agreement (Exh. B to the complaint) contemplate any agreement
12 by CCPOA to pay for past UPL debts incurred under the MOU. On the contrary, the
13 UPL agreement expressly states the opposite—"[n]othing in this agreement is intended
14 nor shall be constmed to extend or revive any term ofthe parties expired 2001-2006 MOU
15 ...." (Exh. B to Complaint, p.3,120.)
16 Because the UPL agreement has no term that obliges CCPOA to pay for past
17 UPL debt incurred under the MOU, any allegation in the complaint to the contrary must
18 be disregarded. {Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447
19 ["If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take
20 precedence."].) Therefore, as pled, all ofthe State's ostensible causes of action allege
21 breach ofthe MOU, seek to enforce section 10.14 ofthe MOU, and request recoupment of
22 UPL payments allegedly made under the MOU
23 As demonstrated in CCPOA's opening brief at pp. 4:15-6:2, pursuant to Article
24 6 ofthe MOU, any dispute between the State and CCPOA over the interpretation,
25
26 ' The "UPL" acronym can be confusing: "union paid leave" was also one of a number of
forms of union release under the expired MOU.
^ The MOU existed, on its face, until July 2, 2006, but by operation of Govemment Code
^g section 3517.8's "evergreen" clause, existed until the State ended the MOU on September 17,
"^^ 2007.
CBM-SF\SF490246 5 _3_
1 application, or enforcement ofany MOU provision must be resolved through the MOU's
2 arbitration procedure. Accordingly, the Court has no jurisdiction over MOU-based
3 claims.
4 B. The State Cannot Get Around the Requirement That It Specify

Whether a Contract "Is Written, Is Oral, or Is Implied by Conduct"
5 by Instead Pleading That It Is All Three
6 The State is correct when it says it may plead altemative or even inconsistent
7 causes of action, and it may incorporate by reference earlier-pled allegations ofthe
8 complaint into subsequent portions ofthe pleading. But neither principle was challenged
9 by the demurrer.
10 Rather, defendant demurred because plaintiffs impermissibly pled the
11 existence and breach of a contract that is written, oral, and implied within the same cause
12 of action and pled inconsistent and contradictory facts within the same cause of action.
13 Indeed, the State admits: (1) its first cause of action alleges both a written and an oral
14 agreement; (2) its second cause of action for breach of an implied contract incorporates by
15 reference its allegations that the contract sued upon is written and oral; and (3) the third
16 and fourth causes of action allege (by incorporation) that the contract is written, oral, and
17 implied.
18 The State's argument that its method of pleading actually "clarifies" the
19 complaint (Opp'n at p. 8 (§ C.2)) is fatuous and mns directiy afoul ofthe plain language
20 and necessary intent of §430.10(g)'s requirement that a plaintiff must plead whether a
21 contract "is written, is oral, or is implied by conduct." Pleading two or all three in the
22 same cause of action is plainly disallowed and would render this provision meaningless.
23 {Moya v. Northrup (1970) 10 Cal.App.3d 276, 281 ["When a cause of action under a
24 common count re^ts on an express contract, the pleader must specify whether the contract
25 is written or oral" (emphasis added).]; see also Hills Transp. Co. v. Southwest Forest
26 Industries, Inc. (1968) 266 Cal.App.2d 702, 706 [the failure to specify whether a conti:act
27 is written or oral is a ground for demurrer]; Zumbrun v. University of Southern
28 California, supra 25 Cal.App.3d at 9 ["special demurrer upon the ground that it cannot be
CBM-SF^SF490246 5 .4_
1 ascertained whether the contract upon which plaintiff bases her action is written or oral
2 was well taken"].)
3 Requiring a plaintiffto isolate written, oral, and implied contract allegations in
4 separate causes of action and to clearly delineate them allows the court and the defendant
5 to, inter alia, determine whether the requisite elements are pled, to apply the appropriate
6 statute of limitations for each claim, and to ascertain whether the statute of frauds applies.
7 (See Demurrer MPA at pp. 6:14-7:3.) The facts establishing formation of an oral contract
8 are different from the facts establishing the formation of a written contract or an implied-
9 in-fact contract. So are the respective statutes of limitation (i.e., 4 years for written and 2
10 years for oral or implied). Permitting a plaintiffto allege in a single cause of action both
11 the existence of a written contract, on the one hand, and an oral or implied contract, on the
12 other hand, would prevent a defendant from ever enforcing the statute of limitations
13 applicable to the latter at the pleading stage.
14 Moreover, when the existence of an express contract is pled in the same count
15 as an implied-in-fact contract covering the same subject matter, it renders the cause of
16 action uncertain within the meaning of Code of Civil Procedure section 430.10(f). When
17 both types of contracts cover the same subject matter around the same time, they are
18 inconsistent as a matter of law and cannot be alleged in the same cause of action. ( Wal-
19 Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, 613 ["There cannot be a valid, express
20 contract and an implied contract, each embracing the same subject matter, existing at the
21 sameti,me."].)
22 The quotes plaintiffs rely on in cases they cite are taken completely out of
23 context and have little bearing on the issues contested here. In Cal- West Nat. Bank v.
24 Superior Court (1986) 185 Cal.App.3d 96, for example, the defendant contended that one
25 ofthe causes of action—the only one in which he was named as a defendant—failed for
26 uncertainty because it incorporated by reference allegations of other causes of action pled
27 against other defendants. The Cal-West Court overmled the demurrer because each count
28 specifically identified the defendants against which it applied.
CBM-SF\SF490246 5 .5.
1 Kajima Engineering and Const, Inc. v. City of Los Angeles (2002) 95
2 Cal.App.4th 921 involved an anti-SLAPP motion in which the court stmck one ofthe
3 causes of action. The defendant argued that the mere incorporation by reference of a
4 cause of action stmck under the anti-SLAPP statute tainted the other causes of action that
5 did not allege acts taken in furtherance ofthe right to petition or free speech. The Court
6 mled against the defendant, noting that incorporation by reference is a common practice to
7 obviate repetition and that the defendant's position, if adopted, would "prevent trial courts
8 from striking individual causes of action pursuant to the anti-SLAPP statute." {Id. at
9 932.)^
10 In summary, because the State has impermissibly pled the existence and breach
11 of a contract that is written, oral, and implied and/or pled inconsistent and contradictory
12 facts within every one of its ostensible causes of action, CCPOA's demurrer should be
13 sustained as to the State's entire complaint.
14 c. The Demurrer to the Second Cause of Action Should Be Sustained

