Judge Mitchell L. Beckloff, Case Number: 20STCV47465, Date: 2023-10-25 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCV47465, Date: 2023-10-25 Tentative Ruling

Petitioner, the Association for Los Angeles Deputy Sheriffs and Deputies Doe 1 through 29, seek a writ of mandate ordering Respondent, the County of Los Angeles (the County),[1] to pay interest, including pre-judgment interest pursuant to Civil Code section 3287, subdivision (a), on backpay awards previously ordered in various forums for the Deputy Does. The County opposes the petition.

The parties stipulated to first try certain defenses asserted by the County. On April 7, 2023, after written briefing and a hearing, the court issued its Order on Bifurcated Issues (the April 2023 Order). In the April 2023 Order, the court concluded the first and third defenses asserted by the County (home rule doctrine and binding past practice) did not result in a decision in the County’s favor.

On June 16, 2023, the court set a second hearing on the bifurcated issues of waiver and exhaustion of administrative remedies. The court and the parties identified Deputies Doe 1, 5, 6, 18, 23, and 28 as “test cases” as to the County’s waiver and exhaustion defenses. The court held a hearing on the County’s waiver and exhaustion defenses on October 25, 2023, and took the matter under submission. In a written order dated December 4, 2023 (the December 2023 Order), the court found (1) the County had not demonstrated that Deputies Doe 1, 5, 6, 18, 23, and 28 waived their statutory right to pre-judgment interest pursuant to Civil Code section 3287, subdivision (a) in connection with their awards of backpay from the Commission, ERCOM, or the Superior Court; (2) Deputies Doe 1, 5, 18, 23, and 28 adequately exhausted their administrative remedies as to requests for pre-judgment interest; and (3) the writ action is moot as to Deputy Doe 6 because the court has, in a separate action, already granted a petition for writ of mandate directing payment of interest to Deputy Doe 6.

In the December 2023 Order, the court also directed the County to file an answer. The County filed its answer on January 4, 2024.

At a trial setting conference held on January 5, 2024, the court scheduled a final hearing on all remaining issues raised by the petition and set a briefing schedule.

The County’s evidentiary objections to the Declaration of Elizabeth Gibbons are all overruled except for the first objection which is sustained.

The County’s evidentiary objection (number 19) to the Declaration of Brian Ross is overruled.

There are two essential requirements for the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of

Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where . . . the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“Generally, mandamus is available to compel a public agency’s performance or to correct an agency’s abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) “ ‘While, of course, it is the general rule that mandamus will not lie to control the discretion of a court or officer, meaning by that that it will not lie to force the exercise of discretion in a particular manner . . . [it] will lie to correct abuses of discretion, and will lie to force a particular action by the inferior tribunal or officer, when the law clearly establishes the petitioner's right to such action.’ ” (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 208.)

An agency is presumed to have regularly performed its official duties. (Evid. Code, § 664.) Therefore, a petitioner “bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

“ ‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ . . . Interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

First, Petitioner “has agreed to dismiss, without prejudice,” the claims for pre-judgment interest of Deputies Doe 15 and 24 through 26 because the Commissions has not yet issued a final decision in the administrative appeals of those Deputies Doe. (Petitioner’s Third Supplemental Points and Authorities [Opening Brief] 8, fn. 2; see also Gibbons Decl. filed 2/2/24 [Gibbons Decl.] ¶ 5.)

As noted, the court previously found the writ proceeding is moot as to Deputy Doe 6 because the court has, in a separate action, already granted a petition for writ of mandate directing payment of interest to Deputy Doe 6. Petitioner acknowledges “based on this Court’s ruling with regard to Deputy Doe 6, Deputy Doe 14’s proper avenue for relief is a motion to enforce the existing judgement awarding him interest on his back pay.” (Reply 15:8-10.)

Accordingly, the petition is denied, on grounds of ripeness or mootness, as to the claims for pre-judgment interest of Deputies Doe 6 (moot), 14 (moot), 15 (unripe), and 24 through 26 (unripe).

The County Has a Clear, Present and Ministerial Duty to Include Interest on the Awards of Backpay to Deputies Doe 1 through 5, 7 through 13, 16 through 23, 27 through 29

Petitioner contends the County has a ministerial duty to include interest on the awards of backpay to Deputies Doe 1 through 5, 7 through 13, 16 through 23, and 27 through 29. The court agrees.

As noted in the April 2023 Order, the Deputies Doe have a statutory right to interest on backpay that has been wrongfully withheld during a termination or suspension set aside by ERCOM or the Commission after an administrative hearing. (See April 2023 Order 7-8 [“right to prejudgment interest arises from Civil Code section 3287”]; see also San Diego County Deputy Sheriffs Assn. v. San Diego County Sheriff’s Dept. (1998) 68 Cal.App.4th 1084, 1086 [pursuant to Civil Code section 3287, subdivision (a), “when an administrative agency determines an employee's employment was wrongfully terminated, and reinstates the employee’s employment with backpay, the agency must include interest in the award of wrongfully withheld backpay”]; Goldfarb v. Civil Service Com. (1990) 225 Cal.App.3d 633, 635-637 [same].)

In Goldfarb v. Civil Service Commission, a demoted employee appealed the demotion to the Alameda County Civil Service Commission. The Commission rescinded the demotion and awarded the employee backpay. After the County of Alameda refused to pay the employee interest on his backpay award, the employee sought a writ from the superior court. The superior court denied the employee’s petition, and the Court of Appeal reversed. The Court of Appeal reasoned:

A writ of mandate may be issued where there is a clear, present and usually ministerial duty on the part of the defendant, and a clear, present and beneficial right in plaintiff to performance of that duty. [Citation.] These conditions are satisfied in appellant’s case insofar as the petition seeks interest on his backpay.

