Judge James C. Chalfant, Case Number: 24STCP03086, Date: 2025-05-15 Tentative Ruling

Petitioner Erik Wilson (“Wilson”) seeks a writ of mandate compelling Respondents City of Los Angeles (“City”) and Interim Chief of Police Dominic Choi (“Choi”) (collectively, “City”) to set aside the decision discharging him. The City separately moves to augment the administrative record.

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

A. Statement of the Case

1. Petition

Petitioner Wilson filed the Petition against Respondents on September 25, 2024 alleging causes of action for traditional mandamus for violation of the Peace Officer Bill of Rights Act (“POBRA”), traditional mandamus for unfair administrative hearing, and administrative mandamus. The Petition alleges in pertinent part as follows.

On December 5, 2022, Wilson engaged in alleged inappropriate use of his cell phone stemming from a traffic stop, which became the basis for his discipline. Pet., ¶¶ 6-7.

On July 14, 2023, the City issued a Letter of Transmittal to Wilson, noting various allegations against him based on his conduct and recommending a 22-day suspension. Pet., ¶7. On September 14, 2023, Captain Johnny Smith approved the 22-day suspension in the Letter of Transmittal. Pet., ¶8.

On October 26, 2023, the City prepared a Penalty Recommendation noting that December 5, 2023 was the last date the City could lawfully conduct its investigation and provide notice to Wilson of its intended discipline. Pet., ¶9. The Penalty Recommendation stated that Captain J. Smith, Captain A. Gonzalez, and Deputy Chief E. Tingirides all recommended a 22-day suspension and that the Chief of Police recommended a hearing before a Board of Rights (sometimes “Board”). Pet., ¶9.

On November 24, 2023, Captain John Shah from the Internal Affairs Division (IA”) informed the Command Officer, Operations-South Bureau that the Chief of Police had added two additional counts to the charges against Wilson to better address the misconduct alleged. Pet., ¶10. The City notified Wilson of the two additional counts by certified mail dated December 4, 2023. At that time, Wilson was on pre-approved vacation, and he received the notice on December 7, 2023. Pet., ¶11.

Wilson’s Board of Rights heard his case on July 2, 2024. Pet., ¶12. Department Advocate Lieutenant Javier Sanchez accused Wilson’s character witness of testifying to another officer’s confidential personal information, and the Board appeared to agree even though the information was in the public record. Pet., ¶12.

On Jully 22, 2024, the Board determined Wilson should be removed from his position as police officer, effective January 4, 2024. Pet., ¶13. On Jul 10, 2024, the Chief of Police signed the Execution of the Order affirming the Board’s decision. Pet., ¶14. Wilson was served on July 11, 2024. Pet., ¶14.

Wilson seeks (1) a peremptory writ of mandate to set aside the City’s decision to terminate him; (2) actual damages against the City; (3) costs of suit; (4) attorney fees; and (5) such other and further relief as the court may deem just, necessary, and proper.

2. Course of Proceedings

On October 2, 2024, Wilson served the Petition and Summons on Respondents City and Choi.

B. Standard of Review

1. Traditional Mandamus

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus.¿ CCP §1085.¿ A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....”¿ CCP §1085.¿¿¿

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty.¿ Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84.¿ Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.”¿ Id. at 584 (internal citations omitted).¿ Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation.¿ AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.¿

¿Where a duty is not ministerial and the agency has discretion, mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion.¿ Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner.¿ American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (2005) 126 Cal.App.4th 247, 261.¿ It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71.¿ In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom.¿ Id. at 371.¿ An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.”¿ Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106.¿ A writ will lie where the agency’s discretion can be exercised only in one way.¿ Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

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

2. Administrative Mandamus

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

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

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

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

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

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

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

C. City Charter

Generally, Los Angeles Police Department (“Department” or “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 no more 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).

D. The Motion to Augment

The City conditionally moves to augment the administrative record to include: (1) the Complaint against Wilson signed by the Chief of Police (Ex. 1); (2) a Notice of Proposed Discipline for Wilson (Ex. 2); (3) Wilson’s application for hearing before the Board of Rights (Ex. 3); (4) a declaration of Sergeant Yolanda Grutter (“Grutter”) (Ex. 4); (5) a Notice of Proposed Discipline for Grutter (Ex. 5); and (6) Grutter’s Skelly response (Ex. 6).

The administrative record includes the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence and any other papers in the case. CCP §1094.6(c).

“The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. The court can only admit additional evidence where the party seeking its inclusion shows (1) the evidence could not have been presented to the agency in the first instance in the exercise of reasonable diligence or (2) was improperly excluded. CCP §1094.5(e); Western States Petroleum Assn. v. Superior Court, (1995) 9 Cal.4th 559, 578 (“Western States”); Eureka Citizens for Responsible Govt. v. City of Eureka, (2007) 147 Cal.App.4th 357, 366. In addition, extra-record evidence is admissible only if it is relevant. Western States, supra, 9 Cal.4^th at 570.

