Judge James C. Chalfant, Case Number: 23STCP01261, Date: 2024-03-28 Tentative Ruling

Los Angeles Police Protective League et al. v. City of Los Angeles and Matt Szabo, 23STCP01261
Tentative decision on motion for substitution of petitioner: granted

Kelly Mako (“Kelly”), as trustee and representative of the Mako Family Trust (“Trust”) moves to replace the now-deceased Zoltan Mako (“Zoltan”) as a Petitioner. The court has read and considered the moving papers (no opposition is on file) and renders the following tentative decision.

Petitioners Los Angeles Police Protective League (“LAPPL”), Bruce Oakley (“Oakley”), Gustavo Camacho (“Camacho”), LaSalle Culpepper (“Culpepper”) Robert Gimenez (“Gimenez”), Zoltan, David Keortge (“Keortge”), Kit Stajcar (“Stajcar”), and Donald Poirier (“Poirier”) commenced this proceeding on April 19, 2023 against Respondents City of Los Angeles (“City”) and Mat Szabo (“Szabo”), alleging (1) breach of written contract, (2) declaratory relief, (3) injunctive relief, and (4) traditional mandamus. The Petition alleges in pertinent part as follows.

Oakley, Camacho, Culpepper, Gimenez, Zoltan, Keortge, Stajcar, and Poirier (collectively “Petitioner Employees”) were employed by the Los Angeles Police Department (“LAPD”) in classes the LAPPL represents. Each had established membership in the Los Angeles Fire and Police Pensions (“Pension”) by virtue of his employment with the City.

Under Los Angeles Administrative Code (“LAAC”) section 4.2100 et seq., Pension plan members can enroll in a Deferred Retirement Option Plan (“DROP”) program. This gives plan members a lump sum benefit, in addition to the normal monthly retirement allowance, upon actual retirement.

LAAC section 4.2110(a) provides for suspension of DROP membership for any calendar month if that member does not spend at least 112 hours on active-duty status. LAAC section 4.2110(b) creates an exception for participants who sustain a serious injury on duty and are admitted to the hospital for three consecutive days as a result. LAAC section 4.2110(a) then does not apply for the first 12 calendar months after the date of the injury.

LAAC section 4.2110 is incorporated into DROP rules and regulations and the written DROP enrollment agreement between the Petitioner Employees and the Pension. It is also in the 2019-2024 Memorandum of Understanding (“MOU”) between the LAPPL and the City.

Within the last two years, Petitioners discovered the City violated LAAC section 4.2110. Specifically, Oakley, Camacho, Culpepper, Gimenez, Zoltan, and Keortge were wrongfully suspended from DROP because the City failed to accurately record in its payroll records, or report to the Pension, that these employees were hospitalized for three or more consecutive days due to an on-duty illness or injury within the previous 12 consecutive months. These employees have been or will be financially deprived their respective month pension benefits with interest during the period of their wrongful suspension.

The City has a ministerial duty to determine that the Petitioner Employees and similarly situated LAPPL members enrolled in DROP are eligible for a stay of DROP suspension when, per LAAC section 4.2110(b) and the MOU, (a) the employee suffers a serious illness arising in the course and scope of employment resulting in at least three consecutive days’ hospitalization as a direct result, (b) the employee suffers a serious illness or injury resulting in at least three consecutive days’ hospitalization within 12 months of said illness or injury, albeit not immediately after the date of the serious injury or date of diagnosis of the serious illness, (c) the employee suffers continuous trauma from an on-duty serious injury, or symptoms from such an illness, necessitating three consecutive days’ hospitalization, or (d) the employee suffers a serious illness arising in the course and scope of employment resulting in at least three consecutive days’ hospitalization directly after, but complications from the first hospitalization result in additional hospitalization afterwards.

The City also has a ministerial duty to accurately record in its payroll records, and report to the Pension, when Petitioner Employees and similarly situated LAPPL-represented employees qualify for the exception.

