Judge: William A. Crowfoot, Case: 22AHCV00085, Date: 2023-01-30 Tentative Ruling

Case Number: 22AHCV00085    Hearing Date: January 30, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.         BACKGROUND

On February 17, 2022, plaintiff Jaime Robison (“Plaintiff”) filed a complaint against the City of Pasadena (“the City”), the Pasadena Police Department (“the Police Department” or “the Department”), Steven Mermell, in his official capacity as City Manager (“Mermell”), and Michelle Perera, in her official capacity as Director of Library and Information Services (“Perera”). Plaintiff’s complaint asserts causes of action for: (1) relief for violation of POBRA, Gov. Code § 3309.5; (2) petition for writ of mandate pursuant to Code Civ. Proc. § 1094.5; and (3) violation of due process.

Plaintiff’s complaint pleads the following: Plaintiff was employed as a sworn member of the Pasadena Police Department and was entitled to protections under the Public Safety Officers Procedural Bill of Rights (“POBRA”). (Complaint, ¶¶ 4-6.) In 2012, Plaintiff suffered an on-duty shoulder injury that was accepted as a workers compensation claim. (Id., ¶ 20.) In May of 2014, Plaintiff was also treated for an on-duty back injury. (Id., ¶ 25.) In June of 2014, Internal Affairs (“IA”) of the Police Department initiated an investigation into Plaintiff's workers compensation claims. (Id., ¶ 26.) On September 10, 2014, the Department placed Plaintiff on administrative leave because it suspected she had misrepresented her injuries and engaged in workers comp fraud. (Id., ¶ 33.)

Plaintiff further pleads that IA’s investigation over the course of 2015 violated Plaintiff’s POBRA and due process rights—in part by obtaining Plaintiff’s confidential medical records, failing to provide Plaintiff with investigative materials, and reaching an unsubstantiated, predetermined conclusion.  (Id., ¶¶ 40-137.) As part of an administrative appeal, Plaintiff filed a motion for relief due to violations of Plaintiff’s rights under POBRA. (Id., ¶ 140.) On October 26, 2021, the Arbitrator, based on his findings related to confidential medical information and violations of POBRA, issued an opinion recommending the charges against Plaintiff be dismissed and that she be reinstated to her former position with full back pay and benefits. (Id., ¶¶ 141-143.)

On November 24, 2021, Plaintiff was informed that City Manager Steven Mermell—in violation of the governing Memorandum of Understanding (“MOU”)—had delegated the responsibility of adopting, rejecting, or modifying the Arbitrator’s award to Director of Library and Information Services Michelle Perera. (Id., ¶ 145.) Perera then issued a Decision of City Manager’s Designee (“the Designee’s Decision” or “the Decision”) rejecting the Arbitrator’s award. (Id., ¶¶ 190-191.) According to Plaintiff, the Decision does not set forth any factual or legally accepted rationale supporting the rejection of the Arbitrator’s award and is contrary to the weight of the evidence. (Id., ¶¶ 191-193.) Furthermore, Defendants collectively failed to comply with due process by allowing legal counsel for the City, the Department Chief, and Mermell to engage in dual representation and advise Perera on her Decision. (Id., ¶ 197.)

On January 3, 2023, Defendants collectively filed this motion for judgment on the pleadings along with a request for judicial notice. On January 17, 2023, Plaintiff filed an opposition along with a request for judicial notice and objections to Defendants’ request for judicial notice. On January 23, 2023, Defendants filed a reply along with another request for judicial notice and a response to Plaintiff’s objections to Defendants’ first request for judicial notice.

II.        LEGAL STANDARD

A defendant or cross-defendant may move for judgment on the pleadings on grounds that the court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action.  (Code Civ. Proc. § 438(c)(1)(B)(i)-(ii).) 

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired.  (Code Civ. Proc., § 438(f).)  Except as provided by statute, the rules governing demurrers apply.  (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.)  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Id. at 1013.)  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.”  (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.) 

III.      JUDICIAL NOTICE

          Defendants request the Court take judicial notice of six items:

1. Plaintiff’s complaint, filed on February 17, 2022 in the Superior Court of California, Los Angeles, Case Number 22AHCV00085;

2. The Designee’s Decision issued in the matter of the disciplinary appeal regarding Plaintiff and the City;

3. Plaintiff’s Notice of Government Claim;

4. The City’s Notice of Rejection of Plaintiff’s Government Claim;

5. The MOU between the City and the Pasadena Police Officers Association; and

6. Paragraph 3 of the St. Clair Declaration.

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code § 450.) Courts can take judicial notice of official acts and public records but cannot take judicial notice of the truth of the matters stated therein. (In re Joseph H. (2015) 237 Cal.App.4th 517, 541–542 [Thus, even if we took judicial notice that the OAH issued a decision on January 24, 2014, we could not take judicial notice of what was stated in that opinion.].)

