Judge: James C. Chalfant, Case: 24STCP02313, Date: 2024-12-05 Tentative Ruling

Case Number: 24STCP02313    Hearing Date: December 5, 2024    Dept: 85

Respondent County of Los Angeles (“County”) demurs to, and alternatively moves to stay, the Petition filed by Petitioner Danny Galvez (“Galvez”).

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

A. Statement of the Case

1. Petition

On July 8, 2024, Petitioner Galvez filed the Petition against the County for mandamus.  The Petition alleges in pertinent part as follows.

a. The Claim

Galvez was a permanent full-time sworn employee of the County working as a sworn peace officer and he was considered a “public safety officer” as defined by the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), which is codified in Government Code sections 3300.

A “punitive action” under POBRA is defined as any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.  Pursuant to Government Code section 3304(d)(1), once a public safety agency is notified of an allegation of misconduct, absent the existence of a statutory tolling, the public safety agency is required to conduct its investigation and notify the employee of the proposed punitive action in writing within one year of the discovery of the alleged act or omission. 

On August 28, 2020, along with others, Galvez was involved in a use-of-force incident. When the incident occurred, two sergeants and two lieutenants were present.  Galvez’s use-of-force was observed by a sergeant.  That same day Galvez reported his use-of-force to, among others, another sergeant.  The two sergeants also reported their observations to each other and to their supervisors. 

On August 29, 2021, more than one year later, the County caused Galvez to be personally served with a Letter of Intent which sought to impose a punitive action upon him.  The County failed to timely meet the requirements of the statute of limitations.  In a wrongful and malicious attempt to circumvent POBRA, the County claimed the statute of limitations was tolled. 

Galvez sought a pre-disciplinary grievance and advised the County that the statute of limitations had been exceeded.  the County nonetheless imposed a punitive action upon Galvez.

Due to the expiration of the statute of limitations, the County violated POBRA and was not lawfully entitled to impose any punitive action upon Galvez.  

The County continues to intentionally, wrongfully, willfully, capriciously and maliciously fail to comply with the requirements of POBRA and has acted with the intent of injuring Galvez.  As a result, Galvez has been damaged in amounts to be proven and he is entitled to the relief provided by Government Code section 3309.5.

b. Prayer for Relief

Petitioner Galvez seeks (1) a writ of mandate determining that the statute of limitations had been violated and ordering the County to forthwith rescind the punitive action and make him whole; (2) relief provided by POBRA, including $25,000 in civil penalties for each violation, reasonable attorney’s fees, and actual damages; (3) an injunction be issued prohibiting the County from future violations of POBRA, including Government Code sections 3304(d)(1); (4) costs of suit; (5) reasonable attorneys' fees; and (6) further relief as this court deems necessary and proper.

2. Course of Proceedings

A proof of service on file shows that Petitioner served the County with the Petition on August 6, 2024. 

B. Demurrer

1. Applicable Law

            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).   

            If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed.  CCP §472a(c).  It is an abuse of discretion to grant a motion for judgment on the pleadings without leave to amend if there is any reasonable possibility that the plaintiff can state a good cause of action.  Dudley v. Department of Transportation (“Dudley”) (2001), 90 Cal. App. 4th 255, 260.  However, in response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.  CCP §430.41(e)(1).

C. Governing Law 

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.  Bagett 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. 

Pursuant to section 3304(b), “No punitive action … shall be taken by any public agency against any public safety officer who has successfully completed the probationary period … required … without providing the public safety officer with an opportunity for an administrative appeal.  A “punitive action” is defined as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.”  Govt. Code §3303.  Section 3304(b)’s limited purpose is to afford peace officers subject to punitive action an opportunity to establish a formal record of circumstances surrounding his or her discipline and attempt to convince the employing agency to reverse its decision through evidence that the charges are false or through mitigating circumstances.  Binkley v, City of Long Beach, (1993) 16 Cal.App.4th 1795, 1806.  While the precise details of the procedure required by section 3304(b) are left to local law enforcement, the administrative appeal requires at minimum an “independent re-examination” of an order or decision made, conducted by someone who has not been involved in the initial determination.  Caloca v. the County of San Diego, (2002) 102 Cal.App.4th 433, 443-44.  The administrative decision-maker must “set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.”  Id. at 444.

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.

