Judge James C. Chalfant, Case Number: 23STCP02876, Date: 2025-04-10 Tentative Ruling

Petitioner Matthew Mammone (“Mammone”) seeks a writ of mandate compelling Respondents City of Los Angeles (“City”) and its Fire Department (“LAFD” or “Department”), Fire Chief Kristin Crowley (“Crowley”), Battalion Chiefs James Flores (“Flores”), Kenneth Miller (“Miller”), and Albert Ward (“Ward”), Captains Brandon Silverman (“Silverman”) and Glenn Baham (“Baham”), and Fire Special Investigator Michael Henderson (“Henderson”) (collectively, “City”) to set aside the decision discharging him.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

On August 9, 2023, Mammone filed the Petition against Respondents, alleging causes of action for traditional mandamus and administrative mandamus. The verified Petition alleges in pertinent part as follows.

Mammone began working for LAFD in 2008. Pet., ¶1. Mammone initially worked as a firefighter before he was trained and certified as an engineer. Pet., ¶1.

On August 16, 2021, the City passed Ordinance 187134 (the “Ordinance”) which required City employees to become vaccinated against COVID-19 unless they petitioned for and received a medical or religious exemption. Pet., ¶¶ 1, 7. The Ordinance also required all employees to report their vaccination status regardless of any exemption. Pet., ¶7. The Ordinance made these requirements conditions of employment with the City. Pet., ¶7.

On October 14, 2021, the City issued a Last, Best and Final Offer (“LBFO”) for collective bargaining negotiations relating to the Ordinance which included further conditions of employment for unvaccinated employees. Pet., ¶12. The LAFD employee union, United Firefighters of Los Angeles City (“UFLAC”), never agreed to the employment conditions set forth in the Ordinance or the LBFO. Pet., ¶12. Mammone alleges the City specifically targeted firefighters for discharge. Pet., ¶14.

The City Council resolution adopting the LBFO required LAFD to comply with City Charter section 1060 (“section 1060”) when taking action against unvaccinated firefighting personnel. Pet., ¶23. Section 1060(b) requires a Skelly[1] hearing before removing an employee from duty. Pet., ¶23. The same subsection restricts the Fire Chief from imposing a suspension greater than 30 days. Pet., ¶26. It further requires the Fire Chief to file a verified complaint signed under oath within five days of removing an employee from duty. Pet., ¶27. Failure to do so requires reinstatement. Pet., ¶27.

On October 28, 2021, Mayor Eric Garcetti (“Mayor”) issued a memorandum stating that City employees would have until December 18, 2021 to comply with the COVID-19 vaccine-related employment conditions. Pet., ¶¶ 11, 12, 23.

On November 29, 2021, then Fire Chief Ralph Terrazas (“Terrazas”) suspended Mammone without pay for refusing to be vaccinated against COVID-19. Pet., ¶¶ 1, 23.

LAFD notified Mammone that his Skelly hearing would be conducted in April, 2022. Pet., ¶24. Between Mammone’s suspension and the notification of his Skelly hearing, LAFD changed its policy and asserted that the City had no obligation to inform Mammone in advance of threatened disciplinary action. Pet., ¶24.

The Fire Chief failed to file a verified complaint within five days of Mammone’s suspension. Pet., ¶27. LAFD refused to reinstate Mammone despite this defect. Pet., ¶27.

After his suspension, Mammone sought an immediate hearing before a Board of Rights (sometimes, “Board”). Pet., ¶28. LAFD convened a Board of Rights hearing on October 5, 2022. Pet., ¶28. Mammone alleges the Board of Rights was biased with “preconceived marching orders on how to punish an employee who refused to vaccinate”. Pet., ¶32.

Prior to cases involving the COVID-19 vaccination requirement, LAFD’s practice was to continue to pay personnel who were under temporary relief from duty. Pet., ¶28. LAFD did not convert Mammone’s suspension without pay to a paid temporary relief from duty. Pet., ¶28. The Board of Rights rejected testimony concerning disparate treatment on this change of practice. Pet., ¶28.

Mammone twice moved to dismiss the complaint against him on the grounds that it was untimely and unverified, and for lack of proper service. Pet., ¶31. The LAFD advocates argued that the Board of Rights lacked jurisdiction to determine whether LAFD complied with due process protections. Pet., ¶31.

The Board refused to allow Mammone to call Assistant City Attorney Vivianne Swanigan (“Swanigan”), drafter of the Ordinance, as a witness. Pet., ¶33.

The Board indicated it consulted with legal counsel but refused to name that counsel. Pet., ¶33. This prevented Mammone from ensuring compliance with section 1060(j), under which Swanigan and Assistant City Attorney Jennifer Gregg (“Gregg”) could not consult with the Department’s advocates. Pet., ¶33. Swanigan and Gregg were actively advising City departments in defending other actions related to vaccination requirements. Pet., ¶33.

The Board of Rights did not allow Mammone to present evidence related to the safety, efficacy, or effects of the vaccine. Pet., ¶¶ 34-35, 37-38. The Board likewise did not allow Mammone to present evidence of disparate treatment. Pet., ¶¶ 34, 36-38. The Board also did not allow Mammone to submit evidence that he was “perceived to be disabled within the meaning of” the Americans with Disabilities Act and the Fair Employment and Housing Act. Pet., ¶34.

On May 9, 2023, the Board of Rights found that Mammone violated a condition of employment and proceeded to the penalty phase. Pet., ¶39. The Board then recommended discharging Mammone. Pet., ¶29. Fire Chief Crowley adopted the recommendation on May 12, 2023. Pet., ¶29.

Mammone seeks a writ of mandate compelling the City to set aside the decision discharging him, reinstating and compensating him for all lost wages and benefits, including service credit and continuing health insurance coverage, with interest at the legal rate retroactive to December 16, 2021, and restoring his seniority. Prayer, ¶¶ 1-3. Mammone also seeks an order compelling the City to comply with section 1060. Prayer, ¶4. Mammone further seeks an order compelling the City to cease and desist from discriminating or retaliating against him and to purge his personnel record of the actions against him. Prayer, ¶5. Finally, Mammone seeks attorney fees, costs, and further relief as the court deems proper. Prayer, ¶¶ 6-8.

On August 10, 2023, Mammone served the City and LAFD by personal service. No other proof of service is on file. However, all Respondents have appeared and filed an Answer.

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....”¿ CCP §1085.¿¿¿

A traditional writ of mandate under CCP section 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, 583-84.¿ 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 (internal citations omitted).¿ Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation.¿ AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.¿

¿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, 370-71.¿ 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.

No administrative record is required for traditional mandamus unless the matter is quasi-legislative.¿

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). The court uses its independent judgment on matters affecting a public employee’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4^th 652, 658.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Id. at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.” Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (1975) 47 Cal.App.3d 224, 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217218. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.

An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful. Labor Code §2802(a). The purpose of this section is to protect employees from suffering expenses in direct consequence of doing their jobs. Edwards v Arthur Anderson, (2008) 44 Cal.4th 937, 977. It shows a legislative intent that duty elated losses ultimately fall on the business enterprise, not on the individual employee. Id. at 977. Any contract or agreement, express or implied, made by any employee to waive such benefits is null and void, and this article of the Labor Code shall not deprive any employee or his personal representative of any right or remedy to which he is entitled under the laws of this State. Labor Code §2804.

An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Labor Code §1102.5(c). Cf. Krug v. Board of Trustees of California State University, (April 1, 2025) __ Cal.App.5^th __, 2025 DJDAR 2863, 2868 (Labor Code section 2082 does not apply to public employers).

The term “member” refers to all officers and firefighters of LAFD, except for those who have not completed the period of probation in an entry position. §1060(a). All members have a substantial property right to hold his or her office or position and to receive compensation attached to the office or position. §1060(a). No member shall be suspended, removed, or otherwise separated from the service except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges assigned as cause or causes after a hearing before a Board of Rights, except for a temporary suspension pending a Board of Rights hearing or when the member fails to request or appear at the hearing. §1060(a), (b), (h).

After following pre-disciplinary procedures otherwise required by law, the Fire Chief may temporarily relieve from duty any member pending a hearing before and decision by a Board of Rights on any charge or charges pending against the member. §1060(b)(1). The Fire Chief also may suspend the member for a total period not to exceed 30 days with loss of pay and with or without reprimand, subject to the right of the member to a hearing before a Board. §1060(b)(2). In the event the member seeks a hearing before a Board of Rights, the suspension shall automatically become a temporary relief from duty pending hearing and decision by the Board of Rights. §1060(b)(2). In the event that the member fails to apply for a hearing within the period prescribed, he or she shall be deemed to have waived the hearing and the suspension shall remain effective, unless the Fire Chief requires that a hearing be held. §1060(b)(2).

In the event there is an order for relief from duty or suspension, the order shall contain a statement of the charges assigned as causes. §1060(c). The Fire Chief shall, within five days after the order is served, file with the Board of Fire Commissioners a copy of a verified written complaint upon which the order is based, with a statement that copies of the order and verified complaint were served upon the accused. §1060(c). The complaint shall be verified by the oath of the Fire Chief and shall contain a statement in clear and concise language of all the facts constituting the charge or charges. §1060(c). If the complaint and proof of service are not filed within the five-day period prescribed, the order of temporary relief from duty or suspension shall be void and of no effect and shall be automatically revoked, and the accused member restored to duty with the department without loss of pay and without prejudice, as if no order of relief from duty or suspension had been made. §1060(c).

