Reynolds v. City of Los Angeles , 76 Cal. App. 3d 882 ( 1978 )

Opinion

ROTH, P. J.

Patrick M. Reynolds, a police officer, was, on February 18, 1972, charged by his watch officer, Captain Holmes, with five violations of department regulations which directly put his veracity in issue; eight others of failure to attend court after proper subpoena or adequate instruction and one violation of failure to be alert on duty; all occurring between June 28, 1971, and December 18, 1971.

Concurrently with delivery to Reynolds of the said charges in written form on Februaiy 18, 1972, Reynolds was suspended from duty and placed on notice that he would be required to answer those charges before a board of rights.¹

On or about the same day, Reynolds selected Lieutenant Salvino, a watch officer for whom Reynolds was then working, to represent him before the board. The record shows that Salvino had had experience in appearances before the Board in other matters and that Reynolds had great confidence in Salvino.² The two thereafter had a number of long conferences specifically on each of the charges and on all the facets of Reynolds’ defense, including strategy. In one of these conferences prior to February 29, Salvino advised Reynolds that he had been requested to investigate Reynolds for his failure to qualify at the shooting range for one month, and a false report in connection with an emergency trip to the hospital while Reynolds was working under him.³ Salvino told Reynolds that the failure to qualify was a minor charge, not one of the fourteen, and even if true was generally not of board dimensions, and at most called for a two-day suspension.

On February 29, a long conference was had between Reynolds and Salvino at the outset of which Salvino told Reynolds that he had investigated the target practice incident and that Reynolds had lied to him about it as well as about the emergency trip to the hospital. Lieutenant Salvino’s ensuing statements and Reynolds’ actions on February 29 are reflected in the trial court’s findings of fact:

“18. On February 29, 1972, Lt. Salvino informed the Petitioner that there were two basic reasons why he felt he should withdraw as the Petitioner’s defense representative. First, Lt. Salvino informed the Petitioner that he believed the Petitioner had been untruthful on many occasions and because of this fact it would be difficult for him to adequately represent the Petitioner. Second, Lt. Salvino informed the Petitioner that there was the possibility that the Department would decide to add the charges of failure to qualify and giving false and misleading statements to leave the division to the charges already to be considered by the Board of Rights. Lt. Salvino further informed the Petitioner that if the charges were considered by the Board of Rights, he would probably be called to testify in relation to those.charges.

“20. On February 29, 1972, Lt. Salvino advised the Petitioner that he could get a continuance of the Board of Rights hearing and that he would assist the Petitioner in obtaining a continuance.

“21. On February 29, 1972, Lt. Salvino advised the Petitioner that he could obtain a new defense representative and that he would assist the Petitioner in obtaining a new defense representative.

“22. On February 29, 1972, Lt. Salvino and the Petitioner discussed the alternative courses of action that the Petitioner had open to him. One of the alternatives discussed was resigning in lieu of standing trial at the Board of Rights hearing.

“23. On February 29, 1972, Lt. Salvino and the Petitioner discussed the possibility of the Petitioner securing employment with another police agency after leaving the Los Angeles Police Department.

“24. Lt. Salvino did not represent to the Petitioner that he could, in fact, obtain employment with another police agency.

“25. On February 29, 1972 Lt. Salvino and the Petitioner discussed the Los Angeles Police Department resignation form and the information that would go on it.

“26. Lt. Salvino did not represent to the Petitioner that nothing would be added to the resignation form by other personnel of the Los Angeles Police Department.

“27. Lt. Salvino did not represent to the Petitioner that no information relating to the charges pending against him and his resignation in lieu of facing a Board of Rights would remain in his personnel packet.

“28. On February 29, 1972, the Petitioner tendered his resignation from the Los Angeles Police Department by signing a resignation form.

“29. On or about February 29, 1972, the Petitioner’s resignation was accepted by the Chief of Police for the Los Angeles Police Department.”

Reynolds contends that Lieutenant Salvino breached his fiduciary duty to him as he did resign from the Los Angeles Police Department because Salvino represented to him and allowed him to believe (a) that he could obtain employment elsewhere as a police officer; and (b) that nothing harmful would or could be added to the resignation form as causes for the resignation except that which Reynolds gave as his reasons.