Regarding Defendants’ first request, the Court takes judicial notice of Plaintiff’s complaint.

Regarding Defendants’ second request, the Court takes judicial notice that the City Manager’s Designee issued a Decision regarding Plaintiff and the City on November 29, 2021. But the Court does not take judicial notice of the statements within the Decision.

Regarding Defendants’ third request, the Court takes judicial notice that Plaintiff filed a Notice of Government Claim on December 23, 2020. But the Court does not take judicial notice of the statements within the Claim.

Regarding Defendants’ fourth request, the Court takes judicial notice that the City rejected Plaintiff’s Claim on February 5, 2021. But the Court does not take judicial notice of the statements within the Notice of Rejection.

Regarding Defendants’ fifth request, the Court takes judicial notice that a MOU was effective between the City and the Pasadena Police Officers Association from April 22, 2013 through June 30, 2018. But the Court does not take judicial notice of the contents of the MOU.

Defendants’ sixth request for judicial notice is denied. The declaration of an adverse party is not a proper subject for judicial notice. (Big Valley Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192) St. Clair is an employee of the City and her declaration in general reads adverse to Plaintiff. The Court will not take judicial notice of an adverse party declaration.

Plaintiff requests the Court take judicial notice of seven items:

1. Excerpts of the administrative hearing transcripts of issues to be decided at the administrative hearing;

2. The court judgment in Moran v. City of Pasadena, LASC Case No. EC064281;

3. The Court’s statement of decision in Moran v. City of Pasadena, LASC Case No. EC064281;

4. The abandonment of appeal in Moran v. City of Pasadena, LASC Case No. EC064281;

5. The Court of Appeal docket, in Court of Appeal Case No. B305929/LASC Case No. EC064281;

6. The Arbitrator’s decision on motion for reconsideration; and

7. The Arbitrator’s advisory opinion.
Plaintiff’s first request for judicial notice is denied.

Regarding Plaintiff’s second request, the Court takes judicial notice that judgment was rendered in Moran v. City of Pasadena, LASC Case No. EC064281 on February 28, 2020. But the Court does not take judicial notice of the statements within the judgment.

Regarding Plaintiff’s third request, the Court takes judicial notice that a statement of decision was issued in Moran v. City of Pasadena, LASC Case No. EC064281 on February 6, 2020. But the Court does not take judicial notice of the statements within the decision.

Regarding Plaintiff’s fourth req uest, the Court takes judicial notice that the City abandoned their appeal in Moran v. City of Pasadena, LASC Case No. EC064281 on September 30, 2020.

Plaintiff’s fifth request for judicial notice is granted.

Regarding Plaintiff’s sixth request, the Court takes judicial notice that the Arbitrator issued a ruling on the City’s motion for reconsideration on September 21, 2021. But the Court does not take judicial notice of the statements within the ruling.

Regarding Plaintiff’s seventh request, the Court takes judicial notice that the Arbitrator issued an advisory opinion on October 26, 2021. But the Court does not take judicial notice of the statements within the opinion.

IV.     DISCUSSION

           Defendants move for judgment on the pleadings on grounds that Plaintiff’s second cause of action for writ of mandate and third cause of action for violation of due process fall outside this Court’s jurisdiction because Plaintiff failed to exhaust her administrative remedies. Defendants argue the City has not yet issued a final decision and may yet reinstate Plaintiff following the completion of her administrative challenge to her termination. No exception to the exhaustion requirement applies, nor do such doctrines as waiver or estoppel. Thus, Defendants contend the Court lacks jurisdiction.

          Defendants also bring this motion on grounds that Plaintiff’s POBRA claims fall outside the statute of limitations. According to Defendants, Plaintiff’s POBRA claims are untimely on their face because Plaintiff’s complaint alleges that certain acts occurred in 2014 and 2015—requiring suit be brought no later than 2017 and 2018 respectively.

          Defendants also bring this motion on grounds that Plaintiff’s first and third causes of action fail because Plaintiff failed to comply with the Government Claims Act. Defendants argue Plaintiff’s Notice of Government Claim and Plaintiff’s complaint in this action were both untimely. Defendants point out that Plaintiff filed her Claim with the City over a year after the alleged POBRA and due process violations occurred. In addition, Plaintiff filed this action over six months after the City rejected her Claim.