In the event the accused fails to request a hearing before a Board within the period prescribed, the Fire Chief may require a hearing to be held before a Board and may for that purpose, within five days after the expiration of such period, draw three names from a box to constitute the board. §1060(h). If a Board has been constituted for the purpose of hearing and the accused, without reasonable excuse, fails, or refuses to appear before the Board at the time and place designated, the Fire Chief may, at his or her discretion, either direct the Board to proceed with the hearing in the absence of the accused, or the Fire Chief may, without a hearing, impose the penalty of suspension or removal as he or she deems fit and proper. §1060(h). The Fire Chief shall cause notice of the action to be served upon the accused and shall file a statement of the action with the Commissioners within five days. §1060(h).

The Board of Rights shall make findings of guilty or not guilty on each charge based on the evidence presented at the hearing. §1060(m). If the accused is found not guilty, the Board of Rights shall order his or her restoration to duty without loss of pay and without prejudice, and the order shall be self-executing. §1060(m). If the accused is found guilty, the Board of Rights shall prescribe a penalty of suspension not exceeding six months with total loss of pay, reprimand, or removal from office or position. §1060(m). The Fire Chief may, at his or her discretion, impose a penalty less severe but may not impose a greater penalty. §1060(o).

Section 1060 shall not affect any rights a member may have to other legal rights or remedies in relation to his or her office or position or to the compensation attached thereto, or to appeal or be heard by any court. §1060(s).

The City’s Mayor has the power to declare the existence of a local emergency or disaster when he finds that any of the circumstances described in Los Angeles Administrative Code (“LAAC”) section 8.22 exist or a disaster or local emergency is declared by the President of the United States or the Governor of California. LAAC §8.27. The General Manager of the Emergency Management Department shall prepare, with the assistance of the City Attorney, a resolution ratifying the existence of a local emergency and the need for continuing the state of local emergency. LAAC §8.27. The resolution shall be submitted by the mayor to the City Clerk for presentation to the Council. LAAC §8.27. The Council shall approve or disapprove the resolution within seven days from the date of the original declaration by the mayor and at least every ten regular Council meeting days, but no longer than 30 calendar days, thereafter unless the state of local emergency is terminated sooner. LAAC §8.27.

On March 6, 2020, the City Council ratified the Mayor’s Declaration of Local Emergency in which he declared that conditions of disaster or extreme peril to the safety of persons have arisen in the City as a result of the introduction of the novel coronavirus (“COVID-19”). Under LAAC section 4.27, the City Council is required to review the need for continuing the state of local emergency every 30 days. The City Council repeatedly renewed the Mayor’s March 4, 2020 Declaration of Local Emergency through February 1, 2023. Girard Decl., ¶¶ 2-3.

On July 28, 2021, the Mayor issued a directive instructing the City Administrative Officer (“CAO”) and the City’s Personnel Department to develop an implementation plan for a vaccination program covering all City employees, in consultation with the City’s labor unions. That same day, the City Council adopted a motion directing the CAO, the Chief Legislative Analyst, the Personnel Department, and the City Attorney, in consultation with labor representatives, to report back on a proposed policy to require that all City employees and contractors, as a condition of employment, be fully vaccinated for COVID-19 with the goal of protecting the City’s workforce and the public at large. Girard Decl., ¶4.

On August 18, 2021, the City passed the Ordinance, which added Article 12 to LAAC Chapter 7, Division 4. Girard Decl., ¶5, Ex. K (LACC §4.700 et seq.). The Ordinance states that, to protect the City’s workforce and the public that it serves, all employees must be fully vaccinated for COVID-19, or request an exemption, and report their vaccination status in accordance with the City’s Workplace Safety Standards, no later than October 19, 2021. LAAC §4.701(a). The Ordinance makes vaccination a condition of City employment and a minimum requirement for all employees unless an employee is approved for an exemption as a reasonable accommodation for a medical condition or restriction or sincerely held religious beliefs. LAAC §4.701(b). An employee who qualifies for an exemption must still report their vaccination status. LAAC §4.701(b).

Employees with medical conditions or restrictions or sincerely held religious beliefs that prevent them from receiving the vaccine shall qualify for an exemption upon approval of documentation provided by the employee to the appointing authority or designee. LAAC §4.702(a). Employees with such exemptions who are required to regularly report to a City worksite shall be subject to weekly COVID-19 tests, to be provided at no cost to the employees during their work hours following a process and timeline determined by the City. LAAC §4.702(b). Those with exemptions who work remotely shall be subject to ad hoc COVID-19 testing when asked to report to a worksite on an as-needed basis. LAAC §4.702(b)(1). Because the goal is to have a vaccinated workforce, the City will not allow anyone who does not qualify for an exemption to opt out of vaccination in favor of testing. LAAC §4.702(b).

On October 14, 2021, negotiations between the City and its various employee unions resulted in the CAO’s release of the City’s LBFO regarding consequences for City employees’ non-compliance with the vaccine mandate. Girard Decl., ¶6, Ex L. Under the LBFO, employees who failed to comply with the vaccine requirement by the October 20, 2021 compliance deadline, and were not seeking a medical or religious exemption, would receive a notice granting them additional time to comply with the vaccine requirement until December 18, 2021, if they agreed to certain conditions, including twice weekly testing at their own expense. Employees who failed to show proof of full vaccination by close of business on December 18, 2021 were subject to corrective action -- i.e., involuntary separation from City employment for failure to meet a condition of employment. Employees with pending exemption requests were exempt from the vaccination requirement until their request was approved or denied, and they could remain in the workplace pending an exemption decision under conditions which included weekly testing. Testing for employees awaiting exemption request decisions would be invoiced at a rate of $65 per test, with such invoices held in abeyance until an exemption determination had been made. Employees with granted exemptions would not be charged at all and their invoices canceled, and invoices for employees with denied exemptions would be held until a determination on the applicability of Labor Code section 2802. Girard Decl., ¶¶ 6-9.

On October 26, 2021, the City adopted an Enabling Resolution implementing the City’s LBFO for the consequences of non-compliance with the Ordinance. Girard Decl., ¶11, Ex. N. Any employee who was not fully vaccinated and did not submit proof of vaccination by October 20, 2021 would be issued a Notice of Mandatory COVID-19 Vaccination Policy Requirements that would instruct the employee to submit proof of full compliance by December 18, 2021. The employee would be required to sign the notice and to test for COVID-19 twice per week on their own time, administered by the City or a vendor of the City’s choosing. The employee would have to reimburse the City $260 per pay period for four tests at $65 each via payroll deduction. Girard Decl., ¶11, Ex. N.[3]

On August 16, 2021, the City adopted the Ordinance requiring City employes to become vaccinated against COVID-19 and to report vaccination status as a condition of employment. AR 1008-13.

On October 14, 2021, after the City determined it had reached an impasse in collective bargaining negotiations, the City issued its LBFO regarding outcomes for non-reporting and non-compliance. AR 1032-33, 1037-43. The LBFO specifically noted the need for action regarding unvaccinated first responders who regularly interact with the vulnerable public. AR 1038. UFLAC never agreed to the LBFO.

The Mayor stated that Skelly and Board of Rights protections would apply under the LBFO. AR 912.

While the Ordinance itself did not require employees to register with third-party tester Bluestone (AR 1008-13), the City required its employees to use Bluestone in complying with the Ordinance. AR 1019-20; see AR 1022-24. Alternatives to Bluestone existed at the time.[4]

On November 9, 2021, Mammone received a Notice and Order (the “Notice”) informing him that he was not in compliance with the vaccine requirements and giving him 48 hours to take steps toward compliance. AR 1066. Mammone did not take the required steps to comply or apply for an exemption and, on November 29, 2021, the City placed him off-duty without pay for failure to meet a condition of employment. AR 1070.

On December 4, 2021, Mammone emailed Chief Ralph Terrazas (“Terrazas”), requesting a Board of Rights hearing. AR 775. On December 7, 2021, Mammone again emailed Chief Terrazas, contending that he had not received a Relief from Duty form and verified complaint before he was suspended without pay as required by section 1060. AR 773.

On December 14, 2021, LAFD issued an “Investigation Notification” to Mammone, advising him that he was the subject of a LAFD Professional Standards Division investigation stemming from his failure to comply with the vaccine mandate. See AR 1006.

On March 24, 2022, LAFD issued a Rescheduled Proposed Board of Rights notice to Mammone, stating that his Skelly hearing was set for April 13, 2022. AR 994. The notice included a complaint and supporting documents. AR 994-1045.

On April 4, 2022, Michael Curran, Esq. (“Curran”) sent a letter to Chief Everett stating that his firm represented Mammone and other firefighters and noted that he had recently been served with a Skelly packet. AR 890-91. The letter objected to the ramrod nature of the Skelly notice and requested discovery. AR 891-92. The letter further requested exemption from the vaccine for all his firm’s represented firefighters based on a constitutional “right to choose what goes into their body.” AR 892. Curran concluded that his clients will honor their constitutional oaths and will not be participating in unlawful Skelly hearings. AR 894.

