Judge James C. Chalfant, Case 22STCP01670 2023-05-18 Tentative Ruling

Nathan Jackson vs. Board of Civil Service Commissioners of the City of Los Angeles, 22STCP01670

Tentative decision on motion for new trial: denied

Petitioner Nathan Jackson (“Jackson”) moves for a new trial on the First Amended Petition (“FAP”). Respondent Board of Civil Service Commissioners (“Board”) of the City of Los Angeles (collectively, “City”) and Real Party-in-Interest City jointly oppose.

The court has read and considered the moving papers and opposition (no reply was filed)[1] and renders the following tentative decision.

Petitioner Jackson commenced this proceeding on May 3, 2022. The pertinent pleading is the FAP, filed on May 5, 2022, alleging causes of action for administrative and traditional mandamus. The FAP alleges in pertinent part as follows.

Jackson was at all relevant times a permanent, full-time civilian Detention Officer with the Custody Services Division (“CSD”) of the Los Angeles Police Department (“Department” or “LAPD”). On February 26, 2018, he was absent from work due to a serious health condition.

On March 18, 2018, Jackson went to his worksite to turn in Family Medical Leave Act (“FMLA”)/California Family Rights Act (“CFRA”) paperwork for his absence and inquire when he could return to on-duty work status. He went to the Watch Commanders’ office and spoke with Sergeant (“Sgt.”) Victor Martinez (“Martinez”). Sgt. Martinez advised Jackson that, because of his extended absence, he could not return to work until he was cleared by the Injury on Duty (“IOD”)/FMLA coordinator, who was not scheduled to work until the next day. Jackson left because of this fact. Because Jackson was not reporting for duty that day, he did not sign the daily work log.

After Jackson left, Sgt. Martinez called him and ordered his immediate return to the worksite to avoid discipline. Jackson felt his medical symptoms flare up, told Martinez he could not return, and drove himself to the hospital for evaluation and treatment. His physician determined that he could not work that day and gave him a work status letter to that effect.

After Jackson returned home, Sgts. Martinez and Nicholas Balzano (“Balzano”) banged on his door. When Jackson opened it, Sgt. Martinez ordered Jackson to return to the worksite. Jackson gave Sgt. Martinez the doctor’s work status letter. After Sgt. Martinez made a phone call, he rescinded the order for Jackson to return to work. Sgt. Martinez took the work status letter excusing Jackson from work on March 18, 2018 and advised Jackson to submit his FMLA/CFRA paperwork to the IOD/FMLA Coordinator on his next working day.

Jackson returned to work on March 19, 2018 and filed his FMLA/CFRA paperwork with the IOD/FMLA coordinator. On April 4, 2018, the City Medical Liaison's office certified Jackson’s request for FMLA/CFRA leave, retroactively applied from January 25 through July 24, 2018.

On February 9, 2019, Jackson received his 2018 annual Employee Evaluation, which had all positive feedback and determined that Jackson met LAPD standards in all areas during the evaluation period.

On February 20, 2019, CSD Commanding Officer Captain (“Capt.”) Rolando Solano (“Solano”) issued a Notice of Proposed Discipline which alleged that Jackson’s conduct on March 18, 2018, consisted of unexcused tardiness, reporting for duty unfit for work due to the influence of drugs or alcohol, leaving an assigned work location without proper approval or appropriate reason, and insubordination for refusal to provide the doctor’s note as Sgt. Martinez directed. Jackson had a Skelly meeting with Capt. Solano the same day.

On May 6, 2019, the City served Jackson with a Notice of Discipline with a ten-day suspension, effective from May 12 to 26, 2019. The notice contained charges not on the February Notice of Proposed Discipline. The same day, Jackson filed an appeal with the Board. He served his ten-day suspension as scheduled.

On November 12, 2019, the Board’s Hearing Examiner held a hearing on the appeal. Jackson notified the Hearing Examiner that he did not stipulate to the Department’s satisfaction of Skelly due process requirements. After much discussion of due process issues, the parties stipulated that the Department failed to meet due process requirements because the second allegation on the Notice of Discipline differed from the Notice of Proposed Discipline.

On February 17, 2022, the Hearing Examiner issued a report which recommended that the Board sustain all charges against Jackson. On February 27, 2022, Jackson filed exceptions to the report. On March 10, 2022, the Board unanimously voted to find that the Department met the Skelly requirements, sustained all four charges and the ten-day suspension as discipline, and adopted the findings and conclusions in the Hearing Examiner’s report.

Jackson seeks a writ of mandate setting aside the Board’s decision and directing it to set aside the hearing officer’s report, reconsider the case, and conduct proceedings to determine the amount of back salary and all other emoluments of employment due to Jackson between May 12, 2019 and March 10, 2022 because of the failure to meet Skelly due process obligations.

