Judge Curtis A. Kin, Case Number: 23STCP01899, Date: 2023-09-21 Tentative Ruling

Respondents City of Los Angeles and Michel Moore demur to the Verified Petition for Writ of Mandate and seek to strike allegations regarding whistleblower retaliation and relief sought by petitioner Ricardo Izquierdo.

Petitioner Ricardo Izquierdo was and is a sworn peace officer with the West Traffic Division of the Los Angeles Police Department (“Department”). (Pet. ¶1.)

On March 28, 2021, a tenant of petitioner’s mother brought a complaint against petitioner. (Pet. ¶ 7.) Petitioner was accused of having a third party remove a copper shower apparatus and a three-door commercial filing cabinet from the complainant’s property. (Pet. ¶ 7.)

Petitioner was off duty on March 28, 2021 due to a job-related injury. (Pet. ¶ 8.)

On October 4, 2021, Sergeant Aurora Smith interviewed petitioner regarding the complaint. (Pet. ¶ 9.) Petitioner was asked “what items the third party took” and “whether the items removed all belonged to his sister,” who was also at the property. (Pet. ¶ 9.)

Sgt. Smith later informed petitioner that she needed clarification regarding statements he had made during the October 4 interview. (Pet. ¶ 11.) A second interview was scheduled for January 10, 2022. (Pet. ¶ 11.)

Petitioner had hypertension related to the investigation, for which he was placed off work on November 19, 2021. (Pet. ¶ 12.)

On January 10, 2022, Sgt. Smith started the interview by stating, “Ricardo, you're being interviewed as an accused employee. And the allegation is of theft….” (Pet. ¶ 13.) Sgt. Smith noted that petitioner previously mentioned having assisted his sister “with removing some of the items at that location.” (Pet. ¶ 13.) When counsel for petitioner asked whether petitioner physically removed the items or had them removed, Sgt. Smith responded with the latter. (Pet. ¶ 13.)

After having asked questions about the alleged theft, Sgt. Smith asked petitioner about items that he may have been carrying and about his duty restrictions. (Pet. ¶ 14.) Sgt. Smith also asked, “Isn’t it true that your sister asked you to move items from one place to another?” (Pet. ¶ 14.) After having confirmed that petitioner’s sister said that he had moved items, Sgt. Smith asked petitioner, “Do you think your sister may have lied about you moving items?” (Pet. ¶ 14.)

On July 3, 2022, respondent Michel Moore, Chief of Police of the City of Los Angeles, issued a complaint proposing to terminate petitioner and relieve him of duty. (Pet. ¶ 15.) Petitioner was charged with the following:

Count 1 On or about February 27, 2021, you, while off-duty engaged in activity which was inconsistent with your medical claim.

Count 2 On or about February 27, 2021, you, while off-duty, received benefits which you were not entitled to receive.

Count 3 On or about October 4, 2021, you, made false statements to Sergeant A. Smith, who was conducting an official investigation.

Count 4 On or about January 10, 2022, you, made false statements to Sergeant A. Smith, who was conducting an official investigation.

Count 5 Between October 4, 2021, and January 19, 2022, you, failed to cooperate with Sergeant A. Smith, who was conducting an official investigation.

(Pet. ¶ 15.) On August 26, 2022, petitioner was temporarily relieved from duty. (Pet. ¶ 16.)

A Board of Rights hearing was scheduled for February 6, 2023. (Pet. ¶ 18.) The hearing was cancelled on February 2, 2023, based on the Department’s request. (Pet. ¶ 20.) On February 7, 2023, respondent Moore requested the classification of the complaint against petitioner as Not Resolved. (Pet. ¶ 21.) On February 8, 2023, petitioner was reinstated to his position. (Pet. ¶ 22.)

Since 2015, several of petitioner’s supervisors have allegedly harassed and retaliated against petitioner due to whistleblower and other actions. (Pet. ¶ 5.) Petitioner alleges that the investigation against him was in retaliation for his actions as a whistleblower in 2017. (Pet. ¶ 33.)

Petitioner asserts one cause of action for “Code of Civil Procedure Section 1085/Government Code Section 3309.5.” Petitioner alleges that respondents City of Los Angeles and Michel Moore violated Government Code § 3303(c) by failing to notify petitioner of the nature of the January 10, 2022 interview, which concerned allegations that petitioner lied about his injury and improperly received benefits. (Pet. ¶ 26.)

On May 31, 2023, petitioner filed a Verified Petition for Writ of Mandate and Extraordinary Relief.

On July 14, 2023, respondents filed a demurrer and motion to strike portions of the Petition. On September 7, 2023, petitioner filed an opposition. On September 14, 2023, respondents filed a reply.

Respondents demur to the sole cause of action for “Code of Civil Procedure Section 1085/Government Code Section 3309.5” on the following grounds: (1) petitioner seeks monetary damages for which mandamus is not an appropriate remedy; (2) the cause of action includes employment-related claims, for which petitioner has a plain, speedy, and alternative remedy; and (3) petitioner improperly combined multiple causes of action into one cause of action. The Demurrer is SUSTAINED.