On April 19, 2022, LAFD issued to Mammone a notice, Form F-501 Complaint, and Notice of Discharge form alleging that he failed to meet a condition of his employment by failing to comply with the vaccine requirement. AR 962-66.[5] Attempts on April 23 and 24, 2022 to personally serve Mammone at his address of record failed. AR 967, 980. Pursuant to section 1060(c), the Board of Fire Commissioners was notified of the charge against Mammone on April 19, 2022. AR 961-91. The complaint and notice were sent to Mammone’s residence by certified mail on May 17, 2022. AR 965.

On September 26, 2022, Mammone was served with a Notification of Temporary Relief From Duty. AR 778.

The charge against Mammone was as follows: On November 29, 2021, Matthew Mammone failed to meet a condition of employment as set forth in Ordinance 187134 effective August 25, 2021, and codified in Section 4.701(a) and (b) of the Los Angeles Administrative Code, by failing to comply with the City’s Covid-19 vaccination requirement. AR 963.

On October 5, 2022, Mammone’s Board of Rights hearing convened. After a Board member went out on medical leave, Mammone’s hearing reconvened on December 1, 2022, January 10, January 18, February 28, April 5, and May 2, 2023.

The Board took Mammone’s motion to dismiss under consideration so that it could consult with the City Attorney before ruling on it. AR 44.

Mammone submitted caselaw from New York that a vaccine mandate is not a “condition of employment”. AR 785.

The Board of Rights Manual provides for discovery and Mammone made requests for production of documents, requests for admission. AR 782, 906, 792-97. The Department limited its responses and Mammone responded to its objections. AR 901-04.[6]

An unidentified employee testified that the CAO stated that an application for a religious exemption “on a cocktail napkin” would be accepted.AR 334-35.

Mammone called as a witness firefighter John Knox (“Knox”) but he was not permitted to testify about adverse health effects to the vaccine and disparate treatment. AR 418-75. The Board directed Mammone’s counsel to identify someone in Mammone’s position who was treated differently and his counsel identified only Armando Carranza (“Carranza”). AR 452-53. Carranza testified to his refusal to vaccinate and his submission of a modified religious exemption form in April or May 2022. AR 477-78, 481-83. He worked from September 2021 until he submitted the form and was not placed off duty. AR 484-85. The Board asked for a copy of the exemption Carranza filed. AR 489, 499. The Board concluded that Carranza was not an example of disparate treatment because he filed for an exemption. AR 546, 57.[7]

Mammone testified that he received the City’s October 19 and November 9, 2021 notices. AR 224, 234. Mammone testified that he had taken no action toward becoming fully vaccinated or filing for exemption because he was “still bargaining with my bargaining unit.” AR 236, 244. He did upload his vaccination status. AR 244. Mammone further testified that he would not comply with the Ordinance, either by becoming fully vaccinated or by requesting an exemption. AR 744-45.

Mammone submitted an email to Chief of Professional Standards Kristina Kepner contending that he was the subject of unlawful disability discrimination. AR 953-55.

On May 4, 2023, the Board found Mammone guilty of the charge. AR 744-45. The Board stated: “Due to the fact that the defendant, Engineer Matthew Mammone, has stated under oath that he has no intention of coming into compliance with the City of Los Angeles Ordinance No. 187134 by becoming fully vaccinated or by filing for an exemption, the Board has no choice but to sustain the charge against the member.” AR 744. The Board ruled that given the ongoing violation, Mammone must be discharged, effective September 26, 2022. AR 745.[8]

Mammone submitted only the Declaration of Armando Carranza in Support of Petition for Writ of Issuance of Mandate (“Carranza I Decl.”). The Carranza I Declaration consists almost entirely of argument and unsupported conclusions and opinions lacking personal knowledge and foundation. Carranza never even states that he attended Mammone’s Board of Rights hearing or how he knows what happened with Mammone’s, or any other firefighter’s, disciplinary matter. Therefore, it has not been considered.

At all relevant times, the City had declared an emergency relating to COVID-19. Kepner Decl., ¶4; Girard Decl., ¶ 2-3. On August 18, 2021, the City passed the Ordinance requiring all City employees to report their vaccination status and to be fully vaccinated by October 20, 2021. Kepner Decl., ¶5; Girard Decl., ¶5.

On October 20, 2021, the vaccination and reporting requirements became conditions of employment. Kepner Decl., ¶6; Girard Decl., ¶5. The City provided exemptions to these requirements based on medical or religious grounds. Kepner Decl., ¶6; Girard Decl., ¶5.

Negotiations between the City and employee unions brought the CAO to issue the LBFO. Girard Decl., ¶6. Under the LBFO, firefighters who were not vaccinated and had not applied for exemption when the requirements became conditions of employment were allowed up to December 18, 2021 to comply if the firefighter signed the VPR agreement consenting to twice-weekly COVID-19 testing. Kepner Decl., ¶7; Girard Decl., ¶8.

On October 26, 2021, the City Council adopted a Resolution directing the Mayor to implement the LBFO. Girard Decl., ¶11. The Mayor directed the City’s departments to implement to LBFO on October 28, 2021. Girard Decl., ¶11.

The 367 firefighters who were not designated as vaccinated as of October 20, 2021 were permitted to show proof of vaccination at any time. Kepner Decl., ¶8. If a firefighter’s request for exemption was denied, that firefighter was granted additional time to comply. Girard Decl., ¶10.

Every firefighter who had not applied for an exemption, had not shown proof of vaccination, and was determined to be unvaccinated was given 48 hours to decide whether he or she would accept the VPR agreement. Kepner Decl., ¶9. All firefighters who accepted were given access to Bluestone, a third-party testing vendor, and all firefighters who refused were placed off-duty pending separation. Kepner Decl., ¶¶ 10-11.

On November 9, 2021, Mammone was served a notice specifying that he was not in compliance with the vaccination employment condition, and that he had 48 hours to show he had complied or had taken steps to comply. Kepner Decl., ¶12.

Mammone did not show compliance or any intent to comply. Kepner Decl., ¶13. Therefore, LAFD placed Mammone off duty without pay, effective December 7, 2021, for failure to meet a condition of employment. Kepner Decl., ¶13. At the time Mammone was placed off duty, he had not filed a request for a medical or religious exemption, or otherwise indicate his non-compliance was for a religious reason. Kepner Decl., ¶14.

On December 14, 2021, LAFD notified Mammone he was subject to an investigation for his failure to comply. Kepner Decl., ¶15, Ex. A.

On March 8, 2022, LAFD issued a Proposed Board of Rights notice stating that a Skelly hearing was scheduled for March 30, 2022. Kepner Decl., ¶16.

On March 24, 2024, LAFD issued Mammone a Rescheduled Proposed Board of Rights stating that his Skelly hearing was rescheduled for April 13,2022. Kepner Decl., ¶17. The notice included a description of the basis for the proposed action and the supporting documents. Kepner Decl., ¶17.

On April 19, 2022, LAFD issued Mammone notice of the charge against him for failing to comply with the vaccination requirements. Kepner Decl., ¶18, Ex. B. The notice included a form complaint and Notice of Discharge. Kepner Decl., ¶18. The Department twice tried to serve Mammone personally on April 23 and 24, 2022 before resorting to service by regular and certified mail. Kepner Decl., ¶18. The Board of Fire Commissioners was notified on April 19, 2022. Kepner Decl., ¶18.

On September 26, 2022, LAFD notified Mammone that the Board of Rights hearing would take place on October 5, 2022. Kepner Decl., ¶20. The notice informed Mammone that he was removed from his position, effective September 26, 2022. Kepner Decl., ¶21. Fire Chief Crowley issued a Notice of Temporary Relief from Duty, effective the same day. Kepner Decl., ¶21.

On June 16, 2024, Carranza spoke with Chief Nicholas Ferrari (“Ferrari”) about whether four members under his command would still face Board of Rights hearings for non-compliance with the Ordinance. Carranza II Decl., ¶2. Ferrari, Chief Krisinta Kepner, and Assistant City Attorney Swanigan each indicated that the four members would continue in their duties until their Boards were selected, then be relieved of duty pending the completion of their respective hearings. Carranza II Decl., ¶ 2-3. None of the four members have had Board hearings scheduled and two of the four remain on duty without restrictions. Carranza II Decl., ¶3. The members have the same alleged violation as Mammone, who was discharged. Carranza II Decl., ¶3.

Members have received varying responses from the City for non-compliance with the vaccine mandate:

· Shane Nelson received no discipline, is awaiting a Board of Rights, and found employment with another fire department.

· Ed Brockschmidt was found guilty, had his religious exemption approved, and was terminated. Carranza II Decl., ¶4.

No exemptions to the vaccination requirement had been approved as of October 20, 2021. Carranza II Decl., ¶6.

Carranza has been subject to two disciplinary actions and four investigations since he began representing his fellow firefighters, while previously he had a spotless record. Carranza II Decl., ¶8.

Mammone worked for LAFD from July 21, 2008 to May 4, 2023, at which time he was terminated. Mammone Decl., ¶1. Mammone primarily worked as an Engineer. Mammone Decl., ¶1.

Nicolas Watkins (“Watkins”) was reinstated because the wrong ordinance number was used. Mammone Decl., ¶1. Unlike Watkins, Mammone immediately requested a Board of Rights. Mammone Decl., ¶2. LAFD did not immediately convene a Board of Rights, immediately notify the Board of Fire Commissioners, or immediately issue a verified complaint. Mammone Decl., ¶2.

The timing and results of other firefighters’ Boards of Rights vary widely. Mammone Decl., ¶4.

