Moore v. City of Los Angeles

• Decision Date: 04 October 2007
• Docket Number: No. B195412.,B195412.
• Citation: 156 Cal.App.4th 373,67 Cal.Rptr.3d 218
• Court: California Court of Appeals Court of Appeals
• Parties: Tyrone MOORE, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

67 Cal.Rptr.3d 218

156 Cal.App.4th 373

Tyrone MOORE, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

No. B195412.

Court of Appeal, Second District, Division 5.

October 4, 2007.

Diane Marchant, Los Angeles, for Plaintiff and Appellant.

Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Defendants and Respondents.

KRIEGLER, J.

Following a hearing before a Board of Rights, appellant Tyrone Moore was removed from his position as a police officer for the City of Los Angeles. Moore filed a petition for administrative mandate pursuant to Code of Ciyil Procedure section 1094.5, which challenged the sufficiency of the evidence to support his removal. The trial court rejected Moore's challenge to the sufficiency of the evidence, as well as an argument that the City violated Moore's right to have the investigation into his conduct completed within the one-year statute of limitations found in the Public Safety Officers Procedural Bill of Rights Act (the Act). Moore has abandoned his challenge to the sufficiency of the evidence in this appeal, but he renews his statute of limitations contention. We conclude that Moore's failure to raise the statute of limitations before the Board of Rights, and his failure to seek injunction relief for the alleged violation under Government Code section 3309.5,¹ preclude appellate review of the issue. We therefore affirm the judgment of the trial court.

BACKGROUND

Officers of the Los Angeles Police Department, including Moore, responded to a call of a possible burglary of a residence on May 5, 2004. Upon arrival at the scene, the officers discovered there was no burglary, but numerous juvenile truants were present in a residence. One of the juveniles was uncooperative with Moore during the identification process. A Board of Rights found that Moore (1) removed the uncooperative juvenile from the living room area to a bedroom, where he used unnecessary force upon the juvenile; (2) made misleading statements to investigators about moving the juvenile from the living room area; (3) moved the juvenile out of sight of the other officers without justification; and (4) should have called a supervisor to the scene when unnecessary force was used on the juvenile.

The investigation of Moore began on the day of the incident, after another officer reported her concerns to a supervisor. Following interviews with the relevant parties, Captain Pesqueira concluded five allegations against Moore were sustained and recommended a Board of Rights to resolve the complaint. Moore was given notice of Captain Pesqueira's findings on March 23, 2005. On May 4, 2005, Chief William Bratton of the Los Angeles Police Department signed an order charging Moore with four counts. A Board of Rights convened on July 15, 2005, and concluded on August 19, 2005, with a recommendation that Moore be removed as a peace officer. Chief William Bratton adopted the penalty and signed the order removing Moore on August 31, 2005.

Moore filed a verified petition for peremptory writ of mandate (Code Civ. Proc, § 1094.5) seeking an order compelling the City of Los Angeles and Chief Bratton to set aside the August 31, 2005 removal order. Moore alleged in his petition that the decision to discharge him was an abuse of discretion because the findings of the Board of Rights are not supported by substantial evidence.

Moore's Motion for Peremptory Writ of Mandate

In a motion for peremptory writ of mandate, Moore argued the disciplinary action against him was barred by the one-year statute of limitations set forth in Government Code section 3304, subdivision (d). Moore also contended the evidence produced at his Board of Rights did not support the guilty findings as to three of the four counts. Moore has now abandoned his challenge to the sufficiency of the evidence.²

On the statute of limitations issue, Moore argued the allegations of misconduct came to the Department's attention on May 5, 2004. The City had one year from that date to complete its investigation, but Moore was not advised of the discipline to be imposed until completion of the Board of Rights on August 19, 2005. Citing dicta in Sanchez v. City of Los Angeles (2006) 140 Cal.App.4th 1069, 45 Cal.Rptr.3d 188 (Sanchez), Moore argued the failure to advise him of the proposed discipline within one year of discovery of the alleged misconduct violated the statute of limitations in section 3304, subdivision (d).

