Collins v. City of L.A. CA2/3 ( 2015 )


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  • Filed 9/16/15 Collins v. City of L.A. CA2/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
    publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    TROY COLLINS,                                                              B260402
    Plaintiff and Appellant,                                          (Los Angeles County
    Super. Ct. No. BS145372)
    v.
    CITY OF LOS ANGELES et al.,
    Defendants and Respondents.
    APPEAL from a judgment of the Superior Court of Los Angeles County,
    Joanne O’Donnell, Judge. Affirmed.
    Stone Busailah, LLP, Michael P. Stone, Muna Busailah and Stephen P. Chulak,
    for Plaintiff and Appellant.
    Office of the Los Angeles City Attorney, Michael N. Feuer, City Attorney, and
    Paul L. Winnemore, Deputy City Attorney, for Defendants and Respondents.
    _______________________________________
    INTRODUCTION
    Appellant Troy Collins was suspended for 15 days by the Los Angeles Police
    Department (Department) after the Department’s Board of Rights (Board) found him
    guilty of two counts of misconduct, neglecting his duties as a supervising sergeant and
    not following orders. Collins petitioned the trial court for a writ of administrative
    mandamus under Code of Civil Procedure section 1094.5 to set aside the Department’s
    decision. The court granted Collins’s petition in part, finding that the second count of
    misconduct was barred by the one-year statute of limitations under the Public Safety
    Officers Bill of Rights Act (POBRA) (Gov. Code, § 3300, et. seq.). However, the court
    denied the petition as to Collins’s claim that the first count of misconduct was also
    barred by POBRA’s statute of limitations, finding that Collins did not adequately
    develop his argument as to that claim. The court also found that the weight of the
    evidence supported the finding that Collins was guilty of the first count of misconduct.
    In this appeal, Collins contends the court erred in denying the petition as to the first
    count of misconduct. We disagree and affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    1.     Events Leading to the Department’s Complaint
    In June 2010, Collins was assigned as a sergeant in the Department’s Van Nuys
    division, where he was under the command of Captain Tia Morris. As a sergeant in
    Van Nuys, Collins was required to supervise and train patrol officers, respond to radio
    call requests from patrol officers, help patrol officers perform their duties, and
    occasionally act as a watch commander. Collins was not expected to regularly perform
    tasks assigned to patrol officers, such as conduct traffic stops or make arrests.
    Shortly after Collins was assigned to Van Nuys, Morris noticed that he engaged
    in an unusual amount of enforcement activities, especially those involving prostitution
    related offenses. On July 19, 2010, Morris told Collins that she was concerned about
    his performance, and she emphasized that he needed to focus on executing his
    supervisory duties and avoid engaging in unnecessary enforcement activities. Morris
    was concerned that if Collins regularly engaged in such activities he would be
    2
    unavailable when his subordinate officers needed his advice or assistance. On
    August 24, 2010, Morris sent an email to the Van Nuys division instructing staff
    members, patrol officers, and supervising officers to notify her if they observed
    supervising officers making arrests in the field. The email did not name Collins.
    After meeting with Morris, Collins continued to engage in enforcement activities.
    Between July 2010 and December 2011, Collins conducted numerous traffic stops and
    made several arrests. As a result of Collins’s refusal to stop engaging in enforcement
    activities, Lieutenant Rafael Ramirez, who was also assigned to the Van Nuys division,
    informed Collins on several occasions that he needed to carry out his duties as
    a sergeant and avoid performing tasks assigned to patrol officers. Ramirez also spoke
    with Morris about Collins’s behavior. Ramirez did not specify when any of these
    conversations took place.
    On one occasion, during the early morning hours on April 3, 2011, Collins
    received a report of suspected prostitution activity near Sepulveda Boulevard in
    Van Nuys. Although he was working in the field when he received the call, Collins was
    not near the location of the reported activity. Nevertheless, he responded to the call.
    When he approached the location, Collins saw two patrol officers in a squad car pass by
    without stopping. Collins arrived at the location alone and found three females standing
    on the side of the street. Shortly after, the two patrol officers that first passed the
    location arrived and helped Collins interview the females.
    Two of the females were around the age of 12, and the third was 22 years old.
    Collins placed them under arrest for loitering with intent to commit prostitution and
    directed the patrol officers to transport them to the Van Nuys station. Collins and the
    patrol officers conducted additional interviews at the station. Collins decided to write
    the arrest reports because the two patrol officers had little experience with prostitution
    cases and he wanted to reduce the amount of overtime that would be required to
    document the arrests and interviews.
    On April 3, Collins submitted a timesheet claiming six-and-a-half hours of
    unexpected overtime for the time he spent responding to the loitering call and drafting