Under section 3309.5, in any case where a court finds that a public safety department has violated any of the provisions of POBRA, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature.  Govt. Code §3309.5(d)(1).  In addition, if the court finds that a public safety department, “maliciously violated” any provision of POBRA with the intent to injure the officer, the department shall, for each and every violation, be liable for a civil penalty not to exceed $25,000 to be awarded to the officer and for reasonable attorney’s fees.  Govt. Code §3309.5(e).  If the court finds that there is sufficient evidence to establish actual damages suffered by the officer whose right or protection was denied, the public safety department shall also be liable for the amount of the actual damages.  Id. 

            D. Analysis[2]

            Respondent County demurs to the Petition, and alternatively seeks a stay of this case.

1. Meet and Confer

On September 4, 2024, counsel for the County and Galvez held a meet-and-confer and did not resolve the issues raised.  The County has satisfied the requirement to meet-and-confer.  

2. Timeliness

Code of Civil Procedure section 430.40, subdivision (a) states: “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.”

Galvez presents evidence that, on September 12, 2024, Vince McGowan, Esq. (“McGowan”), counsel for Respondent County asked for an extension to September 25, 2024, to file a responsive pleading.  Yuwiler Decl., ¶3.  On September 12, 2024, McGowan emailed Ken Yuwiler, Esq. (“Yuwiler”), counsel for Galvez, to confirm that Yuwiler had granted the requested extension.  Yuwiler Decl., ¶3, Ex. A. 

            Subsequently, McGowan requested a second extension.  Yuwiler Decl., ¶4.  On September 24, 2024, Yuwiler sent an email to McGowan confirming an extension to October 2, 2024, to file a responsive pleading.  Yuwiler Decl., ¶4, Ex. B. 

            Finally, on October 2, 2024, McGowan emailed Yuwiler to request a third extension to October 9, 2024, for the time to file a responsive pleading.  Yuwiler Decl., ¶5.  Due to the press of business, Yuwiler was unable to respond to McGowan’s request.  Yuwiler Decl., ¶5.  Therefore, a third extension was not granted.  Yuwiler Decl., ¶5, Ex. C.

Galvez argues from this evidence that the County’s deadline to file and serve the demurrer was October 2, 2024, and the demurrer filed on October 9, 2024 was one week late.  The court has discretion whether to grant a motion to strike a late demurrer.  See Tuck v. Thuesen, (1970) 10 Cal.App.3d 193, 196, disapproved on other grnds, Neel v. Magana, Olney, Levy, Cathcart & Gelfand, (1971) 6 Cal.3d 176.  Given the two extensions granted to the County, the court should exercise its discretion and order the demurrer stricken.  Opp. at 6-7.

The County replies that Galvez’s argument is “highly technical” and the failure of Galvez to respond to the third extension request is gamesmanship on the part of his attorney.  Reply at 4.  Technical or not, the County’s duty was to file a timely demurrer.  Its failure to do so renders it defective.  Despite this fact, the court will exercise its discretion not to strike the demurrer and will address its merits.

3. Galvez May Invoke the Court’s Initial Jurisdiction

The County argues that Galvez filed a civil service appeal and asked the Commission to certify additional issues with respect to the statute of limitations, which was granted.  The Commission’s hearing officer conducted a hearing on the statute of limitations issue and determined that it lacked merit under section 3304(d).  The hearing officer's decision is subject to review by the Commission pursuant to CSR 4.13.  A party must exhaust administrative remedies before seeking judicial review and Galvez cannot circumvent the civil service process after receiving an adverse ruling on his statute of limitations defense.  Dem. At 3-4.

It is true that a party is generally required to exhaust issues in an administrative appeal.  See, e.g., Alta Loma School Dist. v. San Bernardino the County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554.  An administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures.  Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.  The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.”  Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293. 

However, exhaustion is not required because the court has initial jurisdiction under POBRA.  §3309.5(c).  A section 3309.5 proceeding deals with whether a public employer violated an officer’s rights under POBRA while an administrative mandamus action determines the validity of a final administrative decision by the public employer.  Gales v. Superior Court, (“Gales”) (1996) 47 Cal. App. 4th 1602-03.  Section 3309.5’s grant of initial jurisdiction to the superior court was intended to expand a right of a peace officer to remedy violations of POBRA.  See Alameida v. State Personnel Bd., (2004) 120 Cal.App.4th 46, 52-60.

