Judge James C. Chalfant, Case Number: 23STCP03564, Date: 2025-03-13 Tentative Ruling

Petitioner Joe Occhipinti (“Occhipinti”) seeks a traditional writ of mandate requiring the Respondents County of Los Angeles (“County”) and/or Los Angeles County Sheriff’s Department (“LASD” or “Department”) to set aside the discipline imposed on him as a violation of the Peace Officers Bill of Rights (“POBRA”) and declaratory relief that sergeants or above may initiate an administrative investigation of misconduct pursuant to POBRA’s one-year statute of limitations.

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

Petitioner Occhipinti filed the verified Petition against Respondents County and LASD on September 28, 2023, alleging claims for (1) traditional mandamus and (2) declaratory relief. The Petition alleges in pertinent part as follows.

Occhipinti is employed by the County and LASD as a deputy sheriff. Pet., ¶4. On June 19, 2022, Occhipinti was involved in an on-duty, solo traffic collision while working patrol at Lancaster Sheriff’s station. Pet., ¶5. He immediately called his supervisor, Sergeant (“Sgt.”) Andrew Stowers (“Stowers”), to the scene to report the traffic collision. Pet., ¶5. Sgt. Stowers began an investigation into the cause of the collision and called Deputy Vincent Clark (“Clark”) to the scene, who completed a California Highway Patrol 55 Traffic Crash report. Pet., ¶6.

On March 3, 2023, Occhipinti was informed of various potential Department policy violations stemming from the traffic collision via a Subject of Investigation Notification (“Notification”) sent from Captain Jason M. Schreiner (“Schreiner”) to Captain Ron Kupperud (“Kupperud”). Pet., ¶8. The Notification set the date on which a sergeant became aware of an act, omission, or other misconduct as August 22, 2022. Pet., ¶8.

On May 4, 2023, Occhipinti was interviewed by Sgt. Langdon from the Internal Affairs Bureau (“IAB”). Pet., ¶9.

On July 12, 2023, Occhipinti was called in for a second IAB interview. During that interview, his attorney objected on the record that the interview violated Government Code section 3304(d)(1) because it took place more than one year after a person authorized to initiate an investigation became aware of the potential misconduct. Pet., ¶9.

On August 15, 2023, Chief Dennis Kneer authored a Disposition Sheet, determining that Occhipinti should be suspended for 30 days for violating various LASD policies. Pet., ¶11. On August 20, 2023, LASD issued Occhipinti a Letter of Intent to suspend him for 30 days and informed him that he could grieve the discipline. Pet., ¶12.

Petitioner Occhipinti seeks (1) a traditional writ of mandate requiring the County and LASD to set aside the discipline imposed on him as imposed in violation of POBRA, and to pay him all back salary together with interest at the legal rate and restore all other emoluments of employment related to such improper actions, (2) a declaration that LASD sergeants are authorized to initiate an investigation of employee misconduct and the sergeant’s knowledge of the alleged misconduct commences the one-year statutory period set forth in Government Code section 3304(d)(1); (3) civil penalties against the County and LASD in the amount of $25,000 for each violation of Government Code section 3300 et seq.; (4) an injunction and/or other extraordinary relief prohibiting the County and LASD from pursuing all disciplinary action against him, (5) costs of suit, and (6) attorney fees in accordance with the law, including Government Code section 800. Pet. at 8.

The proofs of service on file indicate Petitioner Occhipinti served Respondents County and LASD with the Petition and Summons via personal service on October 13, 2023.

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.¿

No administrative record is required for traditional mandamus to compel performance of a ministerial duty.¿¿

The Peace Officers Bill of Rights Act (“POBRA”) is located at Government Code[1] section 3300 et seq and sets forth a list of basic rights and protections which must be afforded to all peace officers by the agencies that employ them. Baggett v. Gates, (1982) 32 Cal.3d 128, 135. The various procedural protections of POBRA “balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment.” Jackson v. City of Los Angeles, (2003) 111 Cal.App.4th 899, 909.

Under section 3304(d), no punitive action may be imposed upon any public safety officer for alleged misconduct unless the public agency investigating the allegations completes its investigation and notifies the public safety officer of its proposed disciplinary action within one year of discovering the alleged misconduct. The notice contemplated by section 3304(d) is simply notice that the public agency, having completed its investigation, has decided that it may pursue disciplinary action against the officer. Although the agency is not precluded from notifying the officer at that time of the proposed specific discipline, it is not required by section 3304(d) to do so. Mays v. City of Los Angeles, (2008) 43 Cal.4th 313, 320-322.

Section 3304(d) requires the speedy adjudication of misconduct that could result in discipline. Peace officers must be notified of proposed disciplinary action within one year of the date the employing department discovers the misconduct, unless one of eight statutory exceptions applies. Breslin v. City and County of San Francisco, (2007) 146 Cal.App.4th 1064, 1074-75. Section 3304(d)’s one-year statute of limitations seeks to balance competing interests: the public interest in maintaining the integrity and efficiency of the police force and the individual officer’s interest in receiving fair treatment. Bettencourt v. City and County of San Francisco, (2007) 146 Cal.App.4th 1090, 1098-99.

The one-year statute of limitations begins to run when a person authorized to initiate an investigation discovered or should have discovered in the exercise of reasonable diligence, the act, omission, or misconduct in question. Pedro v. City of Los Angeles, (“Pedro”) (2014) 229 Cal.App.4^th 87, 106; Haney v. City of Los Angeles, (“Haney”) (2003) 109 Cal.App.4th 1, 8. The one-year limitations period begins when a supervisor has a duty to investigate, not when a formal investigation must be opened. See Jackson v. City of Los Angeles, (2003) 111 Cal.App.4^th 899, 905, 911 (under chief of police order, 3304(d)’s one-year limitations period begins when LAPD supervisor (sergeant I or detective II or higher) has a duty to investigate). "Not only completion of the investigation, but also the requisite notification to the officer, must be accomplished within a year of discovery of the misconduct." Mays v. City of Los Angeles, supra, 43 Cal.4th at 321-22.

The discovery rule in CCP section 338(d) applies equally to the one-year statute in section 3304(d)(1). Pedro, supra, 229 Cal.App.4^th at 106. Under CCP section 338(d), “A plaintiff who acquires knowledge of facts that would cause a reasonable person to suspect fraud has a duty to investigate and is charged with knowledge of facts that would have been revealed by a reasonable investigation.” Thus, the one-year statute under section 3304(d) begins to run when a person authorized to initiate an investigation discovers, or through due diligence should have discovered, the allegation of misconduct. Id. at 105.