Respondents’ duty to pay interest and appellant’s right to such interest are established by section 3287, subdivision (a), which provides in pertinent part that “[e]very person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day . . . . This section is applicable to recovery of damages and interest from . . . any county. . .” The Civil Code defines “damages” broadly as monetary compensation for one who suffers detriment from the unlawful act or omission of another (§ 3281), and a number of cases have indicated that backpay awards are “damages” under section 3287. (Goldfarb v. Civil Service Com., supra, 225 Cal.App.3d at 635.)

Here, the preponderance of the evidence demonstrates the Commission or ERCOM awarded Deputies Doe 1 through 3, 5, 7, 9, 11 through 13, 17 through 23, and 27 through 29 backpay in administrative proceedings, and the County failed to pay pre-judgment interest pursuant to Civil Code section 3287, subdivision (a) on those backpay awards. (See Gibbons Decl. ¶¶ 4, 6-39; Ross Decl. ¶ 9; Safarloo Decl. filed 3/4/24 [Safarloo Decl.] ¶¶ 1-36; Reply Gibbons Decl. filed 3/25/24 [Reply Gibbons Decl.] ¶¶ 12-40 and Exh. U and V; First Amended Petition (FAP) ¶¶ 16-21; Answer ¶¶ 16-21; Verifications of Deputies Doe 1 through 30 filed 2/25/22.)[2] Based on the evidence, Petitioner has proven the County has a clear, present, and ministerial duty to pay pre-judgment interest pursuant to Civil Code section 3287, subdivision (a) on the awards of backpay to Deputies Doe 1 through 3, 5, 7, 9, 11 through 13, 17 through 23, and 27 through 29.

The County executed settlement agreements with Deputies Doe 4, 8, 10, and 16 in connection with administrative or writ proceedings of those Deputies Doe. (See Safarloo Decl. ¶¶ 7, 11, 13, 19 and Exh. 7, 13, 16; Ross Decl. Exh. A.) In those settlement agreements, the County agreed to pay backpay to the Deputies Doe or “make whole” the Deputies Doe for their loss wages. (Ibid.)

Although somewhat unclear, the County may contend its agreement to pay backpay or “make whole” for Deputies Doe 4, 8, 10, and 16 in a settlement does not trigger a ministerial duty to include interest pursuant to Civil Code section 3287, subdivision (a). (See Opposition 22:21-23.) The County points out the Los Angeles County Code at section 6.20.100, subdivision (b) does not expressly provide for payment of interest on backpay after an employee’s reduction, suspension, or discharge had been set aside. (Opposition 22:12-21.) The court previously rejected the County’s contention that an award of back pay pursuant to the Los Angeles County Code excludes statutory interest.(April 2023 Order at 2-5.) The County has not explained why an agreement to pay backpay pursuant to a settlement—for pending administrative proceedings—should be treated differently than an award of backpay by the Commission or ERCOM as to pre-judgment interest. In both cases, the backpay is monetary compensation for one who suffers detriment from the alleged unlawful act or omission of another. (See Goldfarb v. Civil Service Com., supra, 225 Cal.App.3d at 635; Civ. Code, § 3281.) Thus, in the absence of an express waiver of pre-judgment interest (see analysis in December 2023 Order and below as to the County’s waiver defenses), the court concludes the County’s agreement to pay backpay or “make whole” for Deputies Doe 4, 8, 10, and 16 triggered a ministerial duty to pay interest on the backpay.[3]

The County has a ministerial duty to include interest on the awards of backpay to Deputies Doe 1 through 5, 7 through 13, 16 through 23, and 27 through 29.

As the court concluded in the December 2023 Order, the test cases (Deputies Doe 1, 5, 18, 23, and 28) adequately exhausted their administrative remedies as to requests for pre-judgment interest by requesting “full back pay, benefits, and all other emoluments of employment,” “interest on all such back pay,” or words to that effect. With its most recent briefing, Petitioner submits evidence Deputies Doe 2 through 4, 7, 9 through 13, 17 through 22, 27, and 29 similarly made requests for “interest” on backpay, payment of “full back pay, benefits, and all other emoluments of employment,” or similar relief in their administrative proceedings. (See Opening Brief 8:15-9:24; Gibbons Decl. ¶¶ 4, 6-39 and Exh. B-P; and Ross Decl. ¶¶ 3-9, Exh. A.)[4]

Further, Petitioner submits evidence that Deputies Doe 8, 10, and 16 executed settlement agreements under which the County agreed to pay backpay and/or “make whole” to Does 4, 8, 10, and 16.[5] (Ibid.)

Accordingly, for the reasons discussed in the December 2023 Order, the court concludes Deputies Doe 1 through 5, 7 through 13, 16 through 23, and 27 through 29 have also exhausted their administrative remedies as to their requests for pre-judgment interest.

Petitioner Has a Beneficial Interest in the Writ and Does Not Have a Plain, Speedy, and Adequate Remedy at Law

Petitioner is “a recognized employee organization as defined in the Meyers-Milias-Brown Act (‘MMBA’, Government Code section 3500, et seq.) representing sworn non-management peace officers employed by the Department and the County District Attorney’s Office with regard to all matters concerning wages, hours and working conditions.” (FAP ¶ 9; Ans. ¶ 9.) “It is settled that ‘[a] labor union is entitled to represent its members in an action which is inseparably founded upon its members’ employment.’ [Citations.] Furthermore, a union can bring a representative action even if, at the time of the action, the affected employee is not a member or the union is no longer the exclusive representative.” (Anaheim Elementary Education Assn. v. Board of Education (1986) 179 Cal.App.3d 1153, 1157.) This writ proceeding “is inseparably founded upon its members’ employment,” specifically the statutory right of the Deputies Doe to receive interest on their unpaid backpay. Because Petitioner has standing to bring this writ proceeding on behalf of the Deputies Doe, Petitioner has also demonstrated a beneficial interest in the requested writ directing payment of interest to the Deputies Doe.

