Judge: Mary H. Strobel, Case: BC712068, Date: 2022-09-13 Tentative Ruling

Case Number: BC712068    Hearing Date: September 13, 2022    Dept: 82

            Cross-Petitioner Association for Los Angeles Deputy Sheriffs (“ALADS”) moves for a determination that “1) Marc Schultz is entitled to back pay from June 9, 2017 until the date the Los Angeles Sheriff’s Department (‘Department’) reduced the number of explosive breachers to 18 subsequent to this Court’s February 11, 2020 order ; and 2) that possession of a valid blasting license is not a necessary condition for the entitlement to back pay, especially in the case of those explosive breachers who had short lapses in licensure, but otherwise performed all duties associated with the explosive breacher position.”  (Opening Brief filed 8/10/22 (“OB”) 4.)  For the second issue, ALADS only presents evidence concerning gaps in licensure of one employee, Kevin Hilgendorf, but also seeks a legal determination of whether “other deputies who have a gap in their licensure of less than one year but continue to perform breaching duties during that time” are entitled to explosives detail pay pursuant to the writ.  (OB 12.)

Cross-Respondent County of Los Angeles (“County”) opposes the motion. 

This case has a lengthy procedural history, which is not repeated here.  The court incorporates by reference the minute order for the May 10, 2022, status conference; the March 17, 2022, ruling on ALADS’ second motion to enforce the writ; the May 18, 2021, ruling on ALADS’ first motion to enforce the writ; and the February 11, 2020, ruling on ALADS’ cross-petition. 

Judicial Notice

County’s Request for Judicial Notice, Exhibits A-G – Granted.

County’s Evidentiary Objections

            Overruled: 1-3, 7-24, 26, 27, 30

Sustained: 4-6, 25, 28, 29

Analysis

Los Angeles County Code section 6.120.020(B)(5) states, in pertinent part: “Persons employed on the items of Deputy Sheriff (Item No. 2708), Sergeant (Item No. 2717), or Lieutenant (Item No. 2719), shall be entitled to compensation at a rate four schedules higher than established for their positions in Section 6.28.140 of this code when they have successfully completed special training and are assigned on a full-time, permanent basis to explosives detail duty.”

The writ commanded County, in pertinent part, as follows: “To pay explosive detail pay under Los Angeles County Code section 6.120.020(B)(5) to all employees who are or were assigned to explosive breaching duties (‘Affected Employees’), including but not limited to … Kevin Hilgendorf …, both retroactive from the date each Affected Employee was eligible for that compensation together with interest at the legal rate thereon, and prospectively. The County shall calculate the appropriate amount of back pay for each of the Affected Employees.”

Marc Schultz is Not Entitled to Explosives Detail Pay for the Time Period He Had a Permanent Full-Time Assignment of Range Master

            In the meet and confer regarding backpay, County has determined that deputy Marc Schultz is not entitled to any additional explosive pay after he became the Range Master for the Department’s Special Enforcement Bureau (“SEB”), an assignment he has maintained since June 1, 2015.  (Kalinksi Decl. Exh. B.)  Schultz’s blasting license was expired between February 7, 2013, to June 9, 2017.  (Ibid. and OB 4, fn. 3.)  ALADS contends that he is entitled to explosives duty pay for the period starting June 9, 2017, when Schultz renewed his license and held a full-time assignment as Range Master.  (OB 4, 9-11.)

The issue is whether, in his full-time assignment as Range Master, Schultz was “assigned on a full-time, permanent basis to explosives detail duty.”  (Los Angeles County Code § 6.120.020(B)(5).)  As reflected in the court’s prior rulings, Schultz would not need to perform explosives detail duty for any specific percentage of time.  However, he would need to be assigned on a full-time, permanent basis to explosives detail duty and “work with explosives on a regular basis.”  (See OB 5, citing Kalinski Decl. Exh. A.) 

