Judge James C. Chalfant, Case Number: 24STCP01675, Date: 2024-09-19 Tentative Ruling

Scott Burkett, Isaac Lowe, and Los Angeles Police Protective League v. City of Los Angeles, Dominic Choi, and Kenneth Mejia, 24STCP01675
Tentative decision on demurrer: sustained in part

Respondent City of Los Angeles (“City”) demurs to the Petition for writ of mandate filed by Petitioners Scott Burkett (“Burkett”), Issac Lowe (“Lowe”), and the Los Angeles Police Protective League (“LAPPL”).

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

Petitioners filed the Petition against the City, Dominic Choi, Kenneth Mejia (collectively, “City”) on May 22, 2024. The Petition alleges a cause of action for declaratory relief and two causes of action for traditional mandamus. The Petition alleges in pertinent parts as follows.

Petitioners Burkett and Lowe are both sworn peace officers with the Los Angeles Police Department (“LAPD”), members of the City’s Civil Service System, and entitled to the protections of City Charter section 1070.

Petitioner LAPPL is a recognized employee organization that represents sworn non-management LAPD police officers regarding all matters concerning wages, hours, and working conditions.

On February 8, 2021, LAPD Police Chief Michael Moore’s complaint against Burkett was heard by the Board of Rights. On January 11, 2023, the Board of Rights decided to suspend Burkett from his position as a peace officer for 65 days without pay. The Board of Rights’ order was executed shortly after its decision, on January 18, 2023. As a result, Burkett did not receive the full amount of back pay owed to him for the period between the issuance of the complaint on February 8, 2021 and the execution of the Board of Rights’ order on January 18, 2023.

On April 5, 2022, Petitioner Lowe was relieved of his duty without pay pending a hearing before the Board of Rights. Lowe’s hearing was held on January 22 and 23, 2024. On January 23, 2024, Lowe and LAPD agreed to a one-year rehabilitation program for the professional treatment of various issues, as well as future hearing dates before the Board of Rights for quarterly progress updates. Following this agreement, Lowe returned to work as a peace officer on January 24, 2024. Shortly thereafter, Lowe was told that he would receive all his back pay from April 5, 2022 through January 23, 2024. Subsequently, Lowe was told that he would only receive one year of back pay, not the two years of back pay he was owed.

The Petition’s first cause of action for declaratory relief alleges that the City has a policy to refuse to restore to members of the LAPPL all back salary, benefits, and other emoluments of employment due to them as a result of reductions in, or complete exoneration of, their discipline by the Board of Rights. LAPPL desires a judicial determination of this controversy and a declaration that the City must pay all back salary, benefits, and other emoluments of employment to all LAPPL members who are exonerated before the Board of Rights, from the date of their respective suspensions or terminations to the date of their respective reinstatements to employment, as if such improper separations from employment never occurred.

The second cause of action for traditional mandamus alleges that the City has a ministerial duty to provide Burkett with all back pay from the time of his suspension from LAPD until the time of his reinstatement. The City has failed to abide by City Charter section 1070(w) in that it failed to pay Burkett all back pay owed to him required by law. Burkett has exhausted all administrative remedies and has no plain, speedy, or adequate remedy in the ordinary course of the law other than the relief sought by his Petition.

The third cause of action for traditional mandamus alleges that the City has a ministerial duty to provide Lowe with all back pay from the time of his separation from LAPD until the time of his reinstatement. The City has failed to abide by City Charter section 1070(w) in that it failed to pay Lowe all back pay owed to him required by law. Lowe has exhausted all administrative remedies and has no plain, speedy, or adequate remedy in the ordinary course of the law other than the relief sought by his Petition.

Petitioner seeks (1) a traditional writ of mandate requiring the City to provide Burkett and Lowe all back pay from the time of their respective suspensions to the time of their respective reinstatements, (2) a judgment declaring that City Charter section 1070(w) requires the City to provide Burkett, Lowe, and all members of LAPPL with all back salary, benefits, and other emoluments of employment from the dates of their improper separations from employment to the dates of their reinstatements, (3) in the alternative, a judgment declaring that City Charter section 1070(w) is unconstitutional, (4) costs of suit, (5) attorney’s fees, and (6) such other and further relief as the court may deem necessary, and proper. Pet. Prayer, ¶¶ 1-6.

