Breslin v. City & County of San Francisco

Opinion

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 section 3304(d)).)^[2] In this matter, the trial court denied a petition for writ of mandate and for injunctive relief filed by appellant

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.

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 DeToy.

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 San Francisco Office of Citizen Complaints (OCC)^[4] received a complaint about the May 13, 1998 incident from an eyewitness.

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, 1999 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. (Detoy v. City and County of San Francisco (N.D. Cal.) 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.

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 investigation^[7] 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

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

On March 9, 2004, Breslin, Zerga, Moran and Siragusa filed a verified petition for writs of mandate and administrative mandate, seeking to have the disciplinary charges dismissed as untimely. The petition also alleged causes of action for injunctive and declaratory relief. The officers brought this action against respondents city, department and commission.^[11] The commission answered the petition in July 2004.

In January 2005, the officers moved for a writ of mandate. The trial court conducted a hearing on the petition for writ of mandate in April 2005. On June 17, 2005, it denied the request for a writ of mandate. The denial order was filed on June 20, 2005. Notice of entry of the order was mailed on June 21, 2005.

H. APPEALABILITY OF ORDER

The four officers filed a timely notice of appeal from the order denying issuance of a writ of mandate. They do not explain in their opening brief why the order denying issuance of a writ of mandate is an appealable order. (See Cal. Rules of Court, rule 8.204(a)(2)(B).) At one time, it was thought to be settled law that an order denying a writ of mandate was an appealable order unless the trial court contemplated further orders or action on the petition. (Elmore v. Imperial Irrigation Dist. (1984) 159 Cal.App.3d 185 , 190-191 [ 205 Cal.Rptr. 433 ]; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 97, 106, pp. 159-160 [final judgment in special proceeding is appealable], 169-170 [order denying writ of mandate is appealable as judgment in special proceeding].) However, recent California Supreme Court cases have disapproved this line of authority. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688 , 697-698 [ 107 Cal.Rptr.2d 149 , 23 P.3d 43 ] (Griset); Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725 , 736-744 [ 29 Cal.Rptr.2d 804 , 872 P.2d 143 ]; see Superior Court v. County of Mendocino (1996) 13 Cal.4th 45 , 52, fn. 5 [ 51 Cal.Rptr.2d 837 , 913 P.2d 1046 ]; Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536 , 538-540 [ 33 Cal.Rptr.2d 10 ].) In this matter, the trial court order denied the petition for writ of mandate and the request for injunctive relief. It did not purport to rule on the other two causes of action—administrative mandate and declaratory relief— that were pled in the petition.

Despite these facts, we are satisfied that the order before us constitutes a final judgment for the purposes of this appeal. A judgment is a final

One protection codified in section 3304 is the speedy adjudication of conduct that could result in discipline. (Parra v. City and County of San Francisco (2006) 144 Cal.App.4th 977 , 988 [ 50 Cal.Rptr.3d 822 ] (Parra); Sulier, supra, 125 Cal.App.4th at p. 26; Alameida v. State Personnel Bd., supra, 120 Cal.App.4th at p. 63; Runyan v. Ellis, supra, 40 Cal.App.4th at p. 964.) The act provides that disciplinary charges against a public safety officer must be filed within one year, subject to certain statutory exceptions. (§ 3304(d).) The act itself was enacted in 1976, but the one-year statute of limitations for receiving notice of proposed disciplinary charges set out in section 3304(d) did not take effect until 1998. (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899 , 908 [ 4 Cal.Rptr.3d 325 ] (Jackson); California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294 , 304 [ 98 Cal.Rptr.2d 302 ]; see Parra, supra, 144 Cal.App.4th at p. 988, fn. 7.) It seeks to balance competing interests—the public interest in maintaining the integrity and efficiency of the police force with the individual officer’s interest in receiving fair treatment. (Jackson, supra, at p. 909; see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 , 396 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ].)

The statute allows for tolling or extension of the one-year limitations period under specified circumstances. (See § 3304(d).) The application of this provision is not merely a municipal issue, but a matter of statewide concern. (§ 3301; Jackson, supra, 111 Cal.App.4th at pp. 906-908; see Baggett v. Gates (1982) 32 Cal.3d 128 , 139-140 [ 185 Cal.Rptr. 232 , 649 P.2d 874 ]; Shoemaker v. Myers, supra, 2 Cal.App.4th at p. 1421.) The meaning of these tolling and extension provisions was at issue before the commission, in the trial court, and in this appeal.