The superior court has initial jurisdiction over a peace officer’s POBRA claims. §3309.5(c). The court may issue an injunction or other extraordinary relief to remedy the POBRA violation and to prevent future violations. §3309.5(c), (d)(1). The court may award a civil penalty of up to $25,000 upon finding that a public safety department maliciously violated any provision of POBRA with the intent to injure the public safety officer. §3309.5(e).

On June 19, 2022, Occhipinti, while working patrol at Lancaster Sheriff’s Station, was involved in an on-duty traffic collision in which he struck the center median of the road. Mellk Decl., ¶3, Ex. A, p. 13. The collision resulted in damage to Occhipinti’s County vehicle. Ex. A, p. 13.

Occhipinti telephoned Sgt. Stowers, his supervisor, and informed him of the collision. Ex. A, p. 13. Sgt. Stowers responded to the scene to assist with an investigation. Melk Decl., ¶5, Ex. C, No. 4. Occhipinti related to Sgt. Stowers that he felt the vehicle had some mechanical issues. Ex. A, pp. 108-09, 112. He explained that he was driving 20-25 miles per hour (“mph”) and the steering wheel locked up when he entered the turn, which prevented him from completing the turn and caused him to collide with the median. Ex. A, pp. 13, 38, 170. Occhipinti also told Sgt. Stowers that that he was not driving Code 3 (lights and sirens), he was not wearing his seatbelt, and his body-worn camera (“BWC”) had not been activated at the time of the collision. Ex. A, pp. 13-14, 170.

Sgt. Stowers stated during his IAB interview that, based on his observations of the damage to the vehicle and Occhipinti’s statements, he concluded “that it was possible [Occhipinti] was maybe driving too fast when was making that turn and that’s why he didn’t make the turn.” Ex. A, p. 40. In his experience, he never had an issue with a steering wheel lockup. Ex. A, p. 40.

Sgt. Stowers directed Deputy Vincent Clark (“Clark”) to respond and complete a Traffic Crash Report. Ex. A, p. 14. Deputy Clark did so. Ex. A, p. 14.

On June 20, 2022, Sgt. Stowers notified the Lancaster Station EM shift watch commander, Sgt. Adam Zeko (“Zeko”), about the alleged mechanical failure of Occhipinti’s vehicle. Ex. A, p. 14. Sgt. Zeko requested that the vehicle be examined by the Communications and Fleet Management Bureau. Ex. A, p. 14. Zeko also informed Lancaster Station Traffic Sergeant Michael Politano (“Politano”) of the collision and alleged mechanical issues. Ex. A, p. 14.

Sgt. Politano discussed the traffic collision with Captain (“Capt.”) John Lecrivain, who decided the patrol vehicle should have a mechanical evaluation and download of its Event Data Recorder (“EDR”) system. Ex. A, p. 22.

On June 27, 2022, Sgt. Politano requested the EDR for Occhipinti’s vehicle from the Risk Management Bureau. Ex. A, p. 15. The EDR Data Imaging was retrieved on the same day. Ex. A, p. 181. The EDR shows the speed of Occhipinti’s vehicle was 80 mph five seconds before the collison, and also showed the vehicle did not have any mechanical issues that contributed to the collision. Mellk Decl., ¶3, Ex. A, pp. 22, 188.

On July 8, 2022, Sgt. Politano completed a memorandum addressed to Capt. David Sum (“Sum”), requesting a mechanical inspection of the vehicle. Ex. A, p. 14. On July 14, 2022, Assistant Automotive Equipment Coordinator George Ramirez Jr. (“Ramirez”) and Automotive Technician Robert Yip (“Yip”), from Centerra Integrated Services, LLC, conducted a mechanical inspection of the vehicle. Ex. A, p. 14-15. “Mr. Ramirez and Mr. Yip determined there was no conclusive evidence of mechanical issues with the patrol vehicle’s suspension or braking system, nor were they determined to be causal factors in the collision.” Ex. A, p. 15.

On August 11, 2022, Capt. Sum authored a memorandum to Capt. Lecrivain, stating that there was no conclusive evidence of mechanical issues. Ex. A, p. 15. Lecrivain received the memorandum on August 22, 2022. Ex. A, p. 15.

On October 17, 2022, Sgt. Zeko requested an administrative investigation of Occhipinti for negligent operation of the vehicle and for not wearing a seatbelt. Ex. A, p. 169.

On January 11, 2023, North Patrol Division Chief Dennis Kneeler (“Kneeler”) issued a “Request for Internal Affairs Bureau Administrative Investigation.” Ex. A, pp. 16, 250. The Request stated that August 22, 2022 was the date that “a Sergeant, or above, became aware of an act, omission, or other misconduct.” Ex. A, p. 250 (emphasis added).

Sgt. Stowers was interviewed by IAB on April 19, 2023. Ex. A, p. 30. Occhipinti was interviewed by IAB on May 4, 2023. Ex. A, p. 99.

On August 20, 2023, LASD served Occhipinti with a Letter of Intent, and on December 28, 2023, LASD served Occhipinti with a Letter of Imposition, suspending him for 30 days. Mellk Decl., ¶3, Ex. B, p. 5.

“1. That in violation of the Department's Manual of Policy and Procedures sections 3 01/030.10, Obedience to Laws, Regulations, and Orders [as it pertains to Manual of Policy and Procedures Sections 3- 06/200. 08, Body Worn Camera - Activation; and/or 5- 09/200.25, Use of Code 3-Authority/Responsibility; and/or 5-09/200.30, Vehicle Speeds; and/or California Vehicle Code Sections 22107, Unsafe Turn; and/or 22380, Unsafe Speed]; and/or 3-01/050.10, Performance to Standards; and/or 3-01/090.07, Use of Seatbelts; and/or 3-01/090.10, Operation of Vehicles, on or about June 19, 2022, while on-duty and assigned to Lancaster Station as a. deputy sheriff, you failed to conform to work standards established for your rank when you were involved in an on-duty traffic collision responding to a call for service. You failed to obtain authorization for a Code-3 response and operated your patrol vehicle in an unsafe manner, at unsafe speeds, without wearing a seatbelt, which resulted in a traffic collision and/or damages to a county vehicle, as evidenced by, but not limited to, the following:

a. failing to activate your body worn camera while operating your patrol vehicle in a Code-3 capacity without authorization; and/or,

b. failing to notify Sheriff's Communication Center (SCC) and/or receive acknowledgement before responding Code 3; and/or,

c. driving dangerously, and/or at excessive speeds, on surface streets and/or residential streets, resulting in a traffic collision; and/or,

e. data obtained from the Crash Data. Retrieval system documenting the speed of your patrol vehicle of up to 87 miles per hour (mph) on a city street with a posted and/or prima facie speed limit of 40 miles per hour.