The POBRA procedure for initial jurisdiction is set forth in Gales supra, 47 Cal. App. 4th at 1596 and Mounger v. Gates, (“Mounger”) (1987) 193 Cal. App. 3d 1248.  A peace officer is not required to exhaust administrative remedies by raising a violation of POBRA at his or her administrative hearing.  He or she may seek a separate remedy of injunctive relief under section 3309.5 to enforce rights under POBRA.  Id. at 1255-57.  The officer also may pursue an administrative appeal and simultaneously file a complaint alleging violation of his procedural POBRA rights.  Id.  The peace officer further may complete his or her administrative hearing and seek administrative mandamus under CCP section 1094.5 while concurrently invoking the court’s original jurisdiction in a separate action for a POBRA violation.  Gales, supra, 47 Cal.App.4th at 1603; Shafer v. Los Angeles the County Sheriff’s Department, (“Shafer”) (2003) 16 Cal.App.4^th 1388, 1398.    The two actions will, no doubt, be consolidated and an issued decided in one action will be binding for the other.  Gales, supra, 47 Cal.App.4th at 1603.  If there is no consolidation, there is no reason why a determination of a section 3309.5 proceeding cannot occur independently of the CCP section 1094.5 administrative mandamus proceeding and, if rendered before the outcome of the latter, be binding thereon.  Shafer, supra, 106 Cal.App.4^th at 1398 (decision on suppression of officer’s statements under section 3303 binding on administrative appeal).  A peace officer may not, however, fail to raise a statute of limitations issue in his administrative proceeding and then raise it as part of the administrative mandamus review.  Moore v. City of Los Angeles, (2007) 156 Cal. App. 4th 373, 383.  The reason is that the judicial review in administrative mandamus is confined to the issues raised at the administrative hearing.  Id. 

Thus, a peace officer employee contending that his or her POBRA rights have been violated may: (1) raise the POBRA violation in an administrative appeal and then seek administrative mandamus review of an erroneous decision, (2) commence an initial jurisdiction court proceeding alleging a POBRA violation pursuant to section 3309.5 either before or concurrently with an administrative appeal, or (3) raise the POBRA violation in both an administrative appeal and an initial jurisdiction proceeding but the outcome of the POBRA issue in one will be binding on the other. 

This law is dispositive of the County’s failure to exhaust argument.  Galvez may raise his statute of limitations issue in both the administrative proceeding and in this initial jurisdiction proceeding.[3]  The demurrer is overruled on this ground.

4. Plea in Abatement

The County also demurs based on a plea in abatement.  The party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that there is another action pending between the same parties on the same cause of action.  CCP §430.10(c).  An order of abatement issues as a matter of right.  Plant Insulation Co. v Fibreboard Corp., (1990) 224 Cal.App.3d 781, 787. Trial courts have no discretion to allow a second action to proceed if the first action involves substantially the same controversy between the same parties.  Leadford v. Leadford, (1992) 6 Cal.App.4th 571, 574.  The California Supreme Court stated in no uncertain terms: "It is clearly established that a party may not split up a single cause of action and make it the basis of separate suits, and in such case the first action may be pleaded in abatement of any subsequent suit on the same claim."  Wulfjen v. Dolton, (1944) 24 Cal.2d 891, 894.  Dem. at 6.

The County contends that a similar analysis should apply to claims based on an affirmative defense, such as the statute of limitations. A party should not be permitted to mount a challenge based on the statute of limitations in one forum, such as the Commission, and thereafter file a new and separate action based on the same claims in another forum.  In addition, public policy militates against permitting litigants to consume the courts' time by relitigating matters already judicially determined, or in the process of being judicially determined.  Id. at 895.

A plea in abatement requires the pendency of two actions growing out of the same transaction and between the same parties.  People ex rel. Garamendi v. American Autoplan, Inc., (1993) 20 Cal.App.4th 760, 770.  “A plea in abatement is essentially a request—not that an action be terminated— but that it be continued until such time as there has been a disposition of the first action.”  Lawyers Title Ins. Corp. v. Superior Court, (1984) 151 Cal.App.3d 455, 459 (citation omitted).

The County cannot rely on a plea in abatement because two superior courts do not have concurrent jurisdiction over this dispute; there is only an administrative proceeding and a court proceeding.  “[A]batement is required only where the multiple actions are pending in courts of the same state.”  Leadford v. Leadford, (1992) 6 Cal.App.4th 571, 574. A plea in abatement will not lie and the demurrer is overruled on this ground.

5. Request for a Stay

The County argues that this court proceeding should be stayed pending the outcome of the Commission’s administrative proceeding.  Pursuant to CCP section 128(a)(8), the court has the power to “amend and control its process and orders so as to make them conform to law and justice.” Further, CCP section 187 provides that the courts have all necessary implied powers in order to carryout expressly conferred powers. Moreover, “courts have inherent equity, supervisory and administrative powers as well as inherent power to control litigation before them.” Cottle v. Superior Court, (1992) 3 Cal.App.4th 1367, 1377 (citations omitted). These inherent powers are derived from the California Constitution, and “are not confined by or dependent on statute.” Id.  Dem. at 8-9.

