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This case was last updated from Los Angeles County Superior Courts on 07/11/2021 at 16:14:54 (UTC).

NICK NICHOLS VS CITY OF BURBANK ET AL

Case Summary

On 10/30/2015 NICK NICHOLS filed a Civil Right - Other Civil Right lawsuit against CITY OF BURBANK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are WILLIAM D. STEWART, RALPH C. HOFER, JAMES C. CHALFANT, LAURA A. MATZ, DONNA FIELDS GOLDSTEIN, JAMES R. DUNN and DAVID A. ROSEN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4617

  • Filing Date:

    10/30/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Civil Right - Other Civil Right

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

WILLIAM D. STEWART

RALPH C. HOFER

JAMES C. CHALFANT

LAURA A. MATZ

DONNA FIELDS GOLDSTEIN

JAMES R. DUNN

DAVID A. ROSEN

 

Party Details

Plaintiff and Petitioner

NICHOLS NICK

Defendants and Respondents

BURBANK POLICE DEPARTMENT

CITY OF BURBANK

LACHASSE SCOTT

SCOTT MARK

CITY OF BURBANK A MUNICIPAL ENTITY

BURBANK POLICE DEPARTMENT A PUBLIC ENTITY

DEPARTMENT BURBANK POLICE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GLAVE COREY W.

GLAVE COREY W. ESQ.

GLAVE COREY WILLIAM

COREY W. GLAVE

GLAVE COREY

Defendant Attorneys

CITY ATTORNEY OF BURBANK

AMELIA ANN ALBANO CITY ATTORNEY

ALBANO AMELIA ANN

COLEMAN SUSAN E.

FRATER ELISABETH ANN

LEE MICHAEL MINSHEN

MOISA IRMA RODRIGUEZ

Respondent Attorney

ALBANO AMELIA

 

Court Documents

Notice of Ruling

8/17/2016: Notice of Ruling

Legacy Document - LEGACY DOCUMENT TYPE: Declaration

12/12/2016: Legacy Document - LEGACY DOCUMENT TYPE: Declaration

Legacy Document - LEGACY DOCUMENT TYPE: Reply

8/25/2017: Legacy Document - LEGACY DOCUMENT TYPE: Reply

Separate Statement - Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment [Amended]

2/6/2019: Separate Statement - Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment [Amended]

Memorandum of Points & Authorities - Memorandum of Points & Authorities in Support of Plaintiff's Motion for Motion for Summary Judgment/Adjudication [Amended]

2/6/2019: Memorandum of Points & Authorities - Memorandum of Points & Authorities in Support of Plaintiff's Motion for Motion for Summary Judgment/Adjudication [Amended]

Notice - Notice of Continuance of OSC re Sanctions Against Defense Counsel

2/15/2019: Notice - Notice of Continuance of OSC re Sanctions Against Defense Counsel

Motion to Continue - Motion to Continue Notice of Motion and Motion to Continue Hearing on Motions for Summary Judgment

2/15/2019: Motion to Continue - Motion to Continue Notice of Motion and Motion to Continue Hearing on Motions for Summary Judgment

Reply - REPLY TO OPPOSITION TO MOTION FOR DISCOVERY OF POLICE OFFICER PERSONNEL FILES

3/15/2019: Reply - REPLY TO OPPOSITION TO MOTION FOR DISCOVERY OF POLICE OFFICER PERSONNEL FILES

Minute Order - MINUTE ORDER (EVIDENTIARY HEARING 402 EC PITCHESS MOTION IN PORTOS 1 - REQU...)

4/22/2019: Minute Order - MINUTE ORDER (EVIDENTIARY HEARING 402 EC PITCHESS MOTION IN PORTOS 1 - REQU...)

Order - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE MABEL HAYEK, CSR NO. 11815 FOR 9/27/2019 HEARING DEPARTMENT D

9/27/2019: Order - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE MABEL HAYEK, CSR NO. 11815 FOR 9/27/2019 HEARING DEPARTMENT D

Opposition - OPPOSITION MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES

1/6/2020: Opposition - OPPOSITION MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW NON-APPEARANCE CASE REVIEW COURT O...) OF 04/22/2020

4/22/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW NON-APPEARANCE CASE REVIEW COURT O...) OF 04/22/2020

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER CORRECTING MINUTE ORDER OF 10/22/2020 TO ...) OF 10/22/2020

10/22/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER CORRECTING MINUTE ORDER OF 10/22/2020 TO ...) OF 10/22/2020