The Code of Civil Procedure does not expressly provide for a motion to augment or correct the administrative record, but such motions are routinely made. See e.g., Pomona Valley Hospital Medical Center v. Superior Court, (1997) 55 Cal.App.4th 93, 101.

The City asserts that Wilson is barred from raising a statute of limitations defense because he raises it for the first time on appeal. If, however, the court allows Wilson to argue the statute of limitations, the City seeks to augment the administrative record with the above-listed exhibits.

As discussed post, the City misunderstands the court’s initial jurisdiction for POBRA cases. Wilson’s POBRA evidence is not required to be part of the administrative record and may be presented in traditional mandamus. The City also is entitled to present traditional mandamus evidence.

Wilson argues that the City fails to authenticate Exhibits 1-3 and that none of the Exhibits is relevant to his statute of limitations defense. Opp. at 2-3. Wilson is correct that Exhibits 1-3 are not authenticated.

Exhibit 1 is the Complaint against Wilson containing all ten charges and signed by the Chief of Police. Wilson acknowledges that page 2 shows the City mailed the Complaint to Wilson on December 4, 2023, and so would be related to the statute of limitations argument if authenticated. Authenticated or not, it should be in the administrative record.

Exhibit 2 is a Notice of Proposed Discipline indicating that the 22-day suspension was a proposed penalty. Exhibit 2 is unrelated to Wilson’s statute of limitations argument. Authenticated or not, it should be in the administrative record.

Exhibit 3 is Wilson’s application for a Board of Rights dated December 8, 2023. Exhibit 3 is immaterial to the statute of limitations issue. Authenticated or not, it should be in the administrative record.

Exhibit 4 is a declaration of Sgt. Grutter in which she states that she did not realize that Wilson made misleading statements to her until September 23, 2023. Wilson argues that it is irrelevant to the City’s obligation to conduct the investigation and issue a notice of proposed discipline in compliance with Govt. Code section 3304(d). The exhibit is not irrelevant and will be considered for the POBRA claim. It will not be included in the administrative record.

Exhibits 5 and 6 are disciplinary documents related to the City’s investigation of Sgt. Grutter. Exhibit 5 is a notice of proposed discipline that has no relevance to Wilson’s statute of limitations argument. Exhibit 6 is Sgt. Grutter’s Skelly response and it states that Grutter believed Wilson misled her about the incident that resulted in his (and her) discipline. The document is dated October 23, 2025, one month after Sgt. Grutter stated in her declaration that she came to this realization. The exhibit may be relevant to Wilson’s statute of limitations defense, but it is not authenticated and will not be considered for the POBRA claim. Nor will it be included in the administrative record.

The motion to augment the administrative record is granted for Exhibits 1-3. The court will consider Exhibit 4 as part of the POBRA traditional mandamus claim. The motion is denied for Exhibits 5 and 6.

E. Statement of Facts

1. Traditional Mandamus Evidence

a. Wilson’s Evidence

The Department informed Wilson that he would receive a 22-day suspension for his December 5, 2022 conduct. Wilson Decl., ¶2. Wilson signed off on the 22-day suspension. Wilson Decl., ¶2. Wilson would not have pled guilty to any of the charges if he had known they could result in termination. Wilson Decl., ¶3.

On December 4, 2023, the Department sent to Wilson by certified mail a package containing Counts 9 and 10 against him. Wilson Decl., ¶4, Exs. A, B. At no previous time did the Department attempt to serve Wilson with Counts 9 and 10. Wilson Decl., ¶5.

From November 25 through December 7, 2023, Wilson was on pre-approved time off. Wilson Decl., ¶7, Ex. C. Wilson found the envelope when he returned on December 7, 2023, but he did not sign the certified mail receipt until January 22, 2024. Wilson Decl., ¶¶ 8-9, Ex. A.

b. The City’s Evidence

Sgt. Grutter did not realize that Wilson made misleading statements to her until she reviewed the entire investigation on September 23, 2023. Grutter Decl., ¶5. Before that date, she was not privy to any facts regarding the allegations of Wilson’s misconduct, and she did not know the whole context why he called her on December 5, 2022. Grutter Decl., ¶6.

2. The Administrative Mandamus Evidence

a. The December 5, 2022 Stop

LAPD employed Wilson as a Police Officer beginning in 2014. AR 196.

On December 5, 2022, at approximately 10:30 a.m., Abigail Ibarra (“Ibarra”) parked her vehicle in a red zone in front of a Chick-fil-A in downtown Lost Angeles. AR 123-24. Ibarra left the restaurant and drove her vehicle away. AR 124. Wilson followed Ibarra and pulled her over. AR 124. Wilson did not activate his body-worn video or digital in-car video systems during the stop. AR 124, 272, 276.

b. The Investigation

IA conducted an investigation of Wilson’s actions on December 5, 2022. See AR 313-26. On May 25, 2023, IA issued an investigative report noting the one-year statute of limitations date as December 5, 2023. AR 313.

