Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BS097786, Dzintra Janavs, Judge.
Diane Marchant for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Defendants and Respondents.
MANELLA, J.
INTRODUCTION
Appellant, a Los Angeles City Police Officer, appeals from a judgment of the superior court denying in part his petition for administrative mandate pursuant to Code of Civil Procedure section 1094.5. The trial court reviewed the administrative proceedings in which appellant was disciplined by his employer, respondent Los Angeles Police Department (LAPD or Department), and granted partial relief, finding one of the two charges against him barred by the statute of limitations. Appellant contends the trial court should have found both charges barred under the statute of limitations set forth in the Public Safety Officers Procedural Bill of Rights Act (the Act). (Gov. Code, § 3300 et seq.) Respondents contend that appellant was required to raise the issue either in the administrative hearing or in a separate court action filed pursuant to section 3309.5. We agree with respondents and affirm the judgment.
Other respondents are the City of Los Angeles and Chief of Police William Bratton.
With the exception of Code of Civil Procedure section 1094.5, which will be shortened to “section 1094.5,” all further statutory references are to the Government Code, unless otherwise noted.
“The superior court shall have initial jurisdiction over any proceeding brought by any public safety officer against any public safety department for alleged violations of this chapter.” (§ 3309.5, subd. (c).) “[T]he court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent . . . the public safety department from taking any punitive action against the public safety officer.” (§ 3309.5, subd. (d)(1).) The failure to observe the statutory time limits for investigation and notice is a violation of the Act. (Sulier v. State Personnel Bd. (2004) 125 Cal.App.4th 21, 26-27; §§ 3304, subd. (a), 3309.5, subd. (a).)
BACKGROUND
As appellant does not challenge the trial court’s factual findings, we summarize the facts from the trial court’s statement of decision. In 2004, appellant was charged with misconduct relating to three domestic disputes that occurred in January and February 2003, shortly after appellant had separated from his wife. On March 23, 2004, appellant was served with a personnel complaint, alleging the following three counts of misconduct:
“Count 1: On or about February 26, 2003, [appellant], while off-duty, unnecessarily became involved in an incident that caused the response of on duty deputies from the Los Angeles County Sheriff[’]s Department.
“Count 2: On or about January 1, 2003, [appellant], while off-duty, unnecessarily used physical force during a domestic violence incident.
“Count 3: Between January 1, 2002 and October 12, 2002, [appellant], while off-duty, unnecessarily used physical force during a domestic violence incident.”
An evidentiary hearing on the charges was held before the LAPD Board of Rights (Board) over three days in September 2004 and April 2005. On April 7, 2005, the Board found appellant guilty of counts 1 and 2, but not guilty of count 3, and recommended a 22-day suspension without pay. Chief Bratton adopted the recommendation on May 5, 2005. The evidence established that the facts giving rise to count 1 were discovered on February 26, 2003, the day they occurred, and the facts giving rise to count 2 were discovered on June 6, 2003.
On June 28, 2005, appellant filed his petition for administrative mandate. Appellant did not contest the guilty findings, but claimed the one-year statute of limitations had run on counts 1 and 2. The trial court found that appellant had been given notice of the charges when he was served with the personnel complaint on March 23, 2004, although the complaint did not set forth a proposed punitive action. The court rejected respondents’ contention that appellant had forfeited the defense of the statute of limitations by failing to raise it before the Board, and found the statute to have run as to count 1, but not as to count 2.
The trial court granted appellant’s petition in part, ordered respondents to vacate the Board’s guilty finding as to count 1 and the discipline imposed, and to reconvene the Board for the purpose of considering appropriate disciplinary action solely as to count 2. Judgment was entered March 9, 2007, and appellant timely filed a notice of appeal.
DISCUSSION
Appellant’s sole contention on appeal is that the trial court erred in finding count 2 was not time-barred under section 3304, subdivision (d), of the Act. That section provides that “no punitive action . . . 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 . . . 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 . . . .” (§ 3304, subd. (d).) Appellant contends that notice of the “proposed disciplinary action” in section 3304, subdivision (d), means notice of the specific disciplinary measure proposed -- in this case, the 22-day suspension. He relies on Sanchez v. City of Los Angeles (2006) 140 Cal.App.4th 1069 (Sanchez), in which the appellate court found that notice of a proposed 20-day suspension was insufficient to put a disciplined officer on timely notice that he faced the more severe sanction of a downgrade in pay. (Id. at pp. 1080-1081.) Here, appellant argues that because the possibility of a 22-day suspension did not expressly appear in the personnel complaint, but was communicated to appellant in the Board’s decision of April 7, 2005, there is no evidence he was notified of the proposed disciplinary action as to count 2 within one year of its discovery on June 6, 2003. The trial court rejected this contention, finding the notice sufficient to advise appellant of the broad range of penalties the Board could impose.
As the trial court noted, “pursuant to the City Charter, the Board of Rights has a range of specified penalties it is authorized to impose: reprimand, suspension, demotion or removal. Any person brought before the Board on a personnel complaint has notice that the Board could impose any of these authorized penalties, depending on the evidence presented.” The court thus found appellant’s case distinguishable from Sanchez, in which the notice of a proposed 20-day suspension did not put the officer on notice of a possible downgrade in pay. (See Sanchez, supra, 140 Cal.App.4th at p. 1082, fn. 10.)