B. Commission and Trial Court Findings

The shooting that prompted the disciplinary charges occurred on May 13, 1998. The OCC received its citizen complaint on June 10, 1998. The commission found that the statutory one-year limitations period was tolled from June 10, 1998,^[12] until February 10, 1999, while the criminal investigation into the officers’ conduct was pending. (See § 3304(d)(1).) It found that the one-year statute of limitations began to run from February 10, 1999, and

The trial court agreed with the commission’s legal interpretation of section 3304, concluding that its rulings were not arbitrary, erroneous or contrary to the weight of evidence. It found that the criminal investigation and civil lawsuit tolling provisions applied from the date on which the June 10, 1998 complaint was filed through February 10, 1999, and from May 13, 1999, through December 5, 2000, respectively. (See § 3304(d)(1), (6).) (See fn. 6, ante.) It applied the civil lawsuit tolling provision to all four officers, although only Breslin was named as a party to that action, noting that the other three officers could have been named as Doe defendants if the lawsuit had not been settled. The trial court applied the commission’s interpretations of the multijurisdictional and multiple-employee extensions, and upheld the commission’s conclusion that a 10-month extension of time in this matter was reasonable under these two provisions. (See § 3304(d)(3), (4).)

C. Standard of Review

As a preliminary matter, the parties disagree about the standard of review to be applied. Much of their dispute centers on the standard to be applied to disputed factual issues. To the extent that the issues presented in this appeal present legal issues involving the interpretation of the language of section 3304, the law is settled. On these legal issues, the trial court was required to exercise its independent judgment, while examining the administrative record for any errors of law committed by the commission. (See Merrill v.

A

. During Criminal Investigation

First, the officers contend that the criminal investigation tolling exception to the statute of limitations did not apply to render the filing of these disciplinary proceedings timely. The act requires the tolling of the one-year statute of limitations while a criminal investigation is pending if the misconduct is the subject of that investigation. (See § 3304(d)(1); Parra, supra, 144 Cal.App.4th at p. 993, fn. 10.) The officers argue that the criminal investigation tolling provision is “not applicable” at all or is “irrelevant” to this matter, but we find these contentions to be disingenuous.^[15] Whether the application of a single tolling provision renders the service of disciplinary charges timely is not the question before us. Instead, we consider whether those charges were timely served considering all applicable tolling periods and reasonable extensions.

The facts relating to the criminal investigation tolling provision are undisputed. From May 13, 1998, until February 10, 1999, the district attorney

Those requirements have been satisfied in this matter. The same incident— the May 13, 1998 shooting—was the subject of both the OCC investigation and the DeToy civil action. The statutory language does not require that the OCC investigation into that matter actually be affected by the civil action, nor does it require that the OCC be aware of the action. It merely requires that a civil action be filed involving the underlying incident as the OCC investigation.^[16] (See § 3304(d)(6).) We have no power to graft onto the language of section 3304 the additional nexus that the officers would require. (See Sulier, supra, 125 Cal.App.4th at p. 26.)

2. Named Defendants

Three of the four officers—Moran, Siragusa and Zerga—also reason that even if the civil action tolling provision applies to Breslin, it does not apply to them because they were not named defendants in the DeToy civil action. The commission read this provision to apply to all officers involved in a single incident because DeToy could have amended her complaint to name the other three officers. It concluded that when an investigation involves multiple officers, the benefit to be gained from application of the tolling provision to Breslin would be undermined if the city was required to proceed with its OCC investigation because other officers were not named in the civil action. It declined to sever the Breslin investigation from that of the other three officers. The trial court upheld the commission’s interpretation of the civil action tolling provision.

When a plaintiff is ignorant of the names of a defendant, the plaintiff may sue using a fictitious name for the defendant, amending the pleading when the defendant’s true name is discovered. (Code Civ. Proc., § 474.) In this case, DeToy sued Breslin and multiple Doe defendants. She might have been able to amend her pleadings to plead the trae names of Moran, Siragusa or Zerga, but she did not do so.^[17] Although we must liberally construe the fictitious names statute to avoid the bar of the statute of limitations, the city cites no authority in which the plaintiff could have but did not actually exercise this

Third, the officers argue that even if the statute of limitations was tolled during the time when the civil action was pending, that provision was “wholly inapplicable” to this matter because the disciplinary charges were filed more than one year from the date on which the civil action was settled. We disagree. (See pt. IV.A., ante.) That the application of the civil action tolling provision alone would not render the disciplinary charges timely does not render this provision inapplicable to the matter before us. We must consider all exceptions to the limitations period—that is, all tolling provisions and proper extensions—before we reach the ultimate question of the timeliness of the filing of the disciplinary charges. (See § 3304(d).)