There is also no statutory enforcement procedure in Civil Code section 3287, or in pertinent County rules or regulations, for Petitioner to enforce the right to interest created by Civil Code section 3287. The Court of Appeal has also held a claim for pre-judgment interest pursuant to section 3287 may be enforced by mandate. (Goldfarb v. Civil Service Com., supra, 225 Cal.App.3d at 635-637.) The court concludes Petitioner lacks a plain, speedy, and adequate remedy at law.

Based on the foregoing, Petitioner has demonstrated all elements for issuance of a writ of ordinary mandate directing the County to pay pre-judgment interest pursuant to Civil Code section 3287 on the awards of backpay made to Deputies Doe 1 through 5, 7 through 13, 16 through 23, and 27 through 29.

The statute of limitations is a defense upon which the County has the burden of proof. (See Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 940, fn. 4.)

In its answer, the County pleads all claims of the Deputies Doe are barred by the applicable statute of limitations. (Ans. 7^th Aff. Def.) However, in its briefing, the County only argues the claim of Deputy Doe 29 is barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338, subdivision (a). (Opposition 26:5.) The County concedes the claims for pre-judgment interest of the remaining Deputies Doe were timely filed within the three-year statute of limitations.

Respondent asserts Deputy Doe 29’s claim accrued on September 30, 2016, when the Commission adopted the hearing officer’s recommendation to reduce Deputy Doe 29’s discharge to a suspension. (Opposition 26:18-23 [citing Safarloo Decl. ¶ 27].) However, the County does not discuss the full procedural history of Deputy Doe 29’s claim. Accordingly, the court finds Respondent’s position to be unpersuasive.

Specifically, on November 21, 2016, less than two months after the Commission reduced the discharge to a suspension, Petitioner filed a petition for writ of mandate challenging the suspension. The trial court denied the petition on April 16, 2018. (Reply Gibbons Decl. ¶¶ 37-39, Exh. DD.) The County fails to explain why the limitations period was not be tolled given the lack of a final order given Deputy Doe 29’s writ proceeding.[6] (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862-863. [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

Because the amount of backpay owed to Deputy Doe 29 depended on the results of her writ petition, the full amount of interest owed to Deputy Doe 29 could not be calculated until April 16, 2018. Under these circumstances, the court concludes Deputy Doe 29’s claim for interest did not accrue until April 16, 2018. (See Costa Serena Owners Coalition v. Costa Serena Architectural Committee (2009) 175 Cal.App.4th 1175, 1195-96 [discussing accrual of a cause of action].) Alternatively, the statute of limitations on Deputy Doe 29’s claim for interest was equitably tolled from November 21, 2016 to April 16, 2018. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370-371 [discussing equitable tolling].)[7] In either case, Petitioner timely filed its petition as to Deputy Doe 29 on December 11, 2020, within the three-year limitations period.

The County has not demonstrated Deputy Doe 29’s claim for pre-judgment interest is barred by the applicable statute of limitations.

The County contends the “ALADS Petition [as] a whole is barred by laches and the claims of Deputy Does 1, 2, 3, 4, 5, 17 and 29 are barred by laches in this action because they were unreasonably delayed in pursuing their interest claims and such delay prejudiced the County.” (Opposition 15:3-5.)

“ ‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ ” (Womack v. San Francisco Community College Dist. (2007) 147 Cal.App.4th 854, 865.) Generally, “prejudice is not presumed.” (Mercury Ins. Co. v. Lara (2019) 35 Cal.App.5th 82, 111.) The party claiming laches has the burden of proof. (Id. at 110.)

“ ‘[D]elay alone ordinarily does not constitute laches . . . .’ ‘What makes the delay unreasonable in the case of laches is that it results in prejudice.’ [Citation.] . . . . ‘A defendant has been prejudiced by a delay when the assertion of a claim available some time ago would be ‘inequitable’ in light of the delay in bringing that claim . . . [and] ensues when a defendant has changed his position in a way that would not have occurred if the plaintiff had not delayed.’ ” (George v. Shams-Shirazi (2020) 45 Cal.App.5th 134, 142.) “The employing agency which enjoys better access to data respecting prejudice should bear the burden of producing the pertinent evidence.” (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 361.)

The County contends Petitioner’s alleged delay with filing this petition “prejudiced the County by allowing new claims to accrue while waiting years before pursuing the oldest claims.” (Opposition 16:14-15.) However, the County does not cite any evidence of the amount of interest that accrued because of the alleged delay; that the County has changed its position as a result of the delay; or that the County would be materially impacted—financially or otherwise—by payment of the interest at issue. Accordingly, the County does not demonstrate any prejudice from any alleged delay in bringing this proceeding.

To establish laches, the County must also prove any prejudice was caused by Petitioner or its members. (See In re Marriage of Parker (2017) 14 Cal.App.5th 681, 689. [“Matthew needed to show he suffered prejudice as a result of the Department’s alleged delay.”]) The County does not prove causation. At all relevant times, the County had a ministerial duty to include interest on the awards of backpay to Deputies Doe 1 through 5, 7 through 13, 16 through 23, and 27 through 29. (See April 2023 Order 7-8; San Diego County Deputy Sheriffs Assn. v. San Diego County Sheriffs Dept., supra, 68 Cal.App.4th at 1086; Goldfarb v. Civil Service Com., supra, 225 Cal.App.3d at 635-637.) In the declaration of Captain Jesus Carrasco, filed earlier in this proceeding, the County admitted it did not pay interest to the Deputies Doe because the County was not “specifically ordered” to do so by Commission or ERCOM. (Reply Gibbons Decl. ¶¶ 12-13 and Exh. U at ¶ 6.) Based on that admission, the court concludes the accrual of interest resulted from the County’s own inaction.

