Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS099107, David P. Yaffe, Judge. Affirmed.
Diane Marchant for Petitioner and Appellant.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Respondents.
OPINION
JOHNSON, Acting P. J.
A police officer was accused of failing to process a citizen complaint against a fellow officer and then lying about it to her superiors and to internal affairs investigators. She was timely served with a personnel complaint containing the specific accusations against her. The complaint stated the officer was being demoted from her position as a Sergeant I to Police officer III “pending a hearing before and decision by a Board of Rights” on the charges. After a hearing, the Board of Rights recommended her removal from the police force and the chief of police accepted the Board’s recommendation. The officer filed a petition for writ of mandate, claiming the Board’s guilty findings were not supported by the weight of the evidence. She also argued she did not receive a fair hearing in the penalty phase because termination was the expected and thus predetermined discipline for all officers ordered to a Board of Rights by the chief of police. The trial court found the officer’s claims without merit and denied her petition for a peremptory writ of mandate. On appeal, the officer expressly abandons the arguments she made in the trial court. She instead contends the order of termination must be reversed because she first received notice of removal as the proposed discipline outside the one-year limitations period for providing such notice. We conclude she has forfeited her right to make this claim for the first time on appeal by failing to raise her statute of limitations (lack of notice) defense in either the administrative proceedings or in the trial court. Accordingly, we affirm.
FACTS AND PROCEEDINGS BELOW
Appellant Cheri Doolittle had an exemplary career with the Los Angeles Police Department and ultimately attained the rank of Sergeant I. On February 26, 2003, Acting Watch Commander Sergeant James Willis received a telephone call from a citizen, Ms. Sandy G., complaining Officer Clinton Dona had inappropriately touched her breast. Sandy G. stated she wanted to file a formal complaint. Sergeant Willis assigned appellant and probationary Sergeant Ken Yeung to investigate the citizen complaint.
Appellant and Sergeant Yeung went to Sandy G.’s home. Appellant handed Sandy G. a citizen complaint form and directed her to write a brief summary of her complaint against Officer Dona. While Sandy G. wrote her brief summary appellant took out her mini cassette recorder and tested it several times before beginning her interview of Sandy G.
Sandy G. told appellant and Sergeant Yeung she had met Officer Dona during an on-duty call to her residential complex. They developed an off-duty relationship. Sandy G. was interested in becoming a police officer. One of the first steps in doing so is apparently working out and running track at the police academy facilities. However, access to the academy required having a mentoring relationship with a currently employed officer of the Los Angeles Police Department. Officer Dona had been such a mentor to Sandy G.
Their relationship apparently encompassed other activities as well. On the day in question, Sandy G. accompanied Officer Dona as he accomplished numerous errands. One such errand was going to the pension office to confirm his pension had been approved. When he heard it had been, Officer Dona was so happy he asked Sandy G. for a hug. They hugged in the parking lot of the pension office. Back inside his car Officer Dona asked Sandy G. for another hug. They hugged again but as he pulled away Officer Dona touched, squeezed or grabbed her breast. Sandy G. became very quiet. She was hurt, angry and upset. After consulting with her fiancé, Sandy G. decided to file a citizen complaint against Officer Dona.
During the interview Officer Dona telephoned Sandy G.’s house. Sandy G. explained Officer Dona had called at least a dozen times already trying to apologize to Sandy G. and her fiancé. Appellant answered the telephone and told Officer Dona she was handling the matter now and not to worry. Appellant directed Officer Dona not to call Sandy G. again. At the conclusion of the interview appellant signed the citizen complaint form Sandy G. had filled out and gave her a copy.
Driving back to the station, appellant and Sergeant Yeung agreed Sandy G.’s allegations of misconduct were quite serious.
Appellant did not report the results of her interview of Sandy G. to Acting Watch Commander Willis when Sergeant Yeung and she returned to the police station. Appellant told Sergeant Willis she would instead call her lieutenant at home on his day off and report to him directly. Appellant went into the lieutenants’ office and made a telephone call. Neither Sergeant Willis nor Sergeant Leung could hear her conversation and for this reason could not confirm appellant had actually called the lieutenant.