The Board wrote a letter summarizing its recommendation and Chief Crowley’s formal order. Wise Decl., ¶1. The letter admits that the City “taught” the Board how to handle these cases. Wise Decl., ¶1. The letter described a system whereby the pool of officers from which Boards of Rights are selected could be poisoned in advance and described how the City Attorney intended to coach the Board through the proceedings. Wise Decl., ¶1. The letter recommended backdating Mammone’s discharge to September 2022, which Crowley adopted. Wise Decl., ¶1, Ex. A.

Wise requested the City include the letter in the Administrative Record, but the City refused. Wise Decl., ¶1.

A letter written by multiple current and former LAFD Chief Officers discusses Chief Crowley’s handling of the Palisades Fire and related management of the Department. Wise Decl., ¶2, Ex. B.

Petitioner Mammone seeks a writ of mandate compelling the City to set aside the decision to discharge him.

Under the City Charter, a permanent officer or firefighter of LAFD has a substantial property right to hold his or her office or position and to receive compensation attached to the office or position. §1060(a). No member shall be suspended, removed, or otherwise separated from the service except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges assigned as cause or causes after a hearing before a Board of Rights, except for a temporary suspension pending a Board of Rights hearing or when the member fails to request or appear at the hearing. §1060(a), (b), (h).

Pursuant to section 1060, Mammone’s remedy to contest his charge of failure to meet a condition of employment was through the Board of Rights hearing. The Board of Rights lacks authority to rule on non-disciplinary matters. While not entirely clear, the jurisdiction of the Board of Rights and Fire Chief appears to be limited to the elements of the charge and the penalty, for which some defenses may be raised. For example, section 1060 imposes requirements for the complaint (§1060(c)), and one-year statute of limitations (§1060(a)) that may be raised in the Board of Rights hearing. Presumably, the Board of Rights hearing satisfies the requirements of the administrative appeal required by Govt. Code section 3254.5 in the Firefighters Procedural Bill of Rights Act (“FPBRA”) (Govt. Code §3250 et seq.) just as it does for the similar Board of Rights appeal for LAPD officers. See Gonzalez v. City of Los Angeles, (2019) 42 Cal.App.5^th 1034, 1047; Jackson v. City of Los Angeles, (1999) 69 Cal.App.4th 776, 780. As a result, procedural defenses under section 1060 and FPBRA may be raised before the Board of Rights.

Less certain is whether Mammone could have raised other defenses before the Board of Rights. According to the Petition, the Board of Rights improperly (a) excluded testimony from Assistant City Attorney Swanigan, who authored the Ordinance (Pet., ¶33), (b) overruled his objection to registering and testing with Bluestone (Pet., ¶16-20, 45), (c) refused to identify the Assistant City Attorneys who consulted with the Board of Rights (Pet., ¶33), (d) excluded expert testimony on the safety, efficacy, and effects of the COVID-19 vaccine (Pet., ¶¶ 34-35, 37-38), (e) denied his religious discrimination claim (Pet., ¶¶21-22), (f) denied his disparate treatment claim (Pet., ¶¶ 34, 36-38), (g) denied his claim that LAFD violated his Skelly rights (Pet., ¶23-26, 27-29, 30), (h) denied his argument that LAFD failed to comply with the City Charter and FPBRA concerning issuance of a verified complaint and relief form duty form, service on the Fire Commission, and convening a timely Board of Rights hearing (Pet., ¶30), (i) refused to rule on jurisdictional issues, including his motion to dismiss (Pet., ¶31, 40), (j) received preconditioning with special training on COVID-19 Board of Rights hearings (Pet., ¶¶ 3, 32, 47) and (k) made rulings on discovery and exclusion of witnesses (Pet., ¶¶ 33-39, 53). Pet. Op. Br. at 6, n.1.[9]

The Board of Rights should have permitted Mammone to raise his issue concerning the identification of the names of Assistant City Attorneys who consulted with it. Some of Mammone’s other defenses – e.g., scientific efficacy of the vaccine and religious discrimination under the Fair Employment and Housing Act (“FEHA”) -- are not within the scope of a Board of Rights review. In any event, since it is undisputed that the Board of Rights refused to hear these defenses, the court will consider them as part of Mammone’s traditional mandamus claim.

The charge against Mammone was as follows: “On November 29, 2021, Matthew Mammone failed to meet a condition of employment as set forth in Ordinance 187134 effective August 25, 2021, and codified in Section 4.701(a) and (b) of the Los Angeles Administrative Code, by failing to comply with the City’s Covid-19 vaccination requirement.” AR 963.

Mammone began his employment as a firefighter for LAFD in 2008. Pet., ¶1. In August 2021, Fire Chief Terrazas served as the head of the LAFD. Upon his retirement in March 2022, Respondent Crowley became the Fire Chief. Pet., ¶3.

On October 12, 2021 Mammone sent the City Personnel Department an email stating that he wanted to report his COVID-19 vaccination status via video call. AR 916-18.

On October 20, 2021, the COVID-19 vaccination and reporting requirements became conditions of employment for all City employees, with exemptions to the vaccine mandate available to accommodate medical conditions and/or sincerely held religious beliefs. Kepner Decl., ¶6.[10]

Unvaccinated firefighters who had not filed for medical or religious exemptions were contacted and offered an opportunity to extend their time to comply with the requirement to be fully vaccinated until December 18, 2021, should they voluntarily sign an agreement allowing additional time if they agreed to twice weekly testing. The 367 firefighters not designated as vaccinated and determined to actually be unvaccinated were given 48 hours to consider whether or not to sign the offer for additional time to comply until December 18, 2021 before being placed off duty for failure to meet a condition of employment. Kepner Decl., ¶¶ 7-9. Firefighters who accepted the offer for additional time to comply with the vaccine mandate could register with the City’s third-party testing vendor, Bluestone, to obtain additional time to be vaccinated. Kepner Decl., ¶10.

On November 9, 2021, Mammone received his 48-hour Notice. AR 1066. The Notice specifically informed him that he was not in compliance with the City’s vaccination requirements and the order gave him 48 hours to take steps toward compliance. AR 1066.

Mammone did not take the required steps to comply or apply for an exemption and, on November 29, 2021, the City placed him off-duty without pay for failure to meet a condition of employment. AR 1070.

On December 4, 2021, Mammone emailed Chief Terrazas, requesting a Board of Rights hearing. AR 775. Mammone again emailed Chief Terrazas on December 4, 2021, contending that he had not received a Relief from Duty form and verified complaint before he was suspended without pay as required by section 1060. AR 773.

On March 8, 2022, LAFD issued a Proposed Board of Rights notice to Mammone stating that his Skelly hearing was scheduled for March 30, 2022. Kepner Decl., ¶16. The notice included a description of the basis for the proposed action and the supporting documents. Kepner Decl., ¶17.

On April 4, 2022, Michael Curran, Esq. sent a letter to Chief Everett stating that his firm represented Mammone and other firefighters and noted that he had recently been served with a Skelly packet. AR 890-91. The letter objected to the ramrod nature of the Skelly notice and requested discovery. AR 891-92. The letter further requested exemption from the vaccine for all his firm’s represented firefighters based on a constitutional “right to choose what goes into their body.” AR 892. Curran stated that his clients would honor their constitutional oaths and would not be participating in unlawful Skelly hearings. AR 894.

On April 19, 2022, LAFD issued a Form F-501 Complaint and Notice of Discharge form alleging that Mammone failed to meet a condition of his employment by failing to comply with the vaccine requirement. AR 962-66.[11] Attempts to personally serve Mammone on April 23 and 24, 2022 at his address of record failed. AR 967, 980. Pursuant to section 1060(c), the Board of Fire Commissioners was notified of the charge against Mammone on April 19, 2022. AR 961-91. The complaint and notice were sent to Mammone’s residence by certified mail on May 17, 2022. AR 965.

On September 26, 2022, Mammone was served with a Notification of Temporary Relief from Duty. AR 778.

On October 5, 2022, Petitioner’s Board of Rights convened. After a Board member went out on medical leave, Mammone’s hearing reconvened on December 1, 2022, January 10, January 18, February 28, April 5, and May 2, 2023.

Mammone testified that he received the City’s October 19 and November 9, 2021 notices. AR 224, 234. Mammone testified that he had taken no action toward either becoming fully vaccinated or filing for exemption because he was “still bargaining with my bargaining unit.” AR 236, 244. He did upload his vaccination status. AR 244. Mammone further testified that he would not comply with the Ordinance, either by becoming fully vaccinated or by requesting an exemption. AR 744-45.

As stated, the Petition alleges that the Board of Rights improperly (a) excluded testimony from Assistant City Attorney Swanigan, who authored the Ordinance (Pet., ¶33), (b) overruled his objection to registering and testing with Bluestone (Pet., ¶16-20, 45), (c) refused to identify the Assistant City Attorneys who consulted with the Board of Rights (Pet., ¶33), (d) excluded expert testimony on the safety, efficacy, and effects of the COVID-19 vaccine (Pet., ¶¶ 34-35, 37-38), (e) denied his religious discrimination claim (Pet., ¶¶21-22), (f) denied his disparate treatment claim (Pet., ¶¶ 34, 36-38), (g) denied his claim that LAFD violated his Skelly rights (Pet., ¶23-26, 27-29, 30), (h) denied his argument that LAFD failed to comply with the City Charter and FPBRA concerning issuance of a verified complaint and relief form duty form, service on the Fire Commission, and convening a timely Board of Rights hearing (Pet., ¶30), (i) refused to rule on jurisdictional issues, including his motion to dismiss (Pet., ¶31, 40), (j) received preconditioning with special training on COVID-19 Board of Rights hearings (Pet., ¶¶ 3, 32, 47) and (k) made rulings on discovery and exclusion of witnesses (Pet., ¶¶ 33-39, 53). Pet. Op. Br. at 6, n.1.