Because a Valid Express Contract Cannot Co-Exist With an Implied
15 Contract Covering the Same Subject Matter
16 "[A]n implied-in-fact contract entails an actual contract, but one manifested in
17 conduct rather than expressed in words. The tme implied contract, then, consists of
18 obligations arising from a mutual agreement and intent to promise where the agreement
19 and promise have not been expressed in words." {Maglica v. Maglica (1998) 66
20 Cal.App.4th 442, 456 [intemal citations omitted].)
21 The State argues in the opposition that it "is not precluded from alleging in one
22 cause of action the breach of a contract and an inconsistent theory of recovery in another
23 cause of action." (Opposition at p. 11:12-13.) We agree. But the State did not plead an
24 alternative inconsistent theory of recovery and inconsistent facts in a separate cause of
25 action—rather it jumbled together an express contract allegation along with an implied in
26
^p, Clark V. Berlin Realty Co. (1917) 33 Cal.App. 50, 53, cited by the State is also not on point,
because the court rejected the argument that incorporation by reference is never permitted
j^ under Califomia law. CCPOA acknowledges that incorporation by reference is permitted so
long as it does not incorporate inconsistent versions ofthe facts, or different legal theones.
CBM-SF\SF490246 5 .5.
1 fact contract allegation all in one cause of action. Under the holding of Wal-Noon Corp.
2 V. Hill, supra 45 Cal.App.3d at 613 and Lance Camper Mfg. Corp. v. Republic Indem. Co.
3 ofAmerica (1996) 44 Cal.App.4th 194, 203, this is impermissible.
4 The State's attempt to distinguish the Wal-Noon decision on the ground that it
5 did not involve a demurrer is a distinction without a difference. And in any case. Lance
6 Camper Mfg., which addressed a motion forjudgment on the pleadings (same standard as
7 demurrer) and was cited by CCPOA in its moving papers, stands for the same proposition:
8 [I]t is well settled that an action based on an implied-in-fact or
quasi-contract cannot lie where there exists between the parties a
9 valid express contract covering the same subject matter. {Wal-Noon
Corp. V. Hill {1975) 45 Cal.App.3d 605, 613 [119 Cal.Rpti-. 646];
10 Tollefson v. Roman Catholic Bishop (1990) 219 Cal.App.3d 843,
855 [268 Cal.Rpti". 550].) Here, the Insured has alleged the
11 existence and validity of an enforceable written contract between
the parties in its first two causes of action. The Insured then
12 realleges the existence ofthe written contract in its claim of a quasi-
contract. This is intemally inconsistent. The Insured must allege
13 that the express contract is void or was rescinded in order to
proceed with its quasi-contract claim.
14
{Id. at 203; see also Campbell v. Rayburn (1954) 129 CA 2d 232, 235 [each version ofthe
15
facts or each legal theory should be pleaded in a separate cause of action in the
16
complaint].)
17
Lance Camper Mfg. is dispositive. By incorporating express contract
18
allegations (Complaint, t t 5-10) into a cause of action for breach of an implied-in-fact
19
contract, effectively jumbling the two, the State has failed to specify whether the parties'
20
conduct (that purportedly established the implied-in fact contract) was something other
21
than the express terms of a contract (oral or written). Thus, the State's second cause of
22
action is subject to demurrer for uncertainty and ambiguity. (Code Civ. Proc. § 430.10(f)
23
and cases supra.)
24
D. The Court Should Sustain the Demurrer to the Third Cause of
25 Action for Breach ofthe Implied Covenant of Good Faith on the
Additional Ground that the State Failed to Adequately Plead the
26 Existence of a Contract
27 As demonstrated supra, because the allegations in the first and second cause of
28 action purporting to establish a contractual relationship are defective, the State has failed
CBM-SF\SF490246 5 .7_ -
1 to adequately plead the existence ofany valid contract from which the covenant of good
2 faith and fair dealing can be implied.
3 E. The Fourth Cause of Action for Unjust Enrichment is Defective for
the Same Reasons as the Second Cause of Action for Breach of An
4 Implied-In-Fact Contract
5 The State's arguments in support of its fourth cause of action mirror those
6 argued in support of its second cause of action (see Opp'n at 14:9-16), i.e., that a plaintiff
7 can plead in the altemative inconsistent theories of recovery and inconsistent facts. Once
8 again, this is not the issue. As explained supra, the State did not plead altemative theories
9 of recovery and inconsistent facts in a separate cause of action, but impermissibly jumbled
10 together allegations of written, express oral, and implied-in-fact contract in one cause of
11 action for restitution. Thus, the principle cited and the cases supporting it are
12 unavailing.
13 As detailed above, it is well settled that an action based on unjust enrichment