Appellant told probationary Sergeant Leung she would handle the matter from here on out and for him not to worry about it.
Twice after the interview appellant drove to Sandy G.’s home and spoke with her. According to Sandy G., appellant told her not to expect to hear anything more about the investigation of Officer Dona’s behavior because all police personnel matters were confidential.
According to the lieutenant, appellant did not call him at home but later told him Sandy G.’s complaint did not involve any allegations of misconduct. The lieutenant in turn relayed appellant’s information to the captain. Appellant and the captain met briefly in the hallway, and in discussing Sandy G.’s complaint, appellant left the captain with the distinct impression Sandy G. had reported no allegations of misconduct.
A year after the incident Sandy G. contacted the Los Angeles County victim/witness assistance program seeking counseling. Sandy G. reported she was now fearful of all police officers because of Officer Dona’s earlier misconduct. Personnel at the victim/witness assistance program could find no record of Sandy G.’s complaint against Officer Dona. On April 19, 2004, the Los Angeles Police Department learned of Sandy G.’s missing complaint when personnel at the victim/witness assistance center contacted a sergeant in internal affairs to inquire about the status and whereabouts of Sandy G.’s complaint in order to qualify her for counseling services.
Officers in the internal affairs department interviewed appellant about the missing citizen complaint in May 2004. Although she could recall several minute details of the interview at Sandy G.’s house, including the fact Sandy G.’s fiancé appeared jealous, appellant claimed to have little recollection of the purpose of the interview, who had sent her out on the call, whether she had tape recorded the interview, whether she had given Sandy G. a copy of the citizen complaint form, and the like. Appellant could not remember Sandy G. saying she wanted to file a complaint against Officer Dona even after being informed of the factual background of the case. Appellant claimed she searched but could not find a tape recording of the interview.
In July 2004 Sandy G. finally found her copy of the complaint form she had filled out and appellant had signed. She turned it over to the internal affairs department to assist them in their investigation of appellant’s conduct.
On October 28, 2004 respondent Chief of Police William Bratton signed a personnel complaint demoting appellant to the rank of Police Officer III “pending a hearing before and decision by a Board of Rights” on the accusations. On April 21, 2005 Acting Chief of Police James McDonnell signed an amended personnel complaint with the same charges temporarily relieving appellant from duty pending a hearing before a Board of Rights.
The Board of Rights convened on June 1, 2005 and concluded on June 16, 2005. The Board of Rights unanimously found appellant guilty of four of the five accusations in the complaint: (1) failing to take appropriate action when learning of misconduct; (2) making false statements to the internal affairs investigator; (3) failing to maintain control of a complaint investigation audiotape resulting in its loss; and (4) providing false information to the captain regarding an official investigation.
Despite appellant’s otherwise stellar performance as an officer and exceptional supervisory skills, the Board of Rights unanimously recommended appellant be discharged. In reaching its decision the Board noted, “Although [it] was impressed by the established work history of Sergeant Doolittle, we found that the sustained counts before us so compromised her integrity and honesty as to nullify her future effectiveness and value to this Department. [¶] It’s therefore the recommendation of this Board of Rights to the Chief of Police that Sergeant Doolittle be removed from her position as a member of the Los Angeles Police Department.” The Chief of Police adopted the Board of Rights’ recommendation on July 5, 2005.
Appellant filed a petition for a peremptory writ of mandate against respondents, the City of Los Angeles and Chief of Police William Bratton, seeking to overturn the decision to remove her from the force. Appellant argued she did not receive a fair hearing on the recommended penalty, claiming the Chief of Police’s mere order she appear before a Board of Rights was “tantamount to a demand for termination.” Paragraph four of her verified petition stated: “On or about October 28, 2004, Respondent Bratton ordered Petitioner to respond to five allegations of misconduct at an LAPD Board of Rights.” Her verified petition further alleged: “Respondent Bratton has advised those persons who serve on Boards of Rights that, if he orders an employee to face charges at a Board, he expects that employee to be discharged if they are guilty of the charges.” Based on this alleged policy, appellant argued, “it was a foregone conclusion, if she were found guilty of the charges, she would be fired.” Appellant supported her argument regarding the alleged unfairness of the penalty with an article written by Chief Bratton stating, among other things, a Board of Rights should be ordered for any officer for whom a 22-day suspension is insufficient to correct or address inappropriate behavior. Appellant’s petition also asserted the Board’s findings of guilt were not supported by the weight of the evidence.