Respondent Has Not Proven Unreasonable Delay by Petitioner or Any Deputies Doe Included in this Writ Proceeding

Because the County has not demonstrated the prejudice or causation elements of laches, the court need not discuss, in detail, the County’s contentions Petitioner and some of its members unreasonably delayed in pursuing the claims for interest in this proceeding.

Nonetheless, for completeness, the court has considered the issue of unreasonable delay and all of the parties’ contentions and cited evidence. Based on its review of the evidence, the court finds the County has not proven unreasonable delay by Petitioner or any of the Deputies Doe in this proceeding.

Specifically, the County contends Petitioner and its counsel, Elizabeth Gibbons, were “personally involved in the representation of 25 of the 29 Deputy Does, including Deputy Does 1, 2, 3, 4, 5, and 29, who have the oldest claims” (Opposition 16:1-3) and “failed to take any action for over 4 years to assert the right to interest on behalf of those Deputy Does, which it claims it has the right to do.” (Opposition 16:9-10.) The County cites evidence that some of administrative proceedings for the Deputies Doe were concluded between September 30, 2016 and September 18, 2019. (Opposition 15:21-28 [citing Safarloo Decl. ¶¶ 4-27].)

However, Respondent does not cite evidence proving Petitioner and attorney Gibbons knew or should have known by any specific date the County failed to pay interest on the backpay owed to the Deputies Doe. Further, as the court concluded in the April 2023 Order, the County has not proven an “unequivocal, regular, consistent, and readily ascertainable” practice of not paying interest on backpay awards. (April 2023 Order at 9; see also Reply Gibbons Decl. ¶¶ 12-13, Exh. U.)

Petitioner has also submitted evidence, in declarations of its Executive Director, Derek Hsieh, and attorney Gibbons, the County did not notify Petitioner of its alleged practice of failing to pay interest; Petitioner does not have the manpower to check the accuracy of backpay checks for its approximately 7,500 members; Petitioner learned the County failed to pay interest to one specific deputy (Deputy Doe 6) in March 2019; and Petitioner promptly filed a grievance seeking interest on Deputy Doe 6’s behalf. (Reply Gibbons Decl. ¶¶ 14-28; see also id. ¶ 13, Exh. U [Hsieh Decl.].) Further, Petitioner did not learn of the County’s position it was not required to pay interest on backpay awards until approximately January 2020 in the course of a dispute over interest on an award of back pay issued by ERCOM in an unfair labor practice charge. (Reply Gibbons Decl. ¶¶ 20-28.) The court finds from the evidence Petitioner and attorney Gibbons did not unreasonably delay initiating this proceeding, including as to Deputies Doe 1, 2, 4, 5, 17 and 29.[8]

The County argues “Deputy Doe 3 claims should be barred by the doctrine of laches because both ALADS and he were unreasonably delayed pursuing his claim and forced the County to address his claims in multiple forums.” (Opposition 16:23-25.)[9] As discussed, the County has not shown any prejudice from the alleged delay or shown the causation element of laches. Further, the County acknowledges the arbitrator did not issue his decision until July 24, 2018. (Opposition 17:10.) While Deputy Doe 3 did not file a grievance regarding the failure to pay interest until November 7, 2019, the County does not cite evidence of when the County paid Deputy Doe 3 the backpay owed. Without evidence of when Deputy Doe 3 knew or should have known he was not paid interest, the court cannot find the delay between July 24, 2018 and November 7, 2019 was unreasonable. (Opposition 17:8-12.) The County did not deny Deputy Doe 3’s grievance regarding interest until January 22, 2020. (Reply Gibbons Decl. ¶ 19.) Petitioner thereafter filed this petition less than a year later on December 11, 2020.

The County has not met its burden of proof on its laches defense as to Petitioner or any of the Deputies Doe. The County’s laches defense is therefore rejected. In light of this conclusion, the court need not reach Petitioner’s contention the County is barred by unclean hands from asserting laches. (Reply 10:8-21.)

The County Does Not Demonstrate Deputy Does 4 and 16 Waived Their Claims for Interest

Petitioner contends Deputies Does 4 and 16 waived their claims for pre-judgment interest by executing settlement agreements that did not expressly “reference interest” and that also released Respondent from all claims arising out of or connected with the prior discipline or concerning the subject matter of the administrative proceedings. (See Safarloo Decl. Exh. 7, 30.)

“Under California law, a waiver is the intentional relinquishment or abandonment of a known right or privilege. . . . Waiver is a question of fact . . . and always is based upon intent.” (Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478, 1506.) “ ‘[I]t is settled law in California that a purported ‘waiver’ of a statutory right is not legally effective unless it appears that the party executing it had been fully informed of the existence of that right, its meaning, the effect of the 'waiver' presented to him, and his full understanding of the explanation.’ [Citation.] ‘The first requirement of any waiver of statutory or constitutional rights, of course, is that it be knowingly and intelligently made.’ ” (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 389.)

In its settlement agreement with Deputy Doe 4, the County agreed to rescind a notice of discharge and instead impose a 25-day suspension on Deputy Doe 4. The County also agreed to reimburse Deputy Doe 4 “for back pay in accordance with the provisions of the County Code, as soon as practicable.” (Safarloo Decl. Exh. 7 at ¶¶ 1-3.) Deputy Doe 4 also agreed to, among other things, to waive any and all future administrative and/or judicial remedies with regard to the notice of discharge and release Respondent from liability for all claims arising out of or connected to the employment relationship concerning the subject matter of the settlement. (Id. ¶¶ 6-11.)