On May 4, 2022, Jackson filed a notice of related case for Jackson v. City of Los Angeles, Case No. 21STCV13521.

On July 19, 2022, the parties stipulated to dismiss then-Real Party in Interest Service Employees International Union Local 721 (“SEIU”).

On October 7, 2022, as this court was dark, Department 82 (Hon. Mary Strobel) heard and denied Jackson’s ex parte application for a stay.

On February 21, 2023, this court issued a decision granting the FAP in part. The court ordered the Board to (a) address whether Jackson can be disciplined for Count 1 if Jail Manual §1/181 requires three or more instances of tardiness in a Deployment Period or four-week period; (b) if Jackson can be disciplined for Count 1, reconsider the penalty using Jackson’s permissible disciplinary history; and (c) determine whether Skelly was violated for the amended Count 2 and if so, whether Jackson was prejudiced by not being able to argue for a lesser penalty because there was no charge for a violation involving alcohol or drug usage, and determine any backpay award if Skelly was violated. Upon remand, the Board would have the discretion to take additional evidence on these issues or rely solely on the existing record.

On February 24, 2023, the court denied Jackson’s application for the court’s tentative decision as issued and modified to be a statement of decision.

On March 17, 2023, Jackson filed and served a notice of intent to move for a new trial.

On April 18, 2023, Jackson filed a notice of appeal from the court’s decision.

A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee. CCP §656. CCP section 657 sets forth the grounds upon which a party can seek a new trial. They are as follows: (1) irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) misconduct of the jury; (3) accident or surprise, which ordinary prudence could not have guarded against; (4) newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; (5) excessive or inadequate damages; (6) insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law; and (7) error in law, occurring at the trial and excepted to by the party making the application.

Whenever the court grants a new trial, it shall specify the ground or grounds upon which it is granted, and the its reasons for granting the new trial upon each ground must be stated. CCP §657. Furthermore, a new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. Ibid.

A party intending to move for a new trial must file with the clerk and serve upon each adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both, either: (1) before the entry of judgment; or (2) within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to CCP section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest. CCP §659. Upon the filing of the first notice of intention to move for a new trial by a party, each other party has 15 days after the service of such notice to file and serve its own notice of intention to move for a new trial. Ibid.

Within ten days of filing the notice of intention to move for a new trial, the moving party shall serve upon all other parties and file any brief and affidavits intended to be used in support of such motion. CCP §659a. Other parties shall have ten days after such service within which to file and serve upon the moving party any counter-affidavits. Ibid.

In ruling on a motion for new trial on a cause tried by the court without a jury, the court may, on such terms as may be just, change or add to the statement of decision, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues; or, in lieu of granting a new trial, may vacate and set aside the statement of decision and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before a decision had been filed or judgment rendered. CCP §662.

When an employee requests FMLA leave, or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances. RJN Ex. D (29 C.F.R. §825.300(b)(1)). If the employer does not have sufficient information to ascertain whether the reason qualifies, it should inquire further of the employee or the spokesperson. RJN Ex. D (29 C.F.R. §825.301(a)). If failure to timely designate leave causes the employee to suffer harm, it may constitute an interference with, restraint of, or denial of the exercise of an employee’s FMLA rights. RJN Ex. D (29 C.F.R. §825.301(e)). An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered. RJN Ex. D (29 C.F.R. §825.301(e)).

The employee must provide a complete and sufficient certification to the employer if required by the employer in accordance with 29 C.F.R. sections 825.306, 825.309, and 825.310. RJN Ex. D (29 C.F.R. §825.305(c)). The employer shall advise an employee whenever the employer finds a certification incomplete or insufficient and shall state in writing what additional information is necessary to make the certification complete and sufficient. RJN Ex. D (29 C.F.R. §825.305(c)). At that time, the employer must also advise an employee of the anticipated consequences of failure to provide adequate certification, including that the employer may deny FMLA leave. RJN Ex. D (29 C.F.R. §825.305(d)).

On October 29, 2002, the City’s Employee Relations Division released a bulletin that announced updates to the Family and Medical Leave article for the Memoranda of Understanding (“MOU”) for every civilian employee organization. RJN Ex. B. It provides that per the City’s sick leave policy, if an employee is off sick for more than three consecutive days, the employee’s leave should be designated as Family or Medical Leave. RJN Ex. B. Management could not make this designation retroactively if it knew that the leave was FMLA qualifying but failed to act on it at the time. RJN Ex. B.

On March 14, 2019, the U.S. Department of Labor issued Letter FMLA2019-1-A (“FMLA Letter”). RJN Ex. A. The letter addressed whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement. RJN Ex. A. The U.S. Department of Labor stated that an employer may not delay the designation of FMLA-qualifying leave. RJN Ex. A. Per 29 C.F.R. section 825.220(d), once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. RJN Ex. A. Once an employer determines that the reason for the leave qualifies, the leave is FMLA-protected and counts towards leave entitlement. RJN Ex. A. 29 C.F.R. section 825.300(d)(l) then requires the employer to provide notice of the designation within five business days. RJN Ex. A.

