Judge William A. Crowfoot, Case Number: 22AHCV00085, Date: 2023-08-24 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV00085, Date: 2023-08-24 Tentative Ruling

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”). After the Court granted in part the motion for judgment on the pleadings filed by the City, the Department, Mermell, and Perera (collectively, “Defendants”), Plaintiff filed a First Amended Complaint (“FAC”) on February 21, 2023.

Once again, Plaintiff asserts causes of action in her FAC for: (1) relief for violation of POBRA, Gov. Code § 3309.5; (2) petition for writ of mandate pursuant to Code Civ. Proc. § 1094.5 (administrative mandamus); and (3) violation of due process.

On April 26, 2023, Defendants filed a demurrer, a motion to strike, an “omnibus” memorandum, and a request for judicial notice. Defendants demur to each of Plaintiff’s three causes of action and argue that: (1) she does not plead sufficient facts to establish compliance with the Government Claims Act and (2) she did not file suit within six months after her claims were rejected. Defendants also move to strike Plaintiff’s allegations requesting civil penalties, attorney’s fees, and ancillary damages and portions of Plaintiff’s prayer for relief.

On May 30, 2023, Plaintiff filed opposition briefs. On June 5, 2023, Defendants filed an “omnibus” reply.

On June 12, 2023, the Court continued this hearing and ordered supplemental briefing. The parties filed their respective briefs on July 24, 2023.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿(City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.)

A court may strike “any irrelevant, false, or improper matter inserted in any pleading” or “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order.” (Code Civ. Proc., §§ 435, 436, subds. (a), (b).) A matter is “irrelevant” if (1) it “is not essential to the statement of a claim or defense;” (2) it “is neither pertinent to nor supported by an otherwise sufficient claim or defense;” (3) it “request[s] relief that is not supported by allegations in the complaint.” (Code Civ. Proc., § 431.10.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

4. The transcript from the hearing on the motion for judgment on the pleadings that took place on January 30, 2023.

“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

The Court takes judicial notice of Plaintiff’s Notice of Government Claim dated December 23, 2020, and the City’s Notice of Rejection dated February 5, 2021. The Court also takes judicial notice of its ruling on Defendants’ motion for judgment on the pleadings and the transcript of the hearing on that motion.

Plaintiff’s FAC 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”). (FAC, ¶¶ 4-6.) In 2012, Plaintiff suffered an on-duty shoulder injury that was accepted as a workers compensation claim. (Id., ¶ 27.) In May of 2014, Plaintiff was also treated for an on-duty back injury. (Id., ¶ 32.) In June of 2014, Internal Affairs (“IA”) of the Police Department initiated an investigation into Plaintiff's workers compensation claims. (Id., ¶ 33.) On September 10, 2014, the Department placed Plaintiff on administrative leave because it suspected she had misrepresented her injuries and engaged in 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., ¶¶ 47-204.) As part of an administrative appeal, Plaintiff filed a motion for relief due to violations of Plaintiff’s rights under POBRA. (Id., ¶ 146.) 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., ¶¶ 147-149.) On November 24, 2021, Plaintiff was informed that Mermell—in violation of the governing Memorandum of Understanding (“MOU”)—had delegated the responsibility of adopting, rejecting, or modifying the Arbitrator’s award to Perera. (Id., ¶ 151.) Perera then issued a Decision of City Manager’s Designee (“the Designee’s Decision” or “the Decision”). 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., ¶¶ 207-213.) Furthermore, Plaintiff alleges 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., ¶ 214.)

The threshold issue to deciding Defendants’ demurrer and motion to strike is whether Plaintiff complied with the Government Claims Act. Primarily, this Court examines whether Plaintiff filed this action within the 6-month period to do so after the City rejected her prelawsuit claim.

A lawsuit that seeks “money or damages” from a public employee or entity must be preceded by the presentation of a claim to the public entity and action on the claim by the Claims Board. (Cal. Govt. Code §§ 905, 911.2, 945.4; Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 612.) “[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).) Neither party contends that any exception to the claims requirement in Government Code section 905 applies.

