Judge Mitchell L. Beckloff, Case Number: 22STCP01880, Date: 2023-11-03 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01880, Date: 2023-11-03 Tentative Ruling

Petitioner, Gerardo Lucio, seeks a writ of administrative mandate directing Respondent, Los Angeles Civil Service Commission (Commission), to set aside its final decision to sustain Petitioner’s discharge as a sergeant with the Los Angeles County Sheriff’s Department (Department) and to reconsider the case in light of the court’s opinion and judgment. Real Parties in Interest, the County of Los Angeles, the Department, and the Sheriff of Los Angeles County (collectively, the County) oppose the petition.

The parties’ joint request to correct the administrative record to include the hearing officer’s November 30, 2020 written ruling is granted. (McGowan Decl. ¶¶ 7-9, Exh. C; Reply 4, fn. 1.)

The hearing officer provided the following summary of the case in his proposed decision:

[Petitioner] was hired on December 27, 1994 and at the time of the incident leading to the disciplinary issue at bar had almost 20 years of service. [Petitioner] was a Sergeant assigned to the gang unit (Operation Safe Streets or OSS) at the Pico Rivera Station. [Petitioner] supervised several detectives including Hector Calderon, Steve Lopez, Miguel Balderrama and Steven Valenzuela. The gang (OSS) unit had a separate chain of command from the other deputies assigned to Pico Rivera Station. Lieutenant Martin Rodriguez was [Petitioner’s] direct report and Captain Eddie Rivero was the next level supervisor. The gang unit worked out of a trailer in the parking lot of the Pico Rivera Station. (AR 432-433.)

On September 9, 2014, [Petitioner], Valenzuela and Calderon drove from the OSS trailer to Chili’s restaurant, where they met three female civilians. They arrived at the restaurant shortly after 9:00 p.m. Detective Lopez had already gone home for the day, and Detective Baldarrama [sic] stayed in the trailer to finish some paperwork. [Petitioner], the two detectives and three females drank beer and hard alcohol for approximately two hours. No food was consumed. They closed out their bill at 11: 13 p.m. and returned to the OSS trailer. On the way back to the trailer they stopped at a 7-11 store to pick up some snacks. Shortly after the six arrived at the OSS trailer Detective Balderrama left and drove home. (Ibid.)

At approximately 12: 15 a.m. Detective Calderon left the OSS trailer, driving his assigned department vehicle. Shortly thereafter Calderon was involved in a single car accident on Rosemead Boulevard. The accident damaged a section of wrought iron fencing in the median and badly damaged the county vehicle. Calderon, who was injured, fled the scene of the accident, later abandoning the damaged county vehicle. (Ibid.)

Responding Sheriffs deputies found a license plate at the scene and determined a department vehicle was involved. The Pico Rivera Station Watch Commander, Lieutenant Andrew Meyer instructed [Petitioner] to determine if the vehicle was an OSS vehicle. [Petitioner] checked his roster and determined it was assigned to Calderon. Lieutenant Meyers and Field Sergeant Nichiporuk drove to the scene of the accident. Among the objects recovered at the scene was one of Calderon's cell phones. When Lieutenant Meyers returned to the station he had a brief conversation with [Petitioner]. During the conversation [Petitioner] told Meyers he had been out with Calderon at Chili’s restaurant. [Hearing Officer’s footnote: There is some dispute as to exactly what was said and if [Petitioner] told Lt. Meyers they had been drinking at Chili’s.] Lieutenant Meyers also instructed [Petitioner] to call his immediate supervisor, Lieutenant Martin Rodriguez. (AR 434 and fn. 1.)

At 6:45 a.m. Captain Rivero called [Petitioner]. The two discussed the incident for approximately eight minutes. While there is some disagreement as to exactly what was said, [Petitioner] did not disclose he had been at Chili’s restaurant with Calderon prior to the accident. Following the conversation with Captain Rivero [Petitioner] called Lt. Rodriguez who was still at the hospital. During the call [Petitioner] told Rodriguez he had been drinking with Calderon and had not disclosed this to Captain Rivero during their phone conversation. Lt. Rodriguez advised [Petitioner] to call Rivero back and tell him the truth. [Petitioner] did call Captain Rivero back, but not immediately. Phone records indicate he did not contact Captain Rivero until 9: 14 a.m. During the second phone conversation with Captain Rivero [Petitioner] fully disclosed he had been with Calderon for several hours prior to the accident and that he, Calderon and Valenzuela had been drinking. Captain Rivero ordered [Petitioner] to complete a supplemental report, which [Petitioner] completed on September 16, 2014. (AR 435-436.)

The Department initiated a criminal investigation into the incident on or about September 10, 2014. The details related to the criminal investigation are relevant to Petitioner’s statute of limitations defense, discussed infra. (AR 436.) “On September 8, 2015, misdemeanor charges of Driving Under the Influence (DUI) and Hit and Run were filed against Detective Calderon. On March 24, 2017, Calderon was found guilty of the charges after a jury trial. On August 24, 2017, the District Attorney's office declined to file any criminal charges against [Petitioner], Detective Lopez or Lt. Rodriguez.” (AR 436.)