2. That in violation of the Department's Manual of Policy and Procedures Section 3-01/040.70 Dishonesty/False Statements, on or about June 19, 2022, while on-duty and assigned to Lancaster Station as a deputy sheriff, you failed to provide full, complete and/or truthful statements, and/or failed to maintain a high level of moral conduct in keeping with the highest standards of law enforcement personnel, as evidenced by, but not limited to, the following:

a. telling Sergeant Andrew Stowers, you were driving 20-25 mph prior to the collision which contradicted the Event Data Recorder (EDR) that indicated the vehicle was traveling approximately 80 mph, five (5) seconds prior to collision; and/or,

b. claiming mechanical issues with Ford Explorer, SH7970, as being factors in the traffic collision, contradicting data obtained from Communications and Fleet Management Bureau (CFMB) and/or Centerra Integrated Services, LLC., which showed no conclusive evidence of mechanical issues with the patrol vehicle’s suspension and/or braking system, nor were they determined to be factors in the collision; and/or,

c. claiming the patrol vehicle's brakes malfunctioned and/or worked poorly prior to the traffic collision contradicting inspection data that showed the patrol vehicle’s braking system work properly and/or successfully reduced the vehicle's speed from approximately 80 mph to approximately 27 mph at time of impact.” Ex. B, pp. 5-7.

IAB Unit Order #48 states that the IAB investigator shall calculate and note in the case file the one-year statute of limitations date within ten days of being assigned the case. Mellk Decl., ¶6, Ex. D, p. 1.

“The investigator shall use the incident date as the presumptive start date with which to calculate the Peace Officer Bill of Rights’ one-year statute of limitations period for completion of administrative investigations (Government Code Section 3304). The “Department notification date” or “Department awareness date” shall no longer be used as the presumptive start date in calculating the one-year statute date.”

“In cases where the date of discovery of the allegation of misconduct (“Department awareness date”) is different from the incident date, it may be unreasonable to use the incident date as the start date to calculate the one-year statute date. The investigator shall discuss the facts of the case with his/her team lieutenant in order to decide whether the incident date or the Department awareness date will be used to determine the one-year statute date. Such consultation shall be noted in the investigative file.” Ex. D, p. 1 (emphasis added).

In July 2021, Capt. Lecrivain was assigned at Lancaster Sheriff’s Station as the Unit Commander and served in this position through July 2023. Lecrivain Decl., ¶¶3-4, Ex. A. Capt. Lecrivain was Occhipinti’s Unit Commander during the timeframe that Occhipinti had an on-duty traffic collision that took place on June 19, 2022, and thereafter until Capt. Lecrivain was reassigned in July 2023. Lecrivain Decl., ¶5.

Through briefing by his subordinates, Capt. Lecrivain was advised that Occhipinti had reported mechanical problems with his patrol vehicle at the time of his June 19, 2022 on-duty traffic collision. Lecrivain Decl., ¶6. As a result, a mechanical inspection of Occhipinti’s patrol vehicle was conducted by the Communications and Fleet Management Bureau. Lecrivain Decl., ¶6.

On August 11, 2022, Capt. Sum prepared a mechanical evaluation memorandum of the vehicle addressed to Capt. Lecrivain. Lecrivain Decl., ¶7, Ex. B. Capt. Lecrivain first reviewed Capt. Sum’s memorandum on August 22, 2022. Lecrivain Decl., ¶7. Prior to that date, Capt. Lecrivain did not have any documentation or information to call into question the representations made by Occhipinti about how the traffic collision had occurred. Lecrivain Decl., ¶8. This included Occhippini’s statements about the patrol vehicle having a mechanical malfunction, how the incident occurred, and the speed of the patrol vehicle at the time of the accident. Lecrivain Decl., ¶8.

The analysis in Capt. Sum’s memorandum established that there was no mechanical defect or problem with Occhipinti’s vehicle. Lecrivain Decl., ¶9. Nevertheless, additional information was necessary in order to identify a cause of the accident. Lecrivain Decl., ¶9. As such, Sgt. Politano, a supervisor assigned at Lancaster Sheriff’s Station, was instructed to review the collision report, photographs, and other evidence relating to the traffic collision including black box information from Occhipinti’s patrol vehicle. Lecrivain Decl., ¶9.

On November 8, 2022, Sgt. Politano issued his report. Lecrivain Decl., ¶9. Capt. Lecrivain reviewed the report on December 10, 2022. Lecrivain Decl., ¶10. The findings and analysis in Sgt. Politano’s report indicated that Occhipinti was driving in an unsafe manner and at an unsafe speed at the time of the traffic collision. Lecrivain Decl., ¶11, Ex. C. Based on the information from Sgt. Politano and Capt. Sum, Capt. Lecrivain determined that there should be an administrative investigation of Occhipinti, and Capt. Lecrivain initiated an administrative investigation pursuant to his authority under LASD’s Manual of Policy and Procedures (“MPP”) section 3-04/020.05. Lecrivain Decl., ¶12, Ex. D.

“Upon…notification that a personnel incident involving possible misconduct has occurred, a Unit Commander or higher ranking executive may order an administrative investigation.

Administrative investigations may be conducted by the concerned Unit, at the direction of the Unit Commander, or may be conducted by the Internal Affairs Bureau.

Only a Division Chief or Division Director or above may request an administrative investigation by the Internal Affairs Bureau.” Lecrivain Decl., Ex. D.

Capt. Sum, Sgt. Stowers, and Sgt. Politano were not the Unit Commander of Occhipinti at any time between June and December 2022. Lecrivain Decl., ¶13. None of them had the authority to initiate an administrative investigation of Occhipinti concerning his June 19, 2022 traffic collision. Lecrivain Decl., ¶13.

Sgt. Stowers was Occhipinti’s direct supervisor at Lancaster Station for the approximately nine-month period of December 2021 to July 2022. Stowers Decl., ¶4.

Occhipinti called Sgt. Stowers on the phone after his on-duty traffic collision on June 19, 2022 and advised that he had been involved in a minor traffic collision. Stowers Decl., ¶5. Occhipinti stated that his steering wheel had locked up and he could not complete a turn. Stowers Decl., ¶5. He also stated that a tire hit the curb and that the rim was slightly bent. Stowers Decl., ¶5.

