Judge: Gail Killefer, Case: 23STCV13257, Date: 2024-04-24 Tentative Ruling

Case Number: 23STCV13257    Hearing Date: April 24, 2024    Dept: 37

HEARING DATE:                 Wednesday, March 24, 2024

CASE NUMBER:                   23STCV13257

CASE NAME:                        Donald Rubio v. County of Los Angeles

MOVING PARTY:                 Defendant County of Los Angeles

OPPOSING PARTY:             Plaintiff Donald Rubio

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer to First Amended Complaint

OPPOSITION:                        4 April 2024

REPLY:                                  17 April 20204

TENTATIVE:                         Defendant County’s demurrer is sustained with leave to amend as to the first cause of action for unlawful retaliation (Lab. Code, § 1102.5) and second cause of action for breach of contract, and sustained without leave to amend as to the third cause of action for violation of the Peace Officer’s Bill of Rights. Plaintiff is granted 30 days leave to amend. The court sets the OSC RE: Amended Complaint for May 31, 2024, at 8:30 a.m. Defendant County to give notice.

Background

On June 8, 2023, Donald Rubio (“Plaintiff”) filed a Complaint against the County of Los Angeles (“Defendant”).

The operative First Amended Complaint (“FAC”), filed November 3, 2023, alleges three causes of action: 1) Unlawful Retaliation (Lab. Code § 1102.5.); 2) Breach of Contract (Oral and Written); and 3) Malicious and Unlawful Violation of Officer’s Bill of Rights.

Defendant County now demurs and moves to strike the FAC. Plaintiff has filed opposing papers. The matter is now before the court.

discussion

I.         Legal Standard

A.        Demurrer 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿ 

B.        Motion to Strike 

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

C.        Leave to Amend 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

II.        Demurrer[1]

            A.        Preliminary Manner – Plaintiff’s Opposition

Defendant County points out that Plaintiff’s opposition violates California Rules of Court, rule 1.208(4) because line numbers on the left margin are not separated from the text by a vertical column of space of at least 1/5 inch wide or a single or double vertical line. In addition, the court notes that Plaintiff’s spacing is 1.2 rather than the 1.5 or double space permitted by rule 1.208(1).

The court agrees that had Plaintiff’s counsel conformed to the formatting rules, Plaintiff’s opposition would have exceeded the 15-page limit. (CRC, rule 3.1113(d).) The resources of this court are limited. It is disrespectful to the court and Defendants’ counsel that Plaintiff’s counsel attempted to circumvent the rules of the court. Although the court considered Plaintiff’s opposition on the merits, if Plaintiff’s counsel continues to fail to abide by the rules of the court, Plaintiff faces the risk that his papers will not be considered or he will be forced to refile his papers to confirm to the rules of the court.

B.        Summary of Allegations in FAC

The FAC alleges that Defendants retaliated against Plaintiff with a false investigation and by  wrongfully discharging him for filing a grievance on illegally withheld salary and for reporting, resisting, and stopping unlawful conduct related to a Los Angeles County Sheriff’s Department (“LASD”) contract. (FAC ¶ 4.)

                        i.          The IAB Investigation

The FAC alleges that Plaintiff reported Chief Laura Lecrivain (“Lecrivain”) for illegal conduct. (FAC ¶ 5.) Specifically, that Lecrivain was “engaged in forgery under Penal Code 470 and fraudulent misrepresentation under Penal Code 115, as she attempted to cancel an LASD contract with the Community College Board.” (FAC ¶¶ 7, 17, 84.) Plaintiff alleges that after he reported the illegal conduct, LASD retaliated against him by destroying his career through a meritless Internal Affairs Bureau (“IAB”) investigation in November 2020. (FAC ¶¶ 5, 7.)