In its settlement agreement with Deputy Doe 16, the County agreed to rescind its discharge decision, reinstate Deputy Doe 16 as a Deputy Sheriff, and “make whole” Deputy Doe 16 “as if he had not been released/discharged and in accordance with the applicable provisions of the County Code . . . from the date of January 20, 2016 until the date of reinstatement.” (Id. Exh. 30 at ¶¶ 1-4.) Deputy Doe 16 also agreed to, among other things, to release the County from liability for all claims arising out of or connected to the prior discipline or the subject matter of the administrative proceedings. (Id. ¶¶ 9-10.)

Deputies Doe 4 and 16 did not expressly waive their rights to pre-judgment interest in the settlement agreements, which are silent on the issue. The court cannot infer an intentional relinquishment of the statutory right to interest from settlement agreements that are silent on the issue. (See Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 768. [“[W]aiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence.”]) While Deputies Doe 4 and 16 did waive certain claims related to the discipline and release the County from liability, those waivers would only be relevant here if pre-judgment interest was separate from the agreement to pay backpay.

The settlement agreements specifically provide the County will pay Deputies Doe 4 and 16 “back pay” or, in the case of Deputy Doe 16, make him “whole.” As discussed, an award of “backpay” or an order to make an employee “whole” after reinstatement will, as a general matter, trigger a ministerial duty for the County to pay interest on the backpay pursuant to Civil Code section 3287, subdivision (a). (See Goldfarb v. Civil Service Com., supra, 225 Cal.App.3d at 635.) Because there is no language in the settlement agreements specifically excluding the payment of interest, and because the interest is inherently intertwined with the agreement to pay backpay or make whole, the County does not demonstrate Deputies Doe 4 and 16 waived their claims for interest in the release provisions in the settlement agreements.

Do Deputies Doe 4, 8, 10, and 16 Have Adequate Remedies at Law to Enforce their Settlement Agreements in a Breach of Contract Action?

The County contends Deputies Doe 4, 8, 10, and 16 have adequate remedies at law in contract actions to enforce any claims for interest based on their settlement agreements. The County also suggests the Government Claims Act may bar any contract claims for interest for Deputies Doe 4, 8, 10, and 16.[10]

“As a general proposition, mandamus is not an appropriate remedy for enforcing a contractual obligation against a public entity. . . .” (Wenzler v. Municipal Court of Pasadena Judicial Dist. (1965) 235 Cal.App.2d 128, 132.) As noted earlier, however, a contract between a public entity and a public employee can, under certain circumstances, be enforced through a writ of mandamus. (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, supra, 94 Cal.App.5th at 806.) “[O]ften the payment of wages of a public employee requires certain preliminary steps by public officials, in such instances, the action in contract is inadequate and mandate is the appropriate remedy.” (Id. at 807 [quoting Glendale City Employees’ Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 343].) Mandamus “is proper insofar as public officials would need to undertake certain ministerial duties to implement a contract with a public employee.” (Id. at 809.)

To implement the settlement agreements with Deputies Doe 4, 8, 10 and 16, public officials must undertake certain ministerial duties. Therefore, mandamus is an appropriate remedy.

Further, “mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) Petitioner persuasively argues the County has a ministerial duty to pay interest pursuant to Civil Code section 3287, subdivision (a) on awards of backpay that were ordered by the Commission, ERCOM, or promised in settlement agreements for related administrative/writ proceedings. The County does not show Deputies Doe 4, 8, 10, and 16 have an adequate remedy at law in a contract action to litigate that legal question.

Moreover, Petitioner is not a party to the settlement agreements and lacks an adequate remedy in a contract action. This writ proceeding has also been pending since December 2020. At this juncture, dismissing the claims of Deputies Doe 4, 8, 10, and 16 would only result in a multiplicity of actions and further delay enforcement of the County’s ministerial duty to pay interest. The County’s cited authority is distinguishable for these reasons. (Opposition 21:16-17 [citing Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1494].)

Further, the payment of interest by the County is incidental to the County’s ministerial duty to comply with Civil Code section 3287, subdivision (a). Accordingly, the County does not show the Government Claims Act bars the claims of Deputies Doe 4, 8, 10, and 16. (See Eureka Teacher’s Assn. v. Board of Education (1988) 202 Cal.App.3d 469, 475-476.)

Code of Civil Procedure Section 426.30 Does Not Bar the Claims of Deputies Doe 11 and 23

The County contends the claims for interest of Deputies Doe 11 and 23 are barred by Code of Civil Procedure section 426.30 because Deputies Doe 11 and 23 did not file cross-complaints seeking interest in response to writ petitions filed by the County regarding the disciplinary matters at issue.[11]

Code of Civil Procedure section 426.30, subdivision (a) does not apply to special proceedings. (Code Civ. Proc., § 426.60, subd. (a).) Writ proceedings are special proceedings. Thus, Deputies Doe 11 and 23 had no obligation to assert any claims pursuant to Code of Civil Procedure section 426.30 in the writ proceedings initiated by the County, and the statute does not bar there claims here.

Moreover, even assuming the statute applied to special proceedings, the County would not prevail on its defense.

Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” (Emphasis added.)

Code of Civil Procedure section 426.10, subdivision (c) defines “related cause of action” as “a cause of action which arises out of the same transaction, occurrence, or series of

transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” “The related cause of action must be one that was in existence at the time of service of the answer (§ 426.30, subd. (a)); otherwise, the failure to assert it in prior litigation is not a bar under the statute.” (Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 993.)