The Response to the Motion for Peremptory Writ of Mandate

The City and Chief Bratton argued there was no violation of section 3304, subdivision (d), because Moore received notice of Captain Pesqueira's conclusions following the investigation within one year of discovery of the incident, citing Sulier v. State Personnel Board (2004) 125 Cal. App.4th 21, 29, 22 Cal.Rptr.3d 615 (Sulier). Moreover, Captain Pesqueira's decision to refer the action to a Board of Rights put Moore on notice of the potential discipline he faced. Both the Los Angeles City Charter and the manual of the Los Angeles Police Department Board of Rights define the possible penalties a Board of Rights can impose, which include loss of pay, reprimand, demotion, or removal. The department could not give notice of the discipline that would be imposed in advance of the Board of Rights, because the ultimate outcome of the hearing was unknown.

The City and Chief Bratton further argued that the superior court's review pursuant to Code of Civil Procedure section 1094.5 only encompassed issues presented in the administrative record. Because Moore never asserted a violation of the one-year statute of limitations in section 3304, subdivision (d) at the Board of Rights, Moore did not exhaust his administrative remedies. To the extent Moore argued the Board lacked jurisdiction because the statute of limitations was violated, the issue was waived by failure to raise it at the administrative hearing. The City and Chief Bratton also argued the decision in Sanchez had no bearing on Moore's case, as Sanchez dealt with the untimely imposition of a punitive action other than that in the notice to the officer, not untimely notice of proposed discipline, and in any event, Moore had notice of the Board of Rights hearing and the range of penalties were clearly set forth in the Los Angeles City Charter and the Board of Rights manual.

Moore's Reply to the Opposition to his Motion for Peremptory Writ of Mandate

Relying on the doctrine of futility, Moore argued he was excused from raising the statute of limitations in the administrative hearing, citing Sanchez. In addition, Moore contended that a violation of section 3304.5, subdivision (d), which is part the Act, may be raised for the first time in superior court under section 3309.5, subdivision (c). Exhaustion of administrative remedies is excused for violations of the Act under the holding in Mounger v. Gates (1987) 193 Cal.App.3d 1248, 239 Cal.Rptr. 18 (Mounger). Moore argued there are no cases holding a public safety officer must exhaust administrative remedies as a condition to asserting a violation of the Act in superior court.

Moore disputed the argument that the form provided by Captain Pesqueira advised him of the potential discipline. He was advised that there would be a Board of Rights, but the penalty proposed was not specified. The first time Moore received notice of the penalty was at the end of the Board of Rights proceedings.

Suiter stands only for the proposition that notice of the proposed discipline must be served within the one-year period required by section 3304, subdivision (d). But Sanchez recognizes timely notice that some punitive action will be taken does not authorize the untimely imposition of a harsher discipline. Instead, Sanchez requires timely notice of the specific disciplinary action contemplated.

The Trial Court's Denial of the Peremptory Writ of Mandate

The trial court ruled it did not have jurisdiction to consider the statute of limitations defense because Moore did not exhaust his administrative remedies on that issue. Moore conceded he received notice of the charges by March 23, 2005, which was within one year of the reported misconduct, and he conceded that he did not raise the statute of limitations before the Board of Rights. Moore's reliance on Sanchez to demonstrate futility was without merit, because the issue is Sanchez was not the same issue raised by Moore. Moore was aware of the potential discipline he faced at the Board of Rights, including removal. Moore's argument that he could raise the statute of limitations issue for the first time in his petition for writ of administrative mandate based upon section 3309.5, subdivision (c) was flawed. The grant of jurisdiction under section 3309.5 is not exclusive jurisdiction; a peace office may bring an action under that statute before an administrative hearing to preclude discipline. Once an administrative hearing is held, the officer must raise the statute of limitations defense before the hearing board or it is waived under the holding in Alameida v. State Personnel Board (2004) 120 Cal.App.4th 46, 53, 15 Cal.Rptr.3d 383 (Alameida). Finally, the trial court found substantial evidence to support the factual findings of the Board of Rights.

DISCUSSION

Moore argues his termination was time barred by the statute of limitations in section 3304, subdivision (d). Specifically, he contends the statute prohibits a law enforcement agency from imposing any punitive action unless it completes its investigation and notifies the officer of its proposed disciplinary action within one year of its discovery of the officer's misconduct. In this case, Moore argues he was not advised of the proposed punishment until after more than one year of discovery of the misconduct. The notice that he faced some undefined form of punishment if found guilty does not satisfy the...