The FAC alleges that before the IAB investigation, there was a criminal investigation related to allegations made by the mother of Plaintiff’s son alleging that Plaintiff had sexually assaulted her. (FAC ¶ 10.) Pending the criminal investigation, Plaintiff was permitted to remain a Captain. (FAC ¶ 10.) The criminal investigation was closed on or about October 28, 2020. (FAC ¶¶ 82, 83.) After the criminal investigation was concluded and Plaintiff was cleared of criminal wrongdoing, Lecrivain and Sheriff Alex Villanueva (“Villanueva”) initiated a follow-up IAB interview. (FAC ¶ 96.) Plaintiff alleges that the IAB administrative charges were concocted specifically to keep Plaintiff relieved of duty. (FAC ¶ 95.)

The first IAB interview was scheduled for February 11, 2021. (FAC ¶ 96.) After the first interview, Plaintiff was told the investigation was completed and a summary sent to Lecrivain. In March 2021, Lecrivain asked the IAB investigator to reinterview Plaintiff about a potential violation of LASD Policy of Prohibited Association. (FAC ¶ 99.) “This is the only policy out of all the Department policies that has one disposition option if it is founded, which is discharge of the employee.” (FAC ¶ 99.) Plaintiff was found guilty of violating of the Prohibited Association by associating with the mother of his son, which Plaintiff alleges was erroneous because LASD knew that due to a court order for custody and visitation, Plaintiff needed to interact with his son’s mother. (FAC ¶¶ 16, 34.) Due to substance abuse by his son’s mother, Plaintiff had primary custody of his son and he was required by court order to communicate with the mother to arrange visitation. (FAC ¶ 34.)

Plaintiff argues the IAB investigation should not have taken place because Lecrivain should have stopped after the first interview instead of pursuing a Prohibited Association policy violation. (FAC ¶ 100.) Plaintiff asserts that he only met with the mother of his son three times a year, LASD was aware of his son’s mother’s prior arrests and substance abuse, and the Prohibited Association violation was pretextual and a retaliatory act against Plaintiff. Plaintiff further asserts that on or around May 19, 2021, he was also investigated for not reporting a temporary restraining order (TRO) in 2014, which Plaintiff asserts he did. (FAC ¶¶ 107-112.) Plaintiff was also charged with giving a false statement during an IAB interview in relation to the TRO. (FAC ¶ 114.)

On October 15, 2021, tPlaintiff was served with a letter of intent to discharge for not reporting the TRO and for violating the Prohibited Association policy. (FAC ¶ 113.) After receiving the letter of intent to discharge based on the IAB investigation, on November 24, 2021, Plaintiff attended his Skelly Hearing at IAB Headquarters. (FAC ¶ 119.) Plaintiff asserts the Skelley hearing should have been conducted by Lecrivain, but it was instead conducted by Chief Porowski. (FAC ¶ 119.) At the Skelly hearing, Chief Porowski agreed to reopen the investigation based on a prior defect that a key witness was not interviewed. (FAC ¶¶ 18, 120.) Despite the IAB investigation reopening, Villanueva refused to overturn the IAB decision. (FAC ¶ 19.) Specifically, Plaintiff alleges that on March 10, 2022, after key witnesses were reinterviewed, Chief Porowski found that the interviews were not enough to overturn the discharge. (FAC ¶ 123.) Chief Porowski advised Plaintiff that he should settle and retire in lieu of termination. (FAC ¶ 125.)

Plaintiff asserts on March 30, 2022, it was discovered that the interviews conducted by Internal Affairs supported Plaintiff’s facts that he did not violate the Prohibited Association policy nor made a false statement about the TRO.  This meant the discharge could be reversed but Villanueva refused. (FAC ¶ 132.)

                        ii.         Pay Grievance

Plaintiff also alleges that in July 2020, he filed a pay grievance and that LASD retaliated by relieving him of duty the next month. (FAC ¶ 6.) Plaintiff alleges that while he was promoted to Captain in 2020, he was not being paid the same wage as other Captains and, on the advice of his union, he filed a pay grievance. (FAC ¶¶ 12, 62, 63.)

