Breslin v. City and County of San Francisco

• Decision Date: 16 January 2007
• Docket Number: No. A111455.,A111455.
• Parties: Gregory W. BRESLIN et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

55 Cal.Rptr.3d 14

146 Cal.App.4th 1064

Gregory W. BRESLIN et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

No. A111455.

Court of Appeal, First District, Division 4.

January 16, 2007.

Allen Matkins Leek Gamble & Mallory LLP, Robert R. Moore, Michael J. Betz,

Gary Sloboda, for Appellant, Gregory W. Breslin, San Francisco.

Freya Home, San Francisco, for Appellant, Michael Moran.

James P. Collins, Glendale, for Appellant, Peter Siragusa.

Peter Furst, San Francisco, for Appellant, James Zerga.

Gordon-Creed, Kelley, Holl & Sugerman, Geoffrey Gordon-Creed, Jeremy Sugerman, San Francisco, for Respondents.

REARDON, Acting P.J.

This appeal poses important questions about the application and interpretation of the one-year statute of limitations for bringing disciplinary charges against police officers. (See Gov.Code,¹ § 3304, subd. (d) (hereafter § 3304(d)).)² In this matter, the trial court denied a petition for writ of mandate and for injunctive relief filed by appellant Gregory W. Breslin and three other San Francisco police officers who sought dismissal of police disciplinary charges pending against them before respondent San Francisco Police Commission (commission). The officers appeal the order denying issuance of a writ of mandate and denying the request for injunctive relief,³ contending that the disciplinary charges are time-barred. (See § 3304.) In November 2005, we granted the officers' petition for writ of supersedeas staying the underlying disciplinary proceedings until the appeal was resolved.

We find that three statutory exceptions to the one-year limitations period were erroneously applied in this matter. As a result, we conclude that the disciplinary charges were not timely filed against any of the four officers. Thus, we reverse the trial court order denying mandamus relief and remand for further proceedings.

I. FACTS

A Incident

On May 13, 1998, four San Francisco police officers were conducting a surveillance in an attempt to locate a known fugitive, Raymondo Cox. The officers — appellants Gregory W. Breslin, Michael Moran, Peter Siragusa and James Zerga — observed Cox leave an apartment complex and enter a vehicle driven by Michael Negron. Seventeen-year-old Sheila DeToy was also a passenger in the car. The officers attempted to stop the car as it left the apartment complex. As Negron evaded the officers, Breslin and Moran fired several shots into the car. One of Breslin's bullets struck and killed Sheila De-Toy.

B. Investigation and Charges

Immediately after the incident, respondent San Francisco Police Department (department) and the district attorney conducted investigations of the incident and the four officers' involvement in it. (See S.F. Police Dept. Gen. Order No. 8.11.) The officers maintained that Breslin acted in self-defense after Negron attempted to run him down with the vehicle.

On June 10, 1998, the city's Office of Citizen Complaints (OCC)⁴ received a complaint about the May 13, 1998 incident from an eyewitness. Later that month, the OCC sought department documents pertaining to the incident. It began its own investigation, interviewing witnesses and reviewing initial police reports received in response to its first request for department documents. Eyewitnesses disputed the officers' self-defense claim. Some of the physical evidence and other witness testimony was consistent with the eyewitnesses' testimony.

On July 10, 1998, the OCC obtained from the district attorney transcripts of the officers' interviews with department investigators. The OCC submitted two more requests for documents from the department in October and December 1998.

On February 10, 1999, the district attorney announced that it had completed its criminal investigation of the four officers and had concluded that no criminal conduct had occurred. Meanwhile, criminal charges had been filed against Negron and Cox stemming from the shooting incident. In February 1999, the four officers testified at the preliminary hearing that Breslin acted in self-defense.⁵ In March 1999, an information was filed against Negron and Cox including charges stemming from the May 1998 incident. The information charged Negron with the murder of Sheila DeToy, as well as the attempted murder of and assault with a deadly weapon against Breslin. On March 30, 1999, Negron pled guilty inter alia to the involuntary manslaughter of DeToy and assault with a deadly weapon — specifically, an automobile — against Breslin. (See Pen.Code, §§ 192, subd. (b), 245, subd. (a)(1).) Cox pled guilty to a drug charge. (See Health & Saf.Code, § 11351.) On April 27, 1999, after Cox and Negron were sentenced, their attorney first authorized them to be interviewed by the OCC.