Upon his arrival at the accident scene, Sgt. Stowers observed that the accident was not a minor collision, the tire was slanted, and it was necessary to tow the vehicle. Stowers Decl., ¶6. Sgt. Stowers was on the scene for approximately 15 minutes. Stowers Decl., ¶6. He did not perform a traffic investigation and did not know at the time whether a mechanical failure had occurred. Stowers Decl., ¶7. He took at face value Occhipinti’s representation that the steering wheel had locked up. Stowers Decl., ¶7. There were no specific red flags and what Occhipinti had told Sgt. Stowers appeared to be consistent with the damage to the vehicle. Stowers Decl., ¶8.

Occhipinti also told Sgt. Stowers that he was not wearing a seatbelt at the time of the accident, which was a potential policy violation. Stowers Decl., ¶9. Some deputies take off their seatbelts when they are responding to a call for service relating to the use of a firearm because it enables them to quickly exit the patrol vehicle. Stowers Decl., ¶9. It depends on the particular facts and circumstance whether a seatbelt has been taken off at a reasonable time and at a reasonable distance from the location involved in the call for service. Stowers Decl., ¶9.

At the accident scene, Occhipinti told Sgt. Stowers that he was driving approximately 20-25 miles per hour at the time of the traffic collision. Stowers Decl., ¶10. In his report relating to the traffic collision, Occhipinti stated that he was not driving his vehicle with red lights and siren activated. Stowers Decl., ¶10, Ex. B. This means that Occhipinti was not responding Code 3. Stowers Decl., ¶10. If Occhipinti was not responding Code 3 to a call, LASD policy in June 2022 did not require him to activate his BWC. Stowers Decl., ¶11.

Based on what Sgt. Stowers observed at the accident scene and Occhipinti’s statements to him, Sgt. Stowers did not see or hear anything that would warrant an administrative investigation. Stowers Decl., ¶12. Thus, there was no reason at the time to believe that Occhipinti had negligently or carelessly driven his patrol vehicle and/or had stated anything false or misleading to Sgt. Stowers. Stowers Decl., ¶12.

Deputy Clark also responded to the accident scene and commenced a traffic investigation. Stowers Decl., ¶13. This was standard procedure and does not mean that misconduct by the deputy driving the vehicle had occurred and/or that the deputy is suspected of any wrongdoing. Stowers Decl., ¶13.

After the date of the accident, Deputy Clark submitted his report to Sgt. Stowers. Stowers Decl., ¶13. Sgt. Stowers also prepared a report based on everything he had observed, and the information provided to him by Occhipinti. Stowers Decl., ¶13, Ex. C. Everything appeared to be consistent with the version of events provided by Occhipinti. Stowers Decl., ¶13.

In the period of June through December 2022, Sgt. Stowers was a first line supervisor and had no authority to initiate an investigation pursuant to MPP section 3-04/020.05. Stowers Decl., ¶15. Only the Unit Commander or a person higher at LASD has the authority to initiate an investigation. Stowers Decl., ¶15.

MPP section 3-09/070.10 (Supervisor’s Report and Responsibilities) provides that “collisions in which members are involved shall be investigated by a supervisor”. Reply Mellk Decl., ¶3, Ex. E.

MPP section 3-09/070.30 (“Duties and Responsibilities of the Captain/Director”) provides, in relevant part:

“Captains and directors shall review the complete vehicle collision file and determine the applicable classification and the appropriate action to be taken as described in sections 3-09/070.45, Corrective Action, and 3-01/090.10, Operation of Vehicles. Should the captain or director determine that violations of the policy occurred that reach the level of intentional or reckless behavior or involve violations other than those relating to the cause of the collision, the driver shall be eligible for disciplinary action, and the captain or director should process the incident as any other administrative investigation.” Reply Mellk Decl., ¶4; Ex. F (emphasis added).

Petitioner Occhipinti seeks traditional mandamus to set aside his discipline as imposed in violation of section 3304(d)’s one-year limitations period and declaratory relief that the knowledge of a LASD sergeant or above is sufficient to commence the one-year limitations period.

Occhipinti has the burden to show when the one-year limitations period began to run and ended. Breslin v. City and County of San Francisco, (2007) 146 Cal.App.4th 1064, 1077. Occhipinti argues that the one-year start date occurred before August 20, 2022 and the Letter of Intent dated and served August 20, 2023 was untimely under section 3304(d)(1).

The County contends that the start date did not occur until August 22 or December 10, 2022. On August 22, 2022, Capt. Lecrivain, a person authorized by the Department to initiate an investigation, first received information that there was no mechanical defect in the vehicle driven by Occhipinti on June 19, 2022. Further, Capt. Lecrivain only learned that Occhipinti drove his vehicle at excessive speed on December 10, 2022, and this information revealed that Occhipinti made misrepresentations to Sgt. Stowers on June 19, 2022. Opp. at 9-10.[3]

1. The Authority to Initiate an Investigation and the Start of the One-Year Limitations Period

Section 3304(d)(1) triggers the one-year period when a person “authorized to initiate an investigation” becomes aware of misconduct. The plain language of section 3304(d)(1) requires that the misconduct be discovered by a person authorized to start an investigation. The statute must be given a reasonable and common sense interpretation consistent with the apparent purpose and intent of the lawmakers, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. Lungren v. Deukmejian, (1988) 45 Cal.3d 727, 735.

It is irrelevant how likely it is that authorized person will actually investigate, or whether he or she could be expected to investigate. The Legislature, and subsequently the courts, have left it to agencies to define through their policies which employees are authorized to initiate investigations, and under what circumstances. See Daugherty v. City and County of San Francisco, (“Daugherty”) (2018) 24 Cal. App. 5th 928, 950-51.

The parties debate what level of supervisor is authorized by the Department and what supervisor did so for purposes of section 3304(d)(1).

“[the IAB investigator] shall use the incident date as the presumptive start date with which to calculate the Peace Officer Bill of Rights’ one-year statute of limitations period for completion of administrative investigations (Government Code Section 3304)….The investigator shall discuss the facts of the case with his/her team lieutenant in order to decide whether the incident date or the Department awareness date will be used to determine the one-year statute date. Such consultation shall be noted in the investigative file.” Mellk Decl., Ex. D, p. 1 (emphasis added).

Occhipinti notes that the IAB report lacks documentation of any consultation between the IAB investigator and his team lieutenant. Therefore, pursuant to IAB Unit Order #48, the June 19, 2022 date of the incident is the proper date by which to start the one-year statute of limitation. Pet. Op. Br. at 10.

