Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS096589, Dzintra Janavs, Judge.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Defendants and Appellants.
Diane Marchant for Plaintiff and Respondent.
VOGEL, J.
A police officer was reprimanded for fatally shooting a suspect. The officer challenged the penalty, contending in a petition for a writ of mandate that it was time-barred by Government Code section 3304, subdivision (d), part of the Public Safety Officers Procedural Bill of Rights Act. The trial court agreed and ordered the City of Los Angeles and its Chief of Police to rescind the penalty. We reverse and remand for further proceedings.
All section references are to the Government Code.
A.
While on patrol on November 15, 2002, Los Angeles Police Officer James McCarthy and his partner saw a white pick-up truck possibly involved in a drug transaction. When the truck failed to stop or signal at two successive stop signs, the officers activated their lights and siren. In response, the truck’s driver, Seth Landon, accelerated and the officers gave chase into a dead-end street. The truck stopped, as did the patrol car, and the officers got out and stood behind their respective doors with guns drawn, ordering Landon to turn off the truck’s ignition and show his hands. Instead, Landon drove the truck towards the officers, who in response shot at Landon who was struck 14 times and died from two fatal shots.
B.
An investigation by the Los Angeles Police Department’s Critical Incident Investigation Division (CID) revealed that (at the time of his death) Landon tested positive for cocaine and a painkiller, and had gunshot residue on his hands, and that McCarthy had fired 29 shots, including the two fatal shots. In April 2003, the results of the CID investigation were presented to the Department’s “Use of Force Review Board,” which recommended “administrative disapproval” for some of McCarthy’s “tactics” and “use of force.”
In July, Chief of Police William J. Bratton sent a report to the Board of Police Commissioners summarizing the incident and investigation, and detailing his conclusions that some of McCarthy’s tactics were “deficient” and that some of the rounds fired were “out of policy.” Chief Bratton recommended administrative disapproval.
In November, the Acting Chief of Police signed a two-count personnel complaint alleging that McCarthy had (1) “utilized deficient tactics during an officer-involved shooting, that resulted in administrative disapproval,” and (2) “improperly discharged [his] firearm . . . result[ing] in administrative disapproval.” The complaint provided for a hearing before the Board of Rights (as required by article X, section 1070 of the Los Angeles City Charter) and was personally served on McCarthy on Monday, November 17, 2003.
On February 9, 2005, after a four-day hearing, the Board found McCarthy guilty of both counts. In considering the penalty, the Board noted that the “scenario . . . was so fluid, so dynamic, so violent and so extremely volatile as to constitute a challenge for even the Department’s most [highly] trained officers,” that the “incident represented McCarthy’s first pursuit and . . . first use of deadly force,” and that he had no prior sustained complaints over a seven-year career. The Board recommended to Chief Bratton that McCarthy receive an official reprimand and additional training in specified areas. On February 24, Chief Bratton adopted the recommended penalty.
C.
In May 2005, McCarthy filed a petition for a writ of administrative mandate in which he asked the trial court to compel the City and Chief Bratton to set aside the guilty findings and the reprimand. In September 2006, McCarthy moved for issuance of a peremptory writ, contending (1) the punitive action against him was time-barred by section 3304, subdivision (d), because he was not given notice of the “proposed disciplinary action” within one year of the City’s discovery of the alleged misconduct, and (2) that the guilty findings were not supported by the evidence.
Unless the context suggests otherwise, subsequent references to the City include Chief Bratton.
The City opposed the motion, contending the limitations issue was waived because McCarthy had not raised it before the Board of Rights and that, in any event, the issue lacked merit because (1) McCarthy had not submitted any evidence establishing the date on which the Department discovered the alleged misconduct, and (2) McCarthy was timely served. The City also contended the evidence supported the findings.
In his reply, McCarthy claimed the City learned of the alleged misconduct on the day of the shooting and that the one-year limitations period began to run that day. At his request, the trial court judicially noticed a June 15, 2001 Consent Decree entered by the United States District Court for the Central District of California in United States of America v. City of Los Angeles, CV0011769GAF(Rcx) which outlines the Department’s procedures and requires immediate notification to the Chief of Police and others of any officer-involved shooting, and an immediate investigation into the shooting.
At the conclusion of a hearing held in November, the trial court granted McCarthy’s petition on the ground that the City discovered his alleged misconduct on the day of the shooting (November 15, 2002) but did not give him notice of the proposed disciplinary action until the complaint was served on November 17, 2003, which the court said was two days late. The City’s appeal is from the subsequently entered judgment ordering the City to rescind the Board of Rights’ guilty findings and the reprimand, and to remove all mention of the punitive action from McCarthy’s personnel file.
DISCUSSION
The City contends the trial court erred in concluding its punitive action against McCarthy was time-barred. We agree.
The trial court’s factual findings are binding if supported by substantial evidence, but we independently review the court’s legal findings. (Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29, 33; Sanchez v. City of Los Angeles (2006) 140 Cal.App.4th 1069, 1078; People ex rel Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
The City assumes the personnel complaint gave adequate notice to McCarthy under section 3304, subdivision (d), which requires that where, as here, a public agency “determines that discipline may be taken [against a public safety officer], it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within [one] year” (italics added), and contends that, contrary to the trial court’s finding, the personnel complaint was served timely, not two days late.
Because the shooting occurred on November 15, 2002, McCarthy had to be given notice of any proposed discipline by November 15, 2003. Because the latter date was a Saturday, the time for giving notice was extended to the following Monday, November 17, 2003. (Code Civ. Proc., §§ 12, 12a, subds. (a), (b); DeLeon v. Bay Area Rapid Transit Dist. (1983) 33 Cal.3d 456; In re Anthony B. (2002) 104 Cal.App.4th 677, 681-682; Society of Cal. Pioneers v. Baker (1996) 43 Cal.App.4th 774, 785, fn. 12.) It follows that the personnel complaint, which was personally served on Monday, November 17, was timely, and that the trial court was mistaken.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court with directions to (1) vacate its November 13, 2006 order and November 28, 2006 judgment, (2) consider the remaining arguments raised by McCarthy’s petition and motion for issuance of a peremptory writ, (3) conduct such further proceedings as are necessary, and (4) issue a new judgment. The parties are to pay their own costs of appeal.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.