Following the completion of the criminal matter, the Department’s Internal Affairs Bureau (IAB) conducted an administrative investigation into the September 9, 2014 incident. The Department eventually determined Petitioner should be discharged. On or about July 2, 2018, the Department issued a Notice of Intent to Discharge to Petitioner based on alleged violations of Department policy arising from the September 9, 2014 incident and subsequent administrative investigation, including Petitioner’s failure to take appropriate action on September 9, 2014, making false statements shortly after the September 9, 2014 incident, and makking false statements during the administrative investigation in 2018. On or about October 1, 2018, after Skelly[1] proceedings, the Department issued a Notice of Discharge to Petitioner. (AR 436-437, 1573-1587.)

Petitioner appealed the Department’s discharge decision, and the Commission conducted an administrative hearing. The hearing officer conducted the hearing over multiple days. (AR 431.)

On December 5, 2018, the Commission initially defined the issues for decision as follows:

1. Are the allegations contained in the Department's letter of October 1, 2018 true?

On these two initial issues identified for hearing, “[t]he hearing was conducted on July 17, 18, 19, September 26, November 25, 26, 2019, January 10, 14, 15, March 6, 12, and November 17, 2020.” (AR 431-432.)

On October 14, 2020, the Commission certified two additional issues for hearing:

· Did the Department violate the Petitioner’s pre-deprivation due process (Skelly) rights as alleged?

· Was there a violation of the Public Safety Officer Procedural Bill of Rights Act, Government Code Section 3304(d)?

The hearing officer scheduled “[a]n additional hearing day . . . for January 16, 2021 to hear testimony on [these] additional certified issues, but [he] determined testimony was not necessary as a decision could be made on both issues based on briefs submitted by the parties. Following the hearing, the parties submitted written argument on the merits, which were received by the Hearing Officer on May 11, 2021.” (AR 431-432.)

On June 7, 2021, the hearing officer issued a proposed decision finding the allegations in the Department’s October 1, 2018 mostly true; Petitioner’s discharge from the Department is the appropriate remedy; the Department did not violate Petitioner’s Skelly rights; and the Department did not violate Government Code section 3304, subdivision (d) of the Public Safety Officer Procedural Bill of Rights Act (the Act), Government Code section 3300 et seq. (AR 467-470.)

On January 26, 2022, the Commission overruled Petitioner’s objections to the hearing officer’s proposed decision and adopted the hearing officer’s recommendation to sustain the discharge. (AR 692.)

On May 16, 2022, Petitioner filed his original petition for writ of mandate. On April 4, 2023, Petitioner filed his operative, first amended petition (FAP). On May 17, 2023, the County filed an answer to the FAP. Petitioner did not file a replication to the answer.[2]

On April 5, 2023, at a trial setting conference, the court set the petition for hearing and set a briefing schedule. Neither party requested nor obtained leave to file an extra-sized legal brief in support of the petition.

On August 16, 2023, Petitioner filed his opening brief in support of the FAP.[3] The court has received the County’s opposition, Petitioner’s reply, the administrative record, and the joint appendix.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

Judicial review here is under the court’s independent judgment because termination of Petitioner’s employment with the Department concerns a fundamental vested right. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314. See also Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 154; Sandarg v. Dental Bd. of California (2010) 184 Cal.App.4th 1434, 1440.)

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.” (Bixby v. Pierno, supra, 4 Cal. 3d at 143.) The court may draw its own reasonable inferences from the evidence and makes its own determinations as to the credibility of witnesses. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) Under independent judgment, “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)

“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 v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code, § 664.)

Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that substantial evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

Finally, “[o]n questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mutual Automobile Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner contends the Department violated his due process rights under Skelly v. State Personnel Bd., supra, 15 Cal.3d at 194. Specifically, Petitioner argues the Department failed to disclose, prior to his discharge, an investigator’s log pertaining to the administrative investigation. (Opening Brief 4:1-7; see also AR 86-126 [investigator’s log].) According to Petitioner, prior to removal from his employment he was entitled to certain safeguards including all materials upon which the adverse employment action is based. (Opening Brief 4:1-3.)

In Skelly v. State Personnel Bd., supra, 15 Cal.3d at 194, our Supreme Court determined “due process does not require the state to provide the [permanent civil service] employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action.” (Id. at 215.) The Supreme Court held, however, “due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective. As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Ibid. [emphasis added].)

“What Skelly requires is unambiguous warning that matters have come to a head, coupled with an explicit notice to the employee that he or she now has the opportunity to engage the issue and present the reasons opposing such a disposition.” (Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1280.) If the materials provided to Petitioner prior to the pretermination hearing “adequately provided ‘an explanation of the employer's evidence’ (Cleveland Bd. of Educ. v. Loudermill, supra, 470 U.S. at p. 546, []) and ‘notice of the substance of the relevant supporting evidence’ (Brock v. Roadway Exp., Inc., supra, 481 U.S. at p. 264, []), sufficient to enable appellant to adequately respond at the pretermination stage,” then there is no violation of Skelly. (Ibid.)