Occhipinti also relies on the Department form to make a “Request for Internal Affairs Bureau Administrative Investigation”, which has a fill-in for the date that “a Sergeant, or above, became aware of an act, omission, or other misconduct.” Mellk Decl., Ex. A, p. 250 (emphasis added). He argues that this statement is the Department’s acknowledgement that a sergeant is authorized to commence an investigation. Pet. Op. Br. at 11.

Occhipinti relies on Ochoa, supra, 22 Cal.App.5th at 235. There, a deputy contended that the statute of limitations began to run upon knowledge of alleged misconduct by a sergeant, despite department policy specifying that only a chief deputy was authorized to initiate the formal internal affairs investigation. Id. at 238, 246. The court stated that the issue was what constitutes an investigation under section 3304(d)(1). Id. at 247. It stated that POBRA does not define the term “investigation”, but section 3304(d)(1)’s language indicates that its protections only apply to those investigations “that could lead to punitive action”. Id. at 248.

The court then analyzed whether the Ochoa sergeant’s fact-finding could lead to punitive action and concluded that his inquiry was an investigation within the meaning of section 3304(d)(1). Id. at 248. The court explained that the sergeant had the authority to issue a written reprimand if the misconduct did not arise to a serious or criminal level. Id. Given this authority, a punitive action could have resulted. Id. Further, “punitive action . . . may exist when action is taken which may lead to the adverse consequences specified in section 3303 at some future time.” Id. at 248 (citing Otto v. Los Angeles Unified School Dist., (2001) 89 Cal.App.4th 985, 996 (italics in original). Based on the facts, it was easy to determine that the sergeant’s inquiry might have led to punitive action because it actually did so. Id. When the sergeant prepared his memorandum and forwarded it through the chain of command, an internal affairs investigation that ultimately led to the employee’s discipline was initiated. The court, therefore, ruled that the statute of limitations began running on the date the sergeant had notice of the potential misconduct. Id.

Based on Ochoa, Occhipinti argues that all of Sgt. Stowers, Sgt. Politano, and Capt. Sum were authorized to commence an investigation into his potential misconduct. They each had reason to suspect misconduct by Occhipinti well before August 20, 2022, which is one year before Occhipinti was served with the Letter of Intent. Pet. Op. Br. at 13-14.

Occhipinti contends that Sgt. Stowers’ statements during his administrative interview make it clear that he knew of Occhipinti’s potential misconduct upon his arrival at the scene on June 19, 2022. Occhipinti told him that he had not been wearing his seatbelt. Sgt. Stowers believed at that time that the failure to wear a seatbelt was not reasonable, as Occhipinti was at least a mile from the service call when the collision occurred. Ex. A, p. 35; see Ex. B, p. 6 (Charge 1(d).) Occhipinti also told him that he was driving 20-25 mph and that his steering wheel locked when he was making a right-hand turn, causing him to not complete his turn and hit the center median. Ex. A, pp. 34,39. Based on his observations of the damage, Sgt. Sowers concluded that “it was possible [Occhipinti] was maybe driving too fast when he was making that turn….” Ex. A, p. 40; see Ex. B, p. 7 (Charge 2 (a), (b)).[4] Thus, Sgt. Stowers knew of Occhipinti’s potential misconduct on June 19, 2022. Pet. Op. Br. at 10.[5]

On June 27, 2022, Sgt. Politano requested the vehicle’s EVD from Risk Management Bureau. Ex. A, p. 15. The EVD analyzes, among other things, the speed and actions of the car prior to the collision. Ex. A, pp. 70-73. The information from the EVD was available to Politano that day. It showed that Occhipinti had reached a speed of 80 mph prior to the collision, and that the vehicle had no mechanical problems contributing to the accident. Ex. A, pp. 22, 181, 188, 207-08. Occhipinti concludes that Sgt. Politano was authorized to commence an investigation into potential misconduct, and he had knowledge of Occhipinti’s potential misconduct on June 27, 2022. Pet. Op. Br. at 13-14.

Finally, Capt. Sum knew about Occhipinti’s potential misconduct no later than August 11, 2022. Occhipinti relies on MPP section 3-09/070.30 (“Duties and Responsibilities of the Captain/Director”) for Capt. Sum’s authority to investigate:

Occhipinti argues that Sgt. Politano provided Capt. Sum with the information gleaned from the mechanical inspection. While the date on which he did so is unknown, Capt. Sum drafted a memorandum to Capt. Lecrivain dated August 11, 2022, informing the latter of the inspection’s specific findings and writing: “In conclusion, there is no conclusive evidence of mechanical issues with the vehicle’s suspension or braking system that could have contributed to the incident in question.” Ex. A, p. 177. Therefore, Captain Sum knew of Occhipinti’s misconduct no later than August 11, 2022. Pet. Op. Br. at 14.[6]

The question is not when a LASD employee discovers the alleged misconduct but when a person “authorized to initiate” an investigation discovers potential misconduct. In Daugherty, the court reviewed the statute and stated:

“Looking to the statutory language itself, we note that section 3304, subdivision (d)(1), triggers the statute of limitations upon discovery within a public agency by a person authorized to initiate an investigation. The reasonable implication from this language is that the statute of limitations is not triggered upon any employee's discovery, but upon discovery by persons who are either specifically or generally vested with the authority to commence an investigation into the misconduct. Given that a public law enforcement agency may employ many individuals and have multiple divisions and levels of leadership, it is significant to us that the language of section 3304, subdivision (d)(1), ties the accrual of the statute to discovery by persons within a public agency who are authorized to initiate investigation of the pertinent information.” Id. at 949-50 (emphasis added). Opp. at 10-11.

The person vested with authority to commence a disciplinary investigation is not necessarily a supervisor to whom a matter should be reported. In Benefield v. Department of Corrections and Rehabilitation, (“Benefield”) (2009) 171 Cal.App.4th 469, 476, the Sixth District Court of Appeal reversed a ruling by the trial court relating to a finding that discipline was untimely. Id. at 470 and 478. In its analysis, the court explained:

“Even if the trial court could have speculated that Vanhoose was an ‘Investigative Lieutenant’ to whom serious misconduct should be reported, the fact that the incident should have been reported to him did not establish that he had the authority to initiate an investigation. The record contains no evidence that Vanhoose held the position of ‘Hiring Authority’ or held any other position that gave him the authority to initiate an investigation of the alleged incident. It follows that the record lacks substantial evidence that the limitations period commenced to run on the date of the incident.” Id. at 476-77 (emphasis added). Opp. at 13.

Ultimately, the person with authority to initiate a disciplinary investigation is a matter for LASD policy. The court should generally apply the agency's designation in determining when the limitations period begins to run. Daugherty, supra, 24 Cal.App. 5^th at 950-51.

