California Court of Appeals, Second District, Third Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS133554, James C. Chalfant, Judge.
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Michael N. Feuer, City Attorney, Carlos De La Guerra, Managing Assistant City Attorney, Wayne H. Song and Bruce Monroe, Deputy City Attorneys, for Defendants and Appellants.
Silver, Hadden, Silver, Wexler & Levine, Susan Silver and Jacob A. Kalinski for Plaintiff and Respondent.
The City of Los Angeles and Charles Beck (collectively the City) appeal a judgment granting a peremptory writ of mandate in favor of Jason Pedro, a police officer. Beck, as chief of police, charged Pedro with four counts of misconduct involving the use of a city police vehicle for personal business on two occasions, making a discourteous statement to a member of the public, and making a misleading statement to a supervisor conducting an official investigation. A Board of Rights found that three counts were barred by the statute of limitations. Beck expressed his disagreement, and the board later found Pedro guilty on all four counts and recommended a 22-day suspension without pay. Beck approved the recommendation. Pedro filed a petition for writ of administrative mandamus challenging the decision.
The trial court found in favor of Pedro on each count. It concluded that Beck had improperly directed the Board of Rights to find that the counts were not barred by the statute of limitations. Exercising its independent judgment,
the court found that counts one and four were barred by the statute of limitations, and that counts two and three were not barred. It also concluded that Pedro was not informed that he was being investigated for misconduct prior to his interrogation, as required by law. The court therefore suppressed evidence of Pedro’s statement to the supervisor and set aside the guilty finding on count four. Although the court found that counts two and three were not barred by the statute of limitations, it determined that the Board of Rights had found that those counts were barred. The court concluded that the board’s finding was final and binding because the City failed to file a writ petition challenging the decision.
The City challenges the trial court’s decision on counts two, three, and four. It contends those counts are not barred by the statute of limitations, Beck properly made the final administrative decision so finding, and the court erred by suppressing evidence of Pedro’s statement to the supervisor.
We conclude that the Board of Rights failed to proceed in the manner required by law by deferring to Beck’s determination on the statute of limitations rather than making a decision consistent with its own findings, and its findings do not support its decision. We also conclude that ignorance of the accused officer’s identity does not postpone the commencement of the one-year limitations period under Government Code section 3304, subdivision (d)(1), so counts two and three are barred by the statute of limitations. We conclude further that the discovery rule applies, and the trial court properly determined that count four is time-barred. We therefore will affirm the judgment granting a peremptory writ of mandate on all four counts.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Pedro drove a female friend, a minor, to a medical clinic in an unmarked police car on November 9, 2009, while he was on duty and in uniform. Francis O’Brien attempted to distribute anti-abortion literature to Pedro upon his arrival at the clinic, but Pedro declined without speaking to O’Brien. O’Brien called the police department to complain that an officer was conducting personal business while on duty, and identified the police car by license number. As a result of the call, the police station watch commander directed Sergeant Rodney Peacock to investigate the matter. Peacock drove to the clinic.
Pedro was walking from the clinic back to his car when he saw Peacock, whom he knew. Pedro greeted Peacock, and the two exchanged pleasantries. Peacock asked Pedro what he was doing there. Pedro responded that he had
doing there. Peacock responded that he was visiting a store nearby. Peacock then asked Pedro whether the person he had dropped off was a victim. According to Pedro, he did not directly respond to the query because he thought it was just small talk. But Peacock wrote in his report that Pedro stated that he was “working the Gang Unit in Detectives and was conducting a Follow up with a victim.” Peacock informed the watch commander, and the watch commander called O’Brien to inform him of their findings.
Pedro drove the same minor to the same medical clinic in an unmarked police car on November 30, 2009, while he was on duty and in uniform. O’Brien approached the passenger side and offered them anti-abortion literature. According to Pedro, he declined the literature and asked O’Brien to leave, but O’Brien persisted. Pedro then told him, “Get the hell back, ” and O’Brien backed away from the car. According to O’Brien, Pedro did not speak or respond until he rolled down the passenger window and stated forcefully, “Get the fuck away from the car, ” and then repeated that same statement.
O’Brien sent a letter to the chief of police dated December 1, 2009, stating his suspicions that an officer driving an unmarked police car was conducting personal business on the job on November 9 and 30, 2009. The letter stated the license number of the car. The letter also stated that on the latter occasion the driver twice stated to O’Brien, “Get the f___ away from the car.” The office of the chief of police received the letter on December 3, 2009. A lieutenant forwarded the letter to Hollenbeck Area on December 10, 2009, to investigate “possible officer misconduct.” The task was assigned to a lieutenant in Hollenbeck Area, where Pedro was assigned, on December 16, 2009.
An administrative complaint was served on Pedro on December 20, 2010, charging him with four counts of misconduct: (1) using a city vehicle inappropriately to transport a member of the public in order to conduct personal business while on duty, on November 9, 2009; (2) using a city vehicle inappropriately to transport a member of the public in order to conduct personal business while on duty, on November 30, 2009; (3) making a discourteous statement to O’Brien while on duty, on November 30, 2009; and (4) making a misleading statement while on duty to a police department supervisor conducting an official investigation, on November 9, 2009. Pedro was temporarily relieved from duty on December 21, 2010, after approximately 15 years of service as a police officer for the city.
2. Board of Rights Hearing and Decision
A Board of Rights hearing commenced on April 29, 2011. Pedro pled “guilty, but with an explanation” to counts one and two. He pled “not guilty"
to counts three and four. The board heard testimony by O’Brien and Peacock before Pedro moved to dismiss the charges.
Pedro moved to dismiss all counts based on the one-year statute of limitations of Government Code section 3304, subdivision (d)(1). The board consulted with an attorney from the city attorney’s office and concluded that the first three counts were barred by the statute of limitations. The board chairperson stated that the board therefore would find Pedro “not guilty” on the first three counts. He stated that the board was uncertain as to whether the fourth count was barred by the statute of limitations and would hear further testimony on the fourth count. Another board member then asked whether the finding on count three would be “not guilty or out of statute.” The chairperson responded, “I guess they’re all out of statute then, whatever the classification for that is.”
The City moved for reconsideration of the ruling when the Board of Rights reconvened on May 6, 2011. The advocate for the police department stated that he had consulted with an attorney from the city attorney’s office who concluded that the three counts were not barred by the statute of limitations. The City filed a written motion for reconsideration. The board considered the motion, consulted with counsel, and, on May 12, 2011, concluded again that counts one, two, and three were barred by the statute of limitations. The board also concluded that count four was not time-barred, and proceeded to hear further testimony.
The advocate for the police department then quoted section 260.60 of the police department’s Board of Rights Manual (12th ed. 2005), which states: “When a Board of Rights determines through the examination of evidence that one or more of the charges is outside the applicable statute of limitations period, the Board shall without delay forward to the Chief of Police a proposed amended complaint with the out-of-statute charge or charges removed. The Board shall, with the proposed amended complaint, notify the Chief of Police that the amendment is proposed because the Board has determined that the charge or charges to be removed exceed the statute of limitations, and shall request that the Chief of Police sign the amended complaint without delay. If the Board determines that all of the charges are outside the applicable statute of limitations the Board shall request that the Chief of Police remove the charges and close the Board.”
The parties agreed to proceed with the board proceedings. The board chairperson stated that the board would be notified if and when the chief of police signed the proposed amended complaint.
An advocate for the police department reported to the Board of Rights on May 12, 2011, that he had met with the chief of ...