On August 2, 2024, City filed and served the instant demurrer. On September 6, 2024, Petitioners filed and served their opposition. On September 12, 2024, the City filed and served its reply.

Demurrers are permitted in administrative mandate proceedings. CCP §§1108, 1109. A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings. CCP §430.30(a); Coyne v. Krempels, (1950) The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading. CCP §430.10. A demurrer is timely filed within the 30-day period after service of the complaint. CCP §430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP section 411.35 or (i) by CCP section 411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318. The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. CCP §430.31(a). As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. CCP §430.31(a)(1). The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. Id. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. CCP §430.31(a)(3).

Generally, LAPD officers cannot be suspended, demoted, or removed from service except for good cause upon a showing of guilt before a Board of Rights.¿ City Charter §1070(a).¿ An exception to this rule permits the Chief of Police to demote a police officer or suspend him or her for up to 22 days following appropriate pre-disciplinary procedures.¿ City Charter §1070(b).¿ Any such action is subject to pre-disciplinary procedures required by law and a Board of Rights hearing if sought by the police officer.¿ Id.¿ This procedure, where the police officer elects to have a Board of Rights hearing, is commonly referred to as an “opted” hearing.¿ A Board of Rights hearing occurring after the Chief of Police demotes or imposes less than a 22-day suspension satisfies the requirement of an administrative appeal under Govt. Code section 3304(b).¿ Jackson v. City of Los Angeles, (1999) 69 Cal.App.4th 769, 780; Holcomb v. City of Los Angeles, (1989) 210 Cal.App.3d 1560, 1566.¿¿

If the Chief of Police intends a penalty greater than a 22-day suspension, including termination, the matter is automatically referred to a Board of Rights hearing.¿ This procedure, where the police officer has no choice in the referral decision, is commonly called an “ordered” Board of Rights hearing.¿ There is a one-year limitations period for termination, suspension, and demotion.¿ City Charter §1070(d).¿¿¿

Whether the Board of Rights hearing is opted or ordered, it is a de novo evidentiary hearing.¿ City Charter §1070(f).¿ The Board of Rights consists of two officers with the rank of captain or above and one civilian.¿ City Charter §1070(h).¿ LAPD has the burden of prove by a preponderance of evidence.¿ City Charter §1070(l).¿

Upon a finding of guilt, the Board of Rights recommends discipline, ranging from reprimand, suspension without pay for up to 65 days, with or without reprimand, demotion, and removal.¿ City Charter §1070(n).¿ Any suspension without pay may not be more than 65 days. City Charter §1070(n)(1). The Chief of Police has discretion to impose a lesser penalty than recommended, but not a greater penalty.¿ City Charter §1070(p).¿ The officer can ask the Chief of Police for a rehearing at any time within three years.¿ City Charter §1070(t).¿

When a member is restored to duty following removal or temporary relief from duty, or whose suspension or demotion has been overturned, in whole or in part, he or she is entitled to full compensation, or back pay, from the City as if the penal action had not taken place. City Charter §1070(w). Such compensation shall not exceed one year’s salary unless otherwise required by law. City Charter §1070(w).

Respondent City demurs to the Petition’s three causes of action, asserting that each fails to state facts sufficient to constitute a cause of action. CCP §430.10(e).

On July 16, 2024, counsel for the City and Petitioners met and conferred by telephone pursuant to CCP section 430.41. Lo Decl. ¶¶ 4-5. The City has satisfied its requirement to meet and confer.

City Charter section 1070 (“section 1070”) provides that, when a member is restored to duty following removal or temporary relief from duty, or whose suspension or demotion has been overturned, in whole or in part, he or she is entitled to full compensation, or back pay, from the City as if the penal action had not taken place. §1070(w). Such compensation shall not exceed one year’s salary unless otherwise required by law. Id.