For applicable employees, every employer must maintain and preserve payroll or other records containing the hours worked each workday and total hours worked each workweek. RJN Ex. E (29 C.F.R. §516.2(a)(7)). For this purpose, a workday is any consecutive period of 24 hours, whereas a workweek is any fixed and regularly recurring period of 7 consecutive workdays. RJN Ex. E (29 C.F.R. §516.2(a)(7)).

LAPD employees must only use the authorized Daily Sign In Sheet, Form 15.19.00, and not an improvised sign-in/sign-out sheet. RJN Ex. F (LAPD Manual §705.05).

Employees off-duty due to illness or IOD for a period longer than seven days shall contact a supervisor in their assigned division on the seventh day and at least once every seven days thereafter for the purposes of providing a report of their status and maintaining contact with the LAPD for duty-related matters. RJN Ex. F (LAPD Manual §711.60).

When a Civilian Employee returns to duty after absence for a non-IOD injury or illness, the employee’s supervisor shall complete the “return to duty” section of the Non-Occupational Sick or Injury Report, Form 01.30.00, if the absence is for less than eight days. RJN Ex. F (LAPD Manual §711.70). If the absence is for eight or more days, a Duty Certificate, Form PDAS 43, shall be completed. RJN Ex. F (LAPD Manual §711.70). The employee’s commanding officer shall review the required form and cause it to be distributed. RJN Ex. F (LAPD Manual §711.70).

No payment for sick leave allowance in excess of three consecutive days shall be made until a doctor’s certificate or other satisfactory proof has been received and approved by the employee’s commanding officer. RJN Ex. F (LAPD Manual §711.80). If the proof is not satisfactory to the commanding officer, the employee shall be marked absent until satisfactory proof can be furnished. RJN Ex. F (LAPD Manual §711.80). The certificate must indicate the probable duration of the illness or injury and the necessity for the employee’s absence. RJN Ex. F (LAPD Manual §711.80).

Commanding officers, at their discretion, may require a doctor's certificate or other proof of illness at any time. RJN Ex. F (LAPD Manual §711.80). If the employee or physician voluntarily releases a medical report to a supervisor to fulfill the requirements for proof of sick leave, the report shall be treated as confidential and forwarded to Medical Liaison Section. RJN Ex. F (LAPD Manual §711.80). In questionable cases, the concerned supervisor shall contact the Medical Liaison Section for advice. RJN Ex. F (LAPD Manual §711.80).

On March 7, 2023, the City’s counsel served Jackson with a copy of the proposed Judgment. Hall Decl., ¶2. The City’s counsel waited ten days but received no objections from Jackson. Hall Decl., ¶2. On March 17, 2023, the City filed the proposed Judgment with the court. Hall Decl., ¶2. The same day, Respondents received Jackson’s Notice of Intention to Move for a New Trial. Hall Decl., ¶3. On April 17, 2023, Respondents received a copy of Jackson’s memorandum of points and authorities in support of the motion. Hall Decl., ¶4.

Jackson moves for a new trial. His Notice of Intention to Move for New Trial relies on numerous grounds of irregularity in the proceedings, improper orders, abuse of discretion, accident or surprise, newly discovered evidence, insufficient evidence, the decision was contrary to law, and error in law. However, Jackson’s memorandum of points and authorities relies only on CCP section 657(6) (insufficiency of the evidence to justify the decision) and 657 (7) (error in law).

On April 18, 2023, Jackson filed a notice of appeal from a “judgment”. No judgment has been entered. As a result of Jackson’s notice of appeal, it is unclear whether the court has jurisdiction over this case and neither party has briefed the issue. Since Jackson purports to appeal from a judgment not yet entered, the court will assume that it has jurisdiction to address his motion.

A party intending to move for a new trial must file with the clerk and serve upon each adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both, either (1) before the entry of judgment, or (2) within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to CCP section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest. CCP §659.

Within ten days of filing the notice of intention to move for a new trial, the moving party shall file and serve upon all other parties any brief and accompanying affidavits in support of such motion. CCP §659a; CRC 3.1600(a). That deadline may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period not to exceed 10 days. CCP §659a. If the moving party fails to file and serve a memorandum within the time prescribed, the court may deny the motion for a new trial without a hearing on the merits. CRC 3.1600(b).

On March 17, 2023, Jackson served and filed a Notice of Intention to Move for a New Trial. Having been filed and served before entry of judgment, this Notice was timely. See CCP §659. Pursuant to CCP section 659a, Jackson was required to file and serve his supporting brief and evidence within ten days, or by March 27, 2023. Jackson waited until April 17, 2023 to file and serve the memorandum of points and authorities and supporting evidence. See Hall Decl., ¶4. This delay exceeded the permissible limit by 21 days and the motion is denied for this reason. See CRC 3.1600(b).