The County argues that the Commission will issue a final decision on all matters before it, including the statute of limitations. If either side is dissatisfied with the Commission’s final decision, judicial review can be sought pursuant to CCP section 1094.5. The Commission’s final determination (and thereafter a possible administrative mandamus claim in the trial court and appeal) will have binding and preclusive effect in this action, resolution of the instant action depends upon the outcome of the proceedings before the Commission.  Dem. at 7, 10.

In Page v. Los Angeles the County Probation Dept., (2004) 123 Cal.App.4th 1135, the petitioner elected to pursue a claim before the Commission, which held numerous hearings and ultimately entered an adverse ruling.  Rather than challenge that ruling through available judicial avenues, the petitioner simply filed a complaint with the DFEH. The appellate court held that the petitioner had failed to exhaust her judicial remedies by not seeking mandamus, the Civil Service Commission’s findings were binding until set aside through a mandamus proceeding, and those findings barred her FEHA complaint from going forward.  Id. at 1143-44.  Dem. at 11.

Galvez acknowledges the binding effect of a final administrative determination and correctly responds that the doctrine of exhaustion of judicial remedies has no application here because, as the County admits, there has been no final determination by the Commission and no finality from an administrative mandamus proceeding.  Opp. at 12-13.

The County argues that Galvez cannot request this court to adjudicate the statute of limitations claim after he previously requested the Commission to adjudicate the same claim. Regardless of the ultimate ruling by the Commission, although subject to judicial review, that ruling will have binding effect. The fact that the Commission proceeding is contemporaneous with the instant matter and includes precisely the same issue -- i.e., Galvez’s discipline is barred by section 3304(d) -- invites the possibility of inconsistent judgments. Therefore, a stay is both appropriate and necessary to avoid this possibility.  Dem. at 11.

Galvez acknowledges the court’s authority to stay this proceeding.  However, Galvez correctly notes (Opp. at 12) that there is no risk of inconsistent judgments.  If the Commission renders a decision adverse to him before this court reaches a decision on the limitations issue, Galvez can file a concurrent CCP section 1094.5 administrative mandamus case.  The cases should be consolidated, and in any event, one final decision will bind the other on the limitations issue.

The County further argues that Galvez should not be permitted to sidestep the administrative process by filing a new action raising the same claim. Our courts have expressly disapproved of litigation tactics that would constitute or encourage “gamesmanship in the judicial system”.  Mary Morgan, Inc. v. Melzark, (“Mary Morgan”) (1996) 49 Cal.App.4th 765, 770.

In Mary Morgan, the plaintiff requested a continuance of a hearing on a motion for summary judgment after the trial court issued a tentative ruling granting defendants' motion for summary judgment.  The plaintiff used the continuance period to file a request for dismissal with the intention of re-filing the action. The trial court struck the request for dismissal and its decision was upheld on appeal. Id. at 771-72.

In Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, the court was presented with a second lawsuit “filed solely to circumvent the court's prior adverse ruling”.  Id. at 161-62. The court ruled that an appeal would have been the appropriate remedy and the “second action was filed for improper purposes”.  Id.

The County argues that Galvez received an adverse ruling from the hearing officer on the statute of limitations. Instead of pursuing his administrative remedies to the Commission and seeking judicial review as necessary, he filed a new proceeding concerning the same limitations issue.  A stay of the instant action is warranted until the civil service proceedings and any subsequent judicial review are completed.  Dem. at 7.

There is merit to this argument.  Galvez chose the administrative forum to raise his limitations claim and lost before the hearing officer.  Instead of pursuing that claim before the Commission, he chose to file this proceeding.  While he has that right, it smacks of gamesmanship.  At a minimum, equity does not work in Galvez’s favor.

Galvez contends that judicial economy and the potential for a swift resolution of grievances would be best served by permitting him to adjudicate his statute of limitations claim before he and the County must expend resources to adjudicate the merits of the allegations against him.  Opp. at 12, 16.  He presents no facts on the state of the administrative proceeding, including its status and estimated length, and the basis for the hearing officer’s ruling.  These issues are significant to whether the court will stay this case and will be discussed with counsel at hearing.

E. Conclusion

The demurrer is overruled.  The County has 30 days to answer only.  However, the court will discuss with counsel whether the case should be stayed pending the outcome of the administrative proceeding.