On May 13, 1999, Diane DeToy — the mother of Sheila DeToy — filed a civil rights and wrongful death action against the city, Breslin and several unnamed Doe defendants. (DeToy v. City and County of San Francisco (Super. Ct. S.F. City and County, No. 303475); see fn. 6, post.) In June 1999, the city attorney — acting on behalf of the city and Breslin — answered the complaint, asserting inter alia that Negron and Cox were solely responsible for Sheila DeToy's death. The action was removed to federal district court. (U.S. Dist. Ct. No. C99-3072 CRB.)

During 1999, the OCC investigation continued. In March 1999, the OCC interviewed four more witnesses. By September 1999, the OCC had not received all the documents that it sought from the department. It made a fourth request for documents from the department that month. The OCC interviewed Negron and Cox on September 28 and October 5, 1999, respectively.

During October 1999, the OCC received the first two sets of documents it sought from the department. On January 5, 2000, the OCC received its final documents from the department. At this time, the OCC had obtained the complete department file on this matter.

From March through June 2000, the OCC interviewed seven police officers, including the four appellants, who again asserted that Breslin had acted in self-defense. The OCC interviewed yet another officer in September 2000. In all, the OCC interviewed 16 witnesses — the four accused officers, Negron, Cox, six citizen witnesses and four other officers — and reviewed 78 tapes and transcripts and more than 7,000 pages of documents.

In November 2000, the civil action filed by Diane DeToy against the city and Breslin was settled. On December 5, 2000, the federal district court ordered that the civil action be dismissed with prejudice.⁶ On February 21, 2001, the commission adopted procedures for use when the chief of police and the OCC were unable to agree about whether to bring disciplinary charges against a police officer.

On March 30, 2001, the OCC formally completed its investigation⁷ and notified all four officers of its preliminary findings.⁸ It forwarded the case to the chief of police — then Fred Lau — recommending that sustained allegations against all four officers be submitted to the commission. The report recommended that charges be filed against Breslin and Moran for discharging their weapons without justification; against Zerga for neglect of duty for filing an inaccurate incident report; and against all four officers for conduct reflecting discredit on the police department for misrepresenting the circumstances of the shooting in interviews with the department and the OCC, and in their testimony at the Cox and Negron preliminary hearing. (See S.F. Police Dept. Gen. Order Nos. 2.01 (rules 9, 21), 5.01, 5.02.)

On April 16, 2001, the OCC submitted its final report to the department and Chief Lau. The commission also received the case on that date. Over the course of the next three and one-half months,⁹ Chief Lau reviewed thousands of documents in the matter. The OCC and Chief Lau considered and negotiated what would constitute appropriate discipline in this matter. On August 30, 2001, Chief Lau formally notified the OCC that he disagreed with its recommendations.

From September 2001 through February 2002, the OCC and the department engaged in informal discussions and negotiations, but were unable to reach an agreement about what disciplinary charges should be filed against the four officers. On March 5, 2002, the OCC sent verified complaints to Chief Lau charging all four officers.

Again, the department and the OCC attempted to negotiate matters in order to resolve their differences. The OCC believed that Chief Lau would support filing a single charge against Breslin for use of unnecessary force. Acting on that belief, the OCC withdrew its original charges and, on May 6, 2002, submitted a single charge against Breslin. However, Chief Lau did not act on the revised recommended charge.

On June 7, 2002, the OCC urged the commission to order Chief Lau to file the original charges against all four officers. On June 26, 2002, Chief Lau wrote a letter to the commission opposing the filing of the verified complaints, reasoning that Negron alone was responsible for Sheila DeToy's death and that Breslin acted in self-defense. That day, the commission recommended that Chief Lau serve the original verified charges against all four officers. On June 28,2002, Chief Lau filed the original disciplinary charges against the four officers. Between June 28 and July 9, 2002, each of the four officers was formally served with notice of the disciplinary charges.¹⁰

C. Administrative and Trial Court Proceedings

On September 10, 2003, the four officers filed a motion to dismiss the charges with the commission, alleging that they were filed outside the one-year statute of limitations. (See § 3304.) The OCC opposed the motion. On December 10, 2003, the commission denied the motion to dismiss, finding that periods of tolling and extensions of the one-year statute of limitations rendered timely the filing of all disciplinary charges against the four officers. (See § 3304(d)(1), (3...