“Upon…notification that a personnel incident involving possible misconduct has occurred, a Unit Commander or higher-ranking executive may order an administrative investigation.

Administrative investigations may be conducted by the concerned Unit, at the direction of the Unit Commander, or may be conducted by the Internal Affairs Bureau.

Only a Division Chief or Division Director or above may request an administrative investigation by the Internal Affairs Bureau.” Lecrivain Decl., Ex. D.

The Department policy is reflected in MPP section 3-04/020/05, which provides that only a Unit Commander or higher-ranking executive may order an administrative investigation. The facts that Sgt. Stowers had a duty to conduct a traffic collision investigation under MPP section 3-09/070.10 (Supervisor’s Report and Responsibilities) (“collisions in which members are involved shall be investigated by a supervisor”), that Sgt. Politano asked the Risk Management Bureau for the EDR for the vehicle and authored a memorandum to Capt. Sum, and that Capt. Sum authored a memorandum to Capt. Lecrivain stating the vehicle had no mechanical issues does not mean that any of them had authority to initiate a disciplinary – as opposed to a traffic -- investigation.

IAB Unit Order #48 requires the IAB investigator to discuss the one-year start date with his or her lieutenant, and document the discussion if it is not the same as the incident date, and the investigator failed to do so. Mellk Decl., Ex. D. The “Request for Internal Affairs Bureau Administrative Investigation” refers to the date that “a Sergeant” became aware of the misconduct. Mellk Decl., Ex. A, p. 250. These documents are circumstantial evidence of the Department’s policy, but that circumstantial evidence does not overcome LASD’s express policy in MPP section 3-04/020/05.

The County correctly notes that Occhipinti’s arguments are premised on an assumption that, since Sgt. Stowers was present at the scene of the traffic collision, the statute of limitations commenced on that date. However, the unambiguous Department written policy shows that only Capt. Lecrivain -- not Sgt. Stowers, Sgt. Politano, or Capt. Sum -- had the authority to initiate an investigation because they were not the Unit Commander. Opp. at 11-12.

The County further notes that Ochoa, supra, 22 Cal.App.5th at 248, was distinguished by Daugherty on the basis that it “involved broader Departmental procedures as well as specific factfinding” and disciplinary authority that the supervisor was not shown to possess. 24 Cal.App. 5^th at 954. Of significance was the fact that the sergeant in Ochoa was empowered to “perform initial factfinding of allegations”, notify senior ranking officers, and “impose certain forms of discipline”. Id. Opp. at 14.

In contrast, Occhipinti has produced no evidence that Sgt. Stowers, Sgt. Politano, or Capt. Sum had any authority to perform initial fact-finding, any responsibility to report allegations to Unit Commander Capt. Lecrivain, or had any authority to impose any discipline on Occhipinti. Although Sgt. Stowers, Sgt. Politano, and Capt. Sum wrote reports, this fact does not establish that any of them was authorized to initiate a disciplinary investigation. As the court in Daugherty articulated, preparing memoranda and fulfilling other responsibilities in a law enforcement agency are not synonymous with having the authority to initiate an administrative investigation under section 3304(d). 24 Cal.App.5th at 954. Opp. at 14.

In sum, Daughtery held section 3304(d)(1)’s one-year limitations period is triggered by discovery by persons who are either specifically or generally vested with the authority to commence an investigation into the misconduct. Benefield explained that the mere fact that a supervisor is a person to whom misconduct should be reported does not mean that supervisor has authority to investigate that misconduct. Ochoa held that a supervisor with authority to conduct fact-finding, impose minor discipline, and was required to prepare a memorandum by departmental procedure triggered the statute.

The Department’s express policy in MPP section 3-04/020/05 requires that a Unit Commander or higher may initiate a disciplinary investigation. Therefore, the one-year limitations period only started when Occhipinti’s Unit Commander, Capt. Lecrivain, knew or should have known in the exercise of reasonable diligence that Occhipinti had been driving at excessive speed and had apparently made multiple false statements about the patrol vehicle having mechanical problems and about how the traffic collision had occurred. Opp. at 15.[7]

The courts scrutinize the facts and circumstances to determine if and when discovery by an authorized person has occurred. Haney, supra, 109 Cal.App.4th at 8-9. In Haney, the court rejected attempts to transmute section 3304(d) into a simplistic set of dates and calculations and upheld the trial court’s determination that the charges against the officer were not time-barred by the one-year limitations period. Id. at 11. Instead, the court emphasized [t]he date upon which an administrative agency discovers misconduct is a question of fact, as is the reasonable diligence for which the person authorized to initiate an investigation into misconduct acted.” Id. at 8 (citation omitted).

The County argues that the statute of limitations did not commence until Capt. Lecrivain, was advised about, and thereby discovered, each component of Occhipinti’s misconduct. Since less than one year elapsed between those dates and the Letter of Intent, Occhipinti’s statute of limitations defense is without merit. Opp. at 16.

Occhipinti contends that the County argues inconsistently about the operative date for Capt. Lecrivain’s knowledge of possible misconduct. The County contends that Capt. Lecrivain first received information on August 22, 2022 that there was no mechanical defect in the vehicle driven by Occhipinti. Further, Capt. Lecrivain only learned on December 10, 2022 that Occhipinti drove his vehicle at excessive speed, and this information revealed that Occhipinti made misrepresentations to Sgt. Stowers on June 19, 2022. Opp. at 9-10. Occhipinti argues these positions are inconsistent. Reply at 11-12.

These arguments are not inconsistent; they simply parse when Capt. Lecrivain knew about facts supporting specific charges.

The question becomes whether Capt. Lecrivian acted with reasonable diligence. He may be the only person in his Unit at the Lancaster Sheriff’s Station who could initiate a disciplinary investigation, but that fact does not entitle him to ignore the information presented to him and thereby extend the date on which the one-year statute begins. To the contrary, his singular authority to initiate discipline means that he must exercise reasonable diligence to timely pursue that investigation and start the one-year clock.

Occhipinti telephoned Sgt. Stowers and informed him of the collision on June 19, 2022. On that date, after speaking to Occhipinti and observing the vehicle, Sgt. Stowers had reason to believe that Occhipinti committed misconduct by driving at excessive speeds or dangerously (Charge 1c.), failing to where his seatbelt (Charge 1d.), and false statement about his speed (Charge 2a.).