    3
    the reports. Ramirez later brought the overtime claim to Morris’s attention because he
    was concerned that Collins had violated Morris’s orders by engaging in enforcement
    activity.1 Morris believed she reviewed Collins’s overtime claim about “a week or so”
    after he submitted it for approval.
    After reviewing the overtime claim, Morris initiated an investigation into
    Collins’s insubordination. On April 4, 2012, Collins was served with a complaint
    signed by Chief of Police Charlie Beck proposing to demote him from the rank of
    sergeant for his involvement in the April 3, 2011 arrests. The complaint charged
    a single count of misconduct (Count One), alleging that, on April 3, 2011, Collins had
    neglected his duties as a supervising sergeant and failed to comply with his
    commanding officer’s orders.
    2.     The Board of Rights Hearing
    Collins requested a hearing before the Board, which convened in January and
    June 2013. The Board heard testimony from several witnesses, including Morris,
    Ramirez, and Collins. At the close of the evidence phase, the Board requested that the
    Department amend its complaint to include a second charge alleging a continuous
    course of misconduct during which Collins repeatedly failed to follow Morris’s orders.
    On June 27, 2013, the Department filed an amended complaint adding Count Two,
    which alleged that between July 19, 2010 and December 16, 2011, Collins failed to
    follow his supervisor’s orders on numerous occasions.
    During closing arguments, Collins’s attorney requested that the Board dismiss
    the complaint because it was not filed within one year of the Department’s discovery of
    Collins’s misconduct. She argued that the statute of limitations for Counts One and
    Two began to run around July 19, 2010, when Morris first discovered that Collins was
    neglecting his duties as a sergeant. Since the original complaint was not filed until
    1
    Ramirez did not sign Collins’s overtime claim as the reviewing or supervising
    officer. The claim was initially reviewed and approved by two different supervisors.
    The record does not indicate on which date the claim was first brought to Ramirez’s
    attention.
    4
    April 4, 2012, and the amended complaint was not filed until June 27, 2013, she argued
    that the Department failed to provide Collins with timely notice of its intent to discipline
    him.
    The Board concluded that the Department’s charges were timely and found
    Collins guilty of Counts One and Two. As to Count One, the Board found that Morris
    discovered Collins’s misconduct on April 5, 2011 when she reviewed Collins’s
    overtime claim, and that the Department served the complaint on April 4, 2012, within
    POBRA’s one-year statute of limitations. The Board found that Count Two was timely
    because the last incident in Collins’s continuing course of insubordination occurred on
    December 16, 2011, less than one year before he was served with the complaint.
    The Board rejected the Department’s proposed discipline of demoting Collins
    from the rank of sergeant; instead, it recommended a 15-day suspension. Chief Beck
    adopted the Board’s recommendation and suspended Collins from duty for 15 days.
    3.     Trial Court Proceedings
    In October 2013, Collins filed a petition for a writ of administrative mandamus
    challenging his suspension. The petition alleged that Counts One and Two were barred
    by POBRA’s statute of limitations, and that the Board’s findings were not supported by
    the evidence. The petition requested lost wages and benefits and injunctive relief.
    After a hearing on October 1, 2014, the trial court denied Collins’s petition in
    part and granted it in part. The court denied Collins’s petition as to Count One. It
    found that Collins failed to establish that the Board erred in finding that the Department
    timely informed him of its intent to impose discipline for the misconduct alleged in
    Count One. The court observed that although Collins claimed in one sentence in his
    opening memorandum’s introduction that Count One was barred by the statute of
    limitations, he failed to devote any further discussion to the issue. The court refused to
    consider Collins’s arguments addressing the timeliness of Count One set forth in his
    reply brief, concluding that they were not properly raised in his opening brief and that
    Collins had demonstrated no reason why those arguments could not have been raised
    earlier. The court also found that the weight of the evidence supported the Board’s
    5
    finding that Collins neglected his duties and failed to follow his supervisor’s orders on
    April 3, 2011, as alleged in Count One.2
    The court granted Collins’s petition as to Count Two. The court found the
    charge was barred by the statute of limitations because the Department had become
    aware of all of the conduct forming Collins’s continuing course of insubordination more
    than one year before it served the amended complaint. The court issued a writ of
    mandate setting aside the Board’s guilty finding on Count Two and remanded the case
    to the Board with directions to reconsider Collins’s discipline in light of the court’s
    decision.
    Collins timely appealed.
    DISCUSSION
    1.     Standard of Review
    An administrative agency’s final decision imposing discipline upon a police
    officer is reviewable through a petition for a writ of administrative mandamus filed in
    the trial court. (See Code Civ. Proc., § 1094.5; Wences v. City of Los Angeles (2009)
    
