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Buesa v. City of Los Angeles

October 2, 2009


APPEAL from a judgment of the Superior Court of Los Angeles County, Elihu M. Berle, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC378215).

The opinion of the court was delivered by: Epstein, P. J.


This is an appeal from a judgment on the pleadings in an action against the City of Los Angeles (City)*fn1 brought by two former Los Angeles police officers, Andrew Buesa and Michael Cardenas. Plaintiffs seek damages for a violation of their rights under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq. (POBRA)).*fn2 The gravamen of their complaint is that a perjured declaration submitted by the City deprived them of their statute of limitations defense in an administrative mandamus proceeding over their discharges. The issue is whether they may maintain this as a separate action, or whether under the doctrine of collateral estoppel it is barred by the final judgment denying their petition for administrative mandamus.

We conclude that plaintiffs‟ action under POBRA is barred because it constitutes an impermissible collateral attack on the mandate judgment.


Since this matter is on appeal from a judgment on the pleadings, we take our factual summary from the allegations of the second amended complaint, which is the charging pleading.

On February 2, 2002, plaintiffs participated in the arrest of a suspect following a car and foot chase. The same day, the Los Angeles Police Department (LAPD) learned of alleged acts of misconduct by plaintiffs arising from that arrest. The next day, Sergeant Joe Losorelli, of the LAPD Internal Affairs Group, was assigned to investigate the alleged misconduct. On August 15, 2002, Losorelli met with a deputy district attorney in the Los Angeles County District Attorney‟s Office for the purpose of seeking a determination whether criminal charges should be filed against plaintiffs based on the February 2002 incident. Losorelli met with the deputy district attorney again on October 2, 2002, at which time he provided a copy of his investigation and witness statements.

According to plaintiffs, the district attorney‟s office opened its criminal investigation against plaintiffs that day.

POBRA provides a one-year statute of limitations for bringing of police misconduct charges. The time runs from discovery of the misconduct. (§ 3304, subd. (d).) Section 3304, subdivision (d)(1) tolls the limitations period while a criminal investigation or prosecution is pending. On December 2, 2002, Losorelli asked LAPD superiors to toll the statute of limitations against plaintiffs because of the pending criminal investigation. He asked that the period be tolled from his August 15, 2002 meeting with the district attorney‟s office until the conclusion of the criminal investigation. The criminal investigation was terminated on February 11, 2003, when the deputy district attorney in charge of the case elected not to seek a grand jury indictment.

Personnel complaints against plaintiffs were filed at the Los Angeles Police Commission on August 3, 2003, alleging misconduct arising from the February 2002 arrest. They were served the next day. On August 3, 2004, a board of rights found plaintiffs guilty of misconduct and recommended that they be discharged. On September 29, 2004, the chief of police adopted the recommendation that plaintiffs be terminated for failure to report the use of force against a suspect. The chief signed orders removing them from employment, effective that day.

Plaintiffs filed a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) on December 14, 2004 seeking review of their terminations. They alleged that Losorelli furnished a false declaration regarding tolling, which was used by defendant in responding to the petition. Allegedly, Losorelli knew that pursuant to a policy of LAPD and the district attorney‟s office, only the latter was authorized to open a criminal investigation against sworn personnel. According to the complaint, the district attorney‟s office opened the criminal investigation against plaintiffs on October 2, 2002. Plaintiffs allege: "Sergeant Losorelli knowingly and intentionally testified falsely that his investigation against plaintiffs was considered a criminal investigation from the beginning (as of February 2, 2002). Sergeant Losorelli knowingly and intentionally testified falsely that he first presented the case against plaintiffs to [the deputy district attorney] for possible criminal filing at a July 31, 2002 meeting, when this meeting actually took place on August 15, 2002."

Allegedly, with knowledge that the August 3, 2003 personnel complaints against plaintiffs were time-barred, Losorelli presented a false declaration in the mandamus action "with the intent of fraudulently extending the tolling period for criminal investigations" authorized by section 3304, subdivision (d) "and with the malicious intent to deprive plaintiffs of their rights," and further employment with the LAPD. According to plaintiffs, they discovered Losorelli‟s wrongful conduct on July 25, 2007, after the administrative mandamus proceeding was concluded. They do not explain the circumstances of that discovery.

Plaintiffs‟ petition for writ of administrative mandate was denied by the trial court. The court found the weight of evidence at the administrative hearing supported the decision to terminate plaintiffs. It identified the application of the POBRA statute of limitations as "the main legal issue in the case." The court noted that both sides had submitted documentary evidence and declarations on the limitations issue, and that no objection to this evidence was made by either side.

The trial court found: "The disciplinary action against the petitioners is not barred by the limitations provision of the POBR" because of the tolling provision in section 3304, subdivision (d)(1). The court stated that charges were served on plaintiffs 18 months and two days after the alleged misconduct. It found: "The alleged misconduct was the subject of a criminal investigation that commenced on or before July 31, 2002, when an LAPD investigator met with the District Attorney regarding the matter, and which did not end until February 11, 2003, when the District Attorney decided not to ask the grand jury for an indictment because of the lack of evidence. The one-year limitation period was therefore tolled for six months and eleven days. The investigation was therefore completed and notice of charges ...

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