Plaintiff alleges that on August 18, 2020, while on a paid vacation, Lecrivain informed him that he was being relieved of duty.  She arrived at this home and took away his gun and badge along with his county car. (FAC ¶ 72.) Plaintiff alleges this was retaliation for the pay grievance and the fact that a criminal investigation was pending at the time, despite LASD being on notice some 16 months earlier about the investigation. (FAC ¶¶ 72, 77, 87.)

iii.       Revocation of Concealed Weapons (“CCW”) License

Plaintiff alleges that the retaliation continued through the end of 2022 when he was denied his CCW license and into the Spring of 2023 when his appeal was heard, and he was granted his CCW license. (FAC ¶ 8.)

                        iv.        Plaintiff’s Promotion and Subsequent Demotion

Plaintiff also alleges he suffered a demotion after his promotion to Captain was reversed. (FAC ¶ 8.) On June 2, 2020, Plaintiff was appointed to the rank of Captain at Community College Bureau by Villanueva, despite the criminal investigation still pending. (FAC ¶ 57.) Plaintiff alleges on March 19, 2021, Plaintiff was demoted from the rank of Captain and removed from the department’s Intent-to-Promote list. (FAC ¶ 104.)

                        v.         Breach of Settlement Agreement

Plaintiff also alleges the county reneged on a settlement agreement that would allow him to return to good standing and maintain a job in law enforcement. (FAC ¶ 8.) Plaintiff alleges that due to the IAB findings, rather than waiting three years for a civil service hearing, Plaintiff decided to “accept a proposed settlement from the County” that, pending a background check, would allow him to retire and then accept a position in another city that would pay $200,000.00 a year. (FAC ¶¶ 20, 121.) Plaintiff also alleges that due to some negative internet press, the City required a background check. (FAC ¶ 122.)

The FAC asserts that due to COVID-19, Plaintiff would have to wait three years for a civil service hearing, so Plaintiff opted to seek settlement and retirement. (FAC ¶ 125.) Chief Porowski presented Plaintiff with a settlement agreement that gave Plaintiff his retirement credentials, allowed him to purchase his duty weapon, and have the case sealed. (FAC ¶ 125.) Plaintiff further asserts that it was essential that any settlement allowed Plaintiff to have his CCW license as it was a job requirement for the City job. (FAC ¶ 125.) The FAC alleges that due to Lecrivain’s intervention, Plaintiff’s CCW permit was revoked which sabotaged Plaintiff’s employment opportunity and destroyed his career permanently. (FAC ¶ 20.)

The FAC alleges that on or about March 17, 2022, Chief Porowski continued to communicate with Plaintiff’s attorney about a settlement and that on March 14, 2022, Plaintiff agreed with the settlement and agreed to not fight the case in a civil service hearing. (FAC ¶ 127.) On March 25, 2022, Plaintiff’s counsel inquired if Plaintiff would receive his Captain credentials, but no response was provided. (FAC ¶ 131.) The FAC also alleges that Plaintiff received the settlement agreement on March 31, 2022, which required that Plaintiff retire at the end of business day on March 31, 2022, which Plaintiff did.  Plaintiff would then be allowed to maintain his CCW, be able to purchase his duty weapon, and receive his retirement credentials. (FAC ¶ 22.) Specifically, Plaintiff alleges that Chief Porowski asked Plaintiff to show proof he was retiring on March 31, 2022, as a prerequisite to her providing the settlement agreement. (FAC ¶ 127.)

Plaintiff also alleges that on March 31, 2021 [sic], LASD’s counsel confirmed that Plaintiff would be allowed to retire in lieu of discharge and that LASD would not interfere with Plaintiff’s application for a CCW license and/or retirement credentials. (FAC ¶ 133.) On March 31, 2022, Plaintiff’s attorney confirmed that Plaintiff would accept the terms of the settlement agreement. (FAC ¶¶ 135, 142.) Plaintiff asserts that under the settlement agreement, his retirement paperwork was processed and delivered to Lecrivain for final approval on about April 6, 2022. (FAC ¶ 143, 145.) Plaintiff asserts that on April 7, 2022, Plaintiff learned that Lecrivain denied his credentials and the City put his background check on hold. (FAC ¶¶ 147, 148.) 

