Keith Whitney v. County of Los Angeles Probation Department, et al.

MOTION FOR SUMMARY ADJUDICATION

 

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY(S): Plaintiff Keith Whitney

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiff Keith Whitney, an African American, worked as a deputy in the Los Angeles County Probation Department.  Plaintiff alleges in the operative Third Amended Complaint that he was pulled over by the Los Angeles Police Department on May 8, 2013.  The incident was reported to the Probation Department, which started an administrative investigation.  Approximately five years later, Plaintiff received a Notice of Discharge.  Plaintiff alleges this act violated his rights under the Public Safety Officers Procedural Bill of Rights, Government Code § 3304(d), and that imposition of discipline against Plaintiff was disparate in comparison to similarly situated officers that are not African American.  

Defendant now moves for summary adjudication of the Second Cause of Action for Violation of Peace Officer Bill of Rights, Government Code Section 3304 et. seq.  Plaintiff opposed the motion.

TENTATIVE RULING:

Defendant’s Motion for Summary Adjudication of the Second Cause of Action is GRANTED.

Moving party to give notice.

DISCUSSION:

Motion for Summary Adjudication

I. Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows:

Plaintiff’s objection 1 to Defendant’s Exh. A (LAPD Employee Report) is overruled.

Plaintiff’s objection 2 to Defendant’s Exh. B (LAPD Follow-Up Investigation) is overruled.

Plaintiff’s objections 3, 4, and 5 to the Declaration of Richard Aceves are overruled.

(See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.)

II. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.  Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741. 

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389. A motion for summary judgment must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak.  Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.   

A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action.  Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.  Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.  § 437c(o)(2). 

Where a plaintiff cannot establish an essential element of a cause of action, or where a complete defense is shown, a court must grant a motion for summary adjudication.  Code Civ. Proc. § 437c(o)(1)-(2).  A defendant meets its burden by showing that “one or more elements of a cause of action . . . cannot be established.”  Id.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.  Parol evidence cannot be used to supply unwritten details of an arrangement between the parties.  Friedman v. Bergin (1943) 22 Cal.2d 535, 539. 

When a defendant moves for summary judgment or adjudication on the basis of an affirmative defense, the defendant has the burden of establishing the undisputed facts support each element of the affirmative defense.  Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-68.

III. Analysis

As framed by the pleading, Plaintiff was involved in a traffic stop on May 8, 2013.  (Complaint ¶ 16.) The next day, the LAPD faxed a report to Plaintiff’s employer, Defendant Los Angeles County Probation Department. Plaintiff alleges that on October 18, 2013, Defendants notified him that “he was the subject of an administrative investigation, and he was reassigned to Camp Joseph Paige (CJP) office/movement desk pending the outcome of the investigation of police encounter that occurred on May 8, 2013.”  (Id. ¶ 68.)  Defendant eventually discharged Plaintiff, five years later, on July 25, 2018.  Plaintiff alleges that “Defendant CLAPD kept Plaintiff on administrative reassignment for approximately 5 years while conducting the investigation. Defendant CLAPD failed to complete the investigation and notify Plaintiff of the proposed disciplinary action within that year in violation of Section 3304(d).”  (Id. ¶ 69.)  

The Public Safety Officers Procedural Bill of Rights Act (“POBRA”) was initially enacted in 1976 and “sets forth a list of basic rights and protections which must be afforded all peace officers [citation] by the public entities which employ them.” (Ochoa v. Cnty. of Kern (2018) 22 Cal. App. 5th 235, 244.) Among other things, this includes the right to an administrative appeal and a one-year statute of limitations for investigations.  (Id.; Gov. Code § 3304).

As relevant here, Government Code Section 3304(d)(1) provides, in relevant part:

[N]o punitive action, nor denial of promotion on grounds other than merit, 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… [emphasis added].

Defendant does not dispute that its entire investigation spanned over five years—well in excess of the one-year limitation provided by Section 3304(d)(1). Defendant argues, however, that a concurrently pending LAPD investigation into Plaintiff tolled the limitations period.  

Defendant invokes subdivision (2)(A) of section 3304(d), 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.”  (Gov. Code 3304(d)(2)(A) [emphasis added].) “Where the statutory criterion is met, tolling under section 3304, subdivision (d)(2)(A), is mandatory.”  (Daugherty v. City & Cnty. of San Francisco (2018) 24 Cal. App. 5th 928, 958.)