During the administrative proceedings, both the hearing officer and Commission rejected Petitioner’s Skelly argument. The hearing officer explained:

Skelly established an [employee] is entitled to all the "materials upon which the action is based." The question posed here then is whether the investigators log is a document or material upon which the disciplinary action was based. I find it was not. As noted in the Department's brief, the disciplinary action in this case generated hundreds of documents from the [Internal Criminal Investigations Bureau (ICIB)] and [Internal Affairs Bureau (IAB)] investigations, including numerous reports, interviews, statements and records. All this material was made available to [Petitioner] and his representatives. Moreover, there is no proof the investigator's log was reviewed, analyzed or in any manner considered either by the proposing official, the deciding official or the panel members that reviewed the case. Simply put, [Petitioner] has failed to establish the investigator's log is evidence in the commonly accepted meaning of the word or that it was in any way material in considering the disciplinary action in this case. (AR 443.)

The court finds the hearing officer’s reasoning persuasive. Petitioner does not dispute the hearing officer’s finding he received “hundreds of documents from the ICIB and IAB investigations, including numerous reports, interviews, statements and records” prior to his Skelly hearing. (See AR 1573-1577.) Petitioner does not identify any information from the investigator’s log suggesting the Department’s decisionmakers relied on the log when they were considering the disciplinary action. (AR 86-126.) Moreover, “ ‘materials’ as used in Skelly” does not mean “each and every document” related to the Department’s decision to discipline Petitioner. (See Gilbert v. City of Sunnyvale, supra, 130 Cal.App.4th at 1280.)

Petitioner argues that “the Investigator’s Log contained information indicating that the Department violated the one-year statute of limitations under Govt. Code §3303(d).” (Opening Brief 4:8-9.) However, Petitioner cites no authority that Skelly requires disclosure of materials that could be relevant to an affirmative defense prior to a pretermination hearing. Petitioner acknowledges that he obtained additional documents, including the Investigator’s Log, “during preparations for the hearing scheduled on September 26, 2020.” (Opening Brief 4:18-19.) Skelly is concerned with Petitioner’s rights prior to termination, not with the conduct of the appeal hearing itself. Petitioner’s due process arguments related to the appeal hearing are next addressed.

The court finds Petitioner has not met his burden of demonstrating the Department deprived him of his rights under Skelly or otherwise violated Skelly. That is, Petitioner has not shown the Department did not substantially comply with the pretermination requirements of Skelly.

Petitioner contends during the administrative proceedings “[a]dditional hearing dates were set to allow Petitioner to issue subpoenas to call witnesses and to produce documentary evidence, in support of his violation of his due process and statute of limitations arguments.” (Opening Brief 4:10-12.) Petitioner also asserts “Arbitrator Beauvais denied [him] due process when he vacated those hearing dates, resulting in [Petitioner] being unable to produce evidence in support of these two material affirmative defenses.” (Opening Brief 4:12-14; see also Opposition 15:3-18.)

The Superior Court of the State of California has recently held that the Civil Service Commission’s (‘Commission’) Hearing Officers may only consider ‘Issues that have been certified by the Commission. . . . [I]n light of the recent Court decision, Hearing Officers are directed to only address the issues certified by the Commission and set forth in the ‘Hearing Notice.’ . . . Petitioners, or their representatives, may file a request with the Commission for certification of additional Issues, if needed. (AR 61.)

On August 11, 2020, Petitioner’s counsel submitted a request to the Commission for certification of additional issues, including whether the Department violated the Act’s statute of limitations as set forth in Government Code section 3304, subdivision (d). (AR 69.) As support for Petitioner’s request of the Commission, Petitioner reported to the Commission he had requested all investigator writings in a demand for discovery in July 2018; the Department did not produce the investigator’s log in response to his demand; and Petitioner had only recently obtained the investigator’s log, which allegedly “contains information that indicates the Department violated Government Code Section §3304(d).” (AR 69.) On September 20, 2020, the Department opposed Petitioner’s request the Commission certify additional issues for hearing. The Department’s opposition to certification included some legal briefing on the merits of Petitioner’s defense based on the Act’s statute of limitations. (AR 128-132.) On October 14, 2020, the Commission granted Petitioner’s request and certified the statute of limitations as an issue to be decided in the appeal. (AR 432.)

On October 23, 2020, Petitioner served a subpoena duces tecum on the Department’s custodian of records. Through the subpoena, Petitioner sought the following documents:

1. Email to Lieutenant Rios ICIB from the District Attorney permitting for Department to proceed with an administrative investigation on or around 7-19-16.

2. Email from Sergeant Trent Dennison to Lieutenant Grall requesting if Captain Roberts was made aware of DA allowing an administrative investigation to move forward on or around 10-26-16.

3. Email from Sergeant Trent Dennison to Attorney Cunningham stating administrative case will move forward despite the criminal case not being over on or around 2-07-17.

4. Email from Sergeant Harman to Sergeant Trent Dennison indicating Oscar Calderon was now sentenced and the DA will issue a reject in a week on or around 7-07-17.

