Judge: Deirdre Hill, Case: 20TRCV00045, Date: 2023-01-24 Tentative Ruling

Case Number: 20TRCV00045    Hearing Date: January 24, 2023    Dept: M

Hearing Date:                         January 24, 2023        

Moving Parties:                      Plaintiff/petitioner Michael Frilot

Responding Party:                  Defendants/respondents City of Hermosa Beach and Hermosa Beach Police Department

Petition for Writ of Mandate

            The court notes that on August 23, 2022, the court scheduled the hearing on the petition for writ of mandate for January 24, 2023 and set a briefing schedule:  opening brief due December 12, 2022; opposition by December 27, 2022; and reply by January 9, 2023.  Plaintiff did not file an opening brief or a reply.

RULING

            The petition for writ of mandate is DENIED.

BACKGROUND

On January 15, 2020, plaintiff Michael Frilot filed a complaint against defendants City of Hermosa Beach, Hermosa Beach Police Department, and Suja Lowenthal, City Manager for (1) violation of POBRA, (2) declaratory relief, (3) whistleblower retaliation (Labor Code §1102.5), and (4) writ of mandate (CCP §1085).

            On September 3, 2020, the court sustained the demurrer without leave to amend as to Lowenthal.  The demurrer was sustained with leave to amend as to the 1^st and 2^nd causes of action.  The court granted defendant’s motion to bifurcate the causes of action for writ of mandate and POBRA from the cause of action under Labor Code §1102.5.

On September 14, 2020, plaintiff filed a FAC for (1) violation of POBRA, (2) declaratory relief, (3) Labor Code §1102.5, and (4) writ of mandate (CCP §1085).  Plaintiff alleges that he is a sworn police officer with the HB Police Department.  During his career, he has not been subject to any disciplinary actions and was assigned as a Field Training Officer and was on the Acting Watch Commander list. Plaintiff completed and passed all relevant promotional examinations and was promoted to the position of Police Sergeant by now retired Chief Sharon Papa, on April 1, 2018.  During his time as a Sergeant, he performed in a manner that generally met standards and was continually given special assignments.  During the promotional process, plaintiff reported false statements made by Lt. Dorothy Scheid to Chief Papa and his immediate supervisor, the FTO Sergeant.  Thereafter, Lt. Scheid and Captain Milton McKinnon orchestrated actions to circumvent Chief Papa’s promotional decision and remove plaintiff from his sergeant position.

Plaintiff further alleges that Scheid and McKinnon immediately began treating plaintiff differently from other probationary sergeants.  On March 11, 2019, without any prior approval and without any apparent authority, McKinnon demoted plaintiff back to the rank of officer.  The punitive action and/or denial of promotion was for reasons other than merit, and plaintiff was not afforded an opportunity for administrative appeal.  McKinnon also placed him on paid administrative leave for two days, ordering him to leave immediately.  The following day, McKinnon removed plaintiff form the Acting Watch Commander list, reducing plaintiff’s salary even though it is believed that McKinnon had allowed officers with less seniority than plaintiff and at least one officer that was under criminal investigation by the FBI to serve in the Acting Watch Commander capacity.  Id., ¶16.

On October 20, 2020, the court granted defendants’ Pitchess motion.

On July 21, 2021, the court denied without prejudice City of Hermosa Beach’s motions to compel further responses to renewed motions based upon the supplemental responses served.

On January 26, 2022, the court granted defendant’s motions to compel further discovery responses.

On June 3, 2022, the court granted defendants’ subsequent Pitchess motion.

On August 23, 2022, the court took defendant’s motion for summary judgment under submission.  The court scheduled the petition for writ of mandate for January 24, 2023.

On November 10, 2022, the court denied the City of Hermosa Beach’s motion for summary judgment.  The court granted the City’s motion for summary adjudication as to the 1^st through 3^rd causes of action in favor of defendant City.

LEGAL AUTHORITY

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus.  CCP §1085.  A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”  Id. 

A traditional writ of mandate under CCP §1085 is the method of compelling the performance of a legal, ministerial duty.  Pomona Police Officers’ Assn. v. City of Pomona (1997) 58 Cal. App. 4th 578, 583-584.  Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.  Id. at 584.