Defendant argues that its Internal Affairs-Arrest Unit Investigator, Ricardo Aceves, relied on the representations of LAPD personnel that the police investigation remained open during the relevant period.  The Probation Department’s administrative investigation began on or about May 9, 2013. Aceves attests in his Declaration that the LAPD investigation started on October 24, 2013.  (Aceves Decl. ¶ 10.)  Aceves states that beginning in 2013, he “repeatedly followed up with the LAPD by placing multiple calls to the detectives assigned to the police investigation,” and “was informed by the LAPD that the investigation was ongoing, and that Mr. Whitney was a person of interest.”  (Id. ¶ 11.)  

The LAPD sent Aceves a “Follow-Up Investigation Report” on June 26, 2018, indicating that the LAPD investigation into Plaintiff was still ongoing.  (Id. ¶ 12; Exh. B.)  Thus, it is Defendants’ position that from at least October 24, 2013, and through June 26, 2018, Plaintiff was a person of interest in a police investigation by the LAPD.  This investigation was separate from, and concurrent with, the Probation Department’s own administrative investigation into the incident.  Thus, the one-year period was tolled during this time.

The one-year period can be tolled until there is a “formal end” to the investigation.  (Daugherty v. City & Cnty. of San Francisco (2018) 24 Cal. App. 5th 928, 962.) In Daugherty, the period was tolled while “investigators continued to investigate leads, interview potential witnesses and gather evidence.”  Here, the Follow-Up Investigation Report of June 26, 2018, reflects that the LAPD investigation “will remain open and Keith Whitney will continue to be a Person of Interest.”  (Aceves Decl., Exh. B.) This is sufficient evidence to demonstrate that the criminal investigation was ongoing near the time of Plaintiff’s July 25, 2018, discharge.

Moreover, “there is no requirement that a criminal investigation be shown to be ‘actual and active’ in order to be ‘pending’ for purposes of section 3304, subdivision (d)(2)(A).  (Daugherty v. City & Cnty. of San Francisco (2018) 24 Cal. App. 5th 928, 962.)  “[N]ot only is such a requirement nowhere to be found in the statute, but it would also be ‘unworkable’ because it would require a police department's disciplinary investigators, and later the courts, to monitor and oversee each step of a separate criminal unit's investigation to determine whether the investigation is sufficiently ‘active’ to invoke section 3304(d)(2).”  (Id.)

Considering the above, this court finds Defendant has met its burden to establish that the one-year period was tolled during a pending criminal investigation conducted by the LAPD.  This shifts the burden to Plaintiff to establish a triable issue of material fact.

Plaintiff’s separate statement disputes the validity of the investigations and tries to highlight what he calls “discrepancies” in the investigations.  Plaintiff contends that the following points, “at a minimum,” raise triable issues of fact:

1. In response to a subpoena, the LAPD did not turn over any records relating to the alleged investigation.  (SSUMF 9);

2. Neither LAPD or the Probation Department informed Plaintiff he was the subject of an investigation.  (SSUMF 10);

3. The Probation Department never told Plaintiff the administrative investigation was being tolled.  (SSUMF 11);

4. On December 15, 2015, Defendant sent Plaintiff a letter stating the administrative investigation was inconclusive and closed on December 14, 2015.  (SSUMF 12);

5. Plaintiff was not contacted for an interview regarding the May 8, 2013, incident until February 10, 2017.  (SSUMF 13.) 

However, Plaintiff’s contentions mainly go to the merits or validity of the investigation; however, Plaintiff cites no authority showing the subjective intent of investigators is relevant in the tolling analysis.  Likewise, Plaintiff has not cited authority demonstrating that his awareness of the investigation (or lack thereof) has any relevance.  What is relevant, however, is that Plaintiff does not present evidence that the criminal investigation did not happen, or that it concluded prior to his discharge.  Plaintiff therefore cannot meet his burden to establish a triable issue of material fact on this cause of action.

Accordingly, Defendant’s motion for Summary Adjudication of the Second Cause of Action is GRANTED.

Moving party to give notice.

IT IS SO ORDERED.

Dated:   August 18, 2022 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at  Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.