5. Email from IAB Lieutenant David Grall to all IAB sworn staff indicating that per Chief Mannis the date of sentencing would be used for the statute date on or around 12-07-17.

6. A complete and unredacted copy of and/all investigators’ logs, notes, pertaining to this investigation. (AR 135-136.)

On November 6, 2020, Petitioner submitted a brief to the hearing officer entitled “Brief Outlining [the Act] and Skelly Violations.” (AR 137-145.) On November 9, 2020, the Department submitted a motion to quash the subpoena duces tecum served by Petitioner on the Department’s custodian of records. (AR 193-205.)[4]

On November 30, 2020, the hearing officer issued a procedural ruling. It provided in part:

On October 22, 2020, the Hearing Officer ordered the parties to brief the additional certified issues, with the intent of receiving and reviewing the briefs before the next scheduled hearing date on November 17, 2020 (via teleconference). However, due to a technical error, the Hearing Officer did not receive all the briefing materials and was unable to render a decision regarding subpoenas on November 17, 2020. However, the parties did conclude testimony on the merits of the case and agreed on a subsequent date in January 2021 to hear testimony regarding the additional certified issues. The Hearing Officer also committed to ruling on Respondent’s motion to quash subpoenas for certain witnesses in advance of the January 2021 hearing date.

The Hearing Officer has subsequently had an opportunity to review the briefs and motions submitted by the parties. Additionally, the Hearing Officer reviewed citations, case law and evidence already submitted during the hearing. I have determined that an evidentiary hearing on the additional certified issues is not necessary and will address the additional issues in my recommended decision. The subpoena issue is consequently moot. (McGowan Decl. Exh. C.)

On or about April 1, 2021, Petitioner submitted a 157-page post-hearing brief, which included additional legal argument concerning his statute of limitations defense under the Act. (AR 211-372.)

On or about April 2, 2021, the Department submitted its 48-page post-hearing brief, which also included argument concerning the Act’s statute of limitations. (AR 374-427.) Department asserted, among other things, Petitioner had obtained the investigator’s log illegally; the hearing officer should not consider the investigator’s log as evidence in support of a defense under the Act; Petitioner “produced absolutely no evidence to establish when a person authorized to initiate an investigation discovered or should have discovered that [Petitioner] committed misconduct”; Petitioner “simply assumes that because Detective Oscar Calderon was under criminal investigation, this also triggered the statute of limitations vis-a-vis [Petitioner]”; and “since [Petitioner] has the burden of proof on the statute of limitations issue (Evidence Code §500 and Civil Service Rule 4.12), the failure to offer any evidence on this component of the statute means that [Petitioner] cannot prevail on his affirmative defense.” (AR 418-421.) The Department also noted some of Petitioner’s alleged misconduct (false statements) occurred during the 2018 administrative investigation and within one year of the July 2018 notice of intent to discharge. (AR 418-421.)

In the proposed hearing officer’s decision, adopted by the Commission, the hearing officer rejected Petitioner’s defense under the Act concluding:

Taken together, [the cited appellate] cases provide that (1) it is the conduct of the officers that is being investigated and subject to prosecution, (2) the tolling period continues so long as there is a pending investigation into that conduct and (3) the investigation is no longer pending only when a final determination is made by the prosecuting office. In the case at bar the facts establish the criminal investigation started on September 10, 2014 when the investigation was assigned to Lt. Harman and concluded on August 24, 2017, when the Los Angeles County District Attorney declined criminal prosecution of [Petitioner], Lopez and Rodriguez. (AR 446.)

The County argues Petitioner waived and/or failed to exhaust his administrative remedies (Opposition 15:16-17)[5] as to his complaint the hearing officer should have conducted additional hearings on his affirmative defenses—the Act’s statute of limitations and due process. (Opposition 15:11-18.) According to the County, “after the Hearing Officer advised the parties that additional hearing dates would not be necessary, Petitioner’s attorney was silent.” (Opposition 15:7-8.)

Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.) “Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520.) Generally, “the exhaustion doctrine precludes review of an intermediate or interlocutory action of an administrative agency. A party must proceed through the full administrative process ‘to a final decision on the merits.’ ” (Alta Loma School Dist. v. San Bernardino County Com. On School District Reorganization (1981) 124 Cal.App.3d 542, 554.)

Here, the hearing officer ruled on November 30, 2020 that the two additional scheduled hearings were unnecessary. The hearing officer concluded it was not “necessary for the parties to brief the additional certified issues unless they [had] additional citations they wish[ed] the Hearing Officer to consider.” (McGown Decl. Exh. C.) Although Petitioner did not seek reconsideration of the cancellation of hearing dates in his post-hearing brief, the County cites no authority suggesting Petitioner was required to do so to preserve the issue. The hearing officer made clear he could not conduct further hearings as he had contemplated. Under such circumstances, Petitioner was not obligated to request reconsideration to exhaust the issue.