The City notes that section 1070(w) prohibits the City from providing more than one year’s salary as backpay to an employee whose suspension has been overturned or reduced. There is an exception where backpay is required by law, but the Petition fails to allege any law requiring compensation greater than one year’s salary. The case cited by the Petition, Lowe v. California Resources Agency, (“Lowe”) (1991) 1 Cal.App.4th 1140, is irrelevant because it stands for a plaintiff’s right to earnings after the employer’s wrongdoing. The City is not alleged to have engaged in wrongdoing or unlawful conduct. Per the Petition, Petitioner Burkett’s suspension was upheld by the Board of Rights and Petitioner Lowe came to an agreement with the Board of Rights regarding his discipline. Pet., ¶13. Dem. at 9.

Petitioners respond that Lowe sets forth the well-established proposition that the purpose of back pay is to make an employee whole for the employer’s wrongdoing -- i.e., the employer must provide the amount that the “plaintiff would have earned but for the employer’s unlawful conduct.” 1 Cal.App.4th at 1144, n. 3. This includes fringe benefits. Ibid. “The amount of backpay is based on the differential between what [the officer’s] salary would have been had he not been demoted and the salary he actually received.” Henneberque v. City of Culver City, (1985) 172 Cal.App.3d 837, 844. “The measure of recovery of a wrongfully discharged employee is the amount of salary he or she would have earned plus other benefits, less the amount which the employer proves the employee has earned or might have earned from other employment.” Bevli v. Brisco, (1989) 211 Cal.App.3d 986, 994. Opp. at 8-10.

Petitioners argue that, while they are not contesting their discipline, it is incorrect to state that the Petition does not allege the City’s wrongdoing. The wrongdoing was the placement of both Petitioners on leave without pay for an extended period while they awaited a Board of Rights hearing, where it was adjudicated that their conduct did not warrant that deprivation. Specifically, the Board of Rights hearing for Burkett determined that he should only be suspended for 65 days, not over 700 days. For Lowe, he and the Board of Rights agreed that he should not face further discipline and that he should be restored to his job if he complied with certain conditions. There was no agreement for Lowe to be suspended for two years, which would exceed the 65-day limit. In both instances, the Department’s wrongful conduct was the placement of the Petitioner on administrative leave without pay pending a hearing at which he could face termination when termination was not warranted, and then refusing to repay the full salary and benefits owed after his return to his position. Opp. at 8-9.

Petitioners argue that section 1070(w)’s provision that some “other law” must require the payment of backpay in excess of one year is fulfilled by section 1070(n)(1)’s own limit on suspensions to 65 days. The City cannot rely on section 1070(w) to impose a suspension of multiple years because to do so would effectively eliminate the 65-day cap on suspensions where an administrative hearing lasted more than one year, which is an absurd result. “When the statutory language is ambiguous, a court may … reasonably infer that the enacting legislative body intended an interpretation producing practical and workable results rather than one producing mischief or absurdity.” Gattuso v. Harte-Hanks Shoppers, Inc., (2007) 42 Cal.4th 554, 567. The wrongdoing by the City, as alleged by Petitioners, is its failure to make them whole -- i.e., the City’s failure to provide them all backpay and benefits withheld beyond their lawful suspensions as required by law. Accordingly, the Petition sufficiently alleges that the City violated section 1070(w). Opp. at 11.

The City correctly replies that the requirement of “unlawful conduct” for a backpay award does not include the scenario of modified discipline. This cannot reasonably be called unlawful conduct. In fact, Lowe’s modified discipline occurred through his agreement with the Board of Rights. Reply at 2.