            In 2015, Schultz became the SEB’s first official Range Master, in charge of the SEB Training Facility.  (Schultz Decl. ¶ 5; Ewell Decl. ¶ 12.)  As reflected in his performance evaluations since 2015, which Schultz has not challenged, the duties of Range Master included operating the range facility and also “training the long rifle cadre and overseeing [the] long rifle school.”  Schultz also oversaw the “firearms portion” of a SWAT School attended by law enforcement and military units from across the country.  Schultz also devoted time to rebuilding the range facility after it was destroyed in a wildfire in 2017.  (Ewell Decl. Exh. 1.)  Except for five days in November 2021, Schultz has been on an authorized leave of absence from September 9, 2020 to the present.  (Ewell Decl. Exh. 1 at LAC0020 and Giandomenico Decl. ¶¶ 3, 8.)  He did not perform explosives detail duty during that period of leave.  The court has not found, and ALADS does not cite, any information in the performance evaluations suggesting that Schultz has been assigned on a full-time basis to explosives detail duty since he became Range Master in 2015.

            ALADS contends that Schultz drafted a “unit order” that stated the Range Master responsibilities included “organizing, facilitating and instructing SEB’s yearly tactical schools at the SEB Range Training Facility which include: Breaching School (Assisted by the Breaching team).”  (OB 7, citing Schultz Decl. ¶ 5, Exh. A.)  ALADS contends that this document was “approved” as a unit order.  (OB 7.)  However, three recent commanders of SEB all declare that only the captain or commander of SEB has the authority to approve SEB unit orders and the “unit order” attached to Schultz’s declaration was never approved.  (Ewell Decl. ¶ 15; Williams Decl. ¶ 10; Giandomenico ¶ 9.)  ALADS submits no order or documentation stating that Exhibit A to Schultz’s declaration was approved by a captain or commander of SEB as a unit order.  In reply, ALADS submits a declaration of Schultz’s then-lieutenant, Lt. Michael O’Shea, which states, in part: “While I don’t specifically recall doing so, we would have then sent [the draft order] up the chain of command to Capt. Jack Ewell; as lieutenants … we could not provide final approval.”  (Reply O’Shea Decl. ¶ 4.)  This reply testimony is inconclusive but suggests final approval was not given.  The evidence does not preponderate in support of a finding that Exhibit A to the Schultz declaration was finally approved as a unit order of SEB.  Furthermore, even if Schultz did organize “Breaching School” and was assisted by the “breaching team,” that would not prove that he was assigned on a full-time basis to explosives detail duty, as discussed further below.

            ALADS contends that Schultz became re-licensed as a breacher in June 9, 2017, for two reasons: “first, one of Schultz’s supervisors, Lt. Joe Garrido told him he should resume going to call-outs and second, he was receiving numerous requests from other law enforcement agencies to put on breacher trainings, which he was doing—for the outside agencies as well as the Department— approximately two to three times per month.”  (OB 7-8 and 9-10, citing Garrido Decl. ¶ 10, Lockner Decl. ¶ 4, Lee Decl. ¶ 4, Chips Decl. ¶¶ 3-4, Geisbauer Decl. ¶ 3, and Schultz Decl. ¶¶ 9-10.)

            The explosives training Schultz led as Range Master does not establish that Schultz was assigned on a full-time basis to explosives detail duty.  Two declarants state that “Schultz discussed tactics, safety protocols, and capabilities related to ballistic breaching” at the training events.  (Lee Decl. ¶ 5; Chips Decl. ¶ 4 [bold italics added].)  Lee and Chips do not declare that Schultz performed explosives breaching.  Neither does Geisbauer.  (Geisbauer Decl. ¶ 3.)  Schultz declares, without elaboration, that the trainings he conducted as Range Master “often included the detonation of explosives.”  (Schultz Decl. ¶ 6.)  Garrido states vaguely that Schultz “work[ed] with explosives” and Lockner declares that Schultz “built and fired multiple explosive breaching charges” during the training.  (Garrido Decl. ¶ 6; Lockner Decl. ¶ 5.)  It appears Schultz did not have a blasting license during all of the trainings.  (See Garrido Decl. ¶ 6 and Schultz Decl. ¶ 6 [no date of training stated]; Chips Decl. ¶¶ 3-4 [Schultz led training between 2014-2017].)  As discussed below, Schultz could not perform explosives duty without a license.  Furthermore, even if Schultz did occasionally explode some breaching charges in a training capacity, that is not the same as explosives detail duty.  In his capacity as trainer, Schultz was not assigned on a full-time, permanent basis to explosives detail duty with SEB or any other Departmental unit. 