In addition to these assertions, Mammone’s opening brief alleges (a) that the City failed to collectively bargain over the Ordinance as required by labor law (Pet. Op. Br. at 9-10), (b) threats against firefighter employees for claiming exemptions, delayed exemption rulings, improper testing through the City’s vendor (Bluestone) and imposition of testing costs (Pet. Op. Br. at 10-12), (c) the City’s religious exemption procedure was infirm (Pet. Op. Br. at 16-17), (f) due process violations under the Fourteenth Amendment (Pet. Op. Br. at 17-18), (g) unlawful disability and religious discrimination under the Fair Employment and Housing Act (“FEHA”) (Pet. Op. Br. at 18-19) and failure to engage in the interactive process for an accommodation of his religious beliefs Americans in violation of the Americans with Disabilities Act (“ADA”) (Pet. Op. Br. at 18-19).

Mammone’s allegations concerning the ADA and FEHA (Pet. Op. Br. at 18-19) cannot be raised in a mandamus claim. Mammone may pursue those causes of action in state or federal court after any requisite administrative exhaustion. See, e.g., E.E.O.C. v. Farmer Bros., (9th Cir. 1994) 31 F.3d 891, 899; Merrell Dow Pharmaceuticals, Inc. v. Thompson, (1986) 478 U.S. 804, 808. Mammone also does not have standing to raise the City’s violation of collective bargaining requirements, particularly since he notes this issue already has been addressed in binding arbitration between LAFD and UFLAC. RJN Ex. 2.

Some of Mammone’s defenses in the Petition are not pursued in his opening brief and are waived, including (a) his objection to registering and testing with Bluestone, (b) the Board’s refusal to identify the Assistant City Attorneys who consulted with the Board of Rights, and (c) preconditioning of the Board with special training on COVID-19 Board of Rights hearings.[12]

This leaves Mammone’s claims of (a) the City’s threats against firefighter employees for claiming exemptions, delayed exemption rulings, improper testing through the City’s vendor (Bluestone) and imposition of testing costs (Pet. Op. Br. at 10-12), (b) the infirmity of the City’s religious exemption procedure (Pet. Op. Br. at 16-17), (c) his disparate treatment claim (Pet. Op. Br. at 11, 19-20), (d) violation of his Skelly rights (Pet., ¶23-26, 27-29, 30), (e) the City’s failure to comply with the City Charter and FPBRA concerning issuance of a verified complaint and relief form duty form, service on the Fire Commission, and convening a timely Board of Rights hearing (Pet. Op. Br. at 13-14), (f) the Board’s refusal to rule on jurisdictional issues, including his motion to dismiss (Pet. Op. Br. at 12, 16), and (g) due process violations under the Fourteenth Amendment in the Board’s rulings on discovery and exclusion of witnesses, including testimony from Assistant City Attorney Swanigan (Pet. Op. Br. at 14-15, 17-18). The court will address each of them.

a. Threats for Claiming Exemptions, Delayed Exemption Rulings, and Improper Testing Requirements

Mammone argues that the Fire Chief met with LAFD Bureau Commanders and firefighting personnel in key positions on September 27, 2021. At that time, it was stressed that any firefighter seeking an exemption would effectively be railroading himself or herself out of a firefighting position, necessitating that member to work in a clerical capacity, possibly in another City department, and at substantially less pay and retirement benefits. These threats alone caused many employees like Mammone to decline to submit medical and religious exemptions and to continue questioning the legitimacy of the exemption process which effectively forced unvaccinated employees to continue testing at a time when vaccinated employees were reporting adverse side effects, including repeat bouts of respiratory distress, cardiac symptoms, cancer and even death. At the same time, LAFD appeared intent on stalling its rulings upon those exemptions which had been submitted, while refusing to convene a good faith interactive meeting, except for a limited number of employees. Pet., ¶¶ 12-13. Pet. Op. Br. at 10.

Once the LBFO was issued with the City Council’s October 26, 2021 resolution, it became obvious that firefighters were being targeted. The resolution stated: “There is a compelling need for such unilateral action to protect Public health and safety and workplace safety, especially with regard to the City’s unvaccinated first responders who regularly interact with vulnerable members of the public while performing their duties....” AR 1036-38. Pet. Op. Br. at 11.

Due to the LBFO, unvaccinated workers were expected to pay well in excess of $510 per month for Bluestone testing and were told that any request for exemption and consent to pay for testing had to be uploaded into Bluestone. In September 2022, at the request of the Police Protective League, Judge Byrdsong found that the Bluestone testing requirement was infirm and unilaterally implemented, at a time when alternatives to these tests clearly existed. AR 857-74, 863-64, 865. Because of that judicial ruling, LAFD tried to disassociate the Bluestone infirmities from Mammone’s Board of Rights hearing. However, Mammone was removed on November 30, 2021 for not complying with vaccination requirements and he was not reinstated at any time after the Judge Byrdsong’s ruling and before the Board of Rights found him guilty. Pet. Op. Br. at 11-12.

Mammone’s argument about threats for claiming exemptions, impact on himself, and stalled rulings on exemptions are unsupported by any evidence. The City Council’s October 26 resolution does show the City’s belief that vaccination of first responders was paramount, but the short answer is so what? The City did not single out firefighters for vaccination; it only said it was important for them to be vaccinated. Mammone makes no equal protection argument on this issue, nor could he. Finally, the initial requirement, later revoked, that City employees pay for Bluestone testing would be relevant if Mammone contended that was a reason why he would not sign the VPR agreement to vaccinate by December 18, 2021 with twice weekly testing in the interim by Bluestone. However, the evidence is clear that Mammone refused to vaccinate under any circumstance. AR 744-45.

Mammone argues that he was never given notice that he could still seek an exemption after his removal. Although the Board of Rights asked Mammone in May 2023 if he intended to file an exemption, Mammone was confronted with the fact that Ordinance 185574, passed in 2018, prohibited registration of one’s religious beliefs. RJN Ex. 3. Mammone also had yet to receive a ruling on the “constitutional exemption” Attorney Curran had filed on his behalf in March 2022, citing religious freedom as a basis for not taking further action against Mammone let alone more than ten other firefighters faced with the same situation as Mammone. AR 890. Although various Board of Rights have questioned whether an employee must use the City’s exemption form, LAFD Chief David Perez admitted that an employee was not obligated to use the City’s forms and that a cocktail napkin would suffice. AR 334-35. Pet. Op. Br. at 16-17.

This argument is spurious. Mammone never intended to seek a religious exemption, even after he was asked at his Board of Rights hearing. The need for an exemption form or cocktail napkin therefore is irrelevant. Even if arguendo Mammone could seek a religious or medical exemption through an attorney, Curran’s April 4, 2022 letter to Chief Everett did not seek either. The letter only requested an exemption from the vaccine for all his firm’s represented firefighters based on a constitutional “right to choose what goes into their body.” AR 892. This does not qualify as a religious or medical exemption.

Mammone argues that he was subjected to disparate treatment. Showing disparate treatment or select policy enforcement is clearly a permissible means to attack reasons given for treating employees differently. See Loggins v. Kaiser Permanente Intern., (2007) 151 Cal.App.4^th 1102, 1113 (summary judgment granted on racial discrimination claim where plaintiff failed to present substantial evidence that her firing was a pretext because coworkers also used company resources to conduct business). Mammone adds that “me too” evidence should have been admissible. “[C]ourts have routinely sanctioned use of … ‘me too’ type of evidence” “to show intent or motive, for the purpose of casting doubt on an employer's stated reason for an adverse employment action….” Johnson v. United Cerebral Palsy/Spastic Children's Foundation, (2009) 173 Cal.App.4th 740, 760. The Board of Rights’ refusal to permit Mammone to show that the City was not enforcing its Vaccination Mandate equally throughout all departments was inappropriate, particularly since the City has publicly claimed that only 86 employees were fired while the number of unvaccinated employees is significantly greater according to City statistics which the Board refused to consider on relevancy grounds. AR 800-06.[13] Pet. Op. Br. at 19-20.

Mammone is simply wrong that the Board did not permit disparate treatment evidence. The Board expressly directed Mammone’s counsel to identify someone in Mammone’s position who was treated differently and his counsel identified only Carranza. AR 452-53. Carranza testified to his refusal to vaccinate and his submission of a modified religious exemption form in April or May 2022. AR 477-78, 481-83. He worked from September 2021 until he submitted the form and was not placed off duty. AR 484-85. The Board asked for a copy of the exemption Carranza filed. AR 489, 499. The Board concluded that Carranza was not an example of disparate treatment because he filed for an exemption. AR 546, 57. Mammone identifies no other witness or employee that he contends was treated differently than himself.[14]

As for “me too” evidence, such evidence differs from disparate treatment evidence in that it is offered to show motive or intent to establish the wrongful nature of the defendant’s conduct. Mammone offers no suggestion that the City’s conduct in discharging employees who refuse to comply with the vaccine mandate is wrongful, and he also cites no witness or evidence that would qualify for “me too” status.