Two days of trial were spent in taking the testimony primarily of Salvino and Reynolds on precisely what representations, if any, were made by Salvino to Reynolds, and the testimony in court of each was fortified by the. deposition of each previously taken and introduced in evidence. On the bare record and wholly aside from the fact that the trial judge had the witnesses before him as an aid to determining credibility, and the rule of law which requires this court to accept findings of fact based upon substantial evidence, an analysis of Reynolds’ testimony as to what was said between Salvino and himself to support his contention on the subject of what goes into a resignation form and the probability of Reynolds obtaining future employment is, to put it charitably, barely sufficient to raise an issue of fact. The issues of fact specifically raised and all implicit results thereof were unambiguously found against Reynolds by the trial court. The trial court expressly found that none of these asserted breaches of fiduciary obligations occurred. These findings, supported by substantial evidence, must be accepted by this court.

Wholly aside from the fact that the trial court found and decided that Reynolds had no claim against any of the respondents, the trial court upon testimony given solely by Reynolds in an effort to cure Reynolds’ omission to timely file a claim if he had one, found that on the facts as recited by Reynolds, the claim was untimely filed.

Reynolds filed a demand for reinstatement on September 27, 1972. The trial court found that Reynolds’ claim was barred by a 90-day statute of limitations (§ 112½ of the city charter) which requires that a demand for reinstatement be filed within that period after discovery of the fraud or mistake which led to the resignation. Specifically, the trial court found:

“30. During the month of April and May of 1972, the Petitioner applied for employment with police agencies other than the Los Angeles Police Department.

“31. No later than the first part of June, 1972, the Petitioner’s applications for employment were rejected by the Cyprus, Montebello, and Bell Gardens Police Departments.

“32. In the first part of June, 1972, the Petitioner contacted the Bell Gardens Police Department regarding their rejection of his employment application. He was informed that the Bell Gardens Police Department would have accepted his application but for the information appearing in his Los Angeles Police Department personnel file.

“33. In the first part of June, 1972, the Petitioner understood that the Bell Gardens Police Department was referring to the information relating to the charges that had been brought against him by the Los Angeles Police Department and his resignation in lieu of facing a Board of Rights.

“34. On September 27, 1972, the Petitioner filed a demand for reinstatement to his position of temporarily relieved from duty with the Civil Service Commission for the City of Los Angeles.

“35. At no time did the Petitioner file a claim for back wages.

“36. On November 13, 1972, the Civil Service Commission refused to assume jurisdiction to consider the Petitioner’s demand for reinstatement because of the statute of limitations contained in Section lllVi of the Los Angeles City Charter.

“37. The Petitioner did not file his demand for reinstatement within 90 days of the time that he discovered or should have discovered, in the exercise of reasonable diligence, the underlying facts constituting the alleged mistake or fraud.”

Finding of fact No. 32 is dispositive as to the time of discovery of the alleged fraud or breach of fiduciary duty.⁴

The judgment is affirmed.

Fleming, J., concurred.

1 The Los Angeles Police Department has an internal disciplinary procedure, codified in the Los Angeles City Charter, which procedure is for the purpose of determining the existence 'of and punishing breaches of departmental rules and regulations. One facet of that procedure is a hearing before a “Board of Rights” composed of superior officers. That board acts as the finder of fact and recommends to the Chief of Police the measure of discipline to be imposed. When a member of the department is accused of a violation leading to a hearing before a “Board of Rights,” the accused member has a right to be represented by private counsel or to select any other member of the department below the rank of captain to act as his defense representative.

2 Reynolds testified:

“He was my watch commander and he had been very—more than fair in my treatment as a policeman and was what I thought—you know, he was a very good officer.”

3 These charges were unrelated to any of the 14 filed by Captain Holmes. The charge with respect to the hospital arose from permission granted to Reynolds by Salvino. Reynolds represented to Salvino an emergency situation with respect to a relative which proved to be false.

4 It is worth noting that upon the conclusion of the evidence and after the same had been completely and thoroughly argued by appellant’s counsel, the trial judge briefly and forthrightly ruled on the issue's from the bench as follows:

“THE COURT: Well, I don’t believe that Officer Reynolds is entitled to the relief which he requests. I think it is barred on two independent grounds.

“First of all, the demand for reinstatement is untimely under section 112'á of the Charter of the City of Los Angeles.

“He testified that by early to middle June of 1972 after he had been turned down by two or three police departments, the Bell Gardens sergeant said that it was because of a beef in his package. And the fraud that he alleges is, first, that there wouldn’t be anything added to the resignation form and,, second, that he could get other employment. I think that certainly in the exercise of due diligence he should have discovered the fraud not later than that.

“Now, secondly, by the preponderance of evidence, the Court believes that the resignation was not induced by fraud or mistake, whether you call it actual fraud or constructive fraud.

“Accordingly, the peremptory writ is denied and the alternative writ is discharged.” The trial court having specifically found as facts that misrepresentations as alleged were not made, it was unnecessaiy for the trial court to find that Reynolds was misled by representations which were not proved.