The I/A report made 17 allegations of misconduct, eight of which resulted in charges as follows:

Count 1: On or about December 5, 2022, you, while on-duty, left your assigned bureau without supervisory approval.

Count 2: On or about December 5, 2022, you, while on-duty, inappropriately parked your police vehicle in a marked no parking zone while conducting routine business.

Count 3: On or about December 5, 2022, you, while on-duty, failed to place yourself code 6 as required.

Count 4: On or about December 5, 2022, you, while on-duty, failed to activate your body-worn video as required.

Count 5: On or about December 5, 2022, you, while on-duty, failed to activate the digital in-car video system as required.

Count 6: On or about December 5, 2022, you, while on-duty, conducted a traffic stop without legal cause.

Count 7: On or about December 5, 2022, you, while on-duty, inappropriately attempted to convert an official on-duty contact into a social relationship.

Count 8: On or about December 5, 2022, you, while on-duty, inappropriately used your personal cellular telephone to conduct official police business. AR 313-23; see AR 95-96.

c. The Complaint

The Complaint Adjudication Form signed by Wilson’s commanding officers in October 2023 recommended a 22-day suspension for the eight charges. City Ex. 2. Wilson was notified of the proposed discipline and stated that he would respond by November 20, 2023 (presumably at his Skelly hearing). City Ex. 2.

On November 22, 2023, the Chief of Police issued a Complaint and Relief from Duty adding two counts:

Count 9: On or about December 5, 2022, you, while off-duty, gave misleading statements to a Department supervisor.

Count 10: On or about December 5, 2022, you, while on-duty, failed to document a traffic stop. AR 110; City Ex. 1.

Willson was ordered to a Board of Rights hearing and relieved from duty, effective December 5, 2023. City Ex. 1. On December 4, 2023, the complaint was sent to Wilson by certified mail at his home address. City Ex. 1.

The City never interviewed Wilson regarding any misleading statements charged in Count 9. AR 118. Nor was Count 9 addressed in Wilson’s Skelly hearing. AR 99-100.

d. The Board of Rights Hearing

At the outset of the Board of Rights hearing, Wilson pled guilty to Counts 1-5 and 7-8. AR 108-11. He pled not guilty to Counts 6 and 9.

(i). The Motion to Clarify Count 9

Wilson made a Motion to Specify Charges, asking for clarification of Count 9. AR 99, 106, 333-38. The City responded that Count 9 is based on all the evidence in discovery given to Wilson. AR 100. Count 9 specifies the date, the misconduct, and the supervisor, Stg. Grutter. AR 100-01. More specificity is not required by the City Charter or the Board Manual. AR 101. The City stated that Wilson misled Sgt. Grutter by not being forthcoming and divulging the whole context of the relationship. AR 103. The Department policies proscribe misleading by omitting and creating an inaccurate picture. AR 103-04.

After the City’s clarification, the Board offered Wilson a continuance, which his counsel declined. AR 107. The Board denied Wilson’s motion without prejudice, and he did not raise the issue again. AR 107, 333.

(ii). Wilson

Wilson testified that he was parked in a red zone and Ibarra was parked there also. AR 198. They made eye contact, and she appeared to be scared and moved her car away from the curb as soon as Wilson and his partner were getting into the car. AR 198. Wilson stopped Ibarra for parking on a red curb. AR 198. He had legal cause to do so. AR 198. Technically, he did not conduct a traffic stop, but rather Ibarra voluntarily pulled over. AR 212.

Wilson told his partner to stay in the car. AR 228. Wilson felt safe approaching Ibarra without his partner because she was alone. AR 245. He had a brief interaction with Ibarra in which he said he was not going to cite her for the violation. AR 199, 212. Wilson admitted to having a personal interest in Ibarra. AR 230. He only became interested in a personal relationship after Ibarra gave him a business card with her personal cell number. AR 228. Ibarra never told him that she was engaged, pregnant, or a mother. AR 199-200.

Wilson believed that Ibarra was interested in him, and so he later texted Ibarra and they had a brief friendly exchange. AR 204. About an hour later, Wilson texted Ibarra again, mistaking her for another on-duty contact. AR 205. This generated confusion, so Wilson called Ibarra to try to resolve the miscommunication. AR 236. Texts continued and then Wilson once more called Ibarra, but Ibarra’s fiancé answered the phone and threatened Wilson with court action. AR 236-38. In total, Wilson texted Ibarra 15 times. AR 240.

Wilson then called Sgt. Grutter, who had been involved with the other case, hoping she could explain the situation to Ibarra. AR 205-06. Wilson explained all relevant information to Grutter. AR 211. Wilson expressed embarrassment and admitted mistaken conduct. See AR 252.