C. Effect of Tolling Provisions

1. Breslin

Having determined the proper scope and application of the two tolling provisions, we consider their specific impact on the one-year limitations period. For Breslin, the one-year period was tolled during the criminal investigation that had begun before the OCC complaint was filed. The district attorney’s criminal investigation ended on February 10, 1999. The one-year statute of limitations began to run on the following day, February 11, 1999. (See Code Civ. Proc., § 12.) The limitations period for bringing disciplinary charges against Breslin was tolled again on May 13, 1999, when the DeToy civil action was filed.^[18] (See § 3304(d)(6).) The period from February 11, 1999, to May 13, 1999, was 92 days. We assume that the limitations period began to run again as to Breslin when the December 5, 2000 order dismissing the civil action was entered.^[19] Calculating the civil action and criminal investigation tolling periods, the one-year statute of limitations for filing disciplinary charges against Breslin would have expired 273 days later, on September 4, 2001.^[20] The disciplinary charges against Breslin were not filed until July 1, 2002—approximately 10 months later. We will next consider whether the multiple-employee or multijurisdictional extension provisions justified a reasonable 10-month extension of the one-year statute of limitations.

A second reason supports this interpretation. If we construe a multijurisdictional investigation as one not limited in its application to outside agencies that are substantially independent of the city, extensions could be authorized in a manner that could defeat the purposes of the statute. (See California Correctional Peace Officers Assn. v. State of California, supra, 82 Cal.App.4th at p. 308.) Such an interpretation would violate basic principles of statutory construction, which seeks to give effect to the statutory intent, not to defeat its purpose. (Sulier, supra, 125 Cal.App.4th at p. 26; see Burden v. Snowden, supra, 2 Cal.4th at p. 562.)

One other consideration also bears on our conclusion. The lack of coordination between the OCC and the department turns in part on the manner in which the local city charter organizes its police. However, the meaning and application of section 3304(d) is a matter of statewide concern. (§3301; Jackson, supra, 111 Cal.App.4th at pp. 906-908; see Baggett v. Gates, supra, 32 Cal.3d at pp. 139-140; Shoemaker v. Myers, supra, 2 Cal.App.4th at p. 1421.) A determination of the meaning of this statewide provision in a manner that turns on purely local concerns would be improper. As we find that the commission had reasonable control over the OCC and the department, we conclude that the multijurisdictional investigation extension codified in section 3304(d)(3) does not apply to the matter before us. We cannot uphold any extension of the limitations period on this basis.

B. Multiple-employee Extension

1. Statutory Requirements

This finding does not end our inquiry. The commission and the trial court also applied the multiple-employee investigation extension, allowing the one-year limitations period to be extended if the investigation involves more than one employee^[21] and requires a reasonable extension. (See § 3304(d)(4); see also Parra, supra, 144 Cal.App.4th at pp. 995-998.) The

Third, the statutory language also mandates that this extension of the limitations period be for a reasonable—not an unlimited—time period. (See § 3304(d)(4).) Thus, the facts relied on by the commission and the trial court must justify an extension of the limitations period that is reasonable under the circumstances. We examine those facts to determine whether substantial evidence supports the trial court’s finding that the commission’s 10-month extension was reasonable. (See pt. III.C., ante.)

2. Moran, Siragusa and Zerga

Even if we concluded that the commission’s 10-month extension of the limitations period was reasonable, it would not render the disciplinary charges filed against Moran, Siragusa and Zerga timely. The time for filing charges against these three officers expired on February 11, 2000, more than a year and a half before the commission’s 10-month extension began to run on September 4, 2001.^[22] (See pt. IV.C.2., ante.) To allow a lengthy extension of the limitations period for bringing charges against Moran, Siragusa and Zerga on multiple-employee grounds during the time that the civil action was pending against Breslin would, in effect, circumvent the statutory requirement that the civil action tolling provision only applies to officers who are named defendants. (See § 3304(d)(6).) Using an extension provision to circumvent the Legislature’s requirements for application of the civil action tolling provision would be unreasonable as a matter of law. (See, e.g., Filarsky v. Superior Court (2002) 28 Cal.4th 419 , 423 [ 121 Cal.Rptr.2d 844 , 49 P.3d 194 ] [abuse of discretion to permit agency to circumvent statute].)

We cannot justify a reasonable extension of the limitations period for bringing charges against Moran, Siragusa and Zerga for significantly more than 10 months on the basis of the multiple-employee investigation extension. As there is no other proper basis to extension or tolling beyond the tolling