Mammone argues that the Board of Rights Manual permits discovery, yet LAFD limited what it was willing to produce. AR 781-82, 792-97, 901-04, 906-07, 909. Pet. Op. Br. at 15.

Whether LAFD lived up to its discovery obligations is not an issue in reviewing the Board of Rights decision. The proper issue would be whether the Board of Rights erred in denying Mammone’s discovery motions. Mammone fails to present evidence that the Board denied his motion to compel, any authority that the Board erred in ruling on his motion, or that he suffered prejudice from the ruling in the exclusion of relevant evidence.

Mammone makes general references to due process, including that "[t]he Fourteenth Amendment” provides a procedural protection of property and is a “safeguard of the security of interests that a person has already acquired in specific benefits." Board of Regents v. Roth, (1972) 408 U.S. 64, 576. When due process requires a hearing, it is generally acknowledged that the adjudicator must be impartial. Haas v. County of San Bernardino, (2002) 27 Cal.4th 1017, 1025. In order for a hearing to be fair, the decision-maker must be free from bias. Morongo v. State Water Resources Control Board, (2005), 45 Cal.4th 731, 737. To prove bias (other than personal or financial), a party must establish "an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims." Nasha L.L.C. v. City of Los Angeles, (2004) 125 Cal.App.4th 470, 483. Bias and prejudice are never implied and must be established with clear averments. Id. Pet. Op. Br. at 17-18.

Mammone argues that the Board’s decision to exclude his witnesses in support of his affirmative defenses was error. Knox, the head of F4F testified (AR 418-75), and much of the time was spent with the Board refusing to allow him to testify about, inter alia, the City’s numbers showing disparate treatment of employees who refused to vaccinate or submitted exemptions. This was likewise the case when Carranza took the stand. AR 476-502. Pet. Op. Br. at 14.

In fact, the Board gutted Mammone’s witness list (AR 1315-19) on invitation of the City Attorney[15] and refused to allow known experts who could shed light on the “gaslighting” of those who voluntarily testify, adopted prior witness rulings even though the new Board was not yet constituted, and refused to permit an articulation of testimony from employees in other City departments bound by the Ordinance. Pet. Op. Br. at 15.

Mammone designated Assistant City Attorney Swanigan, who wrote the Ordinance, along with Chief Hogan, who headed up the Unit setting up Skelly hearings. Hogan, who was the Skelly officer for Mammone, was listed because he was treated quite differently when accused of sexually harassing numerous women in the Department. Although the Board stated that both witnesses could be called, it arbitrarily changed its mind. Mammone speculates that the Board’s reversal was to prevent meritorious cross-examination of those City and LAFD personnel who caused the removal of himself and his colleagues without regard to procedural protections, while treating far better employees committing more egregious offenses. Pet. Op. Br. at 15.

Mammone has not shown any error in the exclusion of witnesses or evidence. It is insufficient to cite the entire testimony of Knox and Carranza and argue that their testimony was improperly restricted. Mammone fails to identify the other witnesses who would have established disparate treatment. Nor does he provide an offer of proof as to what they would have said. Assistant City Attorney Swanigan’s authorship of the Ordinance was irrelevant to Mammone’s proceeding. Mammon declined to attend his own Skelly hearing, and he apparently wanted Chief Hogan to testify more broadly concerning the Skelly hearings of other employees. Hogan’s testimony would have been irrelevant.[16]

Finally, Mammone fails to show any prejudice from witness or evidence exclusion. A due process violation requires a showing of prejudice. Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice). It is insufficient merely to show that a violation occurred and conclude that the witness or evidence would have changed the outcome. Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation. People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay). “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”. F isher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20.

Mammone argues that he raised procedural violations of section 1060 in a motion to dismiss which were the backbone of his due process claims. The Mayor stated in issuing the LBFO that Skelly and Board of Rights protections would be adhered to. AR 912. But they were not. Mammone’s Skelly hearing was not even calendared until April 13, 2022. AR 994. Why? Because the City claimed this was a condition of employment case to which Skelly procedural safeguards do not apply. Pet. Op. Br. at 12.

Mammone disagrees with the City’s condition of employment argument since his removal without pay was tantamount to punitive action as defined by the FPBRA. Although the City claims that the term “TBD” is not infirm, given FPBRA’s and section 1060’s reliance upon the concept of punitive action, relief without pay for the entire time that an employee is precluded from working constitutes unlawful punitive action. Even Chief Wuerfel inquired as to what “TBD” meant, without affording defense an opportunity to respond. AR 1231-33.[17] Likewise Mammone submitted caselaw to the Board refusing to adopt a “condition of employment” label, when questioning the legality of these same mandates in New York, San Diego, San Francisco and elsewhere. AR 784-787. Pet. Op. Br. at 13.

Mammone argues that his motion to dismiss should have been granted. After commencing the hearing in October 2021 (sic.), the Board quickly denied the motion to dismiss without even reading it. By the end of hearing, the Board supposedly changed its ruling and stated that it would be taken under advisement. Once the Board was reconstituted in December 2021 (sic.), Chief Wuerfel ran roughshod over the motion, claiming a lack of authority to dismiss the proceedings even though the Board of Rights Manual confers such jurisdiction on the Board. RJN Ex. 6, §120. Pet. Op. Br. at 13-14. The Board ruled that the motion to dismiss had only one item within its authority, and that “the serving and filing with the Fire Commissioners of the complaint was satisfied”. AR 147. However, this conclusion ignored mandatory language requiring that the notice be given to the Fire Commission in December 2021, not in May 2022. Pet. Op. Br. at 16.

The City argues that the Board wholly lacks authority to rule on non-disciplinary matters. The City Charter’s language is clear that the Board of Rights determines whether a member is guilty or not guilty of the charge(s) before it. Thus, the Board has a limited purview per the City Charter. Opp. at 9.

While not entirely clear, the court concludes that the Board of Rights had authority to address an untimely Skelly hearing or a violation of section 1060. The Board of Rights Manual provision cited by Mammone confers “Incidental Authority” for the Board to (a) ascertain whether the complaint has been properly prepared and served, (b) whether it is sufficiently specific, (c) rule on motions, (d) require the reporter to perform his or her duties, and (e) determine whether the hearing should be public or private. RJN Ex. 6, §120. The Board’s procedural authority to rule on motions does not give it substantive jurisdiction over the subject of the motion. Nonetheless, the Board should not proceed with the merits of a disciplinary charge without addressing these procedural issues. In any event, the court addresses those issues now.

The pertinent timeline is as follows. On November 9, 2021, Mammone received the Notice informing him that he was not in compliance with the vaccine requirements and giving him 48 hours to take steps toward compliance. AR 1066. Mammone did not take the required steps to comply or apply for an exemption and, on November 29, 2021, the City placed him off-duty without pay for failure to meet a condition of employment. AR 1070.

On December 4, 2021, Mammone emailed Chief Terrazas, requesting a Board of Rights hearing. AR 775. On December 7, 2021, Mammone again emailed Chief Terrazas, contending that he had not received a Relief from Duty form and verified complaint before he was suspended without pay as required by section 1060. AR 773.

On March 8, 2022, LAFD issued a Proposed Board of Rights notice stating that a Skelly hearing was scheduled for March 30, 2022. Kepner Decl., ¶16. The notice included a description of the basis for the proposed action and the supporting documents. Kepner Decl., ¶17.

On April 4, 2022, Curran sent a letter to Chief Everett stating that his firm represented Mammone and other firefighters and that his clients will honor their constitutional oaths and will not be participating in unlawful Skelly hearings. AR 894.

On April 19, 2022, LAFD issued to Mammone a Form F-501 Complaint and Notice of Discharge form alleging that he failed to meet a condition of his employment by failing to comply with the vaccine requirement. AR 962-66. Attempts on April 23 and 24, 2022 to personally serve Mammone at his address of record failed. AR 967, 980. The Complaint and Notice of Discharge were sent to Mammone’s residence by certified mail on May 17, 2022. AR 965. Pursuant to section 1060(c), the Board of Fire Commissioners was notified of the charge against Mammone on May 17, 2022. AR 961.

On September 26, 2022, Mammone was served with a Notification of Temporary Relief from Duty. AR 778.

Section 1060(b) states that “following pre-disciplinary procedures otherwise required by law, the Fire Chief may (1) temporarily relieve from duty any member pending a hearing before and decision by a Board of Rights on any charge or charges pending against the member….” This provision does not say one way or the other about whether the relief from duty is with or without pay. The plain words relief from duty implies, however, that the member has no work to perform and is unpaid. As such, it should be distinguished from an administrative leave which may or may not be with pay.

To the extent that section 1060(b)(1) is ambiguous, the court may result to rules of statutory construction. See MacIsaac v. Waste Management Collection and Recycling, Inc., (2005) 134 Cal.App.4^th 1076,1082-83. One rule of construction is to read section 1060 in context with other provisions around it. Section 1060(b)(2) provides that the Fire Chief may suspend the member for a period not to exceed 30 days “with loss of pay”, subject to the right of the member to appear before a Board of Rights. Where the member elects a Board of Rights hearing, the suspension shall automatically become a temporary relief from duty pending the Board of Rights decision. Id. Under section 1060(b)(2), a suspension with loss of pay automatically converts to a relief from duty pending a Board of Rights hearing. Such a relief from duty must be without pay; it would not make sense for a suspension without pay to automatically convert to a relief from duty with pay. Read in context, section 1060(b)(1)’s relief from duty also is without pay.