On April 11, 2022, County Counsel Ranasinghe Pirjo informed Plaintiff’s counsel by email that because Plaintiff had retired without signing the settlement agreement, there was no settlement agreement. (FAC ¶ 149.) Plaintiff asserts that even if there was no written agreement, there was an oral agreement as all terms were set out on March 31, 2022. (FAC ¶¶ 133, 149.) According to Plaintiff, County Counsel Pirjo claims that Plaintiff’s counsel in the last email had asked if LASD could change the false statement charge to unresolved over the phone on March 31, 2022, and that such a request for a form of renegotiation that negated the settlement agreement. (FAC ¶ 150.) On April 14, 2022, Plaintiff emailed County Counsel Pirjo asking her to confirm the settlement agreement. (FAC ¶ 151.)

Plaintiff states that he would never have retired and fought his case in a civil service hearing if Plaintiff had known that his credentials were going to be denied. (FAC ¶ 152.) Plaintiff maintains that he received the settlement agreement on March 31, 2022, and that the first item of the settlement required Plaintiff to retire at the end of business day on March 31, 2022, which Plaintiff did. (FAC ¶ 152.) Plaintiff further asserts that Lecrivain should not have been the ultimate decision maker over Plaintiff’s credentials as Lecrivain had been taken off Plaintiff’s case and was not in charge of his case Review was not the Chief in charge of his Skelly hearing. Instead, Chief Kelly Porowski was put on his case review and Skelly hearing. (FAC ¶ 153.) Plaintiff asserts that Lecrivain denied his retirement credentials at the direction of Sheriff Villanueva. (FAC ¶ 163.)

On April 22, 2022, the City informed Plaintiff that it had reopened the position to other candidates until Plaintiff got the situation resolved. (FAC ¶ 155.) On April 26, 2022, County Counsel Pirjo informed Plaintiff that the matter had been elevated to Undersheriff Murakami and that it would be resolved in favor of Plaintiff in a few days. (FAC ¶ 156.) Six months later, Undersheriff Murakami made their decision and County Counsel Pirjo informed Plaintiff that LASD was denying Plaintiff his retirement credentials and CCW license. (FAC ¶ 156.) On June 19, 2022, the City hired another Public Safety Director. (FAC ¶ 159.)

On June 3, 2022, Lieutenant Brian Moriguchi and former PPOA President inquired on behalf of Plaintiff about the status of his retirement credentials.  Undersheriff Murakami informed them that Lecrivain was upset about the emails Plaintiff had sent County Counsel Pirjo about Lecrivain. (FAC ¶ 160.) Undersheriff Murakami asked that Plaintiff’s counsel call him, but Murakami never returned the calls or emails. (FAC ¶¶ 160, 161.)

On or about October 11, 2022, County Counsel Pirjo sent an email stating that LASD would not overturn the denial of the CCW license and retirement credentials. (FAC ¶ 162.) Plaintiff asserts that when asked why Undersheriff Murakami had not approved the credentials and CCW license, County Counsel replied that they did not know. (FAC ¶ 162.) Plaintiff decided to appeal the decision but to date has not gotten an appeal hearing. (FAC ¶ 165.)

Plaintiff alleges the County failed to honor the agreement by failing to allow Plaintiff to keep his CCW license and his retirement credentials. (FAC ¶¶ 23.) Plaintiff asserts he was tricked into a constructive termination with the promise that would receive his CCW license and retirement badge. (FAC ¶ 163.) Plaintiff asserts that after he filed this action, an appeal hearing was held and LASD officials acknowledged Plaintiff should not have been denied his full retirement credentials with his CCW license. (FAC ¶ 166.) Plaintiff asserts that the LASD and the Couty are responsible for all acts of discrimination, harassment, and retaliation commencing in 2020 under the continuing violation doctrine. (FAC ¶ 168.)