    177 Cal. App. 4th 305
    , 313 (Wences).) Since the imposition of discipline on city
    employees affects their fundamental rights, a trial court is required to exercise its
    independent judgment in reviewing the findings upon which the agency’s decision to
    impose discipline is based. (Jackson v. City of Los Angeles (2003) 
    111 Cal. App. 4th 899
    .)
    In exercising its independent judgment, the trial court examines the
    administrative record for errors of law and conducts an independent review of the entire
    record to determine whether the weight of the evidence supports the agency’s findings.
    
    (Wences, supra
    , 177 Cal.App.4th at p. 313.) Nevertheless, the trial court must accord
    a strong presumption of correctness to those findings. (Fukuda v. City of Angels (1999)
    
    20 Cal. 4th 805
    , 817 (Fukuda).) The party challenging the findings bears the burden of
    demonstrating that they are contrary to the weight of the evidence. (Ibid.)
    2
    Collins does not challenge this finding on appeal.
    6
    On appeal from a judgment denying a petition for a writ of administrative
    mandamus, the scope of our review is limited. We uphold the trial court’s factual
    findings and conclusions if they are supported by substantial evidence, and we review
    any questions of law de novo. (Bixby v. Pierno (1971) 
    4 Cal. 3d 130
    , 143, fn. 10;
    Telish v. California State Personnel Board (2015) 
    234 Cal. App. 4th 1479
    , 1487
    (Telish).) “Substantial evidence is evidence that a rational trier of fact could find to be
    reasonable, credible, and of solid value. We view the evidence in the light most
    favorable to the judgment and accept as true all evidence tending to support the
    judgment, including all facts that reasonably can be deduced from the evidence.”
    (Pedro v. City of Los Angeles (2014) 
    229 Cal. App. 4th 87
    , 99 (Pedro).)
    2.     POBRA’s Statute of Limitations
    POBRA establishes procedural safeguards for police officers disciplined by their
    employers. 
    (Telish, supra
    , 234 Cal.App.4th at p. 1495.) Government Code
    section 3304, subdivision (d)(1), part of POBRA, creates a one-year statute of
    limitations within which a police department must determine whether to impose
    discipline for officer misconduct. (Mays v. City of Los Angeles (2008) 
    43 Cal. 4th 313
    ,
    320-321). Within one year of discovering the alleged misconduct, the police
    department must complete its investigation and notify the officer of its intent to impose
    discipline. (Id. at pp. 321-322.) The statute of limitations begins to run when a person
    with investigative authority discovers, or through the use of reasonable diligence should
    have discovered, the officer’s alleged misconduct. 
    (Pedro, supra
    , 229 Cal.App.4th at
    p. 106.) The department must provide the officer with actual notice of its intent to
    impose discipline within the one-year statute of limitations. (Earl v. State Personnel
    Board (2014) 
    231 Cal. App. 4th 459
    , 462-464 (Earl).) The date when an administrative
    agency discovers misconduct is a question of fact. (Haney v. City of Los Angeles (2003)
    