The purpose of section 1070(w)’s one-year limitation on backpay awards is plainly to protect the public fisc from the City’s payment of salaries and benefits to public employees who are not working. In suggesting that their periods of administrative leave were unlawful, Petitioners are wrongly equating suspensions with unpaid administrative leave. They are not the same. While both involve a loss of compensation, the former is discipline and the latter is an employer action preliminary to discipline. Thus, Burkett and Lowe were not suspended respectively for “over 700 days” and “two years” in violation of section 1070(n)’s 65-day limit. As the City argues, if they believed they were suspended beyond the 65-day limit, their remedy was to contest the discipline. Neither did so.[1]

In short, the Petition fails to adequately allege Lowe’s and Burkett’s right to backpay to rectify wrongful conduct by LAPD. See Lowe, supra, 1 Cal.App.4th at 1144, n. 3.

The City argues that the Petition fails to state where an actual controversy exists between Petitioner LAPPL and the City. The Petition states that the City has “a policy” but fails to identify it. Petitioner LAPPL’s mere belief that such a policy must exist is not sufficient to identify an actual policy. Magnolia Square Homeowners Assn. v. Safecolns. Co., (1990) 221 Cal.App.3d 1049, 1057 ("information and belief insufficient to establish essential facts). Dem. at 10; Reply at 3.

Petitioners argue that the Petition properly states a cause of action for declaratory relief, alleging the existence of a controversy. Pet., ¶18. The City does not have a written policy, but it does follow a course of action in refusing to provide compensation in excess of one year as required by the exception to section 1070(w) and the common law. Relief can be sought to challenge a pattern and practice. Declaratory relief has been held to be the proper remedy when it is alleged an agency has a policy of ignoring or violating applicable laws.” Venice Town Council v. City of Los Angeles, (1996) 47 Cal.App.4th 1547, 1566. “An action for declaratory relief is an appropriate means of challenging an alleged ‘overarching’ policy or practice of an agency where there is an actual and present controversy over the policy.” K.G. v. Meredith, (2012) 204 Cal.App.4th 164, 177. Opp. at 11-12.

The City’s policy is set forth clearly: the City does not believe it must provide all backpay to officers who are suspended by a Board of Rights after being placed on unpaid administrative leave for over one year. Petitioners contend that this policy is an improper and unlawful reading of both section 1070(w) and existing law. Accordingly, a dispute exists for which declaratory relief is appropriate. In the event the court determines that no other provision of law requires the payment of back pay exceeding one year, the Petition further requests a declaration that section 1070(w) is unconstitutional. Pet., ¶19. Declaratory relief is “an appropriate method for obtaining a declaration that a statute or regulation is facially unconstitutional.” Tejon Real Estate LLC v. City of Los Angeles, (2014) 223 Cal. App. 4th 149, 154. Opp. at 12-13.

On the latter issue, Petitioners are correct. The court has determined that the Petition fails to identify a provision of law requiring the payment of back pay exceeding one year, but that leaves open the issue of section 1070(w)’s constitutionality. A facial attack on the overall constitutionality of a statute or regulation may be made by an action for declaratory relief. Taylor v. Swanson, (1982) 137 Cal.App.3d 416, 418. Although the Petition does not identify the constitutional provision violated, and does not provide reasons why the one-year limit is unconstitutional, the City does not demur on grounds of uncertainty.

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.¿

The City argues that Petitioners have an adequate remedy at law. A mandamus proceeding is not a civil action, but rather a special proceeding of a civil nature which is available for specified purposes and for which the CCP provides a separate procedure. Binyon v. State of California, (1993) 17 Cal.App.4th 952, 994-95. The first question to be determined in a mandamus proceeding under CCP section 1085 is whether the petitioner has a “plain, speedy, and adequate remedy, in the ordinary course of law.” CCP §1086; Phelan v. Superior Court of San Francisco, (1950) 35 Cal.2d 363, 366. Dem. at 13.

It is a well-settled general proposition that mandamus is not an appropriate remedy for recovering money. See, e.g., Wenzler v. Municipal Court for Pasadena Judicial Dist., (1965) 235 Cal.App.2d 128, 133. In mandamus proceedings involving claims for wages by municipal employees or other remedy equivalent to a claim for monetary damages, an ordinary civil action for damages generally is adequate and a writ of mandate will be denied. Tevis v. City & County of San Francisco, (“Tevis”) (1954) 43 Cal.2d 190, 198. Where a municipal employee could have filed an ordinary civil lawsuit to recover salary or other monetary damages, the trial court may properly deny the petition for writ of mandate because the employee had a plain, speedy, and adequate alternative remedy at law. Coombs v. Smith, (1936) 17 Cal.App.2d 454, 455. Dem. at 13.