Nonetheless, Petitioner’s objections filed with the Commission expressly argued the hearing officer “committed prejudicial error” by failing to conduct additional hearings to address his statute of limitations defense and due process. (AR 494-500.) Accordingly, the court finds Petitioner exhausted, and did not waive, his argument the hearing officer prejudicially erred when he elected not to conduct additional hearings on Petitioner’s defense based on the Act’s statute of limitations and/or to permit Petitioner to pursue additional evidence through the then pending subpoenas duces tecum.

no punitive action . . . shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.

“The one-year limitations period under Government Code section 3304, subdivision (d)(1) begins to run when a person authorized to initiate an investigation discovers, or through the use of reasonable diligence should have discovered, the allegation of misconduct.” (Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 101.) “ ‘[D]istinct types of wrongdoing . . . should be treated separately’ in determining the date of discovery.” (Garcia v. State Dept. of Developmental Services (2023) 88 Cal.App.5th 460, 469.)

If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.

“The act requires the tolling of the one-year statute of limitations while a criminal investigation is pending if the misconduct is the subject of that investigation.” (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1078.) “The tolling provision of section 3304, subdivision (d)(2)(A), focuses on conduct, not individuals, and the . . . conduct need not rise to the level of criminality in order for tolling to apply.” (Daugherty v. City and County of San Francisco (2018) 24 Cal.App.5th 928, 961.)

For purposes of Government Code section 3304, subdivision (d)(2)(A), a criminal investigation is “pending” when an internal division of a police agency receives a file concerning an officer’s possible misconduct and opens a criminal investigation into such conduct. (See Richardson v. City and County of San Francisco Police Com. (2013) 214 Cal.App.4th 671, 693-695 [tolling started on March 22, 2007 when Special Investigations Division “received the file and opened its investigation”].) “A criminal investigation is no longer pending when a final determination not to prosecute and to close the criminal investigation is made. Interim decisions short of a final determination will not stop the tolling.” (Bacilio v. City of Los Angeles (2018) 28 Cal.App.5th 717, 725.) Further, the Court of Appeal has rejected an argument a criminal investigation must be “actual and active” during the entire intervening period for the tolling provision to apply. (Richardson v. City and County of San Francisco Police Com., supra, 214 Cal.App.4th at 696-698.)

Generally, the party asserting that a statute of limitations has been tolled has the burden of proof on the issue. (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197; Bacilio v. City of Los Angeles, supra, 28 Cal.App.5th at 726-727.) Defenses based on the Act’s statute of limitations are often factual in nature and turn on the specific circumstances of each case. (See Bacilio v. City of Los Angeles (2018) 28 Cal.App.5th at 726-727; Richardson v. City and County of San Francisco Police Com., supra, 214 Cal.App.4th at 692-698.)

Petitioner Did Not Have Sufficient Opportunity to Present his Affirmative Defense Under the Act

“The essence of procedural due process is notice and an opportunity to respond.” (Gilbert v. City of Sunnyvale, supra, 130 Cal.App.4th at 1279.) Similarly, under Code of Civil Procedure section 1094.5, “a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections.’ ” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.)

The Commission did not certify Petitioner’s statute of limitations defense as an issue that could be “heard” or “considered” by the hearing officer until October 14, 2020. (AR 432.) The Commission’s rules prohibited the hearing officer from considering a defense under the Act prior to the issue’s certification by the Commission. (AR 61.) Thus, Petitioner was not permitted to submit evidence regarding the defense on any of the hearing dates in 2019 or January and March 2020. Although the hearing officer conducted a final hearing on November 17, 2020, evidence for the Act’s statute of limitations defense was not taken at that hearing.[6] (See AR 5162-5169.)

As noted by the hearing officer on November 17, 2020: “We also have certified issues from the Commission that have been approved that we need to discuss, but we're not going to discuss it at this time.” (AR 5168.) When Petitioner’s counsel asked whether he was to “hold off” on submitting evidence on the Act’s statute of limitations defense, the hearing officer responded: “That is correct.” (AR 5169.) Accordingly, on November 17, 2020, the parties “agreed on a subsequent date in January 2021 to hear testimony regarding the additional certified issues.” (McGowan Decl. Exh. C.)

Despite having scheduled a hearing date for the issues newly certified by the Commission, on November 30, 2020, the hearing officer found the additional hearings were “not necessary.” (McGowan Decl. Exh. C.) After making such a finding, the hearing office did not consider the Department’s motions to quash Petitioner’s subpoenas finding the issue moot. (McGowan Decl. Exh. C.) The hearing officer concluded the additional hearings were unnecessary without stating any explanation or reasons for depriving Petitioner an opportunity to obtain and present evidence in support of his statute of limitations defense under the Act.

Thus, the procedural history demonstrates the Commission deprived Petitioner of a fair trial as to his statute of limitations defense under the Act—the Commission certified the issue for hearing but then failed to allow Petitioner to introduce any evidence on the issue. The hearing officer’s decision to eliminate scheduled hearing time precluded Petitioner from presenting his defense despite the Commission having certified the issue for hearing. The hearing officer’s finding the pending discovery issue was then moot also deprived Petitioner of any opportunity to attempt to develop the facts for his defense. The prejudice here is clear.