            Schultz declares that between 2017-2020, he was assigned to the SEB Blue Team and was assigned to work the mission day desk.  He declares: “During my time assigned to the desk, I was not on any breaching rosters. However, I responded to call-outs with my team. While I did not detonate charges during those callouts, I could have; in other words, I could have been called upon on any given day to be a breacher. Not all deployable breachers detonated charges on every call-out. Regardless, I did work with explosives many times throughout these years.”  (Schultz Decl. ¶ 9; see also Garrido Decl. ¶¶ 5-8.)  Schultz concedes that he never detonated a charge during the callouts from 2017-2020.  While he claims that he “could have” been called upon to work as a breacher, he does not describe the circumstances in which that would have occurred.  The court finds this evidence too conclusory and speculative to support a finding that Schultz was assigned on a full-time basis to explosives detail duty. 

            In opposition, County cites evidence that “Schultz was not concurrently a member of SEB’s Explosive Detail when he held the permanent full-time assignment of SEB Range Master.”  (Oppo. 12, citing RJN Exh. B [Explosive Detail rosters]; Ewell Decl.  ¶¶ 13-14, Exh. 2 [call-out assignments from Department’s SEB Portal]; Giandomenico Decl. ¶¶ 3-4, Exh. 3 [Daily In-Service sheets].)  County’s evidence supports the conclusion that Schultz was not assigned on a full-time basis to explosives detail duty.  As ALADS acknowledges, these documentary records do not show deployment of Schultz as an explosives breacher.  (Reply 7.) 

In summary, the undisputed evidence, including Schultz’s performance evaluations, show that the full-time assignment of Range Master did not involve duties as an explosives breacher.  It is also undisputed that Schultz was not deployed as a breacher and never detonated explosives during his deployment with SEB Blue Team starting in 2017. That Schultz may have occasionally performed training related to explosives does not prove he was assigned on a full-time basis to explosives detail as Range Master. 

The evidence does not preponderate in support of a finding that Schultz was assigned on a full-time basis to explosives detail duty during the period starting 2015 that he had the full-time assignment of Range Master.  Accordingly, ALADS’ claim for backpay for Schultz during this period is DENIED.

Kevin Hilgendorf and All Other “Affected Employees” Are Not Entitled to Explosives Detail Pay for Time Periods During Which Their Blasting Licenses Had Lapsed

            ALADS contends: “[P]ursuant to County Code Section 6.120.020(b)(5), the only requirement for explosive skills pay is that an individual ‘successfully complete[] special training’ and be ‘assigned on a full-time, permanent basis to explosives detail duty.’ …. Accordingly, the Court should find that Hilgendorf, as well as other deputies who have a gap in their licensure of less than one year but continue to perform breaching duties during that time, are entitled to explosive skills pay during those gap periods.”  (OB 12.)

            The court reached a different conclusion in its ruling dated March 17, 2022.  The court stated:

The ordinance does not expressly require the employees to have explosives blasting licenses from Cal-OSHA to qualify for explosives detail pay. However, evidence that an employee did not have an explosives blasting license appears highly relevant to County’s determination of eligibility for explosives pay. For instance, ALADS’s own evidence strongly suggests that a “Blaster’s License” from Cal-OSHA is a requirement for employees “to use explosives” and to become “deployable.” (See Francois Decl. ¶¶ 8, 11, included at Mellk Decl. Exh. B; see also Nathan Decl. ¶¶ 11-13.) For instance, retired Lieutenant Dan Nathan states: “There were several steps an aspiring breacher was required take in order to become deployable, i.e., work full time as a breacher. The first was to take 80 hours of training…. Once the 80 hours of training were complete, the aspiring breachers were required to take an examination devised by Cal/OSHA. Those who passed obtained a Law Enforcement “Blaster’s License,” which permits them to use explosives…. Following licensure, an aspiring breacher was required to complete an additional 170 hours of training …. Once the additional training was complete, the team leaders, including myself, would assess the individuals to ensure that they were deployable as breachers…. Once an individual was deemed deployable, he or she began to work full time as a breacher.” (Nathan Decl. ¶¶ 8-14 [bold italics added].) If credited, Nathan’s declaration states clearly that a Cal/OSHA blaster’s license was a necessary prerequisite for an officer to perform work as an explosive breacher.

Notably, in reply, ALADS does not address the contention that certain individuals are not entitled to explosives pay during periods that they did not have a breaching license. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Subject to argument or further briefing, the court tentatively agrees with County that it is not required to pay explosives pay for any individual for any periods of time that such individual did not have a blasting license from Cal-OSHA.