The City argues that the Petition’s mandamus causes of action must be dismissed because are employment-related claims for which Petitioners have an adequate remedy at law. Petitioners’ causes of action improperly combine multiple causes of action into one by bootstrapping monetary claims within a CCP section 1085 cause of action, which is equivalent to a claim for damages. See CRC 2.112. Allowing these causes of action to proceed would deny the City the procedural safeguards and administrative remedies provided by the Labor Code, the right to conduct discovery, and the right to a jury trial. Dem. at 13-14.

Petitioners correctly rely on an exception to the general rule that mandamus is appropriate where the obligation to pay a public employee depends upon the interpretation of a statute or ordinance or the compensation must be approved by appropriate officials. Opp. at 15.

The City cites Tevis, supra, 43 Cal.2d at 198, but Tevis held that mandamus was appropriate to enforce the right of municipal employees to receive vacation pay to which they were entitled where the case involved the proper construction of the municipal charter and the claim required approval of several public officials, explaining:

“In a few situations involving claims by state or municipal employees for wages the general rule has been relaxed. For the most part, these cases concern disputes as to the proper construction of a statute or ordinance defining or giving rise to the exercise of official duty, and, although recognizing that the ultimate effect of a decision may be to adjudicate a money claim, they emphasize the necessity of official cooperation and the ministerial nature of the official acts involved.” Id. at 1985 (emphasis added).

See also Coan v. State, (1974) 11 Cal. 3d 286, 291 (“Although a claim for payment of salary is in effect a money claim, mandamus is a proper remedy where the dispute concerns the proper construction of a statute or ordinance giving rise to the official duty to pay the salary claim”). Opp. at

In Glendale City Employees’ Ass’n v. Glendale, (“Glendale”) (1975) 15 Cal. 3d 328, the California Supreme Court held that a writ of mandate is the appropriate remedy where public employees seek the payment or recovery of wages under a Memorandum of Understanding:

“The usual remedy for failure of an employer to pay wages owing to an employee is an action for breach of contract; if that remedy is adequate, mandate will not lie….But often the payment of the wages of a public employee requires certain preliminary steps by public officials; in such instances, the action in contract is inadequate and mandate is the appropriate remedy….” Id. at 343 (citation omitted) (emphasis added). Opp. at 16-17.

Mandamus will be denied only when the party seeking relief has an adequate remedy at law that is capable of directly affording and enforcing the relief sought. If the remedy at law, although it could result in a judgment for plaintiff, is nevertheless inherently incapable of compelling the performance of the specific act which forms the subject matter of the mandamus claim, it cannot be said that the remedy at law will supersede the remedy by mandamus. Cory v. Poway Unified Sch. Dist., (1983) 147 Cal.App.3d 1158, 1166 (citation omitted). Opp. at 18.

Generally, backpay is awarded incidental to a decision to reinstate employment as a matter of both logic and law. For this reason, it is not subject to the claims filing requirements of the Govt. Claims Act (Govt. Code §§ 810-996.6) for damages against the employing agency. Eureka Teacher’s Assn. v. Board of Education, (1988) 202 Cal.App.3d 469, 475. Petitioners Burkett and Lowe were reinstated to their employment and the calculation of their backpay is incidental to that decision. It involves the proper interpretation of the limits of section 1070(w) and Petitioners have no adequate remedy at law.

The City argues that Petitioners have not shown that it has a clear, present, ministerial duty. Petitioners allege that the City had a ministerial duty to provide Petitioners Burkett and Lowe with backpay in excess of one year if the law so requires. Yet, the Petition fails to provide sufficient facts to support its contention that the law requires backpay in excess of one year. The Petition merely states the application of the law is “arbitrary, capricious” without providing specificity or support to blanket allegations. Pet., ¶¶ 28, 36. Dem. at 12.