While any further showing of prejudice is unnecessary, Petitioner has nonetheless demonstrated prejudice with citations to the administrative record. As Petitioner notes (Opening Brief 8:21-9:2), investigator reports dated September 10, 2014 and May 21, 2015 reveal the Department opened a criminal investigation on September 10, 2014 only regarding an allegation that “Los Angeles County Deputy Sheriff Oscar Calderon, #455961, was involved in an off duty hit and run collision while driving a county vehicle.” (AR 1816, 1817-1891.) The documentary evidence from the Department does not indicate Petitioner, his conduct, the conduct of any officer other than Calderon, or conspiracy to obstruct justice allegations were the subject of a criminal investigation in September 2014. Such evidence is in direct contrast to a supplemental report dated almost three years later, on August 28, 2017, indicating the Department initiated a criminal investigation of Petitioner on September 10, 2014 based on allegations of conspiracy to obstruct justice against Petitioner and other officers. (AR 1895.)

Several reports prepared by the Department appear to conflict as to whether and when the Department had undertaken a criminal investigation of Petitioner and his acts. The September 10, 2014 incident report indicates the Department opened a criminal investigation of Calderon only on September 10, 2014. (AR 1816.) The investigator’s log entry of September 17, 2014 suggests a “criminal monitor” as to Calderon only as to the hit and run allegations—corroborating the September 10, 2014 report. (AR 86.) A supplemental report of May 21, 2015 indicates the Department initiated a criminal investigation of Calderon on September 10, 2014. (AR 1817.) Again, there is no reference to Petitioner in the May 21, 2015 report. (AR 1817.) The investigator’s log entry of May 12, 2016 suggests Petitioner “[m]ay be added to this case.” (AR 87.)[7] The supplementary report of August 18, 2017 for the first time notes the Department undertook a criminal investigation of Petitioner on September 10, 2014. (AR 1895.)

In the course of the administrative proceedings, the hearing officer and the Commission never provided Petitioner with an opportunity to examine the Department’s witnesses concerning this conflicting evidence within the Department’s investigatory records. A fair hearing requires that Petitioner be permitted to test and challenge the evidence. Resolution of the conflicting evidence is directly relevant to a statute of limitations defense under the Act.

The hearing officer’s report does not address the conflicting information in the various reports.[8] (AR 444.) The hearing officer broadly found “there is no question the ICIB investigation was initiated on September 10, 2014 . . . .” (AR 444.) The hearing officer, however, does not specify the target of the investigation. The hearing officer does note “[t]here is also no question that Calderon was the initial focus of the investigation.” (AR 444 [emphasis added].) The hearing officer does not specify when Petitioner became part of the investigation. (AR 444.) While the hearing officer notes Petitioner and Calderon had been “drinking at a Chilis’ restaurant prior to the vehicle accident,” the hearing officer does not otherwise find when Petitioner actually became the subject of a criminal investigation by the Department.

Petitioner served subpoenas seeking various emails and other evidence related to his statute of limitations defense under the Act. Since the hearing officer vacated the hearings at which Department would have been required to respond to the subpoenas, Petitioner never had the opportunity to develop, examine or present this additional evidence to the hearing officer. Additionally, the hearing officer did not consider and rule on the merits of the Department’s motion to quash Petitioner’s subpoenas and did not determine they were improper in whole or in part.

Notably, a substantial portion of the alleged misconduct at issue in Petitioner’s discharge occurred in September 2014. (See AR 1573-1577 [four of five charges].) The Department did not serve its Letter of Intent to Discharge until July 2, 2018, substantially more than a year after the September 9-10, 2014 incident. Despite the Department’s contention Petitioner “produced absolutely no evidence to establish when a person authorized to initiate an investigation discovered or should have discovered that [Petitioner] committed misconduct” (AR 418-421), the hearing officer did not find any delayed discovery of Petitioner’s alleged misconduct arising from the September 9-10, 2014 incident. Thus, absent tolling,[9] the charges against Petitioner arising from the September 9-10, 2014 incident appear time barred by several years.

The hearing officer relied on the tolling provision in Government Code section 3304, subdivision (d)(2)(A), which provides: “If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.” (Emphasis added.) “The act requires the tolling of the one-year statute of limitations while a criminal investigation is pending if the misconduct is the subject of that investigation.” (Breslin v. City and County of San Francisco, supra, 146 Cal.App.4th at 1078 [emphasis added].) Since the Department cites no authority to the contrary, the court concludes that the issue of when Petitioner’s conduct became subject of a criminal investigation is a factual one; one that cannot be resolved without reconciling conflicting evidence.

The hearing officer apparently found, as a factual matter, Petitioner and his conduct were the subjects of the criminal investigation starting in September 2014 and that the limitations period was tolled until August 24, 2017. (AR 443-446.) The hearing officer apparently relied on evidence presented for the Department’s case in chief to decide the statute of limitations defense. (AR 444.) However, as noted, Petitioner did not have the opportunity to question the Department’s witnesses or present his own witnesses or documentary evidence to demonstrate his statute of limitations defense under the Act. Although the investigator’s log and other relevant reports are part of the administrative record, Petitioner did not have an opportunity to question the Department’s witnesses concerning statements in the investigator’s log or elsewhere in the administrative record (the conflicting evidence) to attempt to establish Petitioner and his conduct were not subjects of a criminal investigation until as late as May 2016.