Declaration - DECLARATION DECLARATION OF ALFONSO ESTRADA IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION

12/22/2020: Declaration - DECLARATION DECLARATION OF ALFONSO ESTRADA IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION

Reply - REPLY TO OPPOSITION TO MOTION TO PERFECT AR

1/26/2021: Reply - REPLY TO OPPOSITION TO MOTION TO PERFECT AR

Opposition - OPPOSITION DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION IN LIMINE NO .3 TO INTRODUCE LIVE TESTIMONY

4/20/2021: Opposition - OPPOSITION DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION IN LIMINE NO .3 TO INTRODUCE LIVE TESTIMONY

Minute Order - MINUTE ORDER (COURT RULING RE HEARING ON MOTION FOR RELIEF FOR VIOLATIONS O...)

6/7/2021: Minute Order - MINUTE ORDER (COURT RULING RE HEARING ON MOTION FOR RELIEF FOR VIOLATIONS O...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT RULING RE HEARING ON MOTION FOR RELIEF FOR VIOLATIONS O...) OF 06/07/2021

6/7/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT RULING RE HEARING ON MOTION FOR RELIEF FOR VIOLATIONS O...) OF 06/07/2021

323 More Documents Available

 

Docket Entries

  • 07/07/2021
  • Docketat 1:30 PM in Department D; Hearing - Oral Argument (and Approval of Court Orders)

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  • 07/07/2021
  • Docketat 1:30 PM in Department D; Order to Show Cause Re: (Filing of Documents under Seal)

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  • 07/07/2021
  • Docketat 1:30 PM in Department D; Order to Show Cause Re: (Entry of Judgment) - Not Held - Advanced and Vacated

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  • 07/07/2021
  • DocketDeclaration (PLAINTIFFS APPENDIX OF DOCUMENTARY EVIDENCE, FILED UNDER SEAL, IN SUPPORT OF MOTION FOR RELIEF FOR VIOLATIONS OF GOVERNMENT CODE 3300, ET SEQ., PURSUANT TO GOVERNMENT CODE 3309.5; DECLARATION OF COREY W. GLAVE); Filed by NICK NICHOLS (Plaintiff)

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  • 06/28/2021
  • DocketObjection (Objections to Defendants Proposed Orders); Filed by NICK NICHOLS (Plaintiff)

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  • 06/25/2021
  • DocketObjection (Objections To Findings And Conclusions Of Law Specifically Related To May2008 Interrogatories Of Plaintiff And Related Pobra Violations); Filed by Burbank Police Department a public entity (Defendant); CITY OF BURBANK (Defendant); SCOTT LACHASSE (Defendant) et al.

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  • 06/18/2021
  • Docketat 09:00 AM in Department D; Hearing on Motion to Strike (Plaintiff's Documents in the Lodged Administrative Record that Do Not Appear to Fall Within the Definition of Records Constituting the Administrative Record) - Not Held - Taken Off Calendar by Party

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  • 06/16/2021
  • DocketNotice of Lodging (Findings of Fact and Conclusions of Law (Proposed)); Filed by NICK NICHOLS (Plaintiff)

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  • 06/14/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore

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  • 06/11/2021
  • Docketat 1:30 PM in Department D; Status Conference - Held

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666 More Docket Entries
  • 11/13/2015
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by CITY OF BURBANK (Defendant)

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  • 10/30/2015
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 10/30/2015
  • DocketSummons; Filed by null

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  • 10/30/2015
  • DocketNotice of Case Management Conference

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  • 10/30/2015
  • DocketSummons Filed

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  • 10/30/2015
  • DocketNotice (of Order to Show Cause re: failure to comply with trial court delay reduction act); Filed by NICK NICHOLS (Plaintiff)

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  • 10/30/2015
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 10/30/2015
  • DocketCivil Case Cover Sheet; Filed by NICK NICHOLS (Plaintiff)

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  • 10/30/2015
  • DocketComplaint filed-Summons Issued

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  • 10/30/2015
  • DocketPetition for Writ of Mandate; Filed by Plaintiff