(Minute Order dated 3/17/22 at 16-17.)

After hearing oral argument on March 17, 2022, the court adopted the court’s tentative ruling as its final ruling, as modified in the minute order.  The court ordered supplemental brief “regarding whether sergeants and lieutenants should be included by April 7, 2022.”  The court did not order supplemental briefing on whether County is required to “pay explosives pay to an individual for any periods of time that such individual did not have a blasting license from Cal-OSHA.”  (Minute Order dated 3/17/22 at 20-21.)  Accordingly, the court’s ruling on that issue became final.

ALADS did not move for reconsideration pursuant to CCP section 1008 of this part of the court’s March 17, 2022, ruling.  It is too late for ALADS to do so now.  Moreover, ALADS does not identify any new facts or law that it could not have submitted, with reasonable diligence, in connection with the March 17, 2022, ruling. 

The court is not inclined to reconsider its prior ruling sua sponte.  Nonetheless,

even if the court were to reconsider the issue, the court would reach the same result.  As summarized in the March 17, 2022, ruling, ALADS’ declarants have already admitted in sworn declarations that a “Blaster’s License” from Cal-OSHA is a requirement for employees to perform explosives detail duty.  The court is skeptical of declarations, submitted for the instant motion, that contradict that prior position of ALADS. 

ALADS contends that “[t]he gaps in Hilgendorf’s licensure occurred because after his license expired he was required to wait for Cal/OSHA to offer the exam.”  (OB 11, citing Hilgendorf Decl. ¶ 3.)  The cited declaration actually states: “The gap in my licensure occurred because an individual is required to pass the Cal-OSHA blaster’s examination in order to obtain renewal, and the Los Angeles Sheriff’s Department, which offers the examination, does not do so during the same time period each year.”  (Hilgendorf Decl. ¶ 3.)  Hilgendorf fails to explain why he could not seek a renewed license directly from Cal-OSHA, rather than wait for Department’s examination.  Opposition evidence supports that breachers are not required to repeat the breacher school to renew their blasting licenses. (Abrena Decl. Exh. 5, transcript p. 75:9-12, Schultz testimony.) Breachers may directly contact Cal-OSHA about taking an exam and submit applications to renew their licenses. (Ewell Decl. ¶ 5; Giandomenico Decl. ¶ 5; Williams Decl. ¶ 3.)  The court finds this opposition evidence to be credible.

ALADS contend that, during the periods he was not licensed, “Hilgendorf performed breaching duties just as he had before his license lapsed.”  (OB 11, citing Hilgendorf Decl. ¶ 4; Francois Decl. ¶ 5.)  The cited evidence is conclusory.  Neither Hilgendorf nor Francois specify a single date during the periods in which Hilgendorf’s license lapsed that Hilgendorf performed breaching duties.  Nor do they submit documentary evidence in support. 

In a reply declaration, Hilgendorf admits that he could take the licensing exam at Cal/OSHA.  (Reply Hilgendorf Decl. ¶ 7.)  He claims that no one told him he could not perform breaching duties while unlicensed, but he does not specify a single date he actually detonated explosives while unlicensed.  (Id. ¶¶ 2-6.)  He submits Daily In-Service/Activity Logs for certain time periods that his license lapsed, which include the word “breach” next to his name.  These documents do not state that Hilgendorf actually performed explosives duty and detonated explosives on the dates in question.  (Id. ¶ 5, E xh. A; see discussion at Reply 6.)  This documentary evidence was also improperly submitted in reply to satisfy ALADS’ initial burden of proof.  (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Such evidence should have been submitted with the moving papers so County could respond.  The court finds this evidence insufficient to meet ALADS’ initial burden of proof both on the merits and for this procedural reason. 

In opposition, County submits evidence that when they served as SEB Captain or Commander, Ewell, Williams, and Giandomenico never authorized any subordinate supervisor (i.e., Lieutenant or Sergeant) to permit a deputy breacher who had an expired blasting license, including Deputy Hilgendorf, to perform explosive duties. (Oppo. 11, citing Ewell Decl. ¶ 7; Williams Decl. ¶ 5; Giandomenico Decl. ¶ 6.)  As testified credibly by Ewell, “I would not have allowed and did not allow that to happen due to safety and liability reasons.”  (Ewell Decl. ¶ 7.)  Given the inherent dangers of blasting, as discussed in the court’s rulings on the cross-petition, it seems unlikely for liability reasons that County would have permitted unlicensed persons to perform such work.  The court disagrees with ALADS’ argument that the testimony of Ewell, Williams, and Giandomenico is “meaningless.”  (Reply 5.)  These declarants were the captains or commanders of SEB during the relevant time period and would be knowledgeable about whether SEB allowed unlicensed persons to perform breaching duties.