The City notes that the Petition does not make any assertion that the City performed anything other than discretionary decision-making. Petitioners Burkett and Lowe were each charged with complaints heard by the Board of Rights. Adjudication before the Board of Rights necessarily concerns a matter of discretion rather than a matter of ministerial duty. See generally Mays v. City of Los Angeles, (2008) 43 Cal.4th 313, 317. Upon a Board of Rights finding of misconduct and penalty recommendation, the Chief of Police “has the discretion to accept or reduce, but not to increase, any punishment recommended by the Board of Rights.” Id. (citing §1070(p). Petitioner Burkett was suspended for 65 days without pay. Pet., ¶10. Petitioner Lowe and the Board of Rights came to an agreement involving a rehabilitation program and additional future hearing dates. Pet., ¶13. Petitioners cannot establish a ministerial duty on the part of the Board of Rights or the Chief of Police, nor a right to the performance of a corresponding ministerial act. Dem. at 12-13.

Petitioners argue that the City had a ministerial duty. Whether or not Petitioners can prevail at trial on the issue of duty is immaterial at this stage; the issue is whether they have sufficiently pled the existence of a ministerial duty, and they have. Petitioners assert that section 1070(w) establishes the ministerial duty to provide Burkett and Lowe with all back pay and benefits that were withheld beyond the lawful terms of their suspensions, as required by law. In addition, the City has a ministerial duty to not impose a suspension over 65 days. The City provides no support for its apparent claim that the “law” referenced in section 1070(w) must be statutory, rather than common law. The common law is, indeed, the law. As discussed, the common law imposes this ministerial duty on the City through the operation of section 1070(w). The City also has no response to the argument regarding the imposition of a suspension longer than 65 days, which the Charter specifically prohibits. Opp. at 13-14.

Petitioners add that there is no basis for the City’s claim that “[t]he allegations in the Petition do not make a single assertion that the City has a mandatory duty rather than a discretionary decision-making duty. The Petition plainly states: “At all times herein mentioned, Defendants/Respondents had a ministerial duty to provide Burkett with all back pay from the time of their respective suspensions from the LAPD until the time of their respective reinstatements, as Los Angeles City Charter section 1070, subdivision (w), provides for back pay in excess of one year if the law so requires.” Pet., ¶23. The Petitioner further alleges: “The law requires that an employee who has been the subject of unlawful conduct by an employer is entitled to be returned to the financial position he or she would have been in had the unlawful conduct not occurred.” Pet., ¶24. Opp. at 14.

Petitioners fail to allege a ministerial duty required by law. The court has addressed their arguments that the City imposed suspensions over 65 days on Lowe and Burkett. It did not. Further, Petitioners incorrectly allege that the City has a ministerial duty under section 1070(w) to provide backpay for all unpaid time. Petitioners have not asserted an applicable law that would trigger section 1070(w)’s “as required by law” provision. Petitioners are unable to support their contention with a law indicating that relieving officers of duty without pay pending a disciplinary hearing is unlawful conduct. Petitioner Lowe is further unable to support his contention that relieving officers of duty without pay resulting in an agreement between the employer and employee is unlawful conduct. As a result of Petitioners failure to assert facts requiring the City to act “as required by law,” they have not met their burden to establish a ministerial duty. Reply at 4.[2]

“California courts will decide only justiciable controversies.” Wilson & Wilson v City Council of Redwood City, (2011)0 191 Cal.App. 4^th 1559, 1573. The doctrine of justiciability, which includes “ripeness” and “actual controversy” requirements, prevents courts from issuing advisory opinions. Pacific Legal Foundation v. California Coastal Commission, (“Pacific Legal Foundation”) (1982) 33 Cal.3d 158, 170. This doctrine applies regardless of the form of the action (mandamus, declaratory relief, or injunctive relief). Id. at 169-72.