As discussed earlier, the County’s claim Petitioner waived or failed to exhaust his fair hearing claim is unpersuasive.

The County also argues “the Hearing Officer only made this decision after requesting and receiving Legal Briefs from the parties on these additional issues.” (Opposition 15:5-7.) While that may be true, the County does not address Petitioner’s persuasive claim the hearing officer precluded him from submitting evidence directly relevant to his statute of limitations defense. The County does not explain why depriving Petitioner of the opportunity to elicit testimony and introduce evidence in support of his statute of limitations defense is consistent with due process and fair hearing requirements.

Finally, the County argues the hearing officer’s decision to forgo the scheduled additional two hearings was “well within the broad discretion of the Hearing Officer.” (Opposition 15:8-10.) While the hearing officer has the discretion to control the proceedings, he cannot abuse that discretion and deprive a party of a fair hearing in the process. As noted, the hearing officer concluded the additional hearings were unnecessary without providing any explanation or reasons for depriving Petitioner of his opportunity to present evidence in support of his statute of limitations defense under the Act.

Based on the foregoing, Petitioner has demonstrated the hearing officer and the Commission failed to proceed as required by law and deprived Petitioner of due process and a fair hearing when it precluded him from introducing evidence in defense of the charges.

In determining whether Petitioner received a fair trial, the court acknowledges “the tolling provision of section 3304, subdivision (d)(2)(A), focuses on conduct, not individuals, and the cases discussed above make clear that the conduct need not rise to the level of criminality in order for tolling to apply.” (Daugherty v. City and County of San Francisco (2018) 24 Cal.App.5th 928, 961.) Thus, as the County argues, the conduct at issue in the criminal and administrative investigations need not be identical for tolling to apply. Arguably, and while the court does not decide the issue, there was no need for Petitioner to be “identified” specifically in the criminal investigation for tolling purposes.

Nonetheless, a criminal investigation into hit and run allegations against Calderon would not necessarily “include” or “encompass” a criminal investigation into obstruction, conspiracy to obstruct, or related conduct of Petitioner and other officers. (See id. at 959 [“tolling applies where the criminal investigation ‘include[s]’ or ‘encompasse[s]’ the conduct in the administrative proceedings”].) The County’s authorities do not establish a criminal investigation into a hit and run by a Department employee will, as a matter of law, “encompass” any possible conduct that could be subject of a future administrative action. There is a factual issue of when the alleged misconduct of Petitioner became “subject” of a criminal investigation and how long, if at all, the limitations period should be tolled as to Petitioner based on such criminal investigation. That factual issue may relate, to some extent, to when Department “discovered” Petitioner’s alleged misconduct. But, again, Petitioner did not have the opportunity to examine, develop or present evidence regarding such issues.

For the reasons discussed above, the court finds that the hearing officer prejudicially abused his discretion in the procedure he adopted to adjudicate Petitioner’s statute of limitations defense under the Act. The hearing officer and the Commission deprived Petitioner of a sufficient opportunity to develop and present his evidence for such defense after the Commission certified the issue for hearing. The court concludes the Commission deprived Petitioner of a fair hearing and the matter must be remanded for further proceedings.

Based on the court’s finding the Commission deprived Petitioner of a fair hearing, the court does not reach the issue of whether the weight of the evidence supports the hearing officer’s findings and conclusions concerning the statute of limitations defense. (See AR 443-446.) The court cannot reach the merits since Petitioner did not have a full and fair opportunity to litigate the issue before the Commission. The court cannot consider the weight of the evidence when Petitioner has been precluded from introducing evidence on the issue.

Petitioner contends that the weight of the evidence does not support the hearing officer’s Findings of Fact 6, 7, 11, 12, 15, and 17. (See Opening Brief 12:25-15:26.)[10] The facts pertain to conduct occurring in September 2014 and could be subject to Petitioner’s statute of limitations defense. The court therefore does not address whether the weight of the evidence supports the findings given the pending defense based on the statute of limitations.

The court notes Petitioner has not challenged the Commission’s Findings of Fact 19 as well as Conclusions of Law 14, 15 and 16. The finding and conclusions relate to alleged false statements made by Petitioner during his IAB interview on March 21, 2018. (AR 466, 469.) The alleged false statements occurred within one year of the Department issuing its Notice of Intent in July 2018. Petitioner does not demonstrate his statute of limitations defense under the Act would apply to the finding or conclusions. Additionally, Petitioner has not cited any evidence to challenge Findings of Fact 19 and Conclusions of Law 14, 15 and 16. Thus, Petitioner has not met his burden of demonstrating error as to the findings or conclusions. (See Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513 [in administrative mandate the “challenger must explain why th[e] evidence is insufficient to support th[e] finding[s]”]. See also Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14. [“We are not required to search the record to ascertain whether it contains support for [the parties’] contentions.”])