            County also submits evidence that Hilgendorf admitted, in sworn testimony in another case, that explosive breachers are “people that are licensed, are able to carry explosives, carry initiators and able to place and detonate a charge in a crisis incident.”  (Oppo. 8, citing Abrena Decl. Exh. 5 at 135.)  He also admitted that employees were required to “get a valid blasting license” to be deployed as an explosives breacher.  (Id. at 132.)  Contrary to ALADS’ assertion in reply, these admissions given in another case are not hearsay because they were made by Hilgendorf, a member of ALADS, and constitute party admissions or statements against interest.  (Reply 4, fn. 1.)  Furthermore, the testimony that unlicensed persons can “assist” is vague and does not prove that Hilgendorf, or other unlicensed deputies, actually performed explosives duty without a license.  (Reply 5:1-9; Abrena Decl. Exh. 5 at 75.)

ALADS failed to move for reconsideration pursuant to CCP section 1008 of the court’s prior ruling that County “is not required to pay explosives pay for any individual for any periods of time that such individual did not have a blasting license from Cal-OSHA.”  (Minute Order dated 3/17/22 at 16-17.)  The court is not inclined to reconsider that issue sua sponte.  However, even if reconsideration were proper, the court reaches the same result.  While there is some conflict in the evidence, the weight of the evidence supports a finding that a Cal/OSHA blaster’s license was a necessary prerequisite for an officer to perform work as an explosive breacher for County and that Hilgendorf, and all other similarly situated deputies, were not assigned on a full-time basis to explosives detail duty during the period in which their blasting licenses had lapsed. 

            The court finds that possession of a valid blasting license is a necessary condition for the entitlement to back pay pursuant to the writ.  ALADS’ claim for backpay for Hilgendorf and all other deputies, during periods in which their blasting licenses had lapsed, is DENIED.

Remaining Status Conference Issues

            In reply, ALADS states the court “should permit ALADS to engage in limited discovery in order to seek these logs from the Department” regarding Hilgendorf’s alleged work as a breacher when his license lapsed.  (Reply 6.)  The action has been pending since February 2018, the writ was issued in July 2020, and extensive enforcement proceedings have been held since then.  ALADS initiated the original motion to enforce the writ.  The court does not further delay a ruling on enforcement of the wrIt based on ALADS’ tardy request to conduct additional discovery. 

            County’s declarants represent that full compliance with the writ will take until December 31, 2022, if not longer.  (Trimarchi Decl. filed 9/6/22 ¶ 13; Yee Decl. filed 9/6/22 ¶ 10; Banuelos Decl. filed 9/6/22 ¶ 14.)  Counsel for ALADS informed the County that ALADS will request that the Court order the County to provide payment within 60 days of September 13, 2022.  (Joint Status Report filed 9/6/22 at 2:24-26.)  The court will discuss these timing issues with the parties at the hearing.  The court is tentatively inclined to order full compliance with the writ by December 31, 2022.

            At the June 9, 2022 status conference, the parties advised the court there were two remaining issues for the court to resolve.  Those issues have been resolved in this ruling.  In addition the parties advised there was a dispute regarding the time limit for the County to complete backpay payments.  The court will resolve that issue during the hearing.  With the rulings above, all remaining issues regarding enforcement proceedings for the writ have been resolved.    

Conclusion

The motion for a determination that “1) Marc Schultz is entitled to back pay from June 9, 2017 until the date the Los Angeles Sheriff’s Department … reduced the number of explosive breachers to 18 subsequent to this Court’s February 11, 2020 order ; and 2) that possession of a valid blasting license is not a necessary condition for the entitlement to back pay” is DENIED.  The court’s ruling on the second issue applies to deputy Hilgendorf and any other Affected Employee who allegedly performed breaching duties while his or her blasting license had lapsed. 

At the hearing, the court will discuss with counsel the timing for full compliance with the writ.