          Finally, Defendants argue Plaintiff’s third cause of action fails because Plaintiff cannot recover money damages for alleged violations of California’s due process clause.

          In opposition, Plaintiff argues she exhausted her administrative remedies. Plaintiff points out that Perera’s Decision, as the City Manager’s Designee, overturned the factual and legal findings of the Arbitrator. Plaintiff further points to language in the Decision stating that the Decision is subject to judicial review by way of writ of mandate. In the alternative, Plaintiff argues that exceptions to exhaustion apply.

          Plaintiff argues that some of the alleged POBRA violations occurred well after 2015 and thus the statute of limitations does not block her claims in their entirety. Plaintiff also argues her POBRA claims were equitably tolled during the administrative proceedings. Moreover, Plaintiff’s discovery of POBRA violations was delayed—further tolling the statute of limitations. Plaintiff maintains the City Manager’s Designee’s Decision was itself a violation of POBRA, and the Decision was not issued until 2021.

          Finally, Plaintiff argues she complied with the Government Claims Act. Plaintiff insists her due process claims were brought under § 1983, and that she does not have to present a Notice of Claim under the Government Claims Act as a prerequisite to filing a federal § 1983 action. Plaintiff also insists she timely presented the City with a Notice of Claim and Defendants waived defenses of untimeliness by not objecting within 45 days as required by Government Code section 911.3(b).

          In reply, Defendants reiterate that Plaintiff has not exhausted her administrative remedies. Defendants disagree that exceptions apply, and point to language in Perera’s Decision directing the parties to conduct further administrative proceedings. Defendants also disagree that Plaintiff’s POBRA claims should be equitably tolled, arguing that equitable tolling is within the Court’s discretion and should only be granted when a plaintiff’s pursuit of alternative remedies was reasonable and taken in good faith.

Finally, Defendants reiterate that Plaintiff failed to comply with the Government Claims Act. Defendants point out that Plaintiff’s complaint never references § 1983 and that her claims have always been rooted in violations of California due process—thus requiring compliance with the Government Claims Act. Furthermore, Government Code section 91.3(b) only applies to actions for personal injury or wrongful death. Besides, Defendants argue, the City issued a rejection letter within 44 days that expressly preserved defenses based on sufficiency and timeliness. The rejection letter stated Plaintiff only had six months from the date of the notice to file a court action, or until August 5, 2021, but Plaintiff waited over a year later to bring suit on February 17, 2022.

A.   Plaintiff’s POBRA and Due Process Claims Failed to Comply with the Government Claims Act.

“There shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) all claims for money or damages against local public entities…” (Gov. Code § 905.) “The board shall grant or deny the application within 45 days after it is presented to the board.” (Id. § 911.6(a).) Written notice of action or rejection shall be given. (See Id. § 913(a).)

“[A]ny suit brought against a public entity on a cause of action for which a claim is required to be presented…must be commenced…not later than six months after the date [notice of rejection] is personally delivered or deposited in the mail.” (Gov. Code. § 945.6(a)(1).)

Here, Plaintiff presented her Notice of Claim to the City on December 23, 2020. The City issued a Notice of Rejection on February 5, 2021—which is within the 45 days required by Government Code section 911.6(a). Pursuant to Government Code section 945.6(a)(1), Plaintiff had six months to file suit against the City. In other words, Plaintiff needed to initiate this action prior to August 5, 2021. Plaintiff, however, did not file her complaint until February 17, 2022. Plaintiff has therefore failed to comply with the Government Claims Act.[1]

Plaintiff acknowledges her POBRA claims are subject to the requirements of the Government Claims Act but argues her due process claims—as § 1983 claims—are not. The Court is not convinced. Plaintiff’s complaint does not make any reference to § 1983. Instead, Plaintiff pleads the specifics of California Constitutional due process safeguards and quotes California Constitution Article I, Section 7(a) in her complaint. (Complaint ¶¶ 204, 205.) Indeed, Plaintiff’s third cause of action is titled “Violation of Due Process Under State Law.” (Id., 38:12, emphasis added.)[2]

Because Plaintiff failed to comply with the Government Claims Act, and because Plaintiff’s first and third causes of action are subject to the Government Claims Act, Defendants’ motion for judgment on the pleadings as to Plaintiff’s first and Third causes of action is GRANTED.

