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Macklin v. City of Santa Cruz2/5/2002
re is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court." (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)
Here Dr. Steinmaus informed Macklin that his test results were positive and asked him if he would like a retest of the split urine sample. When Macklin stated that he would, Dr. Steinmaus told him that "there would probably be a fee of $150." According to Macklin, this was "outrageous," because he knew that the test cost only $11 at the rehabilitation program. Immediately after his conversation with Dr. Steinmaus, Macklin decided to quit his job. As Macklin explained, "there wasn't any need to send the second sample because he already knew it was positive." The Agreement does not mention which party is responsible for payment for the retest of a urine sample. However, even if this court were to assume that the City's failure to pay for the retest would constitute a breach of the covenant of good faith and fair dealing, there is no evidence as to whether the City would have charged Macklin for the retest. Macklin decided to quit his job before finding out what the City's policy was. Thus, there is insufficient evidence to support the jury's verdict on this theory.
Macklin next claims that the jury's finding is supported by substantial evidence that the City failed to consider his explanation of the test results.
Here Xenakis testified that the National Institute of Drug Abuse set specific cut-off levels so that an individual's passive inhalation of marijuana would not result in a positive test. He further testified that two drug tests were performed on Macklin's sample. The first test was the EIA, which determines the presence of drugs. The cutoff level for marijuana is 50 nanograms, and the machine is calibrated at the cut-off level of 50 nanograms on a daily basis. When Macklin's sample was tested, the number that would be a calibrator of 50 nanograms was 396. Thus, any number at or above 396 would be a positive, because 396 was equated with 50 nanograms. The reading for Macklin's sample was 444, which was clearly above the cut-off level. Thus, Macklin's contention that he had a negative result on the EIA is wrong. The second test established the presence of marijuana. The result from the GC/MS test was 21.7 nanograms per million, and any number above 15 nanograms per million indicated a positive test for marijuana use. According to Xenakis, "most of the specimens come in between 20 and 60." Dr. Steinmaus testified that he considered Macklin's explanation of passive inhalation, but disregarded it because both tests accommodated that possibility through their cut-off levels. Thus, there is insufficient evidence to support the jury's verdict on this theory.
Disposition
The judgment is reversed. Costs are awarded to the City. The motion for sanctions is denied.
We concur:
Premo, Acting P.J.
Elia, J.
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