14 or restitution (i.e., quasi-contract) will not lie where there exists between the parties a
15 valid express contract covering the same subject matter. {Lance Camper, supra, AA
16 Cal.App.4th at 203.) Thus, the State's fourth cause of action isimpermissibly uncertain in
17 violation of Code of Civil Procedure section 430.10(f).
18 CONCLUSION
19 For the forgoing reasons and additional reasons stated in CCPOA's opening
20 brief, CCPOA requests that the Court sustain its demurrer to each cause of action in the
21 Complaint.
22 Dated: September 3, 2010
23 CARROLL, BURDICK & McDONOUGH LLP
24
25 By. ,
iean Adam
26 Oriet Cohen-Supple
Marie A. Tenny
27 Attomeys for Defendant Califomia Correctional
Peace Officers' Association
28
CBM-SF^SF490246 5 -8-
1 The State ofCalifornia, etal. v. California Correctional Peace Officers' Association;
Sacramento County Superior Court, No. 34-2010-00075552
2
PROOF OF SERVICE BY UNITED PARCEL SERVICE (UPS) - NEXT DAY
3
I declare that I am employed in the County of San Francisco, Califomia. I am
4 over the age of eighteen years and not a party to the within cause; my business address is
44 Montgomery Street, Suite 400, San Francisco, CA 94104. On September 3, 2010,1
5 served the enclosed:
6 DEFENDANT CALIFORNU. CORRECTIONAL PEACE O F F I C E R S ' ASSOCIATION'S REPLY
7 MEMORANDUM OF POINTS AND AUTHORITIES IN FURTHER SUPPORT OF DEMURRER
TO PLAINTIFFS' VERIFIED COMPLAINT FOR DAMAGES
8
on the parties in said cause (listed below) by enclosing a true copy thereof in a prepaid
9 sealed package, addressed with appropriate United Parcel Service shipment label and,
following ordinary business practices, said package was placed for collection (in the
10 offices of Carroll, Burdick & McDonough LLP) in the appropriate place for items to be
collected and delivered to a facility regularly maintained by United Parcel Service. I am
11 readily familiar with the Firm's practice for collection and processing of items for
ovemight delivery with United Parcel Service and that said package was delivered to
12 United Parcel Service in the ordinary course of business on the same day.
13 John M. Skonberg, Esq. Attorneys for Plaintiffs
Richard H. Rahm, Esq.
14 Joshua D. Kienitz, Esq. Phone: (415)433-1940
Littler Mendelson Fax: (415) 399-8490
15 650 Califomia St 20th Fl
16
K. Wilham Curtis, Esq. Attorneys for Plaintiffs
17 Warren C. Stracener, Esq.
James Spurling, Esq. Phone: (916 324-0512
18 Department of Personnel Administration Fax (916 323-4723
Legal Division
19 1515 "S" Sti-eet, North Building, Suite 400
20
I declare under penalty of perjury that the foregoing is tme and correct, and
21 that this declaration was executed on September 3<^010, at San Francisco, Califomia.
22
23
24
25
26
27
28
CBM-SF\SF490558
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EXHIBIT E
1 JOHN M. SKONBERG, Bar No. 069409
RICHARD H. RAHM, BarNo. 130728
LITTLER MENDELSON
650 Califomia Street
4 20th Floor
San Francisco, CA 94108.2693
5 Telephone: 415.433.1940
Fax No.- 415.399.8490
6
K. WILLIAM CURTIS
WARREN C. STRACENER
8 Deputy Chief Counsel, Bar No. 127921
JAMES SPURLING
9 Assistant Chief Counsel, BarNo. 109432
10 Stateof Califomia
1515 S Street, North Building, Suite 400
Sacramento, CA 95811-7243 '
11 Telephone: (916)324-0512
Facsimile: (916) 323-4723
12 E-mail: curtstracener(^dpa.ca.gov
15 PERSONNEL ADMINISTRATION, AND
16
17
r SUPERIOR COURT OF THE STATE OF CALIFORNIA
19
CORRECTIONS AND PLAINTIFFS? VERIFIED RESPONSE TO
21 REHABILITATION, DEPARTMENT OF DEFENDANT'S FIRST AMENDED
PERSONNEL ADMINISTRATION, and VERIFIED CROSS-PETITION TO
22 DEPARTMENT OF MENTAL HEALTH, COMPEL ARBITRATION AND STAY
PROCEEDINGS [CCP §§ 1290,1290.2,
23 Plaintiffs, 1290.6 & 1291.2]
24 V.
25 CALIFORNIA CORRECTIONAL PEACE Exempt from Fees (Gov. Code § 6103)