The trial court denied her petition for a peremptory writ of mandate and this appeal followed.
DISCUSSION
I. STANDARD OF REVIEW ON APPEAL OF AN ADMINISTRATIVE DECISION.
“Discipline imposed on city employees affects their fundamental vested right in employment. (McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129; Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 500.) When an administrative decision substantially affects a fundamental vested right, the trial court uses an independent judgment standard of review, examines the administrative record for errors of law, and exercises its independent judgment upon the evidence. The appellate court must sustain the trial court’s factual findings if substantial evidence supports them. (Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 967, fn. 1.) This court’s review must resolve all conflicts in the evidence and must draw inferences in support of the judgment. This court, however, independently determines questions of law. (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1057.)”
Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902.
We review appellant’s challenge to the judgment with these standards in mind.
II. IN THE CIRCUMSTANCES OF THIS CASE THE DISCIPLINE THE BOARD OF RIGHTS IMPOSED IS NOT BARRED BY THE STATUTE OF LIMITATIONS FOR LACK OF NOTICE OF REMOVAL AS THE PROPOSED DISCIPLINE WITHIN THE ONE-YEAR STATUTORY PERIOD OF GOVERNMENT CODE SECTION 3304 .
The provisions of Government Code section 3300 et seq. are known as the Public Safety Officers Procedural Bill of Rights Act. Section 3304 of the Act contains a statute of limitations for disciplinary actions and specifies the notice required before discipline may properly be imposed. This provision states: “Except as provided in this subdivision and subdivision (g) [circumstances tolling or extending the limitations period or justifying the reopening of the case], no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. . . . In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within that year, . . . ”
All further statutory references are to the Government Code.
Section 3304, subdivision (d), italics added.
Appellant contends the disciplinary action taken against her of removal from the police force was and is barred by the statute of limitations of section 3304, subdivision (d) of the Public Safety Officers Procedural Bill of Rights Act. She claims this is so because during the one-year limitations period she only had notice of a possible demotion. She received no notice of the Board of Rights’ recommendation for, and the chief of police’s adoption of, removal as the discipline actually imposed until after the one-year limitations period had already expired. Accordingly, appellant contends the order of removal is time-barred under section 3304, subdivision (d) and must be set aside.
In support of her argument appellant relies on the decision in Sanchez v. City of Los Angeles. In Sanchez, an officer was timely served with a notice of proposed disciplinary action of a 20-day suspension. Then Chief of Police Bernard Parks rejected the proposed discipline and issued an order transferring the officer to another division and downgrading him to a Police Officer II. After a hearing before a Board of Rights the Board recommended Sanchez be suspended without pay for 22 days. Sanchez pursued an internal administrative appeal of the chief’s order of downgrade which resulted in a recommendation the additional discipline of downgrade be overturned. Current Chief of Police Bratton rejected the recommendation.
Sanchez v. City of Los Angeles (2006) 140 Cal.App.4th 1069.
Sanchez v. City of Los Angeles, supra, 140 Cal.App.4th 1069, 1072-1075.
Sanchez filed a petition for writ of mandate seeking to set aside the chief of police’s decision refusing to reinstate him to the position of Police Officer III. In the trial court Sanchez’s counsel (and counsel in the present case) argued the chief of police’s order of downgrade was invalid because he “‘was not advised that the Department intended to downgrade him until over a year had passed since it discovered the alleged misconduct, ’ in violation of the limitations period set forth in section 3304 subdivision (d).”