To obtain a writ of mandate under CCP §1085, two elements must be established:  (1) a clear, present and usually ministerial duty upon the part of the respondent; and (3) a clear, present and beneficial right in the petitioner to the performance of that duty.  Mission Hosp. Reg’l Med. Ctr. v. Shrewry (2008) 168 Cal. App. 4^th 460, 479.

Where a duty is not ministerial and the agency has discretion, mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion.  Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner.  American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California (2005) 126 Cal. App. 4th 247, 261.  It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles (1973) 33 Cal. App. 3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton (1966) 64 Cal.2d 365, 370-371.  In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom.  Id. at 371.  An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.”  Kahn v. Los Angeles City Employees’ Retirement System (2010) 187 Cal. App. 4th 98, 106.  A writ will lie where the agency’s discretion can be exercised only in one way.  Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579.

DISCUSSION

            Under the 4^th cause of action in the FAC for writ of mandate under CCP §1085, plaintiff Michael Frilot alleges that he completed his probation period prior to being returned to rank of police officer, and/or the City did not properly remove plaintiff during his probationary period in strict accordance with the City of Hermosa Beach Civil Service rules.  As such, plaintiff’s promotion became permanent, and he was not properly removed/demoted.  FAC, ¶69.  As plaintiff had completed his probationary period and/or was not properly removed from the position of Police Sergeant prior to the end of his probationary period, plaintiff obtained permanent status in his position as Police Sergeant, he could only be removed for cause and with due process of law; neither of which occurred in this case.  Id., ¶70.  If the court does not grant its peremptory writ of mandate, then petitioner will have been denied the rights to which he is entitled by law, i.e., the right to continued employment absent a showing of cause.  Id., ¶71.  The action of respondents was arbitrary and capricious and therefore petitioner is entitled to recover attorney’s fees.  Id., ¶72.  Under the prayer, plaintiff requests a writ of mandate commanding defendants to vacate any and all actions removing plaintiff from his position as Police Sergeant and/or returning to his rightful position together with all loss of income, wages, earnings, overtime, and earning capacity, depreciation of pension, and other ancillary economic loss. 

            As stated above, the court ordered that plaintiff file his opening brief by December 12, 2022 but failed to do so.  He also did not file a reply to the opposition.

            As such, the court finds that plaintiff has not met his burden.

            In opposition, defendants contend that they lawfully returned petitioner Frilot to his former rank of police officer during his twelve month probationary period as sergeant for reasons of merit.  Defendants point out that in the court’s ruling on the motion for summary judgment, plaintiff had argued that the applicable probationary period is only six months, not twelve but that “the court does not find this persuasive because Hermosa Beach Municipal Code §2.76.120 merely establishes the floor for probationary periods; it does not prevent the implementation of a longer probationary period as enacted by the HBPD’s policy.”  In support of the opposition, defendants cite to the same evidence that was filed in support of their motion for summary judgment, specifically the Department’s Manual of Policies and Procedures and that petitioner signed a Personnel Action Form expressly informing him that his promotion included a one year probationary period.  See also Request for Judicial Notice, Exhs. 21 (ruling on motion for summary judgment), 22 (FAC), and 23 (August 23, 2022 minute order).

            Defendants explain that based on petitioner’s failure to meet Department expectations during the probationary period, Acting Chief McKinnon made the decision to fail petitioner from probation for the rank of sergeant and revert him to his former rank of police officer.  His decision was based on (1) as indicated in both his probationary evaluations, petitioner was not demonstrating the communication skills needed to serve in the sergeant rank; (2) petitioner’s logs lacked the substance his supervisors needed in reviewing his shift’s activities and petitioner failed to recognize what information he needed to report up the chain of command; (3) he did not see petitioner’s communication skills improving to meet Department expectations; (4) he believed that petitioner was unwilling to accept feedback; (5) and in January 2019, petitioner was involved in an incident in the field involving a use of force with a Taser that caused Acting Chief McKinnon to have concerns about his judgment.  The court also previously found that there was no triable issue of material fact as to whether petitioner was ever subjected to punitive action.

            Accordingly, the petition for writ of mandate is DENIED.

            Defendants are ordered to give notice of ruling.