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Morgado v. City and County of San Francisco

California Court of Appeals, First District, Fourth Division

June 27, 2017

PAULO MORGADO, Plaintiff and Respondent,
v.
CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

         Superior Court of San Francisco City & County, No. CGC 12-518287 Hon. A James Robertson II Judge

          Dennis J. Herrera, City Attorney, Elizabeth Salveson, Chief Labor Attorney, Rafal Ofierski, Deputy City Attorney, for Defendant and Appellant.

          Carroll, Burdick & McDonough, Greg McLean Adam, Jonathan Yank and Jennifer S. Stoughton for San Francisco Police Officers Association as Amicus Curiae on behalf of Plaintiff and Respondent.

          Murphy, Pearson, Bradley & Feeny, James A. Lassart and Adrian G. Driscoll for Plaintiff and Respondent.

          Streeter, J.

         Government Code[1] section 3304, subdivision (b), which is part of the Public Safety Officers Procedural Bill of Rights Act (PSOPBRA) (§ 3300 et seq.), provides that “[n]o punitive action... shall be undertaken by any public agency against any public safety officer... without providing the public safety officer with an opportunity for administrative appeal.”

         In this appeal, the City and County of San Francisco (City) seeks review of the trial court's order granting injunctive relief to Paulo Morgado (Morgado), a non-probationary City police officer whose employment was terminated following misconduct findings. The City argues the court erred in finding the City's procedure for disciplining police officers violates section 3304, subdivision (b).

         We disagree and will affirm.

         I. BACKGROUND

         On or about March 1, 2008, a citizen with whom Morgado interacted filed a complaint against him with the Office of Citizen Complaints (OCC) of the City's Police Department.[2] Pursuant to its powers granted by the City Charter (see S.F. Charter, § 4.127), the OCC investigated the alleged misconduct and shared its findings and disciplinary recommendations with the chief of police (Chief). After further investigation by the department's internal affairs division, the Chief filed a disciplinary complaint with the City's Police Commission (Commission) against Morgado in August 2009.[3]

         The Commission assigned one of its seven members to investigate the complaint, first on August 28, 2009, and then, after that commissioner stepped down, another on June 8, 2010. That commissioner held a full evidentiary hearing on August 2 and 3, 2010, in which Morgado participated. Later, on March 30, 2011, Morgado, represented by counsel, participated in a hearing before the full Commission, at the conclusion of which the Commission sustained four of the six counts against him and decided to terminate his employment.

         Dissatisfied with the Commission's decision, on February 16, 2012, Morgado sued the City, the OCC, the Chief, and the Commission, seeking injunctive relief and a writ of administrative mandate to direct the defendants to reinstate him. Responding to a discovery request by Morgado, the City “admit[ted], ” as a factual matter, the “only punitive action undertaken against him” was the Commission's decision “to terminate [his] employment.” The City further “admit[ted], ” as a factual matter, it did not provide Morgado with an “administrative appeal” from the Commission's decision to terminate his employment. After the trial court denied the City's motion for summary judgment in October 2013, the case proceeded to a bench trial.

         The court issued a written statement of decision and entered judgment in favor of Morgado on February 26, 2014. Relying on sections 3304, subdivision (b) (requiring “an opportunity for administrative appeal”) and 3309.5, subdivision (d)(1) (giving the trial court discretion to grant injunctive relief), and pertinent case law, the court issued an order (1) enjoining the Commission “from taking any punitive action against Morgado pursuant to the complaint... unless the Officer has first been provided an opportunity for administrative appeal from that action, ” (2) vacating his termination, and (3) directing the City to provide him an “opportunity for administrative appeal” from the Commission's decision to terminate his employment. The court specifically noted it was “not changing any other findings made by the Police Commission.”

         The City filed a timely notice of appeal.

         II. DISCUSSION

         A. Standard of Review

         We review questions of statutory interpretation de novo. (See California Apartment Assn. v. City of Fremont (2002) 97 Cal.App.4th 693, 699.) The rules of statutory construction are well-settled: “we are to ascertain the intent of the Legislature so as to effectuate the purpose of the law, ” first by looking to the plain text, “giving effect to the ordinary meaning of the words employed, ” and considering the language within the context of the entire statutory scheme. (Id. at pp. 699-700.) In construing the statutory language, “we consider matters such as ‘ “ ‘the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.' ” ' ” (Id. at p. 700.)

         At the heart of this appeal is whether a “punitive action” was taken against Morgado, and if so, when that action took place. The City admitted during discovery that the “first and only ‘punitive action' ” here was the Commission's decision to terminate Morgado's employment. We view this issue as a mixed question of fact and law. (See Crocker National Bank v. City & County of San Francisco (1989) 49 Cal.3d 881, 888 [“Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values,the question is predominantly legal and its determination is reviewed independently.” (Italics added.)]; cf. Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447, 1449-1450 [applying, in ...


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