With respect to monetary damages, petitioner alleges that he is entitled to actual damages. (Pet. ¶ 28; Prayer ¶ 2.) However, “mandamus is generally said not to be an appropriate remedy for recovering money.” (Wenzler v. Municipal Court of Pasadena Judicial Dist. (1965) 235 Cal.App.2d 128, 133; see also Tevis v. City and County of San Francisco (1954) 43 Cal.2d 190, 198 [“It is a general rule that the extraordinary remedy of mandate is not available when other remedies at law are adequate. [Citation.] In proceedings involving claims for wages by municipal employees or by parties to a contract with a municipality, it is generally held that an ordinary action at law for damages is adequate, and a writ of mandate will be denied”].) Relief under CCP § 1085 is available only when “there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” (CCP § 1086; Coombs v. Smith (1936) 17 Cal.App.2d 454, 455 [denying writ of mandate for municipal employee seeking to recover wages, finding employee “could have filed suit in the municipal court to recover the amount of salary alleged to be due him, [and therefore] he had a plain, speedy and adequate remedy at law”].)

With respect to employment-related claims, petitioner alleges that the investigation against him was in retaliation for serving as a whistleblower against the Department in 2017. (Pet. ¶ 33.) Petitioner also alleges that he has been subject to harassment and retaliation since 2015 due to whistleblower actions that he took. (Pet. ¶ 6.) Petitioner maintains that he is not asserting whistleblower retaliation as a separate claim but asserts the allegations to establish the right to civil penalties under Government Code § 3309.5(e) based on malice.[1] However, as stated above, a mandamus proceeding under CCP § 1085 is not the proper mechanism to recover money. (Wenzler, 235 Cal.App.2d at 133; Tevis, 43 Cal.2d at 198.)

With respect to respondents’ assertion that petitioner improperly combined causes of action, each legal theory must be pled in a separate cause of action in the Petition. (Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 235.) Respondents argue that petitioner has improperly combined whistleblower retaliation claims within a CCP § 1085 cause of action. (Demurrer at 8.) Petitioner responds by stating that he asserts a single cause of action under Code of Civil Procedure § 1085 and Government Code § 3309.5, based on a purported violation of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), specifically Government Code § 3303(c). (Opp. at 6; Pet. ¶ 26.) According to petitioner, the allegation of retaliation is not meant to assert a separate claim, but merely to support his claim for civil penalties for the alleged section 3303 violation. (Opp. at 6; Pet. Prayer ¶ 1.) Accepting as true petitioner’s claim that he asserts a single cause of action for mandamus and monetary penalties, it must still fail for the above-discussed reasons that mandamus under CCP § 1085 is generally not an appropriate remedy for recovering money and “is not the equivalent of a civil action for money.” . (Wenzler, 235 Cal.App.2d at 133.)

Curiously, however, respondents do agree with petitioner that CCP § 1085 allows the Court to adjudicate whether the Department violated Government Code § 3303 by failing to give petitioner notice of the allegations before interviewing him on January 10, 2022. (Demurrer at 9:17-19.) That does not seem right, as it misses the objective and purpose of mandamus. CCP § 1085(a) states: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” “There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.)

Here, petitioner does not allege any duty under which he can “compel the performance of an act which the law specially enjoins.” (CCP § 1085(a).) As alleged, the Department already violated Government Code § 3303(a) by failing to inform petitioner that he was being investigated for lying about having a work-related injury and improperly receiving benefits before interrogating him on January 10, 2022. (Pet. ¶¶ 13, 14, 26.) Moreover, the investigation against him has been withdrawn. (Pet. ¶¶ 20-22.) Accordingly, it is unclear what ministerial duty petitioner seeks to have performed.

The Court notes that, in Henneburque v. City of Culver City (1985) 172 Cal.App.3d 837, which petitioner cites, the Court of Appeal held that a police officer could recover back pay under Government Code § 3309.5(c) in connection with a CCP § 1085 petition for writ of mandate. (Henneburque, 172 Cal.App.3d at 839, 843-44.) In so holding, the Court of Appeal found that back pay can qualify as a type of extraordinary relief that may be ordered by a writ of mandate. (Id. at 843-44.) While Henneburque certainly holds that a monetary award may be obtained through mandamus in certain circumstances, Henneburque is inapposite here. In Henneburque, the police officer experienced a loss of income in connection with the police department’s failure to provide the officer with an administrative appeal of his demotion and salary reduction. (Ibid.) The appellate court held that, in granting the writ of mandate and directing the police department to provide the officer with an administrative appeal, back pay could be awarded for the period he was demoted with a lower salary and wrongfully denied his appeal. (Id. at 840-41.)

Here, by contrast, petitioner has not alleged any duty for which he could compel performance and obtain other related relief. Rather, petitioner brings a CCP § 1085 cause of action for a past wrongdoing that cannot be remedied by compelling respondent to carry out any particular duty.

The demurrer is SUSTAINED. The motion to strike is DENIED as MOOT. Before deciding whether to allow leave to amend, the Court will hear from the parties as to how the Petition can be amended to state a claim for relief and whether any such asserted claim would be properly assigned to the writs and receivers department. (See LASC Local Rules 2.8(d) and 2.9.)

[1] Government Code § 3309.5(e) states, in relevant part: “[U]pon a finding by a superior court that a public safety department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) to be awarded to the public safety officer whose right or protection was denied….”