(iii). Grutter

Sgt. Grutter testified that Wilson misled her in their phone call. AR 186. Wilson told her only that he was getting food from Chick-fil-A when he received a business card from a real estate agent, and when he meant to text the P.R. from the human trafficking investigation, he accidentally texted the real estate agent, who became upset. AR 178-79.

Grutter called Ibarra, but when she began to identify herself, another person on the line introduced herself as Sergeant Figueroa, investigating a complaint regarding Wilson’s actions with Ibarra. AR 149-50. Grutter ended the call. AR 149-50. Grutter then notified Wilson, as well as the 77th Watch Commander. AR 151.

If Grutter had known that Wilson texted Ibarra 15 times, called her, and was trying to socialize with her, she would not have called Ibarra. AR 168. Grutter did not learn Wilson misled her until she received an investigation packet against herself for failing to properly report Wilson’s misconduct. AR 176-77.[1]

(iv). Ibarra

Ibarra testified that she was parked at a red curb. AR 124. When Ibarra noticed Wilson’s police car, she pulled away, but Wilson followed her and pulled her over. AR 124.

Ibarra believed Wilson had a legal right to stop her. AR 131. Wilson asked Ibarra her age and if she was single, and Ibarra gave Wilson her business card because she was a new real estate agent seeking business. AR 124.

When Wilson asked if she was single, she told him she was engaged, pregnant, and had a daughter. AR 125. She gave this information to the investigator. AR 132.[2]

(v). Lorenz

Wilson’s Commanding Officer, Michael Lorenz (“Lorenz”), submitted a character reference “for [Wilson’s] outstanding performance at the 77th Street Detective Division while assigned to the Crime and Community Intelligence Center.” AR 339-40. Lorenz praised Wilson’s effectiveness, innovation, and commitment. AR 339-40.

e. The Board Decision

The Board found Ibarra and Sgt. Grutter to be credible. AR 344, 350. The traffic stop was not legitimate and served no valid enforcement purpose. AR 345. Wilson told his partner, Officer Rios, that he knew Ibarra from high school, but Ibarra testified that they had never met. AR 345. The Board concluded Wilson only approached Ibarra to establish a personal relationship with Ibarra and the red zone violation was a pretext. AR 345-46.

The Board found that Wilson’s explanation to Sgt. Grutter was misleading because he neglected to tell her he had inappropriately attempted to convert a pretextual official stop of Ibarra into a social relationship and the sent unsolicited personal texts to her, which led to notice to Wilson that Ibarra would likely file a complaint against him. AR 349. Grutter credibly testified that she would not have made the phone call to Ibarra if Wilson had told her all the facts. AR 350. The Board found that Wilson made misleading statements to Grutter to avoid revealing the truth of his interaction with Ibarra and to use Gutter to remedy the situation. AR 352.

The Board found Wilson guilty of remaining Counts 6 and 9, and concluded that Wilson should be terminated. AR 355. The Chief of Police adopted the Board’s recommendation.

F. Analysis

Petitioner Wilson seeks (1) traditional mandamus concerning passage of the one-year statute of limitations under POBRA and (2) administrative mandamus concerning the weight of the evidence for his guilt on Counts 6 and 9 and the penalty of dismissal.

1. POBRA

The Peace Officers Bill of Rights Act (“POBRA”) is located at Govt. Code[3] 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. POBRA “sets forth a number of basic rights and protections which must be accorded individual public safety officers by the public agencies which employ them.” White v. County of Sacramento, (1982) 31 Cal. 3d 676, 679. The 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.

“One of POBRA’s basic protections is the speedy adjudication concerning accusations of misconduct.” Alameida v. State Personnel Bd., (2004) 120 Cal.App.4th 46, 63. 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. Squire v. County of Los Angeles, (2018) 22 Cal. App. 5th 16, 22.

The fundamental purpose of section 3304(d) is to ensure that an officer will not be faced with the uncertainty of a lingering investigation, but rather will know within one year of the agency’s discovery of the officer’s act that it may be necessary for the officer to respond to possible discipline. Mays v. City of Los Angeles, (“Mays”) (2008) 43 Cal.4th 313, 322. 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. “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.” Id. at 321-22. 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. Id. at 322. See also Sulier v. State Personnel Board, (“Sulier”) (2004) 125 Cal.App.4^th 21, 29 (informal notice only is required).

The court shall have initial jurisdiction over any proceeding brought by a public safety officer against any public safety department for violation of POBRA. Govt. Code §3309.5.

The case cited by Wilson, Earl v. State Personnel Bd., (“Earl”) (2018) 231 Cal.App.4^th 459, 469-70, holds that when the statute requires a personal service, and the employer mails the notice of discipline, it is the date when the employee receives the mail notice that is relevant to the service requirement. This personal service rule has an exception – the statute of limitations requirement may be deemed satisfied when the employee received actual notice. See Sullivan, supra, 194 Cal.App.4^th at 77. An analysis of actual notice would require facts not brought up during the Board of Rights hearing because Wilson failed to raise it. A supervisor could have given Wilson oral notice of the Department’s intent to discipline, the nature of the charges, and the penalty, thereby effectuating actual notice under Sullivan. Opp. at 12, n. 4.