On June 20, 2022, Sgt. Stowers notified the Lancaster Station EM shift watch commander, Sgt. Zeko, about the alleged mechanical failure of Occhipinti’s vehicle. Sgt. Zeko requested that the vehicle be examined by the Communications and Fleet Management Bureau.

Sgt. Zeko also informed Lancaster Station Traffic Sergeant Politano of the collision and alleged mechanical issues. Ex. A, p. 14. In turn, Sgt. Politano discussed the traffic collision with Capt. Lecrivain, who decided the patrol vehicle should have a mechanical evaluation and download of its EDR system. Ex. A, p. 22. Thus, Capt. Lecrivain was fully aware, on or about June 20, 2022, of Occhipinti’s traffic collision and the need for a mechanical evaluation and check of the vehicle’s speed through EDR.

On June 27, 2022, Sgt. Politano requested the EDR from the Risk Management Bureau and the EDR Data Imaging was retrieved on the same day. Ex. A, p. 181. The EDR shows the speed of Occhipinti’s vehicle on June 19 as 80 mph five seconds before the crash, and also showed the vehicle did not have any mechanical issues that contributed to the collision. Mellk Decl., ¶3, Ex. A, pp. 22, 188.

On July 8, 2022, Sgt. Politano sent a memorandum addressed to Capt. Sum requesting a mechanical inspection of the vehicle. Ex. A, p. 14. On July 14, 2022, Assistant Automotive Equipment Coordinator Ramirez and Automotive Technician Yip conducted a mechanical inspection of the vehicle and found no conclusive evidence of mechanical issues with the patrol vehicle’s suspension or braking system, and they were not determined to be causal factors in the collision. Ex. A, p. 15.

Thus, as early as June 27, and certainly by July 14, 2022, if the information was timely communicated to him, Capt. Lecrivain would have had all the information he needed to initiate an investigation against Ochhipinti based on potential misconduct of excessive speed (Charge 1c.), seatbelt violation (Charge 1d.), EDR showing 87 mph (Charge 1e.), false statement to Sgt. Stowers (Charge 2a.), falsely claiming mechanical issues (Charge 2b.), and falsely claiming brake malfunction (Charge 2d.). In other words, this information was sufficient to initiate an investigation for all viable charges.[8]

The County contends that not until August 22, 2022 did Capt. Lecrivain first receive information that there was no mechanical defect in the vehicle driven by Occhipinti. Further, Capt. Lecrivain only learned on December 10, 2022 that Occhipinti drove his vehicle at excessive speed, and this information revealed that Occhipinti made misrepresentations to Sgt. Stowers on June 19, 2022. Opp. at 9-10.

The County’s contentions are based on Capt. Lecrivain’s declaration stating that he first reviewed Capt. Sum’s memorandum on August 22, 2022. Lecrivain Decl., ¶7. Prior to that date, Capt. Lecrivain did not have any documentation or information to call into question the representations made by Occhipinti about how the traffic collision had occurred. Lecrivain Decl., ¶8. This included Occhippini’s statements about the patrol vehicle having a mechanical malfunction, how the incident occurred, and the speed of the patrol vehicle at the time of the accident. Lecrivain Decl., ¶8.

According to Capt. Lecrivain, the analysis in Capt. Sum’s memorandum established that there was no mechanical defect or problem with Occhipinti’s vehicle. Lecrivain Decl., ¶9. Nevertheless, additional information was necessary to identify another cause for the accident. Lecrivain Decl., ¶9. As such, Sgt. Politano was instructed to review the collision report, photographs and other evidence relating to the traffic collision including black box information from Occhipinti’s patrol vehicle. Lecrivain Decl., ¶9. On November 8, 2022, Sgt. Politano issued his report. Lecrivain Decl., ¶9. The findings and analysis in Sgt. Politano’s report indicated that Occhipinti was driving in an unsafe manner and at an unsafe speed at the time of the traffic collision. Lecrivain Decl., ¶11, Ex. C. Capt. Lecrivain reviewed the report on December 10, 2022. Lecrivain Decl., ¶10. Based on the information from Sgt. Politano and Capt. Sum, Capt. Lecrivain determined that an administrative investigation relating to Occhipinti should proceed. Lecrivain Decl., ¶12.

The court does not find Capt. Lecrivain’s declaration credible. He was fully aware, on or about June 20, 2022, of Occhipinti’s collision and the need for a mechanical evaluation and check of the vehicle’s speed through EDR, which he ordered. On June 27, 2022, the EDR imaging was retrieved and on July 14, 2022 the mechanical inspection was completed. Neither Capt. Lecrivain nor anyone else provides any explanation why these results were not given to him in writing or orally. Capt. Lecrivain only vaguely states that he did not have any “information to call into question” Occhipinti’s explanation abut the accident. Lecrivain Decl., ¶8. If Capt. Lecrivain did not receive an oral report by mid-July from either Sgt. Politano or Capt. Sum, he was negligent in not requiring one before Sgt. Politano’s formal November 8, 2022 report.

Additionally, Capt. Sum drafted his memo to Capt. Lecrivain on August 11, 2022, noting that Occhipinti’s vehicle had no mechanical issues on August 11, 2022. (Mellk Decl.1, ¶ 3; Exh. A, p. 15. Capt. Lecrivain offers no explanation why he did not read the memo until eleven days later, on August 22, 2022.

Finally, Capt. Lecrivain seems to believe he had to nail down proof of Occhipinti’s negligence as the cause of the collision before he could request an administrative investigation. Lecrivain Decl., ¶9. That may be good practice, but the one-year limitations period begins when a supervisor has a duty to investigate, not when a formal investigation must be opened. See Jackson v. City of Los Angeles, (2003) 111 Cal.App.4^th 899, 905, 911 (under chief of police order, 3304(d)’s one-year limitations period begins when LAPD supervisor (sergeant I or detective II or higher) has a duty to investigate). Capt. Lecrivain had a duty to investigate and did not act reasonably diligently. He should have discovered Occhipinti’s misconduct in mid-July 2022.[9]

Capt. Lecrivain’s lack of diligence underscores the reason for the existence of the statute of limitation -- i.e., “to ensure that an officer will not be faced with the uncertainty of a lingering investigation, but will know within one year of the agency’s discovery of the officer’s act or omission that it may be necessary for the officer to respond in the event he or she wishes to defend against possible discipline.” Mays v. City of Los Angeles, (2008) 43 Cal.4^th 313, 322. Pet. Op. Br. at 13-14.