Defendant County now demurs to all three causes of action alleged in the FAC on the basis that it fails to plead sufficient facts to constitute a cause of action. (CCP § 430.10(e).)

C.        First Cause of Action – Retaliation under Lab. Code § 1102.5

To establish a prima facie case of retaliation under Labor Code § 1102.5, “a plaintiff must show that (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal connection between the two.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.) The McDonnell Douglass burden-shifting framework does not apply to section 1102.5.  Instead an employee-whistleblower must establish “by a preponderance of the evidence that retaliation was a contributing factor in the employee's termination, demotion, or other adverse action, the employer then bears the burden of demonstrating by clear and convincing evidence that it would have taken the same action ‘for legitimate, independent reasons.’” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 707 (Lawson).)

The FAC states that Plaintiff’s retaliation claim is premised on filing a pay grievance in July 2020 and reporting illegal conduct by Lecrivain on November 14, 2020. (FAC ¶¶ 178, 179.) Labor Code § 1102.5 requires the employee share information “the employee ‘has reasonable cause to believe ... discloses a violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation.” (Lawson, supra, 12 Cal.5th at p. 709 citing Lab. Code § 1102.)

As to the pay grievance, Plaintiff alleges a wage violation because he was not paid full wages when he was acting as Captain.  Plaintiff fails, however, to state what government agency or the name of the person with authority to fix the wage violation or to whom he made the wage complaint. (FAC ¶ 6, 63.) Similarly, Plaintiff fails to name the government agency or the name of the person with authority to investigate and correct the illegal actions of Lecrivain to whom he reported Lecrivain’s illegal conduct. Hence, there are no facts to show that Plaintiff engaged in whistleblowing.

Similarly, Plaintiff fails to allege facts to show a temporal proximity between Plaintiff reporting the wage violation and Lecrivain’s illegal conduct to support the finding that Plaintiff experienced retaliation causally connected to his whistleblowing activity. Plaintiff fails to show that on August 18, 2020, when he was relieved of duty and his gun and badge were taken away, it was due to Lecrivain being aware that Plaintiff had reported her illegal conduct. (FAC ¶ 72.) Plaintiff also fails to allege facts that this conduct was retaliation by Lecrivain for Plaintiff having made a pay grievance and that Lecrivain knew Plaintiff had made a pay grievance. (FAC ¶ 72.)

Furthermore, although Plaintiff alleges Lecrivain was responsible for the faulty IAB investigation, the ultimate decision-makers are alleged to have been Chief Porowski and Sheriff Alex Villanueva and not Lecrivain. (FAC ¶¶ 123, 153.) There are also no facts to show that Lecrivain controlled the findings of the IAB investigation or directed the IAB investigators to find against Plaintiff. As to the denial of Plaintiff’s retirement credentials and CCW license, the FAC alleges Undersheriff Murakami was the ultimate decision maker, not Lecrivain. (FAC ¶ 160.)

Accordingly, Plaintiff fails to allege facts to show that the pay grievance and the reporting of Lecrivain's illegal conduct were contributing factors to Plaintiff’s retaliation.  Plaintiff fails to allege facts to show a causal connection between the whistleblowing activity and the retaliatory acts. (See Lawson, supra, 12 Cal.5th at p. 707.) Therefore, the demurrer to the first cause of action is sustained with leave to amend.

            D.        Second Cause of Action – Breach of Contract (Oral and Written)

The elements of a claim for breach of contract are: “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.) Furthermore, “the complaint must [also] indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-59 citing CCP, § 430.10(g).)

“If the action is based on alleged breach of written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 308.) Alternatively, “a plaintiff may plead the legal effect of the contract rather than its precise language.”¿ (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)¿¿“[A]ll essential elements of a breach of contract cause of action [] must be pleaded with specificity.”¿(Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5.) 