Here, the Commission reduced the discharge imposed on Deputy Doe 11 to a 25-day suspension. On August 11, 2020, the County filed a writ petition challenging the Commission’s decision. Deputy Doe 11 filed an answer to the petition on March 1, 2021. (Safarloo Decl. ¶ 14.) Petitioner’s and Deputy Doe 11’s claim in this writ petition arises from Respondent’s failure to pay interest with the backpay owed to Deputy Doe 11. The County does not submit any evidence it had paid backpay to Deputy Doe 11 by March 1, 2021, when Deputy Doe 11 filed an answer. In reply, Petitioner submits evidence the County paid Deputy Doe 11 his backpay, without interest, in May 2021, after Deputy Doe 11 filed his answer in the County’s writ proceeding. (Reply Gibbons Decl. ¶ 38.) Because Deputy Doe 11’s claim for unpaid interest did not exist as of March 1, 2021, when Deputy Doe filed the answer, that claim is not barred by Code of Civil Procedure section 426.30, subdivision (a).

The Commission reduced the discharge imposed on Deputy Doe 23 to a 30-day suspension. On August 3, 2021, the County filed a writ petition challenging the Commission’s decision. Deputy Doe 23 opposed the petition but did not file an answer. The County’s writ petition was denied on June 14, 2022. (Safarloo Decl. ¶ 23.) The County does not submit any evidence of when it paid backpay to Deputy Doe 23. In reply, Petitioner submits evidence that Doe 23 was reinstated on November 15, 2021, and was paid his backpay, without interest, on January 28, 2022.

Since Deputy Doe 23 did not file an answer, Code of Civil Procedure section 426.30, subdivision (a) has no application. (See Code Civ. Proc., § 426.30, subd. (b)(2) [statute does not apply if “[t]he person who failed to plead the related cause of action did not file an answer to the complaint against him”].) Moreover, Deputy Doe 23 did not have a ripe claim for unpaid interest until January 28, 2022, well after his time to file an answer to the County’s writ petition. Accordingly, Deputy Doe 23 did not have a “related cause of action” within the meaning of Code of Civil Procedure section 426.30, subdivision (a).

Respondent’s defense based on Code of Civil Procedure section 426.30, subdivision (a) is unavailing.

The County contends Deputy Doe 3’s claim for interest is barred because Deputy “Doe 3 failed to exhaust his available judicial remedies to correct, vacate, or enforce the arbitration award in a timely fashion or to compel arbitration in his second grievance.” (Opposition 18:23-25.)

The court already decided this issue against the County with the similar “test case” of Deputy Doe 18. Specifically, in the December 2023 Order, the court stated:

The arbitrator made an award rescinding the discipline against Deputy Doe 18 and specifying Deputy Doe 18 “should be made whole for lost income.” (Gibbons Decl. Exh. K.) In the context of an order setting aside the discipline, the order for Doe 18 to be “made whole for lost income” may be reasonably interpreted by a trial court, in an action enforcing the arbitration order, to include pre-judgment interest on the lost income. (December 2023 Order at 13.)

Similarly here, the arbitration award in favor of Deputy Doe 3 ordered the County to reinstate Deputy Doe 3 to his FTO I bonus position and pay him backpay and benefits “calculated as the difference in what he received as a deputy sheriff and what he would have received as a Bonus I FTO.” (Reply Gibbons Decl. Exh. BB at 24-25.) In the context of an order setting aside the removal of Deputy Doe 3’s bonus position, the arbitration award in favor of Deputy Doe 3 may be reasonably interpreted to include pre-judgment interest. (See San Diego County Deputy Sheriffs Assn. v. San Diego Sheriffs Dept., supra, 68 Cal.App.4th at 1086 [“when an administrative agency . . . reinstates the employee's employment with backpay, the agency must include interest in the award of wrongfully withheld backpay”].) Accordingly, Deputy Doe 3 was not required to pursue any judicial remedies to correct, amend, or vacate the arbitration award to obtain pre-judgment interest.

The County argues Deputies Doe 8, 10 through 12, 18, 23, 27 through 28 “should not have been included in this action” because no final administrative decision had been issued in their favor by December 11, 2020 when Petitioner filed the petition. (Opposition 30:15.)[12] The County relies on precedent stating (in a different context) that “[f]or a lawsuit properly to be allowed to continue, standing must exist at all times until judgment is entered and not just on the date the complaint is filed.” (Opposition 27:13-17 [citing Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 232-233].)

Petitioner, as the labor union for the Deputies Doe, had standing and a ripe claim since it filed the petition on December 11, 2020. (See Anaheim Elementary Education Assn. v. Board of Education, supra, 179 Cal.App.3d at 1157.) Further, the County acknowledges the administrative proceedings for Deputies Doe 8, 10 through 12, 18, 23, 27 through 28 were all completed by February 2022, when the Deputies Doe executed verifications of the petition.

The County does not dispute the claims for interest of Deputies Doe 8, 10 through 12, 18, 23, 27 through 28 are currently ripe. The County does not cite any authority holding that, in a legal proceeding brought by a labor union, the claims of specific members must be dismissed if they ripened while the action was pending. The County also does not identify any prejudice based upon the claims of Deputies Doe 8, 10 through 12, 18, 23, 27 through 28 ripening during the pendency of this proceeding. Because their claims for interest are now ripe, and because the County shows no prejudice, the court finds no basis to dismiss the claims of Deputies Doe 8, 10 through 12, 18, 23, 27 through 28 even if the claims were not ripe when Petitioner first filed the petition.

At the close of its opposition brief, the County argues “Deputy Does 1 through 6, 7 through 14, 16 through 23, and 27 through 29 must be joined in this matter prior to the issuance of a writ, if any, in their favor pursuant to Code of Civil Procedure section 389.” (Opposition 33:7-9.)