The City argues that, in the emergency situation then existing, employees were given a notice stating that City records show the employee was unvaccinated and not in compliance with the vaccine mandate. The employee was given 48 hours to respond and say: “It’s erroneous, I’m vaccinated.” Mammone received the Notice on November 9, 2021, and had 48 hours, until November 12, 2021, to respond to his failure to be vaccinated. He did not comply and was placed off-duty without pay on November 29, 2021 for failure to meet a condition of employment. Opp. at 12-13.

The court agrees with Mammone that his failure to comply with the Ordinance’s vaccination mandate, or a religious or medical exemption from vaccination, while a condition of employment, was a disciplinary matter. Nothing in section 1060 describes the form a charge must take to fall within section 1060(b). The City Council’s October 26, 2021 resolution stated that LAFD firefighters who did not comply with the notice would be subject to a Board of Rights, and the City would abide by the applicable City Charter requirements. Girard Decl., Ex. N. The Mayor’s October 28, 2021 memorandum stated that an employee who refuses to sign the notice would be placed off duty without pay pending service of a Skelly package and notice of discharge. Girard Ex. N. Finally, the November 9, 2021 Notice expressly warned Mammone that, if he did not comply within 48 hours, he would be placed off duty without pay pending disciplinary review for failure to meet a condition of employment. Mammone’s failure to vaccinate, sign the VPR agreement agreeing to vaccinate, or file an exemption, was the reason why he was placed off duty on November 29, 2021. This was an accusation of wrongdoing and cannot be reasonably described as anything other than relief from duty for non-compliance under section 1060(b).

The fact that the November 29, 2021 memorandum informed Mammone that he was placed off-duty pending a disciplinary review of his non-compliance with the Ordinance (AR 1066) does not affect the analysis. It is true that the formal complaint against Mammone charging him with failing to meet the vaccination requirement as a condition of employment was not issued until April 19, 2022. Kepler Decl., ¶18. But section 1060(b) became applicable on November 29 when the City placed Mammone off duty without pay for non-compliance with the November 9 Notice’s 48-hour deadline. Any interpretation of section 1060(b)(1) that would require a formal charge to be on file before it becomes applicable would unduly narrow its “predisciplinary protections” and the protections of section 1060(c).

Mammone argues that his placement off duty without pay on November 29, 2021 ignored his Skelly rights. In issuing the LBFO, the Mayor stated that Skelly and Board of Rights protections would be adhered to. AR 233-34. But they were not. Mammone’s Skelly hearing was not even calendared until March 2022. Why? Because the City claimed this was not a discipline case but rather a condition of employment case to which procedural safeguards do not apply. Mammone’s removal without pay was tantamount to punitive action as defined by the FPBRA. Pet. Op. Br. at 15; Reply at 6-7.

The Ordinance expressly made vaccination a condition of City employment unless an employee was approved for an exemption as a reasonable accommodation for a medical condition or restriction or sincerely held religious beliefs. LAAC §4.701(b). On October 29, 2021, City employees who did not become vaccinated and had not filed for a medical or religious exemption were offered an extension to become fully vaccinated by December 18, 2021 if they signed the VPR agreement and agreed to submit to twice-weekly testing.

On November 9, 2021, Mammone received the Notice informing him that he was not in compliance with the vaccine requirements and giving him 48 hours to take steps toward compliance by activating his Bluestone account and signing the VPR agreement, unless he had applied for an exemption. Mammone was warned that if he did not comply within 48 hours, he would be placed off-duty without pay pending disciplinary review for failure to meet a condition of employment.

Mammone did not sign the VPR agreement, did not take steps towards compliance, and did not seek an exemption. When Mammone failed to meet this condition of employment pursuant to the Ordinance, he was relieved of duty on November 29, 2021 and sent home without pay. Subsequently, on March 8, 2022, LAFD issued a Skelly hearing notice for March 30, 2022. Kepner Decl., ¶16. On March 24, 2022, LAFD issued a Rescheduled Proposed Board of rights stating that the Skelly hearing was rescheduled for April 13, 2022. Kepner Decl., ¶17. The notice included a description of the basis for the proposed action and supporting documents. Kepner Decl., ¶17.

Section 1060(b)(2) states that “following pre-disciplinary procedures otherwise required by law, the Fire Chief may (1) temporarily relieve from duty any member pending a hearing before and decision by a Board of Rights on any charge or charges pending against the member….”

The issue is whether Mammone’s relief from duty without pay on November 29, 2021 until he was offered a Skelly hearing -- initially noticed for March 30, 2022 and rescheduled for April 13, 2022 -- satisfied the requirements of section 1060(b)(1) for temporary relief from duty pending a Board of Rights hearing. It was, so long as it occurred “following predisciplinary procedures otherwise required by law”. §1060(b)(1). This reference to “predisciplinary procedures” does not necessarily mean Skelly requirements.[18] The Skelly decision “evolved from a nonemergency situation” and thus is not direct authority for the issue of a public health emergency due to COVID-19. See Mitchell v. State Personnel Bd., (1979) 90 Cal.App.3d 808, 812.

Due process is flexible and generally balances the private interest of the affected individual, the risk of an erroneous deprivation through the procedure used, the probable value of additional procedures, and the government’s interest. Bostean v. Los Angeles Unified School District, (1998) 63 Cal.Appp.4^th 95, 112-13.

Mammone had a substantial interest in the uninterrupted receipt of his paycheck, but the interruption was not final.

The City’s interest was substantial also. Mammone was one of potentially thousands of employees who were non-compliant with the conditions of their employment due to their failure to accept the terms of the LABO. The City determined that placing all such employees on paid leave would put it under a significant financial burden and compromise its ability to provide essential public services. Girard Decl., Ex. N (October 26, 2021 resolution). The City had a strong interest in taking immediate action based on the COVID-19 pandemic and its fiscal limitations.

These interests must be balanced against the risk of erroneous deprivation and the probable value of additional safeguards. The issues before the City were whether Mammone was vaccinated or willing to be vaccinated and whether he had timely requested a medical or religious exemption. The undisputed evidence is that Mammone was not vaccinated and had not submitted a request for an exemption by the deadline in the Ordinance and LFBO. He was given 48 hours to sign the VPR agreement which would allow him to come into compliance by December 18 if he agreed to its terms. He did not do so. He had 48 hours to alert the City of any error and there is no evidence that he could not have gathered any pertinent information in that timeframe. Thus, the risk of erroneous deprivation was small. No additional procedural safeguards were necessary or of value.

Therefore, Mammone received the pre-disciplinary procedures otherwise required by law pursuant to section 1060(b) and due process for the approximately 121-day period between Mammone’s relief from duty without pay on November 29, 2021 until he was offered a Skelly hearing on March 30, 2022, at which he would have been given the opportunity to be heard and respond to the allegations. While the 121-day period is lengthy, Mammone does not specifically complain about the delay. More important, Mammone declined to appear at the Skelly hearing, which mooted any pre-disciplinary procedure to which he was entitled under section 1060(b).

Under section 1060(c), where an order of temporary relief from duty or suspension is involved, the requirement that a “verified complaint” be filed means the charges must be signed by the Fire Chief or his/her designee. Therefore, if the Fire Chief intends to and does impose a temporary relief from duty or a suspension on the accused member (as opposed to a direct referral to a Board of Rights), a verified complaint (i.e., signed complaint) must be filed with the Board of Fire Commissioners. Opp. at 14-15.

Mammone argues that the City cannot change the fact that he was removed without complying with section 1060 requirements. Mammone argues that he was not personally served on November 29, 2021 with the order temporarily removing him from duty in violation of section 1060(b). He also was never served with a Relief from Duty Form that had to be accompanied by a verified complaint. Finally, section 1060(b) mandated that the complaint be filed with the Fire Commission within five days, but this did not occur either. AR 911-14. Nonetheless, Mammone immediately demanded commencement of a Board of Rights hearing within five days of his removal on November 30, 2021 as mandated by section 1060(c). AR 773-76. Pet. Op. Br. at 13.

Mammone argues that the City wiped out critical requirements of section 1060(a) and (b), including that an employee must be found guilty by a Board of Rights before being disciplined, and that the employee can demand an immediate Board of Rights hearing if served with a complaint. The City also eliminated section 1060(a) and (b) requirements that the verified complaint be given to the Fire Commissioner within five days, and not several months later. Mammone is one of few firefighters who cited section 1060(a) and (b) and demanded compliance, but the City ignored it. The City could not postpone procedural protections and the length of time specified for taking these actions in the City Charter cannot be erased. Reply at 5.

Contrary to Mammone’s argument, the operative provision is section 1060 (b) and (c), not (a) and (b). Under section 1060(b), the Fire Chief may temporarily relieve a member from duty pending a Board of Rights hearing on any charge pending against the member after following predisciplinary procedures required by law. The City met these pre-disciplinary procedures. See ante.

Under section 1060(c), where an order for temporary relief from duty or suspension is involved, the order shall contain a statement of the charges assigned as causes. The Fire Chief shall, within five days after the order is served as provided in subsection (d), file with the Board of Fire Commissioners a copy of a verified written complaint upon which the order is based, with a statement that copies of the order and verified complaint were served upon the accused. §1060(c). The complaint shall be verified by the oath of the Fire Chief and shall contain a statement in clear and concise language of all the facts constituting the charge or charges. §1060(c).