OFFICERS ASSOCIATION,
26
Defendant.
27
LITTLER MENDELSON
28
A PaorEiiiONAi C Q N ^ O X I I O N
SSOCiMotnla Siraal
JOilirioar
.an Fdococe CA S4I0I 2893
(IS t^3 1910 PLAINTIFFS' RESPONSE TO CCPOA'S CROSS-PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
I GENERAL RESPONSE TO THE PETITION
2 PlaintifT State of Califomia, and its agents. Plaintiffs Califomia Department of
3 Corrections and Rehabilitation ("CDCR"), Department of Personnel Administration ("DPA"), and
4 Department of Mental Health ("DMH") (collectively, the "State") hereby respond to the Verified
5 Cross-Petition To Compel Arbitration And Stay Proceedings (hereinafter, "Petition") filed by
6 Defendant Califomia Correctional Peace Officers Association ("CCPOA"). As set forth below, the
7 Petition should be denied because the breach of the obligation upon which the State brings the
8 present litigation arose, inter alia, from the Union Paid Leave Agreement ("UPL Agreement") and
9 not from the expired 2001-2006 Memorandum of Understanding ("MOU"). Moreover, because the
10 State has maintained this position throughout the litigation, both in its pleadings and in its
11 communications to the CCPOA, the Petition is frivolous. See, eg., First Amended Complaint
12 ("FAC") t 6 ("In the absence of a successor MOU, the parties .. entered mto a written agreement
13 regarding UPL, which included ... past and future reimbursements of UPL."); October 21, 2010 letter
14 to counsel for CCPOA (noting that the FAC does not allege a breach ofthe expired MOU), attached
15 hereto as Exhibit A; State's Opposition to Defendant's Demurrer To Verified Complaint For
16 Damages, Section ni(B), filed on August 27, 2010 (no breach ofthe expired MOU alleged in FAC)
17 So that this litigation may proceed without further delay, the State requests a
18 summary hearing at the earliest practicable time, on a preferential basis, for this matter to be
19 "quickly heard and determined." See Code Civ. Proc §§ 1290.2, 1291.2
20
SPECIFIC RESPONSES TO THE ALLEGATIONS OF THE PETITION
21
With specific reference to CCPOA's Petition, the State responds as follows:
22
1. The State admits the allegations in Paragraph 1 ofthe Petition.
23
2. The State admits the allegations in Paragraph 2 ofthe Petition.
24
3. ' The State admits the allegations in Paragraph 3 ofthe Petition
25
4. The State admits the allegations in Paragraph 4 ofthe Petition
26
5. The State admits the allegations in Paragraph 5 ofthe Petition
27
28
LITTLER MENDELSON
A p.oftuio.Ai c . . . o . . r i o .
eSOC.Iiloinj* Sir.*t
?Oth Flesr
. . . F i . . t > t t a CK a i f O l 3691
115 . I J l0tO
PLAINTIFFS' RESPONSE TO CCPOA'S CROSS-PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 6. In response to Paragraph 6 of the Petition, the State denies that the expired
2 MOU "is" a valid an enforceable agreement and avers that the MOU was a valid and enforceable
3 agreement. The State admhs all other allegations in Paragraph 6 ofthe Petition.
4 7. In response to Paragraph 7 of the Petition, the State specifically admits that