Plaintiff alleges that she “properly and timely filed a Notice of Government Claim (Tort Claim)” and is “informed and believe[s] [sic] that the City did not respond to the Tort Claim and have [sic] waived all objections thereto.” (FAC, ¶ 156.) Plaintiff also invokes the doctrines of equitable tolling and delayed discovery as a means of excusing her failure to file this action within 6 months of the City’s rejection of her claim. Yet, as Defendants point out, Plaintiff cites no authority allowing the application of equitable tolling or delayed discovery to a plaintiff’s deadline to file suit after a claim was rejected by a public agency. (Reply, pp. 5-6.) Similarly, Plaintiff’s reliance on the doctrine of delayed discovery is also inapplicable to the deadline to file suit; it is only applicable to cases involving the timely presentment of an initial claim.

As noted by the Court in its prior ruling on Defendants’ motion for judgment on the pleadings on January 30, 2023, the pleadings and judicially noticed documents show that Plaintiff presented her Notice of Claim to the City on December 23, 2020, and that the City issued a Notice of Rejection on February 5, 2021. Pursuant to Government Code section 945.6(a)(1), Plaintiff had six months to file suit against the City and must have done so on or before August 5, 2021. Thus, this action, filed on February 17, 2022, fails to comply with the Government Claims Act.

The Court next addresses the effect of Plaintiff’s failure to comply with the Government Claims Act. “The claims filing requirement remains applicable to actions in which money damages are not incidental or ancillary to any specific relief that is also sought, but the primary purpose of the action.” (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 762.)

Defendants cite to TrafficSchoolOnline, Inc. v. Clarke (2003) 112 Cal.App.4th 736 and California Sch. Empls. Assn. v. Governing Bd. Of S. Orange Cnty. Cmty. Coll. Dist. (2004) 124 Cal.App.4th 574 (CSEA) and argue that these cases, compel the conclusion that Plaintiff’s relief in the form of back pay, compensation, and other monetary damages is unavailable because “incidental damages” are not exempt from the Government Claims Act. Meanwhile, Plaintiff relies on older, but still valid, authority, Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 870 and Eureka Teacher’s Assn. v. Board of Education (1988) 202 Cal.App.3d 469, to argue that back pay and benefits are “incidental” to her mandamus action and therefore not subject to the Government Claims Act.

The most recent case that both parties cite to is Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, in which the First Appellate District acknowledged this split in authority in determining whether “incidental damages” were exempt from the Government Claims Act. The Lozada court concluded that an officer seeking damages or monetary relief as the “primary purpose” of a POBRA action must comply with the Government Claims Act, but left open the possibility for a court to grant “additional monetary relief that was truly ‘incidental’ to appropriate injunctive relief” sought under POBRA. The Lozada court ultimately held that the plaintiff officer was primarily seeking monetary relief and not injunctive or declaratory relief because he “was never suspended and so did not seek reinstatement” and he did not “specifically seek reassignment of transfer through a mandamus action.” (Lozada, 145 Cal.App.4th at p. 1169.) The Lozada court also focused on the plaintiff’s emphasis on damages in the title and prayer for relief of his first and second amended complaints, and the plaintiff’s hefty request for $325,000 in civil penalties. (Ibid.) The Lozada court additionally noted that the plaintiff even stipulated in his opening brief that he prayed for “primarily, money or damages.” (Id. at p. 1170.)

Here, Plaintiff’s case is distinguishable from Lozada because she, unlike the plaintiff in Lozada, actually seeks reinstatement and has not stipulated that her primary goal is monetary relief. Lozada does not have the plainly dispositive effect, however, that Defendants urge on this court. Unlike the plaintiff in Lozada, Plaintiff here does not seek general damages but instead requests mandamus relief setting aside the Decision and asserts that the Decision does not comply with due process because it is legally insufficient. (FAC, Prayer, ¶ 4.) The generally accepted view in employment cases is that a monetary claim for back pay and benefits is incidental to a claim for reinstatement and thus is exempt from the Act. (See Eureka Teacher’s Assn. v. Board of Education (1998) 202 Cal.App.3d 469, 475-476; Lozada, supra, 145 Cal.App.4th at pp. 1166-1167; Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 643, disapproved on another ground in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1123, fn. 8; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 869-870.) This makes sense because the effect of reinstating a person to employment is to restore them, in effect, to a status quo ante but brought forward to the present, as equity would require, along with the bundle of pay and benefits accompanying that legally uninterrupted employment status.

Accordingly, the Court only excises the allegations which pray for monetary damages and strikes the following from the FAC: paragraph ¶ 192, which seeks civil penalties and actual damages, paragraphs 202 and 217, which seek damages under CCP § 1090 and 1095, and paragraphs 2 and 8 of the prayer, which seek monetary damages.

William A. Crowfoot

Judge of the Superior Court

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.