Petitioners seek, inter alia, (1) special damages for Petitioner Employees, including loss of monthly pension benefits with interest, (2) compensatory damage for Petitioner Employees of at least $25,000, (3) interest at the legal rate on both types of damages; (4) declaratory adjudication that the LAPPL-represented employees participating in DROP are eligible for a stay of DROP suspension under the circumstances described in LAAC section 4.2110 and incorporated into the MOU, (5) declaratory adjudication that the City must accurately record in payroll records, and report to Pension, when Petitioner Employees and other LAPPL-represented employees qualified for the exception, (6) declaratory adjudication that the failure to do so has caused Petitioner Employees to incur special damages and compensatory damages of over $25,000, (7) declaratory adjudication that Petitioner Employees and other LAPPL-represented employees did in fact qualify for the exception, (8) a writ of mandate against Respondents to the same effect, and (9) attorney’s fees and costs.

On April 21, 2023, Petitioners served Respondent City with the Petition and Summons. They also served Respondent Szabo with the Petition and Summons by substitute service, effective May 1, 2023.

On July 11, 2023, Department 11 (Hon. David S. Cunningham III) denied without prejudice Respondents’ request to designate this case as complex.

On September 28, 2023, the parties stipulated that Petitioners would not seek monetary damages against Respondent Szabo because he acted within the scope of his official duties as a City employee.

On November 30, 2023, the parties stipulated to continue the discovery cutoff to permit Petitioners to consolidate this action with an anticipated action involving a new plaintiff, John Perez, and conduct all relevant discovery.

On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest. CCP §377.31. A decedent’s successor in interest means the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action. CCP §377.11.

A person who so seeks to continue a pending action or proceeding as the decedent’s successor in interest under penalty of perjury under the laws of this state stating (1) the decedent’s name; (2) the date and place of decedent’s death; (3) the phrase “No proceeding is now pending in California for administration of the decedent’s estate[;]” (4) if the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest; (5) a statement that the affiant or declarant either is the decedent’s successor-in-interest for this action or proceeding, or is authorized to act on the successor-in-interest’s behalf for this proceeding, with facts in support thereof; (6) a statement that “[n]o other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding[;]” and (7) a statement that “[t]he affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” CCP §377.32(a). A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration. CCP §377.32(c).

Zoltan died on December 21, 2022 at 2:19 p.m. at Los Robles Hospital Medical Center. Kelly Decl., ¶1, Ex. A. There is no proceeding pending for administration of the decedent’s estate. Kelly Decl., ¶2.

Zoltan was both a trustor/settlor and a co-trustee of the Trust. Kelly Decl., ¶3, Ex. B. Kelly is Zoltan’s widow and the surviving co-trustee and representative of the successor-in-interest for the Trust. Kelly Decl., ¶¶ 1, 3, Ex. B. Trustees have the authority to, inter alia, continue any business of the grantor and to institute or defend legal actions concerning this trust or the grantor’s affairs. Kelly Decl., Ex. B.

Kelly is authorized to act on behalf of the Trust, Zoltan’s successor-in-interest, with respect to any interest in the current action. Kelly Decl., ¶4. No other person has a superior right to do so. Kelly Decl., ¶5.

Kelly moves to be allowed to continue this action on deceased Petitioner Zoltan’s behalf. Mot. at 3. No opposition is on file.

Zoltan granted his interest in the case to the Trust as a trustor and settlor, and Kelly is a co-trustee. Kelly Decl., ¶¶ 1, 3, Ex. B. Trustees have the authority to, inter alia, continue any business of the grantor and to institute or defend legal actions concerning this trust or the grantor’s affairs. Kelly Decl., Ex. B. Kelly submits Zoltan’s death certificate to show he died on December 21, 2022 at 2:19 p.m. at Los Robles Hospital Medical Center. Kelly Decl., ¶1, Ex. A. Kelly is authorized to act on behalf of the Trust as Zoltan’s successor-in-interest with respect to any interest in the current action. Kelly Decl., ¶4. No other person has a superior right to do so. Kelly Decl., ¶5. She asserts that there is no pending proceeding as to the administration of his estate. Kelly Decl., ¶2. Kelly’s declaration was made under penalty of perjury. Kelly has satisfied all requirements of CCP sections 377.31 and 377.32.

Petitioners filed this action on April 19, 2023, after Zoltan had died. As a consequence, Zoltan was never a Petitioner. The impact of this fact on substituting Kelly for Zoltan is unclear. In any event, the motion is unopposed.

The motion to substitute Kelly, as Trust trustee and representative, for Zoltan as a Petitioner is granted.