Fire Chief Terrazas’ November 29, 2021 memorandum placed Mammone off-duty without pay for failure to meet the vaccine mandate as a condition of employment. AR 1070. It was not intended as a formal charge, however. The formal process began with a proposed Skelly hearing for March 30, 2022 – which Mammone refused to attend -- and eventually a formal complaint on April 19, 2022. Kepner Decl., ¶18; AR 894, 962-66. After personal services attempts on April 23 and 24, 2022 failed, Mammone was served by certified mail on May 17, 2022. AR 965, 967. On the same date, the Board of Fire Commissioners was notified of the verified written complaint and service on Mammone in compliance with section 1060(c). AR 961.

This effort would have complied with section 1060(c) except that Mammone had been temporarily placed off duty on November 29, 2021 under section 1060(b)(1). This required the City to meet the requirements of section 1060(c). Specifically, where an order for temporary relief from duty or suspension is involved, (1) the order shall contain a statement of the charges assigned as causes, (2) the Fire Chief shall, within five days after the order is served as provided in subsection (d), file with the Board of Fire Commissioners a copy of a verified written complaint upon which the order is based, with a statement that copies of the order and verified complaint were served upon the accused, and (3) the complaint shall be verified by the oath of the Fire Chief and shall contain a statement in clear and concise language of all the facts constituting the charge or charges. §1060(c).

Did the City comply with section 1060(c)? Arguably, the November 29 memorandum functioned as a statement of the charge that Mammone failed to comply with the vaccine mandate as a condition of employment. However, it was not verified and was not served on Mammone personally or by certified mail. See §1060(d). The memorandum, therefore, did not comply with section 1060(c). Only the formal complaint issued on April 19, 2022 and served on May 17, 2022 performed this task. The November 29 memorandum also was not filed with the Board of Fire Commissioners within five days of the order for temporary relief from duty.

Compliance with section 1060(c) was mandatory and not excused by compliance with section 1060(b)’s pre-disciplinary procedure. Therefore, Mammone’s temporary relief from duty was void and he should have been restored to duty without loss of pay. See §1060(c).

In sum, while the City complied with section 1060(b) and due process, it did not comply with section 1060(c). For a Skelly violation, the constitutional infirmity of the disciplinary procedures is the imposition of discipline prior to affording the employee notice of the reasons for the punitive action and an opportunity to respond and this infirmity is not corrected until the employee has been given an opportunity to present his arguments to the authority initially imposing discipline. Barber v. State Personnel Board, (1999) 18 Cal.3d 396, 403. Mammone should have been restored to duty without loss of pay. Section 1060(c) states that the restoration is without prejudice, meaning that the City could relieve Mammone from duty as part of the formal complaint process. The formal complaint was issued on April 19, 2022 and LAFD could have relieved him from duty at that time. Therefore, Mammone is entitled to back pay for the period from November 29, 2021 to April 19, 2022.

The Petition is denied on the issue of discharge but granted for back pay. The discharge is upheld, but Mammone is entitled to back pay for the period from November 29, 2021 to April 19, 2022 for a violation of section 1060(c).

The City’s counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on Mammone’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for May 15, 2025 at 9:30 a.m.

[1] Skelly v. State Personnel Board, (“Skelly”) (1975), 15 Cal.3d 194.

[2] Mammone requests judicial notice of the following exhibits: (1) an unpublished decision from the Second Appellate District dated June 21, 2023 in Firefighters4Freedom v. City of Los Angeles (“F4F”), LASC No. 21STCV34490 which reversed a trial court demurrer ruling (RJN Ex.1); (2) an arbitrator’s decision dated November 21, 2023 finding that the removal without pay of unvaccinated firefighters violated the City’s Memorandum of Understanding (RJN Ex. 2); (3) the City Council’s May 25, 2018 decision and recorded vote adopting Ordinance 185574, making it unlawful for a City employee to participate in any government program to register individuals based on their religion or spiritual faith (RJN Ex. 3); (4) reporter’s transcripts dated August 16 and 17, 2022 from the Board of Rights hearing of City employee Nicholas Watkins (“Watkins”) (RJN Exs. 4-5); (6) the Board of Rights Manual governing Board proceedings (RJN Ex. 6); (7) disciplinary forms concerning LAFD employee Nicholas Kobe (RJN Ex. 7); and a proposed decision by a hearing officer dated January 14, 2024 in In re David Shubin and the General Services Department (RJN Ex. 8).

The arbitrator’s decision (RJN Ex. 2) is final and is judicially noticed. Evid. Code §452(c), (d). The City Council’s adoption of Ordinance 185574 (RJN Ex. 3) is judicially noticed. Evid. Code §452(b). Finally, the Board of Rights Manual (RJN Ex. 6) is judicially noticed. Evid. Code §452(c).

The remaining requests for judicial notice are denied. The unpublished decision in F4F (RJN Ex. 1) would be subject to judicial notice if it was relevant. It is not. The decision cannot be cited (CRC 8.1115) and it only reversed a demurrer ruling and did not make a merits decision. The reporters’ transcripts (RJN Exs. 4-5) from an administrative proceeding other than from the pending case are not subject to judicial notice. Nor are the disciplinary forms of another employee (RJN Ex. 7). Finally, the proposed decision of a hearing officer (RJN Ex. 8) is not a final decision that can be judicially noticed.

In reply, Mammone seeks judicial notice of two reporter’s transcripts from a previous case, Robert Kilpatrick v. City of Los Angeles, (“Kilpatrick”) 22STCP01992 (RJN Exs. 9-10). These transacripts are inadmissible and may not be presented for the first time in reply. Regency Outdoor Advertising v. Carolina Lances, Inc., (“Regency”) (1995) 31 Cal.App.4th 1323, 1333.

[3] Ultimately, the City eliminated or reimbursed all testing charges pursuant to Labor Code 2802. Girard Decl., ¶9.

[4] Mammone’s citations do not support this fact. See Pet. Op. Br. at 11.

[5] The Notice of Discharge form stated that the penalty was “TBD” (to be determined). AR 965. Through the Sergeant at Arms, the Board asked LAFD to respond to Mammone’s motion to dismiss, including what “TBD” meant (AR 1233) but the response, if any, is not cited in their briefs.

[6] Mammone does not cite a motion to compel discovery or a ruling by the Board.

[7] Mammone contends that, based on data obtained through the California Public Records Act, not all religious exemption applications were granted. AR 1241-76.

[8] Fire Chief Crowley adopted the recommendation on May 12, 2023. Pet., ¶29.

[9] In reply, Mammone argues that Assistant City Attorney Swanigan assured the court in Kilpatrick that Kilpatrick’s defenses would have been fully explored in a Board of Rights hearing and that Kilpatrick had forfeited those defenses by not showing up. The court responded that the question was whether the defense could have been presented to the Board of Rights and specifically asked about a religious exemption defense, a section 1060 claim, and a FPBRA claim, all of which Swanigan stated could have been presented. Yet, the City reversed its position and blocked these issues at Mammone’s hearing. Reply at 2-3.

The Kilpatrick transcript is not in evidence and Mammone also improperly presents this issue for the first time in reply. See Regency, supra, 31 Cal.App.4th at 1333. Moreover, Mammone does not show that Swanigan’s statements somehow estop the Board of Rights from denying jurisdiction over these issues.

[10] The court refers to the traditional mandamus evidence only to provide context and has not considered in for the weight of evidence for the administrative mandamus claim.

[11] The Notice of Discharge form stated that the penalty was “TBD” (to be determined). AR 965. The Board asked the parties what “TBD” meant (AR 1233) but the parties’ responses, if any, are not cited in their briefs.

[12] Evidence on the preconditioning issue is presented for the first time in reply through the Wise declaration, and it has not been considered. See Regency, supra, 31 Cal.App.4th at 1333.

[13] The cited pages are not in the Joint Appendix.

[14] In reply, Mammone argues that other LAFD executives and firefighters committed far more egregious offenses, relying on newspaper articles concerning the actions of Deputy Chief Fred Mathis, Assistant Chief Ellsworth Fortman, and Chief Armando Hogan (“Hogan”). Reply at 6-8. These articles are not subject to judicial notice for the truth of their content. Nor can Mammone present new evidence in reply. See Regency, supra, 31 Cal.App.4th at 1333.

[15] Mammone contends that the Board substantially reduced the witness list, preventing his experts from testifying. AR 1315-19. Pet. Op. Br. at 15. None of his cites prove this point.

[16] Mammone argues that the Board rejected newspaper articles describing differing treatment (Pet. Op. Br. at 16), but his citation is only to the articles themselves. AR 1296-1314. Mammone also argues that LAFD Advocate Captain Glenn Baham lectured the Board about LAFD processes without being under oath. Pet. Op. Br. at 15. He provides no citation to the record and fails to explain why an advocate cannot argue to the Board about process.

[17] The citation actually is an email from the Sergeant at Arms to an Assistant City Attorney stating that he received a message from the Board chairman asking for a response to Mammone’s motion to dismiss, including the meaning of “TBD” in the Notice of Discharge. AR 1233. The parties have not cited LAFD’s response.

[18] Mammone is aware that the unpublished decision in Kilpatrick v. City of Los Angeles, B327480, Second Appellate District, cannot be cited. Reply at 7.