The Ciity misunderstands POBRA. 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 of administrative remedies is not required for Wilson’s POBRA claim because the court has initial jurisdiction. §3309.5(c). A section 3309.5 proceeding concerns 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. Mounger, supra, 193 Cal.App.4^th 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. In the latter event, 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, supra, 156 Cal. App. 4th at 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. Wilson has chosen the second option, which is perfectly permissible.

Because the court has initial jurisdiction over Wilson’s POBRA claim, the City’s contention that it did not have the opportunity to refute his statute of limitations claim at the administrative hearing, and its assertion that the court has “insufficient facts in the administrative records to properly analyze the issue,” is without merit. The City was entitled to submit any declarations or exhibits it believed relevant to the statute of limitations issue. It also could have conducted discovery on the traditional mandamus claim. The court thus has before it all information the parties believed necessary for a resolution of Wilson’s POBRA claim.

The City also argues that compliance with POBRA’s statute of limitations is a complicated issue with many exceptions and oftentimes it is not clear what a statute date is. For example, there are complicated issues involving “due diligence”, “unavailability”, and “mail service”. The Department does the best it can, struggling with these complex ideas, and there is much discretion in this process. Opp. at 10.

Not so. Passage of the statute of limitations is a mixed question of law and fact for the court to decide. Section 3304(d) provides that “no punitive action…shall be undertaken… if the investigation of the allegation is not completed within one year” and the public agency “shall complete its investigation and notify the public safety officer of its proposed discipline [within that one year]”. (emphasis added). The word “shall” indicates that the action is mandatory. §14. The Department has no discretion in its compliance. It has an obligation to meet a one-year date based upon the discovery of alleged misconduct by an individual authorized to commence an investigation. If the Department does not comply with the limitations period, it is prohibited from taking disciplinary action. The City has discretion in deciding what type of supervisor is tasked to conduct an investigation or and the Department has discretion whether to rely on an exception to the one-year rule, but the duty is ministerial and the Department does not have discretion to extend the limitations period.

The pertinent facts are as follows. The Complaint Adjudication Form signed by Wilson’s commanding officers in October 2023 recommended a 22-day suspension for eight charges. City Ex. 2. Wilson was notified of the proposed discipline and stated that he would respond by November 20, 2023 (presumably at his Skelly hearing). City Ex. 2. Wilson signed off on the 22-day suspension. Wilson Decl., ¶2.

On November 22, 2023, the Chief of Police issued a Complaint and Relief from Duty adding two counts against Wilson:

Count 9: On or about December 5, 2022, you, while off-duty, gave misleading statements to a Department supervisor.

Count 10: On or about December 5, 2022, you, while on-duty, failed to document a traffic stop. AR 110; City Ex. 1.[4]

The Complaint ordered Wilson to a Board of Rights hearing and relieved him from duty, effective December 5, 2023. City Ex. 1. The Complaint was sent to Wilson by certified mail on December 4, 2023 at his home address. City Ex. 1; Wilson Decl., ¶4, Exs. A, B. The Department had not previously attempted to serve Wilson with Counts 9 and 10. Wilson Decl., ¶5.

From November 25 through December 7, 2023, Wilson was on pre-approved time off. Wilson Decl., ¶7, Ex. C. Wilson found the envelope containing Counts 9 and 10 when he returned on December 7, 2023, but he did not sign the certified mail receipt until January 22, 2024. Wilson Decl., ¶¶ 8-9, Ex. A.

Wilson argues that section 3304(d)(1) required the Department to complete its investigation into his December 5, 2022 misconduct and notify him of any proposed discipline within one year of the date that an individual authorized to commence such investigation discovered the misconduct. As the Department acknowledged, that one-year period ended on December 5, 2023. AR 313. After its investigation, the Department timely issued an eight-count Complaint against Wilson and he had a Skelly hearing on those eight counts. A 22-day suspension was recommended to which Wilson signed off. AR 111, 333; Wilson Decl., ¶2. This all occurred within the one-year statute date. Wilson pled guilty to seven of the eight original counts, which he would not have done had he known he was also going to be accused of potentially terminable conduct -- i.e., misleading statements. Wilson Decl., ¶3.[5] Pet. Op. Br. at 10.

Wilson notes that the Chief of Police thereafter added Counts 9 and 10. These Counts were based on the same December 5, 2022 incident and evidence for which Wilson was investigated. There was no basis to reopen the investigation pursuant to section 3304(g), and the Department never sought to do so. The Department delivered Counts 9 and 10 via certified mail on December 4, 2023. Wilson found the mail in his mailbox on December 7, 2023. Pet. Op. Br. at 11-12.