The one-year statute of limitations began no later than mid-July 2022. As more than one year passed before the Department’s August 20, 2023 Letter of Intent, Occhipinti’s 30-day suspension was time-barred. See Pedro, supra, 229 Cal.App.4^th at 106.[10]

The Petition is granted. A judgment and traditional writ of mandate shall issue requiring the County and LASD to set aside the discipline imposed on Occhipinti as a violation of POBRA, and to pay him all back salary together with interest at the legal rate and restore all other emoluments of employment related to such improper actions. A declaration shall issue that, pursuant to MPP section 3-04/020/05, only a Unit Commander or higher-ranking executive may order an administrative investigation of misconduct. No civil penalties under POBRA are awarded. Occhipinti is awarded his costs. The court makes no decision on entitlement to attorney fees at this time and the parties are ordered to meet and confer before any fee motion is filed.

Petitioner Occhipinti’s counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on counsel for the County and LASD 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 April 24, 2025 at 9:30 a.m.

[1] All further statutory references are to the Government Code unless otherwise stated.

[2] The County objects to the reply evidence as new matter. See Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333 (New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded). The evidence is responsive to the County’s declarations and the objections are overruled.

[3] The County notes that, apart from an authenticating declaration of his counsel, Occhipinti relies on unsworn statements and written reports. Occhipinti did not take any depositions and has not submitted declarations by percipient witnesses. Therefore, there has been a failure of proof and a reliance on hearsay, which constitutes grounds for denial of the Petition. “Trial judges are particularly aware of the potential unreliability of hearsay evidence, and are likely to keep this in mind when weighing all of the evidence presented.” Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 557. It has long been recognized that “hearsay evidence standing alone can have no weight….” Desert Turf Club v. Board of Supervisors (1956) 141 Cal.App.2d 446, 455 (citations omitted). Opp. at 3.

It is true that Occhipinti relies principally on the IAB report (Ex. A), and Departmental correspondence, including the Letter of Intent and Letter of Imposition (Ex. B). Some evidence in these documents may be inadmissible hearsay, but the statements in the authenticated IAB report -- and to some extent Exhibit B -- are received as party admissions. Evid. Code §1222. The Letter of Intent and Letter of Imposition themselves are operative documents between the parties and are also admissible. Occhipinti has proceeded in an acceptable, if less than optimal, manner of presenting evidence.

[4] Occhipinti also told Sgt. Stover that he had not activated his BWC, and he had not been responding Code 3. Ex. A, p. 13-14. Although the Department charged Occhipinti with a failure to activate his BWC while operating Code 3, the County does not disagree that these charges are untrue. See Ex. B, p. 6 (Charges 1a. and 1b.). See Opp. at 6; Reply at 4.

[5] Occhipinti argues that Sgt. Stowers’s declaration contradicts his IAB interview and Department policy. First, Sgt. Stowers states that he did not perform a traffic investigation. Stowers Decl., ¶7. However, MPP section 3-09/070.10 (Supervisor’s Report and Responsibilities), provides that “collisions in which members are involved shall be investigated by a supervisor”. Reply Mellk Decl., ¶3, Ex. E. Reply at 4-5. Sgt. Stowers may be relying the fact that he called Deputy Clark to the scene to conduct a traffic collision investigation. Ex. A, p. 14. Nonetheless, the traffic collision report was his responsibility as a supervisor.

Second, Stowers declares that he “did not know at the time whether a mechanical failure had occurred”, he took Occhipinti’s representations that “the steering wheel had locked up…at face value”, and “[t]here were no specific red flags based on what [Occhipinti] was relating to” him.” Stowers Decl., ¶¶ 7-8. However, Sgt. Stowers stated at his IAB interview his conclusion that Occhipinti possibly was driving too fast when he was making that turn and that is why he didn’t make the turn. Ex. A, p. 40.

Third, Sgt. Stowers declares that the fact that Occhipinti was not wearing a seatbelt is “potentially…a violation of policy” and “[i]t depends on the particular facts and circumstances whether a seatbelt has been taken off at a reasonable time and at a reasonable distance from the location involved in the call for service.” Stowers Decl., ¶9. In his IAB interview, however, Sgt. Stowers stated that he believed, while he was on scene, that Occhipinti’s failure to wear a seatbelt was not reasonable because he was at least a mile from the service call when the collision occurred. Ex. A, p. 35.

The court agrees that Sgt. Stowers’ statements in his declaration are inconsistent with his IAB statements or Department policy and he had reason to suspect Occhipinti of potential misconduct on June 19, 2022.

[6] The County argues that Occhipinti’s broad, sweeping assertions about these persons’ knowledge are assumptions not supported by evidence. “Speculation, however, is not evidence”. Aguilar vs. Atlantic Richfield Company, (2001) 25 Cal.4th 826, 864. Opp. at 11-12. The court finds that Occhipinti’s conclusions about the knowledge of Sgt. Stowers, Sgt. Politano, and Capt. Sum are fair conclusions that may be drawn from their actions and IAB interviews.

[7] For this reason, the court rules in the County’s favor on Occhipinti’s declaratory relief claim.

[8] It should be remembered that Charges 1a. and 1b. are admittedly false.

[9] Occhipinti argues that Sgt. Politano also was dilatory. Ramirez and Yip determined that there were no mechanical issues and presumably informed Sgt. Politano of that fact on or about July 14, 2022. There is no document showing when Sgt. Politanno was informed, but it would not make sense for the mechanics to sit on the information. Sgt. Politano also did not include his findings in a written report until November 8, 2022, an obvious display of dilatoriness. Ex. A, p. 207. Pet. Op. Br. at 14. Given that the decision-maker, Capt. Lecrivain, was not diligent, the court need not decide if lack of diligence by others, or by the institution itself, will suffice to start section 3304(d)(1)’s one year period.

[10] The County argues that section 3304(d)(1) applies to separate acts of misconduct. In other words, the one-year limitations period begins to run separately on the date of discovery of each act of misconduct. Garcia v. State Department of Developmental Services (2023) 88 Cal.App.5th 460, 468-69. “[E]ach act of misconduct must be considered separately in determining the date the agency discovered the misconduct.” Id. at 464. See also Crawford v. City of Los Angeles (2009) 175 Cal.App.4th 249, 253; Pedro, supra, 229 Cal.App.4th at 87. Opp. at 16-17.

This is true but does not aid the County. Capt. Lecrivain knew or should have known sufficient information to initiate an investigation in mid-July 2022 of all the viable Charges against Occhipinti: excessive speed (Charge 1c.), seatbelt violation (Charge 1d.), EDR showing 87 mph (Charge 1e.), false statement to Sgt. Stowers (Charge 2a.), falsely claiming mechanical issues (Charge 2b.), and falsely claiming brake malfunction (Charge 2d.).