The County did not assert a defense for misjoinder or nonjoinder of parties in its demurrer or Answer. Accordingly, the County has waived the defense. (See Code Civ. Proc., § 430.80, subd. (a); see also Hastings v. Stark (1868) 36 Cal. 122, 126. [“Where the misjoinder of parties plaintiff does not appear upon the face of the complaint, and the objection is not taken by answer, it is deemed waived.”])[13]

Moreover, even if the County did not waive the defense, it has not proven that any of the Deputies Doe are “indispensable” and the writ proceeding cannot proceed in their absence.

“In civil litigation generally, the question whether a person must be joined as a party to a suit is governed by the compulsory joinder statute, section 389 of the Code of Civil Procedure. Subdivision (a) of that statute states: ‘A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.’ (Code Civ. Proc., § 389, subd. (a).) If such a person (sometimes called a ‘necessary’ party) cannot be joined, subdivision (b) requires the court to consider ‘whether in equity and good conscience’ the suit can proceed without the absent party, or whether the suit should instead be dismissed without prejudice, ‘the absent person being thus regarded as indispensable.’ (Id., subd. (b).).” (Bianka M. v. Superior Court (2018) 5 Cal.5th 1004, 1016-17.)

If a party is necessary under Code of Civil Procedure section 389, subdivision (a), and “cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable.” (Code Civ. Proc., § 389, subd. (b).) Specifically, “[t]he factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (Ibid. See generally Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 1159, 1178-1179.)

As discussed, Petitioner has standing, as the Deputy Does’ labor union, to enforce the claims for pre-judgment interest of the Deputies Doe in this writ proceeding. The Deputies Doe have all participated in this action by having verified the petition. Petitioner and the County have both presented evidence, which is largely undisputed, relevant to the claims for interest of each Deputy Doe. The only remaining issue for each individual Deputy Doe is the calculation of the exact amount of interest owed. The County has not developed any argument that the Deputies Doe must be added to this proceeding for that calculation to be made for each specific Deputy Doe. Thus, the County does not show complete relief cannot be granted if the Deputies Doe are not made parties to this proceeding, or that disposition of this proceeding without the Deputies Does will impair or impede the ability of the Deputies Doe to protect their interests. (Code Civ. Proc., §§ 389, subd. (a)(1) and (2)(i).)

Respondent argues failing to join the Deputies Doe “would leave the County subject to a substantial risk of incurring double or otherwise inconsistent obligations by reason of their claimed interest should they file their own actions later.” (Opposition 33:10-12.) Relatedly, the County argues “if the Deputy Does are not parties in this matter, the County might be unable to assert the doctrine of res judicata or collateral estoppel in any subsequent actions filed by them regarding these matters.” (Opposition 33:12-14.) The County’s concerns might be justified if there was some reason to believe that the calculation of interest for each Deputy Doe will depend on facts or evidence that has not, or cannot be, presented in this action. However, the County does not develop any argument the evidence necessary to perform the interest calculations is not already available to the County or cannot be obtained in this proceeding, without joinder of the Deputies Doe. Thus, the County does not demonstrate the Deputies Doe are necessary parties pursuant to Code of Civil Procedure section 389, subdivision (a)(2)(ii).

Finally, even assuming the Deputies Doe could be viewed as “necessary” within the meaning of Code of Civil Procedure section 389, subdivision (a), the County does not develop an argument the factors set forth in Code of Civil Procedure section 389, subdivision (b) weigh for dismissal of the proceeding.

Respondent has waived any defense for misjoinder or failure to join the Deputies Doe. Further, the County does not demonstrate the Deputies Doe are necessary or indispensable within the meaning of Code of Civil Procedure section 389, subdivisions (a) and (b). Accordingly, to the extent the County has not waived any defense for failure to join the Deputies Doe, the defense is rejected.

The County Must Calculate the Amount of Pre-Judgment Interest Owed to Does 1 through 5, 7 through 13, 16 through 23, 27 through 29

Petitioner seeks a writ directing the County to pay Does 1 through 5, 7 through 13, 16 through 23, and 27 through 29 “interest on the back pay previously awarded each Deputy Doe by the Civil Service Commission or the Employee Relations Commission, calculated from the date each back salary payment should have been paid, until the entry of judgment herein, at the rate of 7% per annum.” (Opening Brief 10:6-9; see also FAP Prayer ¶ 1.) In the petition, Petitioner made a slightly different request for payment of interest “until the back pay with interest was paid in full.” (Prayer ¶ 1 [bold italics added].)

Petitioner has not cited any evidence any of the Deputies Doe have not been paid their backpay. Thus, it appears Petitioner’s damage claim for each Deputy Doe is based on the amount of interest that should have been paid at the time each deputy received their backpay award. As the court understands it, Petitioner seeks an award of damages for each deputy equal to the amount of interest the deputy should have received on the backpay award with interest running therefrom.

By way of example, if a deputy received an award of backpay on January 1, 2022 and the County did not pay the award until March 31, 2022, the deputy would be entitled to interest running from the date of the award until payment—that is, interest running from January 2, 2022 through March 31, 2022. The interest awardable on March 31, 2022 is the damage award sought here—the detriment suffered based on the County’s failure to comply with its ministerial duty. That damage award, under Petitioner’s theory, should then be subject to interest to seven percent interest running from April 1, 2022 until the date the award herein is satisfied.

Petitioner’s damage and interest calculation appears appropriate. (See Yoo v. Shewry (2010) 186 Cal.App.4th 131, 148-149.)

Petitioner Is Not Entitled to Writs of Mandate Directing Payment of Interest to Deputy Does Whose Claims Were Not Included in this Writ Action or on “Future Back Pay Awards”

Petitioner also seeks a writ directing the County “to pay interest on any future back pay award entered by the Civil Service Commission or the Employee Relations Commission to any ALADS member, calculated from the date each back salary payment should have been paid, until such back pay and interest are paid in full, at the rate of 7% per annum.” (Opening Brief 10:16-20 [emphasis added].) In the petition, Petitioner seeks similar relief as to future and not final awards for backpay. (Pet. Prayer ¶¶ 2, 4.)