Based on this evidence, Wilson argues that he was improperly served with Counts 9 and 10 in violation of section 3304(d)(1). First, he was not notified that there were additional charges against him, or that he was being directed to a Board of Rights hearing rather than being issued a 22-day suspension, until after the one-year statute of limitations had expired. Second, he was not personally served. The Department’s failure to timely notify Wilson of all the charges against him, as well as its proposed discipline, resulted in severe prejudice. The court should conclude that the Department violated section 3304(d) when it did not timely inform Wilson of (1) all the charges against him and (2) the proposed discipline and that all the charges against Wilson must be dismissed. Alternatively, the court should find that Counts 9 and 10 were untimely and should not have been considered by the Board. Pet. Op. Br. at 11.

Wilson contends that Earl v. State Personnel Board, supra, 231 Cal.App.4th at 459 is directly on point. Pet. Op. Br. at 13.

In Earl, the Department of Rehabilitation and Corrections sent Earl, a peace officer employee, a certified letter of intent prior to the one-year statute date. 231 Cal.App.4^th at 462-63. The letter arrived after the statute date. The court agreed with Earl that the word “notify” as used in section 3304(d)(1) – “[the agency] shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year” -- means actual notification, not constructive notice. Id. at 463. Based on the discussions of the notification requirement in Mays and Sulier, the Earl court considered what the Legislature in fact meant by the phrase “notify the public safety officer.” Id. at 468. Looking to “an unbroken line of California courts,” the court noted that “[a] statute requiring that a notice shall be given, but which is silent as to the manner of giving such notice, contemplates personal service thereof.” Id. at 469 (quoting Hoschler v. Sacramento City Unified School Dist., (2007) 149 Cal. App. 4th 258, 264. In granting Earl’s motion to dismiss the disciplinary action, the Earl court concluded that section 3304(d)(1) contemplates personal service on the officer regarding proposed discipline and that “actual notification must occur within the same year as the investigation.” Id. at 469-70.

The court agrees with Wilson that the Department’s notice of Counts 9 and 10 was untimely. “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, supra, 43 Cal.4th at 321-22. Section 3304(d)(1) contemplates personal service on the officer regarding proposed discipline and that “actual notification must occur within the same year as the investigation.” Earl, supra, 231 Cal.App.4th at 469-70. The City has not shown that the exception to personal service when the employee receives actual notice articulated in Sullivan, supra, 194 Cal.App.4^th at 69. There is no evidence that a supervisor informed Wilson of the new charges on or before December 5, 2023.

The court does not agree with Wilson that the Department’s notice was required to include the fact that he was being directed to a Board of Rights hearing for possible termination rather than being issued a 22-day suspension within the one-year statute of limitations. The California Supreme Court has expressly held to the contrary. 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, supra, 43 Cal.4th at 322. See also Sulier, supra, 125 Cal.App.4^th at 29 (informal notice only is required).

The City argues that the one-year clock did not start on December 5, 2022 because Count 9 was not discovered until September 21, 2023, or, alternatively, October 23, 2023. When Sgt. Grutter received a call from Wilson on December 5, 2022, she did not know that his statements were misleading. In fact, the Department initially believed that Sgt. Grutter helped Wilson cover up his actions. Sgt. Grutter was investigated for not submitting an overtime slip for the telephone call she received from Wilson and not properly reporting his misconduct. AR 176. Sgt. Grutter did not realize that Wilson made misleading statements to her until she reviewed the entire investigation report on September 23, 2023. Grutter Decl., ¶5. Before that date, she was not privy to any facts regarding the allegations of Wilson’s misconduct, and she did not know the whole context why he called her on December 5, 2022. Grutter Decl., ¶6.

The City raises two issues: who was authorized to initiate an investigation and what did he or she have to know to trigger the investigation?

The City does not explain who was authorized to initiate an investigation, only that Sgt. Grutter should not be that person because she was involved. The plain language of section 3304(d)(1) triggers the one-year period when a person “authorized to initiate an investigation” becomes aware of misconduct. It is irrelevant how likely it is that authorized person will actually investigate, or whether he or she “could be expected” to investigate. See Daugherty v. City and County of San Francisco, (“Daugherty”) (2018) 24 Cal. App. 5th 928, 950-51 (“…law enforcement agencies have latitude to designate ‘a person authorized to initiate an investigation’ for purposes of section 3304, subdivision (d)”).