5 the expired MOU remained in effect only until September 18, 2007 The State admits the remaining
6 allegations in Paragraph 7 ofthe Petition.
7 8. In response to Paragraph 8 of the Petition, the State avers that while Section
8 10 14 ofthe expired MOU pertained to the Union Paid Leave ("UPL") during the period that the
9 MOU was in effect, the content of Section 10.14 is irrelevant because no breach ofthe expired MOU
10 is alleged in the FAC.
11 9. The State denies each and every allegation in Paragraph 9 of the Petition.
12 Paragraph 8 of the FAC expressly alleges that, during the relevant time period, the State sent billing
13 statements ("invoices") to CCPOA for, non-reimbursed UPL "[bjegirming in 2008," not during the
14 period when the MOU was in effect. Pursuant to the UPL Agreement, no reimbursement payments
15 for UPL are due from CCPOA until 30 days after a billing statement is received from the State
16 Thus, as pleaded by the State in the FAC and as admitted by CCPOA in the Petition, the operative
17 complaint in this lawsuit contains no allegations that either party breached the expired MOU
18 10. In response to Paragraph 10 ofthe Petition, the State avers that its content is
19 irrelevant because no breach of the expired MOU is alleged in the FAC. The State denies the
20 allegations in Paragraph 10 insofar as they imply that the State could have or should have filed a
21 grievance under the expired MOU for an alleged breach of a different and subsequent agreement (the
22 UPL Agreement) tiiat did not occur until 2008. See FAC ^ 8.
23 11 In response to Paragraph 11 of the Petition, the State avers that its content is
24 irrelevant because no breach of the expired MOU is alleged in the FAC. The State admits that
25 Section 6.02 ofthe expired MOU contained the language quoted in Paragraph 11 ofthe Petition
26 12 In response to Paragraph 12 ofthe Petition, the State avers that its content is
27 irrelevant because no breach of the expired MOU is alleged in the FAC. The State denies the
28 allegations in Paragraph 12 insofar as they imply that the State could have or should have filed a
LITTLER MENDELSON
A [>IO<[tllO-llt COAROIITX
GSO Calilomia Slraai
2.
70ih Floar
itft F ( a « « ( e o Ck i t i H t H t l
I I S 43) 1940 PLAINTIFFS' RESPONSE TO CCPOA'S CROSS-PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 grievance under the expired MOU for an alleged breach of a different and subsequent agreement (the
2 UPL Agreement) which alleged breach did not occur until 2008. See FAC t 8
3 13. The State denies each and every allegation in Paragraph 13 ofthe Petition.
4 For the reasons set forth above, and as admitted and alleged by the parties in their pleadings on file
5 in this action, no breach ofthe expired MOU is alleged in the FAC.
7 irrelevant because no breach of the expired MOU is alleged in the FAC. The State denies each and
8 every allegation in Paragraph 14 ofthe Petition. For the reasons set forth above, and as admitted and
9 alleged by the parties in their pleadings on file in this action, no breach of the expired MOU is
10 alleged in the FAC
11 15. The State denies each and every allegation in Paragraph 15 ofthe Petition.
12 The State has not alleged any breach ofthe expired MOU (the sole contract under which CCPOA
13 seeks to compel arbitration). CCPOA points to no contract (written, oral or implied) which (i) the
14 State alleges was breached by CCPOA and (ii) contains any sort of arbitration provision whatsoever.
15 A party may be required to arbitrate a dispute only if it has expressly consented to do so See Stolt-
16 Nielsen S.A. V. AnimalFeeds Int'l, Corp, 130 S. Ct. 1758, 1773 (2010). The Petition also fails to
17 point to any language, in any agreement which the State (through the FAC) alleges to have been