· the petition is denied as to Findings of Fact 4 and Conclusions of Law 1. Petitioner has not met his burden of demonstrating error based on a violation of Skelly;

· the petition is denied as to Findings of Fact 19 and Conclusions of Law 14, 15 and 16 concerning false statements made by Petitioner in his March 21, 2018 IAB interview;

· the petition is granted as to Findings of Fact 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16 and 17 and Conclusions of Law 2, 3, 4, 5, 6, 8, 9, 11, 13, 17 and 18 and to the Commission’s final decision to sustain Petitioner’s discharge based on the Commission’s failure to provide Petitioner with a fair hearing as to his statute of limitations defense under the Act.

Accordingly, the court will issue a writ directing the Commission to set aside its final decision as to as to Findings of Fact 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16 and 17 and Conclusions of Law 2, 3, 4, 5, 6, 8, 9, 11, 13, 17 and 18 and to the Commission’s final decision to sustain Petitioner’s discharge. The court will also remand the matter to the Commission for reconsideration of the case in light of the court’s opinion and judgment. The Commission is directed to conduct further hearings to allow Petitioner to present argument and evidence concerning his statute of limitations defense under the Act. Petitioner shall be permitted to re-serve the subpoenas that were pending when the hearing officer deemed the discovery issue moot. The Commission shall hear and determine any motion to quash filed by the Department in response to the subpoenas. The Commission need not hear any additional evidence or argument on the substantive merits of the underlying allegations. The remand concerns consideration of Petitioner’s statute of limitations defense under the Act, and how that defense might operate against the substantive charges only.

At the conclusion of remand, the Commission may reconsider the penalty imposed based on Findings of Fact 19 and Conclusions of Law 14, 15 and 16 as well as any other findings and conclusions made by the Commission during the described remand.

[1] Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218 [Skelly]

[2] Petitioner’s failure to file a replication to the answer is not dispositive. (Opposition 4:5-21.) The result here is based on the administrative record and arguments made in the briefing. Petitioner may countervail the allegations in the County’s answer at trial. (See Code Civ. Proc.,

§ 1091. See also Lotus Car Limited v. Municipal Court, Southern Judicial Dist., San Mateo County (1968) 263 Cal.App.2d 264, 268. [“Under section 1091 a petitioner may file a replication denying the affirmative averments of the answer, or he may controvert them by proof presented by him at the hearing.”]) The County’s request “to rule that affirmative allegations numbers 3-35 are established at trial” is denied. (Opposition 4:20-21.)

[3] Petitioner states that “[a] detailed summary of the relevant facts . . . is contained in Petitioner’s [136 page] First Amended Petition, and Petitioner’s Post Hearing Brief, and are incorporated by reference herein.” (Opening Brief 3:2-4.) Petitioner also incorporates “argument concerning Beauvais’ erroneous Findings of Fact/Conclusions of Law set forth in Petitioner Gerardo Lucio’s Objections to Hearing Officer’s Findings of Fact, Conclusions of Law and Recommendation.” (Opening Brief 12:20-23.) The County objects to Petitioner’s incorporation by reference. (Opposition 4:9-15.) The County’s objection is well taken and therefore sustained. In this administrative mandate proceeding, “[t]he parties are subject to the limits of 15 pages for the opening brief, 15 pages for the opposition, and ten pages for the reply as set forth in California Rules of Court, rule 3.1113(d), unless a party seeks, and the court grants, an order for an oversized brief.” (Los Angeles County Court Rules, Rule 3.231(i).) “The opening and opposition briefs must contain a statement of facts which fairly and comprehensively sets forth the pertinent facts, whether or not beneficial to that party’s position, and each material fact must be supported by a citation to a page or pages from the administrative record as follows: (AR 23).” (Id. at (i)(2).) Petitioner’s attempts to incorporate statements of facts or arguments from other documents violates the Court’s rules. Accordingly, the court disregards anything outside of the briefing other than the administrative record. (See also Cal. Rules of Court, Rule 3.1103, subd. (a)(2) [writ proceedings heard as law and motion matters].)

[4] Petitioner served three additional subpoenas seeking the same documents from individual Department employees. The Department challenged those subpoenas as well. (AR 205-209.)

[5] As there was only one level of administrative review here by the Commission, the County’s reliance on Sustainability, Parks, Recycling & Wildlife Defense Fund v. Department of Resources Recycling & Recovery (2019) 34 Cal.App.5th 676, 696 appears unwarranted. Accordingly, the court reviews the claim as one of a failure to exhaust.

[6] The November 17, 2020 hearing would have been the first opportunity after the Commission certified the statute of limitations issue for hearing; it turned out to be the final hearing date.

[7] It appears four days later, on May 16, 2016, referred the matter to IAB—a non-criminal investigation—as to Petitioner. (AR 87.)

[8] It appears the hearing officer believed the investigator’s log did not constitute “evidence in the commonly accepted meaning of the word . . . .” (AR 443.)

[9] Whether tolling occurred depends on resolution of conflicting facts. Such facts may, if necessary, be developed on remand.

[10] As noted earlier, Petitioner’s attempt to incorporate arguments made in other documents from the administrative proceedings have been disregarded by the court.