Sanchez v. City of Los Angeles, supra, 140 Cal.App.4th 1069, 1075.
Division Three of this Court agreed notice of a proposed 20-day disciplinary suspension was insufficient notice of the reduction in pay grade actually imposed. The court interpreted section 3304, subdivision (d) to “require[] the Department to notify the officer of the specific disciplinary action that is being proposed, not merely to advise the officer that some disciplinary action is being contemplated.” The chief of police’s order for a hearing before a Board of Rights was insufficient in that case to provide notice of the possible discipline of downgrade because a reduction in pay grade was not among the otherwise wide range of penalties a Board of Rights is authorized to impose under the City Charter. Accordingly, the court agreed with Sanchez and held the pay grade reduction, first proposed after the one-year period of section 3304, subdivision (d) elapsed, was untimely and therefore barred.
Sanchez v. City of Los Angeles, supra, 140 Cal.App.4th 1069, 1081, footnote omitted; compare, Paoli v. Civil Service Com. (1993) 12 Cal.App.4th 1073, 1077-1078 [the commission’s authority to “modify” the proposed discipline for an officer did not authorize it to impose an entirely different and harsher discipline; due process requires that before a punitive action is taken an employee must be given notice of the proposed disciplinary action and an opportunity to respond].
Sanchez v. City of Los Angeles, supra, 140 Cal.App.4th 1069, 1072, footnote 2, 1082.
Sanchez v. City of Los Angeles, supra, 140 Cal.App.4th 1069, 1082.
We need not decide whether Sanchez properly interprets section 3304, subdivision (d) to require not only notice of the accusations and possible discipline but also notice of the precise penalty to be imposed within the year the officer’s misconduct is discovered (likely occurring even before a Board of Rights hearing can be held at either the chief’s or the officer’s request). Even assuming the Sanchez court’s interpretation of the notice requirements are correct and mandated by due process concerns, we nevertheless find the case at bar distinguishable in several respects from the situation in Sanchez. Here, as appellant stated in her verified petition, the chief ordered her to a Board of Rights within the one-year period of section 3304, subdivision (d). This put appellant on notice within the statutory period she was subject to a broad range of penalties within the Board’s jurisdiction—up to and including removal—the very discipline imposed in this case. Even the Sanchez court noted an order for a hearing before a Board of Rights could put an officer on notice of any of the authorized forms of discipline within the Board’s jurisdiction. Moreover, in this case, and unlike the situation in Sanchez, the Board of Rights had the authority under the City Charter to impose the discipline it did.
This precise issue is currently before the Supreme Court in Mays v. City of Los Angeles (review granted March 14, 2007, S149455).
As appellant acknowledges, Los Angeles City Charter section 1070(n) “does give a Board of Rights a range of penalties from which to choose, once it finds an officer ‘guilty.’” The range of penalties on a guilty finding can range from “reprimand without further penalty” to “removal.” (L.A. City Charter, § 1070(n)(3) and (4).)
Sanchez v. City of Los Angeles, supra, 140 Cal.App.4th 1069, 1072, footnote 2, 1082, footnote 10.
In addition, appellant’s arguments before the trial court demonstrate she had actual notice—if not formal written notice—before the hearing of the possibility, although not the probability, discipline might involve removal. Based on current practices and the chief of police’s alleged motives for ordering officers to a Board of Rights, appellant argued in the trial court the chief of police’s mere order she appear before a Board of Rights was “tantamount to a demand for termination.” In her petition for a writ of mandate appellant argued because of the chief of police’s alleged reasons for ordering officers to a Board of Rights, “it was a foregone conclusion, if she were found guilty of the charges, she would be fired.”