18 breached, which even mentions the word "arbitration." See, e.g, Exh. B to the FAC [UPL
19 Agreement effective October 1, 2007] at t 17 (requiring the parties "to make good faith efforts to
20 resolve any disputes over invoices or payment" - but not once mentioning the words "arbitration" or
21 "grievance).
23 irrelevant because no breach of the expired MOU is alleged in the FAC. The State denies each and
24 every allegation in Paragraph 16 ofthe Petition because the FAC raises no dispute whatsoever about
25 the interpretation, application, or enforcement ofany provision ofthe expired MOU.
26 17. In response to Paragraph 17 ofthe Petition, the State denies each and every
27 allegation contained therein. There is no "arbitration agreement" in the UPL Agreement, which is
28 the only contract in the FAC the State alleges CCPOA breached. See FAC, Exh B
LITTLER MENDELSON
A PaoFCltlONAL C O A ' O I A I I O *
GSO Cililarnia SUaar
3.
lOih Fla«i
.•iiFi«r>e>ico C« B410I 1(93
<1S 433 1940 PLAINTIFFS' RESPONSE TO CCPOA'S CROSS-PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 18. The State denies each and every allegation in Paragraph 18 of the Petition In
2 the first instance, tiiere is no "grievance" alleged in the FAC, and there could not have been any
3 grievance alleged because the UPL Agreement contains neither a grievance nor an arbitration
4 procedure. See FAC, Exh. B.
5 WHEREFORE, the State prays for tiie following:
6 1. That CCPOA's Petition be summarily dismissed so that the above-entitied
7 litigation can proceed forthwith and, in particular, that:
8 a. CCPOA's First Amended Petition for an order compelling arbitration
9 be denied;
10 b. CCPOA's First Amended Petition for an order staying the above-
11 entitled action be denied;
12 2. That, in the altemative, this matter be set for a summary hearing on an
13 expedited and preferential basis so that it can be "quickly heard and determined" (Code Civ Proc
14 §§ 1290.2, 1291.2);
15 3. That the State recover its costs incurred in opposing CCPOA's First Amended
16 Petition; and
17 4 Any other relief this Court deems just and proper
18
Dated. November 16, 2010
19
RICHARD H. RAHM —
20 LITTLER MENDELSON
REHABILITATION, DEPARTMENT
23 PERSONNEL OF ADMINISTRATION, and
24
25
26
27
- 28
LITTLER MENDELSON
A PlOtdJIONAl COR'OVATION
850 Cililcrmi Sirail
!0l(\ Fl40<
>in Fiinciico CA B410I2G93
41$ 411 IBIO PLAINTIFFS' RESPONSE TO CCPOA'S CROSS-PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
1 VERIFICATION
2 I, Steve Caruso, declare:
3 I am the Assistant Secretary of Labor Relations at the California Department of
4 Corrections and Rehabilitation of the State of California, which is a Plaintiff in the above-entitled
5 action, and I have been authorized to make this verification on its behalf.
6 I have read the foregoing Response to Defendant's First Amended Cross-Petition to
7 Compel Arbitration and Stay Proceedings and know the contents thereof. The same is tme of my
8 own knowledge, except as to those matters which are therein stated on infonnation and belief, and,
9 as to those matters, I believe them to be tme.
10 I declare under penalty of perjury under the laws of the State of Califorma that the
11 foregoing is true and correct.
12 Executed at Sacramento, Califomia on this 15th day of N^vrapber, 2010.
13 A
14 Steve Camso
15
Firmwide 98390979 7 052714 1011
16
17
18
19
20
21
22
23
24
25
26
27
28
LITTLER UENDEISON
A Paof lAiMNH Caa»0*A>taN
ISOCilKoinU Sirtti
70>h Flaal
S u Franciico CA I 4 I 0 I 2191
PI ATNTTRFS' RKSPnNSFTOrrPnA'SrROSS-PPTmnivnnrOMPFl ARRITRATrmsJ AND <;TAYP1?fVFFniNr.<;
EXHIBIT A
Littler Mendelson, P.C.
Littler
£™,pbf«n„u4-L™soiu.i.mw.,id»*
* 650 California Street
20th Floor
SBR FraHCisco, CA 94108 2693
Richard H Rahm
415 677 3104 direct
October 21, 2010 415 433 1940 mam
415 743 6542 fax
rrahm@littler com
BY E-MAIL AND REGULAR MAIL