Respondents contend that appellant has forfeited the issue of the statute of limitations, because he did not raise it in the administrative proceedings and did not bring a separate action pursuant to section 3309.5. Additionally, respondents contend that the trial court was correct in concluding that the content of the March 23 notice complied with section 3304, subdivision (d). Because we agree with respondents’ first argument, we need not reach their alternative contention.
Recently, Division Five of this court was presented with the identical issue, and held that where an officer failed to raise the statute of limitations defense at the administrative hearing, he forfeited that ground for relief under Code of Civil Procedure section 1094.5. (Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 382 (Moore); see also Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29, 42 [statute of limitations not preserved for appeal due to officer’s failure to raise issue at board of rights hearing].) We agree with the decision and reasoning of Moore. “California law has long provided that a statute of limitations defense must be raised at an administrative hearing before relief may be sought on that ground under Code of Civil Procedure section 1094.5.” (Moore, at p. 382.) As the Moore court observed, “The reason for the rule is clear. ‘It is fundamental that the review of administrative proceedings provided by section 1094.5 of the Code of Civil Procedure is confined to the issues appearing in the record of that body as made out by the parties to the proceedings, though additional evidence, in a proper case, may be received. [Citation.] It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or “skeleton” showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. [Citation.] The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play. Had [appellant] desired to avail [himself] of the asserted bar of limitations, [he] should have done so in the administrative forum, where the [agency] could have prepared [its] case, alert to the need of resisting this defense, and the hearing officer might have made appropriate findings thereon. . . .’ [Citations.]” (Id. at p. 383, quoting Bohn v. Watson (1954) 130 Cal.App.2d 24, 37, italics omitted; see also City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019-1020.)
Relying on Sanchez, appellant contends he is excused from his failure to raise the statute of limitations before the Board, because it would have been futile to do so. In Sanchez, the finding of futility was based upon specific facts. (See Sanchez, supra, 140 Cal.App.4th at p. 1079.) Although the trial court found futility here, it recited no facts to support that finding, and appellant does not claim such facts are reflected in the record. “The futility exception requires that the party invoking the exception ‘can positively state that the [agency] has declared what its ruling will be on a particular case.’ [Citation.]” (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 936.) Appellant does not claim there was such a declaration, or that any other facts support his contention. Thus, we do not agree that futility affords a ground to consider reversing the judgment as to count 2. Although we disagree with the court’s futility finding, we do not disturb the court’s ruling in appellant’s favor on count 1, as respondents did not file a cross-appeal. (See Code Civ. Proc., § 906.)
Moreover, as the Moore court observed, on appeal from the denial of a section 1094.5 petition, any review of the evidence is confined to the administrative record. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824; Moore, supra, 156 Cal.App.4th at p. 382.) In general, the determination of a statute of limitations defense is a question of fact. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.) In particular, as there are exceptions and tolling provisions under section 3304, subdivision (d), a determination of compliance with the statute of limitations is fact specific. (Moore, supra, at p. 386.) Further, appellant had “the burden of proof as to each fact the existence or nonexistence of which is essential to [his] defense . . . .” (Evid. Code, § 500; Fukuda v. City of Angels, supra,20 Cal.4th at p. 819.) As respondents have noted, because the issue was not raised before the Board, the only evidence of such facts in the administrative record consists of the dates of discovery and the date of the personnel complaint. Although appellant contends the notice was deficient because the proposed discipline was not specified in the personnel complaint, the record is inadequate to establish whether the personnel complaint was the first notice of the proposed disciplinary action or whether the specific discipline was otherwise communicated to appellant. We agree with respondents that it was appellant’s burden to prove that he did not receive earlier notice. Thus, even had appellant preserved the issue for review, on the record below he failed to meet his burden.
In an administrative mandamus proceeding, the trial court is not authorized to hear additional evidence, unless it consists of “truly new evidence . . . of emergent facts.” (Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, 1595; § 1094.5, subd. (e).)
Respondents suggest that an earlier notice might have been similar to the “NOTICE OF PROPOSED DISCIPLINARY ACTION” relating to a 1997 personnel complaint against appellant, prepared on a preprinted form, which was in the administrative record and specifies the proposed discipline. Because we conclude that appellant has forfeited his limitations defense by failing to raise it in the administrative proceedings, we do not speculate on what a more developed record might have shown.
In sum, because the limitations issue was not raised before the Board, the administrative record is inadequate to resolve the issue in appellant’s favor. Accordingly, appellant has forfeited his limitations defense.
Appellant could have filed a separate action seeking adjudication of the limitations issue in the superior court, as failure to observe the statutory time limits is a violation of the Act. (Sulier v. State Personnel Bd., supra, 125 Cal.App.4th at pp. 26-27; Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 54; §§ 3304, subd. (a), 3309.5, subds. (a), (c).) However, his failure to do so precludes appellate review of the issue. (Moore, supra, 156 Cal.App.4th at pp. 376-377.)
DISPOSITION
The judgment is affirmed. Respondents shall have their costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.