There is no evidence that Sgt. Grutter was the only supervisor who was presented with some or all the facts supporting the misleading nature of Wilson’s statements on December 5, 2022. Sgt. Grutter testified that Sgt. Figueroa was speaking with Ibarra and taking a complaint when she called on December 5, 2022. AR 146-47, 150. Sgt. Figueroa then called Sgt. Grutter to tell her she was “taking a complaint in regards to [the] interaction that Officer Wilson had with” Ibarra.” Ibid. In turn, Sgt. Grutter “called [the] 77th Watch Commander to let them know what had transpired. and to notify them that there was a complaint investigation in the process.” AR 151. Either Sgt. Figueroa or the Watch Commander could have been an uninvolved supervisor to trigger the one-year period.

As for what the uninvolved supervisor must know, an allegation of misconduct is all that is required to trigger the limitations period, and the determination of whether there are sufficient facts for a reasonable person to suspect misconduct, and for the limitations clock to start, is an objective test. See Haney v. City of Los Angeles, (“Haney”) (2003) 109 Cal.App.4th 1, 10-11. The cases which Haney relied upon, People v.Swinney, (1975) 46 Cal.App.3d 332, 344 and People v. Crossman, (1989) 210 Cal.App.3d 476, were cases involving the discovery rule for accrual of criminal causes of action. The parallel rule in civil actions is the delayed discovery rule, which applies to tort actions. Generally, a cause of action accrues at the time when it is complete with all of its elements. Under the delayed discovery rule, a cause of action does not accrue until the plaintiff discovers, or has reason to at least suspect a factual basis for its elements. Fox v. Ethicon Endo-Surgery, Inc., (2005) 35 Cal.4th 797, 807 (citation omitted.) The reference to the elements of a cause of action means the generic elements of wrongdoing, causation, and harm. It does not mean the specific legal elements of a particular cause of action. Instead, the court looks to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them. Id. (citation omitted.)

Under Haney, it appears that the delayed discovery rule applies to section 3304(d). Even if it is not directly applicable, it is helpful guidance for interpreting when misconduct has been “discovered” under section 3309(d). Leaving out the elements of causation and harm, discovery occurs when an agency has reason to believe that the officer has committed an act or omission of wrongdoing.

Sgt. Grutter’s realization in September 2023 and her Skelly response are not determinative of the start of the one-year time clock. Procedurally, Wilson is correct (Reply at 7) that the City has no evidence that it extended the limitations date of December 5, 2023 set forth in the IA report (AR 313) due to any statements made by Sgt. Grutter. This fact is not controlling, however, because the court decides when the one-year POBRA clock began. Either Sgt. Figueroa or the Watch Commander may have had sufficient facts to initiate an investigation whether Wilson had misled Sgt. Grutter. Particularly Sgt. Figueroa, who spoke to both Ibarra and Sgt. Grutter on December 5, 2023, may have had sufficient information to trigger an investigation concerning Counts 9 and 10. At the least, the City has not rebutted this prospect. To the contrary, the City mailed Counts 9 and 10 to Wilson on December 4, 2023 in an attempt to meet the statute date of December 5, 2023.

As the Department failed to provide actual notice to Wilson of the new charges against him by the December 5, 2023 one-year limitations date, Counts 9 and 10 are improper, and should not have been considered by the Board. However, the court does not agree with Wilson that the remedy for untimely Counts 9 and 10 is dismissal of all charges. Rather, only the untimely charges in Counts 9 and 10 should not have been considered and must be dismissed.[7]

Count 6 charged: On or about December 5, 2022, you, while on-duty, conducted a traffic stop without legal cause.

Wilson notes that Ibarra testified to her understanding that he had a legal right to stop her for parking in a red zone and believed that was what he was doing when he pulled behind her after she drove away from the curb. AR 131. Likewise, Wilson testified that he had a legal cause to stop Ibarra as she had been parked at a red curb. AR 198. No witness testified to the contrary. Wilson testified that he wanted to inform Ibarra that she would not be cited for having parked in the red zone because she had looked scared when she saw the police vehicle. AR 198. He also testified that he felt safe going to her car by himself because she was alone. AR 245. Pet. Op. Br. at 14.

According to the Board, Wilson only stopped Ibarra for the purposes of establishing a personal relationship. AR 345. This conclusion is not supported by the weight of the evidence. That an officer fails to activate his dash or body-worn video after effectuating a traffic stop means nothing more than the officer failed to activate them. The failure may mean the officer acted out of policy—Wilson pled guilty to these violations—but there is no evidence that it transforms a legitimate traffic stop into an illegitimate traffic stop. Similarly, that Wilson told his partner he could remain in the car does not mean that he (Wilson) had an ulterior motive. Wilson testified that he only became interested in pursuing a personal relationship with Ibarra after she gave him her business card, which contained her personal cell phone number and which he had not asked for. AR 125-26, 199, 228. Wilson concludes that the Board erroneously concluded that the City proved Count 6. Pet. Op. Br. at 14-15.

The City correctly responds that the weight of the evidence shows that Wilson stopped Ibarra hoping to start a personal relationship with her, and for no other reason. Opp. at 14-15.

