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Macklin v. City of Santa Cruz2/5/2002
and labeled.
After the sample was sealed, it was sent to PharmChem Laboratories, a laboratory certified by the State of California and the federal government to perform laboratory analysis of drug tests for private employers, government agencies, and the federal probation program. Theodore Xenakis, a senior technical advisor and custodian of records for PharmChem, testified about the process employed by PharmChem to perform urinalysis testing. After confirming the chain of custody, PharmChem staff perform a series of tests to detect the presence of controlled substances in a sample. If the enzyme multiple assay test (EIA) is positive, the PharmChem staff perform a second chemical test, the "gas chromatography/mass spectrometry" (GC/MS).
Both the EIA and GC/MS tests are designed to screen out positive test results caused by passive exposure to controlled substances. Cut-off points are set at certain levels of the tested substance, below which detectable levels of the identifying enzyme or chemical compound will be disregarded and the test will be considered negative even though controlled substances are present. The National Institute of Drug Abuse and the Department of Health and Human Services established the cut-off levels upon which PharmChem relies. Macklin's test showed the presence of marijuana above the cut-off level, thus ruling out passive exposure.
On May 1, 1998, Dr. Craig Steinmaus, a medical review officer under contract with the City, informed Macklin of his positive test results. Macklin told Dr. Steinmaus that it was "impossible." Dr. Steinmaus asked if he would like a retest of the split urine sample. When Macklin answered yes, Dr. Steinmaus told him that it would cost $150. Macklin thought that the cost was "outrageous," and declined the retest.
Macklin testified that two surfing buddies had smoked marijuana in his presence the evening before the test, thus causing the positive result. Macklin denied smoking marijuana after December 1996. When he learned that the City was preparing termination papers, Macklin resigned from his employment.
On August 31, 1998, Macklin filed a complaint in which he alleged 12 causes of action against the City and the individually named defendants, who were his supervisors and co-workers. However, only two causes of action, breach of implied in fact contract and breach of the covenant of good faith and fair dealing, were submitted to the jury. The jury found in favor of the City on the breach of implied in fact contract cause of action and in favor of Macklin on the breach of the covenant of good faith and fair dealing cause of action.
Discussion
The City contends that the Agreement clearly and unambiguously specified unannounced follow-up drug testing for a period of one to five years. Thus, the City contends that it did not breach the covenant of good faith and fair dealing as a matter of law in failing to inform Macklin that he was required to participate in such testing for a period of two years. We agree.
"There can be no doubt that `the "implied-in-law covenant of good faith and fair dealing inherent in every [employment] contract." ' [Citation.] `However, what that duty embraces is dependent upon the nature of the bargain struck between [the parties] and the legitimate expectations of the parties which arise from the contract.' [Citation.] [ ] Few principles of our law are better settled, than that ` he language of a contract is to govern its interpretation, if the language is clear and explicit . . . .' [Citations.]" (Brandt v. Lockheed Missiles & Space Co. (1984) 154 Cal.App.3d 1124, 1129-1130, original italics.)
" `The general rule [r
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