Even assuming actual knowledge is insufficient to satisfy the notice of “proposed disciplinary action” requirement of section 3304, subdivision (d) appellant’s statute of limitations defense is not cognizable in this appeal in any event. She did not raise the issue of the statute of limitations bar in the administrative proceedings. Nor did appellant raise the statute of limitations defense in the trial court, even though the Sanchez decision was then available as precedent. Instead, appellant raised the statute of limitations defense for the first time in this appeal. By failing to promptly and properly raise her statute of limitations defense, appellant has forfeited the right to assert the issue for the first time on appeal. “It is well established that the statute of limitations is a personal privilege which is waived [forfeited] unless asserted at the proper time and in the proper manner, whether it be a general statute of limitations or one relating to a special proceeding. [Citations.]”
Assuming appellant was not required to first exhaust her administrative remedies before pursuing her claim of an alleged violation of the Public Safety Officers Procedural Bill of Rights Act in the trial court, (Mounger v. Gates (1987) 193 Cal.App.3d 1248) appellant has offered no explanation why she did not do so in this case.
Bohn v. Watson (1954) 130 Cal.App.2d 24, 36.
In contrast to criminal proceedings, a party may forfeit the statute of limitations defense in civil cases, as well as in administrative proceedings. As the court noted in a case involving a correctional officer in administrative proceedings, “a defense based on a statute of limitations or other statutory time limit may, and indeed must, be raised in administrative proceedings, because the failure to raise such a defense at the administrative hearing waives [forfeits] the issue on review of the administrative proceedings. (E.g. Hooks v. State Personnel Bd. (1980) 111 Cal.App.3d 572, 578 [in judicial review of SPB decision upholding termination of employee for failure of good behavior, based upon criminal conviction for drug offense, employee was barred from arguing his conviction would be expungeable after lapse of two-year period under Health and Safety Code, because he failed to raise the issue at the SPB hearing]; Bohn v. Watson (1954) 130 Cal.App.2d 24, 36-37 [appellant waived defense of statute of limitations by failing to raise it before the Real Estate Commission in administrative proceeding revoking real estate license].)”
See People v. Williams (1999) 21 Cal.4th 335, 341 [when the charging documents on their face show the offense is time-barred the defendant may raise the issue at any time because the statute is jurisdictional and confers a substantive rather than a procedural right]; see also, In re Sheena K. (2007) 40 Cal.4th 875, 888 [juvenile did not forfeit her challenge to a probation condition on constitutional grounds by failing to raise the issue in the juvenile court because her facial constitutional challenge presented a clear question of law, easily correctable by an appellate court].
See e.g., RRLH, Inc. v. Saddleback Valley Unified Sch. Dist. (1990) 222 Cal.App.3d 1602, 1605, footnote 2 [statute of limitations defense foreclosed where the defendant’s answer raised a statute of limitations defense but the defendant failed to assert it at trial and the trial court made no findings on its applicability].
Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 53 [employee properly preserved statutory defense by first raising the issue before the State Personnel Board]; but see, Jenron Corp. v. Dept. of Social Services (1997) 54 Cal.App.4th 1429, 1437 [appellants forfeited their laches defense by failing to raise this defense at the administrative hearing]; compare, Fox v. State Personnel Bd. (1996) 49 Cal.App.4th 1034, 1039 [exceptions to the forfeiture rule may apply if the issue is one of public interest and involves a pure question of law on undisputed facts].
Because appellant failed to assert a statute of limitations defense based on a lack of notice within the one-year statutory period of the specific discipline imposed, she has forfeited the right to raise the issue for the first time on appeal.
Respondents contend the limitations period was extended on the ground “the investigation involve[d] more than one employee . . . .” (§ 3304, subd. (d)(4).) Appellant contends there is nothing in the record to show this exception to the one-year limitation period applies.
DISPOSITION
The judgment is affirmed. Respondents to recover their costs of appeal.
We concur: WOODS, J., ZELON, J.
The investigation in this case in fact involved both appellant and Officer Dona. However, the record contains no evidence regarding the factual details of the internal affairs investigation of Officer Dona’s misconduct. All the record shows is Officer Dona ultimately received a 15-day suspension. In light of our conclusions, we need not grant respondents’ request to remand the matter for a factual determination whether the one-year statute of limitations required “a reasonable extension” because the investigation involved more than one employee. (§ 3304, subd. (d)(4).)