Carroli, Burdick & McDonough LLP
Re: State ofCalifornia v. CCPOA
Dear Gregg:
This will serve as a response to your letter of October 14, 2010, concerning the State's
Rrst Amended Complaint. While we appreciate your willingness to discuss your objections to
the First Amended Complaint before filing a demurrer, we believe that your objections have
no legal basis, particularly in light of the Courfs ruling on your first demurrer.
1. The UPL Agreement Covers Both Past And Future UPL Costs.
You state that your client will move to strike those sections of the Rrst Amended
Complaint in which the State alleges that the UPL Agreement covers both past and future UPL
costs, contending that it contradicts the language in the Agreement, which states that
"[n]othing m this agreement is intended nor shall be construed to extend or revive any term
of the parties expired 2001-2006 MOU ....'• Your client's argument is misplaced for three
reasons.
First, by covering past UPL costs, the UPL Agreement is not "reviving" any term of the
expired MOU; to the contrary, it created a new and sepsASte.obligation by your client to pay
for past UPL costs, particularly since the MOU had already expired. In this respect, breach of
the Agreement only .occurs when the State has sent an invoice to your client for UPL costs
that is not paid within 30 days. See UPL Agreement H IB. After the Agreement was
executed, the State began invoicing your client for past UPL costs. In other words, not oniy is
the State not "reviving" any terms of the MOU, but your client was not in breach until it failed
to pay the invoices within 30 days, and, within the four years prior to the filing of the initial
complaint, the only such failures (i.e., the only instances of breach) occurred within the term
of the UPL Agreement, long after the MOU had expired.
Second, there is nothing in law or in the Agreement' that provides that the State
cannotzcNzx past UPL costs. In particular, nothing in the'Agreement even implies that your
client's past UPL costs are extinguished. To the contrary, the Agreement specifically provides
littler com
October 21, 2010
Page 2
for a procedure to account for past RTB and UPL such that if your client had a surplus of RTB,
It could apply it to future UPL costs. See UPL Agreement 1| 18. If past UPL costs were
somehow forgiven by the State - of which there is no evidence whatsoever - then the RTB
would simply be applied to future UPL costs without any need to account for past UPL.
Third, the Court specifically mled on this point and held that it was not subject to a
demurrer because the State alleged a valid cause of action for breach of.an express written
agreement. Furthermore, at the hearing, when you argued that the UPL Agreement could not
apply to UPL costs incurred before the UPL Agreement was signed, the Court stated that this
was an issue of fact, to be determined by a jury, and not an issue of law, to be determined by
the Court on demurrer. Accordingly, the allegation is neither susceptible to a demurrer nor a
motion to strike.
2. The First Amended Complaint States A Valid Cause Of Action For Breach Of
An Impiied-In-Fact Contract.
The Court previously sustained, with leave to amend, your client's demurrer to the
second cause of action for breach of implied-in-fact contract because, in that cause of action,
the State "incorporated paragraphs 1-13 by reference; that is, they have incorporated the
allegations of an express contract into a cause of action for implied contract." See Tentative
Ruling. The Court specifically held in its order that the State "may plead alternative theones
of recovery." Based on the Court's ruling, the State modified its second cause of achon in its
Rrst Amended Complaint such that it incorporates only Paragraphs 3-4, concerning the
parties to the action, and it does not incorporate any other Paragraph in the First Amended
Complaint. In other words, the State modified the cause of action exactly according to he
Court's order.
You argue in your letter that the State's second cause of action is still defective
because Paragraphs 5-8, in which an express contract is alleged, have the section title of
"Facts Common To All Causes Of Action." Yet, as stated above, the First Amended Complaint
does not incorporate this section, its title, or any paragraphs in that section, into the second
cause of action. Moreover, a section heading is not an allegation, and it is not numbered as
such. Courts thus ignore labels "if the complaint pleads facts which would entitie the plaintiff
to relief." McBride v. Boughton, 123 Cal. App. 4th 379, 387-88 (2004). As such, there is
nothing even arguably deficient with the second cause of action of the First Amended
Complaint.
3. The State Is Not Amenable To Submitting To Arbitration Your Client's