    109 Cal. App. 4th 1
    , 8.)
    7
    3.      The Trial Court Properly Denied Collins’s Petition as to His
    Claim Challenging Count One of the Department’s Complaint
    A.     Collins Waived His Statute of Limitations Argument as to
    Count One
    The trial court denied Collins’s petition as to his claim that the Department failed
    to provide timely notice of its intent to discipline him for the conduct alleged in
    Count One. The court explained that Collins failed to develop his statute of limitations
    argument as it related to Count One, noting that he devoted his entire argument to
    whether the Board properly found that Count Two was timely under POBRA.
    Accordingly, the court did not reach the merits of Collins’s claim challenging the
    timeliness of Count One.
    As noted, the petitioner in an administrative mandamus proceeding bears the
    burden of demonstrating that the agency abused its discretion. 
    (Fukuda, supra
    ,
    20 Cal.4th at p. 817; Gong v. City of Fremont (1967) 
    250 Cal. App. 2d 568
    , 574 [“the
    burden of proof falls upon the party attacking the administrative decision to demonstrate
    wherein the proceedings were unfair, in excess of jurisdiction, or showed ‘prejudicial
    abuse of discretion’ ”].) The petitioner must provide reasoned argument and citations to
    authority supporting his or her position that the agency’s decision should be overturned;
    simply raising a challenge in an argument heading or making a conclusory assertion that
    the agency’s decision was incorrect does not satisfy the petitioner’s burden. (See Magic
    Kitchen LLC v. Good Things Intern. Ltd. (2007) 
    153 Cal. App. 4th 1144
    , 1161; CEB,
    Cal. Administrative Mandamus (April 2015) § 14.8, p. 14-6 [“When the evidence’s
    sufficiency to support the administrative findings is at issue . . . , the petitioner’s
    memorandum should specifically argue how the evidence is insufficient and the brief
    should bristle with citations to the relevant void in the record”].)
    8
    Here, Collins failed to establish at the trial level how the Department erred in
    upholding the Board’s finding that Count One of the complaint was timely under
    POBRA. As the trial court pointed out, Collins set forth no argument in his opening
    memorandum addressing the timeliness of the Department’s decision to impose
    discipline for his involvement in the April 3, 2011 arrests. Although Collins claimed in
    his introduction to that brief that the conduct charged in Count One was discovered
    more than one year before the Department issued the complaint, he failed to make any
    further argument, cite any authority, or cite any portion of the administrative record to
    support that assertion. Instead, he devoted his entire discussion to the timeliness of the
    Department’s investigation and notice of discipline with respect to Count Two.
    For example, Collins argued that his supervisor, Captain Morris, discovered the
    first instance of misconduct underlying Count Two on July 19, 2010, nearly two years
    before the Department issued the original complaint. Although Collins referenced in
    passing the April 3, 2011 arrests, he made no attempt to demonstrate when Morris, or
    any other person with investigative authority, discovered that he engaged in misconduct
    during that incident. Without providing any argument addressing when the Department
    discovered his April 3, 2011 misconduct, Collins failed to establish that the Department
    acted outside POBRA’s statute of limitations in attempting to discipline him for that
    misconduct. (See Gov. Code, § 3304, subd. (d)(1).) Thus, the court properly denied
    Collins’s petition with respect to Count One.
    B.     In Any Event, Substantial Evidence in the Record Supports
    A Finding that Count One Was Timely Under POBRA
    On appeal, Collins devotes substantial argument to whether the Department
    failed to provide timely notice of its intent to discipline him under Count One of the
    complaint. The Board found that Morris received notice of Collins’s involvement in the
    April 3, 2011 arrests on April 5, 2011, when she reviewed Collins’s overtime claim.
    The Board also found that Collins was served with the complaint proposing to discipline
    him for his involvement in the April 3, 2011 arrests on April 4, 2012, less than a year
    after Morris discovered Collins’s misconduct. Even if the trial court should have
    9
    reached the merits of Collins’s statute of limitations argument as to Count One, we find
    that there is substantial evidence in the record to support the Board’s finding that Count
    One was timely under POBRA.
    Morris, who initiated the Department’s investigation, testified that she became
    aware of Collins’s misconduct after Ramirez asked her to review Collins’s April 3, 2011
    overtime claim. Although Morris could not recall the exact date she reviewed the