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Tentative Rulings

Case Number: EC064617    Hearing Date: June 4, 2021    Dept: D

TENTATIVE RULING
Calendar No. 15
Date: 6/4/2021
Case No. EC064617 Tentative Decision on Writ of
Case Name: Nichols v. City of Burbank, et al. Mandate:  Denied
PETITION FOR WRIT OF MANDATE
MOTION FOR RELIEF FOR VIOLATIONS OF PUBLIC SAFETY OFFICERS PROCEDURAL BILL OF RIGHTS ACT and FOR DISCIPLINE RESULTING IN TERMINATION OF POLICE OFFICER
Plaintiff/Petitioner Nick Nichols (“Nichols”) seeks a writ of mandate commanding Defendants/Respondents City of Burbank (“City”) and Mark Scott, the City Manager for the City, (“City Manager”) to set aside the Decision of the City Manager terminating plaintiff.   
Plaintiff also seeks remedies for alleged violations of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) and alleged violations of civil rights.
The court has read and considered all moving papers, opposition papers, supplemental papers, and reply papers and renders the following tentative decision.  The court notes it has permitted the filing of briefs exceeding the page limits set forth in CRC Rule 3.1113(d), and has considered all materials submitted, except as otherwise specifically noted below. 
A. Statement of the Case
Nichols commenced this proceeding on October 30, 2015.  The verified First Amended Complaint alleges in pertinent part as follows:
Nichols was a sworn member of the City of Burbank Police Department, holding the rank of police officer.  
In December 2007 there was a take-over robbery by MS-13 gang members of the Porto’s Bakery in Burbank.  The Burbank Police Department (“Police Department” or “BPD”), an official subdivision of defendant City, investigated the case and a number of witnesses and suspects were detained and taken to the Police Department facility for questioning.  During the investigation, there were concerns raised with the Police Administrators that an unknown officer assaulted a witness and another officer witnessed the assault.   An Internal Affairs investigation was initiated to determine if there were any acts or omissions that gave rise to the concerns of misconduct. 
After a number of detectives and officers had been interviewed by Internal Affairs, on May 8, 2008, Nichols was called out of briefing without prior notice and was interviewed as part of the Internal Affairs investigation, by the Police Department’s Professional Standards Bureau, commonly referred to as Internal Affairs.  At the time of this first interrogation, Nichols was not told that he was suspected of any misconduct, or that his statement could lead to punitive action, and was not afforded his rights under the Public Safety Officer’s Procedural Bill of Rights Act (“POBRA”).   The Internal Affairs investigation was concluded in June of 2008, and no punitive action was imposed on Nichols. 
In April of 2009, the Police Department began a new investigation into the same allegations, and the City hired a private investigator to conduct the administrative investigation.  In August of 2009, Nichols was served with a Notice of Administrative Investigation, listing four items that served as the nature of the investigation, and stating that the underlying act giving rise to the disciplinary action, the failure to report misconduct, occurred in December 2007, and that the present administrative investigation regarded events formerly examined in the prior Internal Affairs investigation. 
In August of 2009, Nichols was interrogated for a second time, without having received certain reports, documents, and information which plaintiff’s counsel had requested.  
On March 25, 2012, Nichols was served with a Notice of Intended Discipline, proposing the termination of Nichols’ employment.  Nichols was provided a limited number of documents from the Internal Affairs investigation, but was not provided a complete, un-redacted copy of the Internal Affairs investigation or all documents referenced in the disciplinary notice.  Nichols met with defendant Police Chief Scott LaChasse (“Chief LaChasse”), who did not consider any defense to the allegations that plaintiff raised.  Chief LaChasse upheld the disciplinary action, and Nichols was terminated in June 2010.   
Nichols filed a request for an administrative appeal, but was not afforded an evidentiary hearing until March 2013, at which the Hearing Officer demonstrated an alleged bias against plaintiff.  On September 8, 2014, the Hearing Officer made a recommendation to uphold the termination.   The City Manager, who was required to act before the decision became final and was advised of this requirement by the City Attorney’s Office allegedly purposefully withheld further action until July 23, 2015 and did not make his decision until August 5, 2015.   The City Manager’s Decision Letter of August 5, 2015 upheld the disciplinary action against Nichols.   On August 17, 2015, Nichols, through counsel, formally requested the preparation of the complete record of the administrative appeal proceedings.   
Nichols seeks a writ of administrative mandate under Code of Civil Procedure (“CCP”) section 1094.5.  He argues that defendants committed a prejudicial abuse of discretion as a result of their action to sustain the discipline of Nichols, as said action was not supported by the findings, the findings were not supported by the evidence, and Nichols was not provided with a fair hearing.  Plaintiff also alleges that defendants violated several provisions of POBRA.    
B. Standard of Review
CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies.  Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514 15.  
CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts.  Fukuda v. City of Angels, (1999)20 Cal.4th 805, 811.  In cases reviewing decisions which affect a vested, fundamental right, the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143.  See CCP §1094.5(c).  The independent judgment standard of review applies to administrative findings in a disciplinary case involving a police officer’s vested property interest in his employment.  Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4th 652, 658.
Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.”  Bixby, supra, 4 Cal.3d at 143.  The court must draw its own reasonable inferences from the evidence and make its own credibility determinations.  Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868.  In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses.  Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013 16.
“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  Fukuda, supra, 20 Cal.4th at 817.  Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency.  Bixby, supra, 4 Cal.3d at 150 151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.
The agency’s decision must be based on a preponderance of the evidence presented at the hearing.  Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862.  The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514 15.  Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.  Id. at 115.
An agency is presumed to have regularly performed its official duties (Evidence Code [“EC”] § 664), and the petitioner therefore has the burden of proof.  Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137.  “[T]he 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.  Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.
The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.  Lake v. Civil Service Commission, (1975) 47 Cal.App.3d 224, 228.  Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.  Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515.  The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions.  Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.
C. POBRA
The Public Safety Officers Procedural Bill of Rights Act (“POBRA”) is located at Govt. Code  section 3300 et seq. and sets forth a list of basic rights and protections which must be afforded to all peace officers by the agencies that employ them.  Bagett v. Gates, (1982) 32 Cal.3d 128, 135.  The various procedural protections of POBRA “balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment.”  Jackson v. City of Los Angeles, (2003) 111 Cal.App.4th 899, 909.
Section 3303 sets forth the conditions and procedural safeguards which must be afforded police officers who are under investigation and subjected to an interrogation by their commanding officer or any member of the employing police department.  These procedural safeguards include, among other things, the right to be informed of the nature of the investigation before being subjected to interrogation (§3303(c)), the right to be represented at the interrogation by a representative of the officer’s choice (§3303(i)), and the right to bring a recording device and record the interrogation (§3303(g)).  Van Winkle v. County of Ventura, (2007) 158 Cal.App.4th 492, 497.  
 “Whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have a right to be represented by a representative of his or her choice who may be present at all times during the interrogation.”  §3303(i); see also Van Winkle v. County of Ventura, (2007) 158 Cal.App.4th 492, 497.]  
POBRA protections do “not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer,” nor do they apply “to an investigation concerned solely and directly with alleged criminal activities.”  §3303(i).  The exclusion applies to all of the protections under section 3303, not just subdivision (i).  City of Los Angeles v. Superior Court (Labio), (1997) 57 Cal.App.4th 1506, 1514 (section 3303(i) excludes routine communication within the normal course of administering the department).  The court of appeal in Labio explained the purpose of section 3303(i)’s exception: “The second paragraph of subd. (i) is intended to cover innocent preliminary or casual questions and remarks between a supervisor and an officer.  It was included to avoid claims that almost any communication is elevated to an “investigation.”  The subdivision excludes routine communication within the normal course of administering the department.”  Id. at 1514.
By its express terms, section 3303’s procedural safeguards apply only to an interrogation.  While there is no published case interpreting what constitutes an interrogation for purposes of POBRA, the courts interpret POBRA’s language to “give the words of the statute their ordinary and usual meaning.”  Parra v. City and County of San Francisco, (2006) 144 Cal.App.4th 977, 994.  The term “interrogation” is a common term in criminal law.  Black’s Law Dictionary (7th ed. 1999, p.825) defines “interrogation” as “[t]he formal or systematic questioning of a person; esp., intensive questioning by the police, esp. of a person arrested for or suspected of committing a crime.”  See Rhode Island v. Innis, (1980) 446 U.S. 291, 292 (interrogation includes police words or actions designed to elicit incriminating response). 