For a controversy to be ripe, it “must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Pacific Legal Foundation, supra, 33 Cal.3d at 170. There is a two-part test for ripeness: (1) is the dispute sufficiently concrete? and (2) what is the hardship to the parties of withholding judicial review? Id. at 171. A “hardship” means an “imminent and significant hardship in further delay.” Farm Sanctuary, Inc. v. Dept. of Food & Agriculture, (1998) 63 Cal.App.4th 495, 502.

The City argues that the Petition alleges that Lowe’s hearing before the Board of Rights has been continued to future hearing dates before the Board for quarterly progress updates on May 29, 2024, August 28, 2024, November 25, 2025, and January 7, 2025. Pet., ¶13. Hence, the Board of Rights hearing for Petitioner Lowe has not yet been completed. The agreement on which the third cause of action is based has the potential to be altered. Therefore, it is not ripe for adjudication. Dem. at 14.

The court agrees with Petitioners that the claim is ripe. The fact that Lowe is subject to quarterly progress reports before the Board of Rights does not affect the fact that he is entitled to backpay. Lowe was relieved of duty without pay on April 5, 2022, and returned to work on January 24, 2024. Pet., ¶¶ 12-14. The City initially told Lowe on February 9, 2024 that he would receive backpay for the period April 5, 2022 through January 24, 2024. Pet., ¶15. Subsequently, the City told Lowe on February 15, 2024 that he would receive only one year of backpay. Pet., ¶16. Thus, Lowe’s right to backpay is undisputed and the only issue is how much it should be. The facts that the Board of Rights still has jurisdiction, and that Lowe might not meet his obligations in future progress reports, do not affect the fact that he has been returned to duty and is entitled to backpay now. The issue is ripe.

The City argues that the Petition does not set forth any specific causes of action as to Kenneth Mejia, City Controller. None of the facts in the Petition involve the City Controller. The City Controller is not a necessary or indispensable party to the lawsuit under CCP section 389. The City Controller has no interest in the action, and any relief in this action can be accorded without detriment to him. As such, the action should be dismissed entirely as to the City Controller. Dem. at 15.

Petitioners respond that Mejia is both a necessary and indispensable party because he is responsible for paying City employees’ salaries. Controller Mejia oversees a team of more than 160 employees who manage the City’s accounting, payroll, and spending. He is the elected paymaster, auditor, and chief accounting officer for the City. As the court explained in Martin v. County of Contra Costa (1970) 8 Cal.App.3d 856, 866, reviewing a matter in which the trial court rendered judgment only against the county and its board of supervisors and not the county officers responsible for payment of the allowances, “[t]he only defect in proceedings and judgment is the failure to join the proper ministerial officers of the county government.” Opp. at 19.

The City replies that this case differs from the cases cited by Petitioners where the mandate was to perform the ministerial act of computing and paying salaries. See Glendale, supra, 15 Cal.3d 328, 345; Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, (219) 42 Cal.App.5^th 918, 939. Here, there is no dispute about the computation and payment of backpay. The City Controller has no ministerial duty to pay Petitioners; that decision lies with the appointing authority. Further, the City operates under the single employer rule – both the City Controller and the Chief of Police were erroneously sued in this action. Labor Code §1182.12. Reply at 5.

Whatever the applicability of Labor Code section 1182.12, the court agrees that Glendale is authority that the City Controller is properly named in a mandamus backpay claim because he performs payment computations as part of an administrative duty.

The demurrer is overruled for LPPL’s declaratory relief claim that section 1070(w)’s backpay limitation is unconstitutional and sustained for the mandamus claims. Petitioners Lowe and Burkett have leave to amend to allege the unconstitutionality of section 1070(w) as applied to them.

[1] This is not to suggest that LAPD may not be held responsible when it unduly delays an administrative hearing and, as such, be guilty of unlawful conduct. But the Petition alleges no facts concerning the reasons for the Board of Rights delay while Petitioners were on administrative leave.

[2] The City argues that, if a statute is subject to interpretation, as Petitioner contends, the action cannot then also be a ministerial duty. Reply at 4. This contention is unsupported by any of the cited authorities and is untrue. A statute or ordinance that is properly interpreted to impose a ministerial duty does so.