Nor does Jackson’s motion have merit. Although he attempts to present errors of law, Jackson’s motion is grounded almost entirely in the issue whether he was on duty on March 18, 2018. He claims that it is “undisputed” that he was designated as off-duty that day. Mot. at 7. The City disagrees and so does the court. See Opp. at 4.

Jackson claims that if he had been on duty on March 18, 2018, his supervisor would have been required to audit the sign-in log to confirm his hours worked and the record confirms that he did not sign the daily sign-in log for that day. Mot. at 8. The court erred in deciding that he (Jackson) intended to return to duty and its conclusion that he “cobbled together an unfair conclusion based on after-the-fact documents” cannot be reconciled with the City’s obligations to keep accurate records of employee hours. Mot. at 9. Similarly, the court’s findings concerning Jackson’s failure to wear his uniform while on duty and provide a doctor’s note on March 18, 2018 was inconsistent with a March 19, 2018 report that showed he was on sick leave on March 18. Mot. at 10.

Finally, Jackson argues that the court’s finding that he did not inform Sgt. Martinez that he wanted to take FMLA leave is not supported by the weight of the evidence. Pursuant to a Department of Labor opinion letter, an employer may not delay designating leave as FMLA leave once it is communicated by the employee. The court acknowledged that FMLA leave can be retroactively applied but erroneously ruled that Jackson was guilty of count four. Mot. at 11-14.

None of these arguments are persuasive and the court need not rehash its reasoning from the decision. The court has broad discretion on the weight of the evidence issue. Davis v. Hernandez, (2014) 226 Cal.App.4^th 581, 588-89. Suffice it to say that the court stands by its conclusion that, on March 18, 2018, Jackson was on duty and reporting to work. In doing so, he reported late (Count 1), failed to wear a proper uniform (Count 2), left his post without approval (Count 3), and failed to provide a doctor’s note (Count 4). On that date, he also never notified Sgt. Martinez or any LAPD employee that he wanted to take FMLA leave.

A party claiming a Skelly error must demonstrate that he would have achieved a better outcome. Fisher v. State Personnel Board, (“Fisher”) (2018) 25 Cal.App.5th 1, 20.

The Notice of Proposed Discipline served on February 20, 2019 listed Count 2 as reporting to work unfit for duty. Dec. at 27 (citing AR 542). The Notice of Discipline served on or about May 6, 2019 reflected the amended Count 2 at issue in this FAP. Dec. at 27-28 (citing AR 515-16). The court’s decision remanded to the Board for a determination whether Skelly was violated, including whether Jackson was notified and given an opportunity to address the amended Count 2, whether Jackson was prejudiced by not being able to argue for a lesser penalty because there was no charge for a violation involving alcohol or drug usage, and what the backpay damages should be if there was a violation. Upon remand, the Board would have the discretion to take additional evidence on these issues or rely solely on the existing record. Dec. at 28.

Jackson challenges the remand because it is undisputed that the new charge lacked appropriate notice. Jackson cites Associated General Contractors of America v. San Diego Unified School Dist., 195 Cal. App. 4th 748, 754, which held that where the pertinent facts are undisputed and the issue is one of statutory interpretation, the question is a matter of law subject to de novo review. Mot. at 14-15.

The issue is not a matter of law. The court’s decision explained that there was a potential conflict in, or lack of evidence on, whether Jackson received a Skelly for the amended Count 2 and whether Jackson was prejudiced by the amendment. Dec. at 27-28. This is a factual inquiry that may not be entirely determined from the record. For this reason, the court’s decision does not intrude on the Board’s discretion to take additional evidence.

^[1]The City failed to lodge a courtesy copy of the opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Counsel is admonished to provide courtesy copies in all future filings.

[2] Jackson requests judicial notice of (1) Department of Labor Opinion Letter FMLA2019-l-A Re: Employers obligation in all circumstances to designate leave as FMLA-qualifying and giving notice of the designation to the employee once the employer “has enough information to determine whether the leave is being taken for a FMLA-qualifying reason” (RJN Ex. A); (2) City of Los Angeles Bulletin Re: Updated Family and Medical Leave Provisions, updated October 29, 2002 (RJN Ex. B); (3) City of Los Angeles Personnel Directive on Family and Medical Leave and Pregnancy-Related Disability Leave (RJN Ex. C); (4) 29 C.F.R. sections 825.300, 825.301, and 825.305 (RJN Ex. D); (5) 29 C.F.R. section 516.2 (RJN Ex. E); and (6) excerpts of the LAPD Manual (RJN Ex. F). Requests A-C and F are granted under Evid. Code section 452(c), and Requests D and E are granted under Evid. Code section 452(b).