The County contends, in effect, such future claims for relief are not ripe because “[f]uture ALADS members in future matters cannot show a present beneficial right to performance.” (Opposition 31:20-21.) The court agrees with the County.

“ ‘[A] basic prerequisite to judicial review of administrative acts is the existence of a ripe controversy.’ (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 169 [].) The ripeness doctrine is based upon the recognition that judicial decisions are best made in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy. (Id. at p. 170 [].) ‘The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. [Citation.] It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ (Id. at pp. 170-171 [].) ‘A controversy is ‘ripe’ when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made’.” (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 708.)

Petitioner’s claim for writ relief with respect to “future back pay awards” lacks “sufficient definiteness to enable the court to make a decree finally disposing of the controversy” and is not ripe. Therefore, Petitioner’s request for such relief is denied.

The petition is denied as to the claims for pre-judgment interest of Deputies Doe 6, 14, 15, and 24 through 26.

The petition is granted in part as to the claims for pre-judgment interest of Deputies Doe 1 through 5, 7 through 13, 16 through 23, and 27 through 29. The court will issue a writ directing the County to pay interest calculated in the manner described above.

The writ petition is denied in all other respects, including with respect to Petitioner’s requests for a writ directing the County “to pay interest on any future back pay award entered by the Civil Service Commission or the Employee Relations Commission to any ALADS member. . . .” (Opening Brief 10:16-18.)

[1] Along with the County, Petitioner named as respondents to the petition the Los Angeles County Sheriff’s Department, the Los Angeles County Auditor Controller, the Los Angeles County Civil Service Commission (Commission), and the Los Angeles County Employee Relations Commission (ERCOM). On April 22, 2022, Petitioner dismissed the entire proceeding as to the Commission and ERCOM.

[2] Paragraph 20 of the FAP alleges “None of the Deputy Doe Petitioners has been paid any interest on the amount of the back pay awarded to them.” In its answer, the County denied paragraph 20 due to insufficient knowledge or information. As the employer, the County should have (and likely has) records related to the payment of backpay and interest to its employees. In opposition, the County has not cited any evidence Deputies Doe 1 through 5, 7 through 13, 16 through 23, and 27 through 29 received interest from the County on their awarded backpay. (See generally Opposition 15:9-16:21 and Reply Gibbons Decl. ¶¶ 12-13 and Exh. U at ¶ 6.)

[3] While mandamus does not lie to enforce purely contractual obligations, “mandamus is proper insofar as the public officials would need to undertake certain ministerial duties to implement a contract with a public employee.” (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th 764, 809.) As the County has recognized, to implement the settlements, “county officials would need to carry out certain ministerial duties.” (Id. at 810.)

[4] In its most recent opposition filed March 4, 2024, the has not developed any argument any of the Deputies Doe, except perhaps Deputy Doe 3, failed to exhaust administrative or judicial remedies. (See Oppo. 18-19.)

[5] Whether interest is required to be paid under the settlement agreements for Deputies Doe 8 and 10 is to be decided in this proceeding. (Opening Brief 9:14-16.)

[6] Petitioner filed the petition on December 11, 2020—within three years of the superior court’s denial of Deputy Doe 29’s writ petition.

[7] “Equitable tolling is a judge-made doctrine ‘which operates independently of the literal wording of the Code of Civil Procedure’ to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” (Ibid.) Under equitable tolling, “courts have adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies [s]he, reasonably and in good faith, pursues one designed to lessen the extent of [her] injuries or damage.” (Addison v. State of California (1978) 21 Cal.3d 313, 317.)

[8] The County’s laches defense as to Deputies Doe 1, 2, 3, 4, 5, 17, and 29 is based on the same contentions addressed above with respect to Petitioner and attorney Gibbons.

[9] The County also argues Deputy Doe 3’s claim “did not arise from discipline . . . .” (Opposition 17, fn. 3.) The court disagrees. The evidence shows Deputy Doe 3 challenged a disciplinary action through a grievance arbitration pursuant to the parties’ memorandum of understanding. Specifically, Deputy Doe 3 challenged the removal of his bonus position of Senior Field Training Officer and the associated loss of 5.5 percent salary bonus, which were imposed by his captain in response to a complaint of misconduct. (See Reply 7:16-8:2; Reply Gibbons Decl. ¶¶ 32-37.)

[10] Respondent has not pleaded the Government Claims Act as a defense in its answer or asserted that the Government Claims Act applies to the claims of any of the Deputies Doe other than Deputies Doe 4, 8, 10, and 16.

[11] It appears the County did not plead this defense in its Answer. In any event, the court denies the defense on the merits.

[12] While somewhat unclear from the opposition, Respondent’s standing arguments may also apply to Deputies Doe 19 through 22. (See Opposition 29:4-12.) The court’s analysis is the same for Does 19-22 as stated for Does 8, 10-12, 18, 23, 27-28.

[13] In a footnote, the Answer states: “It remains unclear whether the Court formerly ordered Petitioner-Does 1-29 to be joined as party petitioners to this action. To the extent, the County refers to them as parties or petitioners, this is only because ALADS seeks to vindicate their rights in this action, and the County reserves the right to dispute that they have been properly added as parties to the action.” (Ans. p. 2, fn. 4 [emphasis added].) The court does not interpret this statement as a defense for failure to join the Deputies Doe as parties pursuant to Code of Civil Procedure section 389. Rather, the County purported to reserve the right to dispute that the Deputies Doe had been added as parties.