B.   There Are No Judicially Noticeable Facts Indicating the Court Lacks Jurisdiction to Hear Plaintiff’s Petition for Writ of Mandate

Plaintiff’s remaining cause of action is a petition for writ of mandate regarding the Designee’s Decision not to adopt the Arbitrator’s award. Defendants only argument against Plaintiff’s second cause of action is that the Court lacks jurisdiction to hear Plaintiff’s petition because Plaintiff has not exhausted her administrative remedies.

“Judicial review of any decision of a local agency, other than school district, as the term local agency is defined in Section 54951 of the Government Code, or of any commission, board, officer or agent thereof, may be had pursuant to Section 1094.5 of this code only if the petition for writ of mandate pursuant to such section is filed within the time limits specified in this section.” (Code Civ. Proc. § 1094.6(a).) “Any such petition shall be filed not later than the 90th day following the date on which the decision becomes final.” (Id. § 1094.6(b).) “As used in this section, decision means a decision subject to review pursuant to Section 1094.5, suspending, demoting, or dismissing an officer or employee, revoking, denying an application for a permit, license, or other entitlement, imposing a civil or administrative penalty, fine, charge, or cost, or denying an application for any retirement benefit or allowance.” (Id. § 1094.6(e).)

“Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent’s points and authorities, or may be ordered to be filed by the court.” (Code Civ. Proc. § 1094.5(a).) “The complete record of the proceedings shall be prepared by the local agency or its commission, board, officer, or agent which made the decision and shall be delivered to the petitioner within 190 days after he has filed a written request therefor…Such record shall include the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence, and any other papers in the case.” (Id. § 1094.6(c).)

“Administrative agencies must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which they have jurisdiction to act before those issues are raised in a judicial forum.” (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 510.) “Even where the administrative remedy may not resolve all issues or provide the precise relief requested by a plaintiff, the exhaustion doctrine is still viewed with favor ‘because it facilitates the development of a complete record that draws on administrative expertise and promotes judicial efficiency.’ [Citation.] It can serve as a preliminary administrative sifting process [citation], unearthing the relevant evidence and providing a record which the court may review.” (Id. at 501.)

Here, there is no administrative record for the Court to review. Plaintiff—or Petitioner—has yet to lodge one. It appears that Defendants—or Respondents—have yet to prepare one. Plaintiff accuses Defendants of destroying parts of the investigation. Even if true, Plaintiff must still request transcripts of the proceedings, pleadings, all admitted exhibits, all rejected exhibits in the possession of the City or the Department, all written evidence, and any other papers the Arbitrator and Designee considered when reaching their respective conclusions. To complete the administrative record, Plaintiff must submit this material along with the Arbitrator’s advisory opinion and Designee’s Decision. Without a record the Court will not be able to rule on Plaintiff’s petition.

Plaintiff urges the Court to interpret the Designee’s Decision as final—thereby exhausting Plaintiff’s administrative remedies. Defendants urge the Court to interpret the Decision as a nonfinal contemplation of further administrative proceedings. The Court can do neither because at this stage the Court cannot consider the contents of the Decision in the first place. Code of Civil Procedure sections 1094.5 and 1094.6 provide a process which includes the preparation of an administrative record for the Court’s review. It is not within the Court’s province to shortcut this process through judicial notice. The Court will consider the statements in the Designee’s Decision at the appropriate time—when it has the entire administrative record.

At this stage, on a motion for judgment on the pleadings, the Court only considers the face of Plaintiff’s complaint and facts that are subject to judicial notice. Defendants’ argument against Plaintiff’s petition rests on the Court considering evidence it cannot consider at this stage of the proceedings. Put simply, Defendants do not point to any allegations in Plaintiff’s complaint or judicially noticeable facts suggesting that the Designee’s Decision was not final. The Court may make a different determination once it has the record. But at this stage there is nothing to indicate that Plaintiff has failed to exhaust her administrative remedies.

Accordingly, Defendants’ motion for judgment on the pleadings as to Plaintiff’s second cause of action for writ of mandate is DENIED.

V.        CONCLUSION

          The City of Pasadena, the Pasadena Police Department, Steven Mermell, and Michelle Perera’s motion for judgment on the pleadings is GRANTED with prejudice as to Plaintiff Jamie Robison’s first and third causes of action.

          The City of Pasadena, the Pasadena Police Department, Steven Mermell, and Michelle Perera’s motion for judgment on the pleadings is DENIED as to Plaintiff Jamie Robison’s second cause of action.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.