    overtime request, she testified that she likely would not have reviewed it the same day it
    was executed, and that she probably reviewed it “a week or so” after Collins made the
    request on April 3, 2011. The administrative record contains no evidence establishing
    that Morris, or another person authorized to initiate an investigation, discovered
    Collins’s involvement in the April 3, 2011 arrests earlier than April 5, 2011.
    Collins argues that Lieutenant Ramirez or another supervisor discovered, or
    should have discovered, the misconduct alleged in Count One on April 3, 2011, when
    Collins submitted his overtime claim. Collins asserts that by April 3, 2011, Ramirez
    was aware of Morris’s concerns about Collins’s behavior, and that once he reviewed
    Collins’s overtime claim, he was aware of Collins’s misconduct underlying Count One.
    The administrative record does not support this argument.
    Ramirez testified that he brought Collins’s overtime claim to Morris’s attention
    after he reviewed it. However, he did not testify as to the exact date he reviewed the
    claim. Although the claim was reviewed and approved on April 3, 2011, Ramirez was
    not one of the supervisors who signed off as having reviewed or approved the claim on
    that date. Further, the administrative record does not establish that the two supervisors
    who reviewed and approved the overtime claim were aware of Morris’s concerns about
    Collins’s behavior or had received Morris’s August 24, 2010 email.
    Collins argues in the alternative that POBRA’s statute of limitations began to run
    on August 24, 2010, when Morris put the Van Nuys division on notice of Collins’s
    pattern of engaging in enforcement activity. This argument misses the mark.
    Count One sought to discipline Collins only for his involvement in the April 3, 2011
    arrests. Unlike Count Two, Count One did not encompass a broad pattern of conduct
    10
    spanning a period of time that included August 24, 2010. Accordingly, POBRA’s
    statute of limitations did not begin to run on Count One until the Department
    discovered, or should have discovered, Collins’s involvement in the April 3, 2011
    arrests. (See Gov. Code, § 3304, subd. (d)(1) [the law enforcement agency must
    complete its investigation of alleged misconduct one year after that misconduct is
    discovered].) Collins cites no cases, and we have found none, that hold that POBRA’s
    statute of limitations begins to run before a law enforcement agency discovers, or
    should have discovered, a specific incident of misconduct that forms the sole basis for
    the agency’s proposed discipline.
    Finally, Collins argues that he did not receive actual notice of Count One within
    one year of the Department discovering his involvement in the April 3, 2011 arrests.
    (See 
    Earl, supra
    , 231 Cal.App.4th at pp. 462-464.) Here, the Department discovered
    Collins’s misconduct on or after April 5, 2011, and it served the complaint on Collins
    by certified mail on April 4, 2012. Although Collins contends that the Department
    provided untimely notice of its intent to discipline him under Count One because he did
    not receive actual notice of the complaint until April 12, 2012, this contention is not
    supported by the administrative record.
    The administrative record shows that the Department sent a second copy of the
    complaint to Collins by certified mail on April 12, 2012. The same document shows
    that the Department also sent the complaint by certified mail to the same address on
    April 4, 2012. The document does not show, however, when Collins received actual
    notice of the complaint, and Collins cites to no other portion of the administrative
    record indicating when he received actual notice of the complaint. Because the record
    shows that Collins was served by certified mail before the statute of limitations expired,
    substantial evidence supports a finding that the Department provided timely notice of its
    intent to discipline Collins under Count One. (See 
    Earl, supra
    , 231 Cal.App.4th at
    11
    p. 469 [notice untimely if actual notice was received after the statute of limitations
    expired].)3
    DISPOSITION
    The judgment is affirmed. Respondents shall recover their costs on appeal.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    LAVIN, J.
    WE CONCUR:
    EDMON, P. J.
    ALDRICH, J.
    3
    Collins argues that because Earl was decided after the trial court entered
    judgment, we should remand the case to allow the trial court to make a specific finding
    as to whether Collins received actual notice of Count One after the statute of limitations
    expired. We decline to remand the case to the trial court for this purpose because
    Collins made no effort to develop his statute of limitations argument as to Count One.
    12
    

Document Info

Docket Number: B260402

Filed Date: 9/16/2015

Precedential Status: Non-Precedential

Modified Date: 9/16/2015