Ibarra saw lights flashing from behind, and that is why she stopped. AR 124. Wilson chose not to activate his Digital In-Car-Video or his Body Worn Video, as was required. AR 272, 276. Wilson claimed his sole purpose in stopping Ibarra was to tell her that she would not be cited for parking in a red zone. There was no reason to do so; he could have let her continue to drive away.

After telling his partner, Officer Rios, to stay in the car, Wilson approached Ibarra and asked her nothing but personal questions, such as whether she was single and how old she was. Ibarra had never seen him before. Wilson did not warn Ibarra of her parking violation. To the contrary, he told Ibarra that she could return and park in the red zone if she wanted. AR 198. He obtained her cell phone number, and upon return to his vehicle, he lied to Officer Rios that he recognized Ibarra from high school. AR 139-40. He subsequently texted Ibarra approximately 15 times thereafter and called her at least twice on the same day to pursue a relationship. At the Board of Rights hearing, Wilson admitted his personal interest in Ibarra. AR 230. His actions before, during, and after the stop prove that he stopped Ibarra for personal reasons only. Opp. at 14-15.

Wilson testified that he technically did not conduct a traffic stop. He claimed that he did not flash his vehicle’s lights and that Ibarra pulled over voluntarily without any show of force by him. AR 212, 230. This is not supported by evidence. Ibarra testified that she saw the flashing lights and pulled over because of them. The Board found Ibarra credible. AR 344. As the City argues (Opp. at 15), it is unreasonable to believe that a motorist would pull over without some showing of authority by the police. The evidence showed that the red zone violation was just a pretext. The weight of the evidence supports the guilty finding on Count 6.

Wilson stands guilty on Counts 1-8 but Counts 9-10 must be dismissed. Wilson correctly argues that Count 9 was important to the Board’s decision to discharge him. Prior to the addition of Counts 9 and 10, the Department was prepared to impose a 22-day suspension. AR 111, 333; Wilson Decl., ¶2. After finding Wilson guilty of Count 9, the Board described it as

“a serious offense in that it calls into question Officer Wilson’s integrity, credibility, and ability to perform the job of a police officer. When an officer is found guilty of making misleading statements, that officer may be restricted from taking police reports, testifying in court, or otherwise engaging in the field with the public. As a result, the department would be able to employ him only in light-duty assignments that are usually reserved for injured officers or non-sworn personnel. AR 86-87.

Wilson expressed embarrassment over his actions and acknowledged that he made a mistake. AR 252. His Commanding Officer, Lorenz, submitted a character reference “for his outstanding performance at the 77th Street Detective Division while assigned to the Area Crime and Community Intelligence Center.” AR 339. Lorenz noted Wilson’s “commitment to his role,” his “meticulous attention to detail and proactive approach,” and his “ability to impart knowledge and foster a collaborative working environment was instrumental in the professional development of his colleagues, thereby strengthening the team's capability.” Ibid. See Pet. Op. Br. at 18-19; see Reply at 10-11.

Given that Count 9 and Count 10 must be dismissed, the penalty of discharge cannot stand. The Board could reasonably have decided to impose a 22-day or other suspension on Counts 1-8. The matter must be remanded for the Department to consider an appropriate penalty.

The Petition is granted. A judgment and writ shall issue remaining the case to the Board of Rights with directions to dismiss Counts 9 and 10 and consider a penalty solely on Counts 1-8.

Wilson’s counsel is ordered to prepare a proposed judgment and writ, serve them on the City’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for June 24, 2025 at 9:30 a.m.

[1] Sgt. Grutter was interviewed on May 1, 2023. AR 324.

[2] This information is not in the IA report. See AR 313-26.

[3] All further statutory references are to the Govt. Code unless otherwise stated.

[4] The City never interviewed Wilson regarding any misleading statements charged in Count 9. AR 118. Nor was Count 9 addressed in Wilson’s Skelly hearing. AR 99-100.

[5] The City rebuts Wilson’s suggestion that he signed off on a 22-day suspension and would not have pled guilty to any of the charges had he known that the allegations could result in termination. Opp. at 16. The notice he received regarding a 22-day suspension was simply a proposed penalty that explicitly stated that the proposed penalty would be presented to the Chief of Police. City Ex. 2. Wilson did not plead guilty to counts 1 – 8 until his Board of Rights hearing, at which he knew he was charged with ten counts of misconduct. By that date, he had received the Complaint directing him to a Board of Rights and relieving him of duty. City Ex. 1.

[6] This date is not in evidence because Grutter’s Skelly response (City Ex. 6) was not received.

[7] As Count 9 may not be considered and must be dismissed, the court need not address the parties’ arguments on Wilson’s guilt on Count 9. See Pet. Op. Br. at 14-18; Opp. at 14-15. As for Count 10, Wilson pled guilty, and it is unclear therefore whether he waived any POBRA claim that the one-year limitations period passed. Out of caution, the court will assume that it must also be dismissed.