Defendants argue that the alleged contract is not sufficiently definite to be enforceable. “Whether a contract term is sufficiently definite to be enforceable is a question of law for the court.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770, fn. 2.) The FAC does not include a copy of the written settlement agreement nor are the full terms of the said agreement set out verbatim in the complaint. Although the FAC references some of the terms of the agreement being set out by email in Paragraph 133, the FAC also alleges County Counsel Pirjo believed that the agreement was still to be renegotiated as confirmed by email. (FAC ¶ 150.) Consequently, the FAC fails to allege facts that there was mutual asset between the parties to show the existence of an express or an implied contract. (See Allied Anesthesia Medical Group, Inc. v. Inland Empire Health Plan (2022) 80 Cal.App.5th 794, 808 [mutual assent is a requirement for both an express contract and an implied in fact contract].)

Accordingly, the demurrer to the second cause of action is sustained with leave to amend.

E.        Third Cause of Action – Unlawful Violations of the Public Safety Officers Procedural Bill of Rights Act (POBRA): Failure to Comply with One-Year Statute of Limitation

Government Code § 3304(d)(1) states:

Except as provided in this subdivision and subdivision (g), 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. This one-year limitation period shall apply only if the act, omission, or other misconduct occurred on or after January 1, 1998. 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 discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year, except as provided in paragraph (2). The public agency shall not be required to impose the discipline within that one-year period.

“Notice of ‘proposed disciplinary action’ must be given to the public safety officer within the 1-year period required for investigation. However, the public agency is not required to impose the discipline within that 1-year period.” (8 Witkin, Summary 11th Const Law § 1079(c) (2023).) Moreover, section 3304(d) does not “require notice of specific proposed punishment” “but “simply notice that the public agency, having completed its investigation into the alleged misconduct within the statutory period, has decided that it may take disciplinary action against the officer for specified misconduct. Although the agency is not precluded from proposing specific discipline at that time, it is not required by section 3304(d) to do so.” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 318 [italics original].)

The POBRA statute of limitations is tolled during the period the misconduct in question is the subject of a criminal investigation or prosecution. (Gov. Code, §§ 3304(d)(2)(A), 3254(d)(2); Richardson v. City & County of San Francisco (2013) 214 Cal.App.4th 671, 691-699 [upholding trial court's findings that criminal investigations were ongoing so that POBRA limitations period was tolled]; Department of Corrections & Rehabilitation v. State Personnel Bd. (2016) 247 Cal.4th 700, 708 [tolling applies to a criminal investigation by an employer as well as by outside agencies].)

Here, the FAC alleges that the charges against Plaintiff were dropped on October 30, 2020, in relation to the criminal investigation by the District Attorney’s office. (FAC ¶¶ 61, 83.) Accordingly, October 30, 2020, was the date the criminal investigation was completed. As Plaintiff was served with the Letter of Intent to discharge on October 15, 2021, Defendant’s letter complied with the one-year statute of limitation. (FAC ¶ 113.) The IAB investigation began on February 11, 2021, thus making the October 15, 2021, Letter of Intent to Discharge still timely as the IAB investigation was still pending well into March 10, 2022. (FAC ¶¶ 96, 123.)

Therefore, based on the allegations in the FAC the October 15, 2021, letter of intent for discharge was timely, and the statute of limitations was tolled pending the IAB investigation. Plaintiff’s opposition fails to allege any facts to permit the finding that the October 15, 2021, letter was untimely and in violation of Government Code § 3304(d). Therefore, the demurrer to the third cause of action is sustained without leave to amend.

III.      Motion to Strike

As the demurrer to the FAC has been sustained, Defendant County’s motion to strike is denied as moot.

Conclusion

Defendant County’s demurrer is sustained with leave to amend as to the first cause of action for unlawful retaliation (Lab. Code, § 1102.5) and second cause of action for breach of contract and sustained without leave to amend as to the third cause of action for violation of the Peace Officer’s Bill of Rights. Plaintiff is granted 30 days leave to amend. The court sets the OSC RE: Amended Complaint for May 31, 2024, at 8:30 a.m. Defendant County to give notice.