Unpaid UPL Costs.
Finally, you ask in your letter whether the State would be willing to arbitrate all of its
claims against your client for unpaid UPL costs so as to have everything litigated together in
one forum. The UPL Agreement, however, does not provide for arbitration, and the State
October 21, 2010
Page 3
seeks nothing more than to collect on the invoices for unpaid UPL costs that were sent to
your client pursuant to that Agreement. Because the UPL Agreement covers all of your
client's unpaid UPL costs, the State declines your client's offer to arbitrate the claims.
Again, the State would like to stress that It believes that any dispute your client has as
to the amount of UPL costs it owes can be resolved without litigation and, to this end, we
would invite any suggestions to facilitate a resolution. However, as to the objections you
raise in your letter to the State's Rrst Amended Complaint, the State believes that these are
not made in good faith and only for purposes of delaying the progress of the litigation. It will
therefore not be amending the First Amended Complaint according to your client's
suggestions.
Richard H. Rahm
cc: John M. Skonberg

Joshua Kienitz
Firmwide 98185017.1 052714.1011

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1 JOHN M.

SKONBERG, BarNo 069409

8 III. CCPOA'S EX PARTE APPLICATION FO^ A STAY OF DISCOVERY SHOULD

7 from 2008 pursuant to the UPL Agreement. Id

18 Declaration, Exh. D at 2:1-4:3.

25 B. CCPOA Files A Cross-Petition That Alleges, Contrary To The Allegations Of

7 Understanding ("MOU")." Rahm Decl., Exh. E at 1:2-16.

14 ofthe MOU. See Rahm Decl. TI 5.

15 III. CCPOA'S EX PARTE APPLICATION FOR A STAY OF DISCOVERY SHOULD BE

9 therefore not entitled to a stay under section 1281.4.

10 B. CCPOA Cannot Otherwise Demonstrate Good Cause Because Its Cross-Petition

24 a stay should accordingly be denied.

2 1. Richard H Rahm, declare the following-

16 and conect copy of CCPOA's reply brief in support of its demuner.

17 4. At the hearing on CCPOA's demurrer to the State's complaint, the Court

24 5. Attached hereto as Exhibit E is a true and conect copy of the State's

3 alleged breach ofthe MOU.

6 FACTS COMMON TO ALL CAUSES OF ACTION

21 FIRST CAUSE OF ACTION

24 contained in Paragraphs 1-8 as though set forth fully herein.

8 at a cost of approximately $4 million, for which it has invoiced CCPOA.

12 amount ofthe actual compensation costs of UPL invoiced.

15 amount to be determined at trial.

16 SECOND CAUSE OF ACTION

19 contained in Paragraphs 3-4 as though set forth fully herein.

3 17. As a proximate result of CCPOA's material breach of the implied-in-fact

15 do anything deliberately to deprive the other ofthe benefits ofthe agreement.

18 CCPOA's request, providing CCPOA-represented employees with UPL at a cost of approximately

19 $4 million, for which it has invoiced CCPOA.

3 Court, the exact amount to be determined at trial

4 FOURTH CAUSE OF ACTION

7 contained in Paragraphs 3-4 as though set forth fully herein.

17 between the State and CCPOA.

20 account to be determined at trial

21 PRAYER FOR RELIEF

3 I, Steve Caruso, declare:

4 I am the Assistant Secretary of Labor Relations at the California Department of

9 information and belief, and, as to those matters, I believe them to be true.

11 foregoing is tme and correct.

10.15 Catastrophic Time Bank

Union Paid Leave Agreement

1. This agreement is entered Into between California Correctional Peace Officers'

6. Each official on long-term UPL will be placed in a "Saturday/Sunday/Hoiiday OfT

8. CCPOA must submit a letter or memorandum to CDCR's Office of Labor Relations

11. Short-temi UPL is defined as a request for leave of 30 days or less.

22. This agreement is effective October 1,2007.

Matthew Gate, Secretary

18 SUPEMOR COURT QI^THE STATE OF CALIFORNIA

2a THE STATE OF CALIFORNIA, CaseNo. 34-2010-00075552

7 n AS A COURTESY by facsimile transmission on that date. This document was

18 Gregg McLean Adam, Esq.

1 Gregg McLean Adam, No. 203436

CCPOA'S MPA IN SUPPORT OF DEMURK ER TO VERIFIED COMPLAINT FOR DAMAGES

4 Litton Financial v. NLRB

3 Plaintiffs, the State ofCalifomia, the Califomia Department of Corrections and

CCPOA'S MPA IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT FOR DAMAGES

CCPOA'S MPA IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT FOR DAMAGES

CCPOA'S MPA IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT FOR DAMAGES

14 B. This Court Has No Jurisdiction Over the MOU-Based Claims

CCPOA'S MPA IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT FOR DAMAGES

23 applicable statute of limitations is two years (Code Civ. Proc. § 339).

24 Ifthe applicable statute of limitations is only two years, it would materially

28 depriving him ofthe defense afforded by the statute of limitations"].)