An interrogation may occur in an informal setting and not an interrogation room.  See Paterson v. City of Los Angeles, (2009) 174 Cal.App.4th 1393, 1403 (where officer suspected of abusing sick leave, investigator went to his home and verified that he was not there, phone call to him asking questions about whether he was at home was interrogation, not a check to see if he was okay).  It may also be brief and need not consist of extensive questioning.  See id; Labio, supra, 57 Cal.App.4th at 1513 (where lieutenant had sufficient information to investigate officer for driving past scene of serious accident without stopping to investigate or render aid, and for unauthorized use of police vehicle, questions about those issues were interrogation under POBRA).  Compare Steinert v. Covina, (2006) 146 Cal.App.4th 458, 465-66 (brief conversation intended to correct officer’s mistake in mis-designating purpose of records search as “training” and failure to include name in report was not interrogation under POBRA, and officer’s lie about whether she disclosed confidential information to crime victim properly led to her dismissal).
In City of Los Angeles v. Superior Court, (“City of LA”) (1997) 57 Cal.App.4th 1506, an officer was being investigated for an allegation that he had failed to stop at the scene of an automobile accident—a serious charge.  In the officer’s initial interrogation, he was questioned only about whether he had taken a departmental vehicle without permission during the time in question—a significantly less serious charge, but one that tended to establish his culpability for the failure to stop incident.  Under those circumstances, the failure to notify the officer of the actual subject of the investigation was misleading and prejudicial.  Id. at 1510. 
The court examines a POBRA violation under a “harmless error analysis.”  Hinrichs v. County of Orange, (“Hinrichs”) (2004) 125 Cal.App.4th 921, 928; People v. Woodward, (1992) 4 Cal.4th 376, 387.  The remedy for a violation of section 3303(c) must be appropriate, and may be suppression of evidence.  See City of LA, supra, 57 Cal.App.4th at 1516.
Under Govt. Code section 3309.5 (“section 3309.5”), in any case where a court finds that a public safety department has violated any of the provisions of POBRA, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature.  §3309.5(d)(1).  In addition, if the court finds that a public safety department, “maliciously violated” any provision of POBRA with the intent to injure the officer, the department shall, for each and every violation, be liable for a civil penalty not to exceed $25,000 to be awarded to the officer and for reasonable attorney’s fees.  §3309.5(e).  If the court finds that there is sufficient evidence to establish actual damages suffered by the officer whose right or protection was denied, the public safety department shall also be liable for the amount of the actual damages.  Id.  
Police officers who have completed their probationary period and are permanent employees have a property interest for purposes of due process with respect to their job and compensation.  In addition to satisfying POBRA, a public entity must accord the police officer constitutional procedural due process before depriving the officer of this property interest.  See Skelly v. State Personnel Board, (1975) 15 Cal.3d 194, 215.
D. Statement of Facts
1. The Armed “Take-over” Robbery at Porto’s Bakery
On Friday, December 28, 2007, at approximately 2050 hours, there was a “take-down” armed robbery by MS-13 gang members of the Porto’s Bakery in Burbank. (Tr. 41:14-15)  On Saturday, December 29, 2007, the BPD called in additional officers, detectives, and Spanish-speaking members of the force to assist in the investigation.  “It was all hands on deck, so as many people as possible responded.” (Tr. 1420:18-19)  Some suspects were arrested that Saturday afternoon and transported to BPD (Tr. 835:22-24)  They were interrogated to develop additional leads, which later resulted in search warrants and additional arrests.  (E.g. Tr. 409:1-19)   The investigation was “pretty chaotic” with people being detained and interviewed, warrants being written and executed, and suspects booked into the jail. (Tr. 731:7-732:2)   
2. The Misconduct
On December 28, 2007, there was a robbery of the Porto’s Bakery in Burbank. (AR 1751.)  The next day on December 29, the Burbank Police Department (“BPD”) deployed officers, detectives, and Spanish-speaking members of the force to assist in the investigation. (AR 002601, 002408-2409.)  Many of the interviews were done in the two interview rooms in a hallway near the Detective’s Bureau on the second floor of the Police Department headquarters building (AR 00093.)  During the time of the alleged event, at least two, and possibly three, suspects were sitting in the hallway outside the interview rooms.  The suspects were guarded continuously by Officer Perez, much of the time by Nichols, sometimes by Officer Zepeda (AR 001859.), and likely by Officer Liscano for a period of time. (AR 002146.)
In his Internal Affairs (“IA”) interview on June 19, 2009, Detective Dahlia described what he saw on December 29, 2007, in the hallway as follows:
I see lieutenant Rodriguez standing by Mr. – to Ceron.  He has his left hand around his throat, and he’s pinning him up against the – the [exterior] wall of the interview room number two. (Ex. O, 41:19-23)
… and then I see him literally reach down, retrieve the gun from his holster, bring it up to Cerone’s face, put it underneath his eye and state, and very loudly, “How does it feel to have a gun in your face, motherfucker?”
According to the Los Angeles Sheriffs Department (“LASD”) report on its criminal Investigation described the incident as follows:
Detective Dahlia…said he saw Lieutenant Rodriguez take his left hand and “grab” Mr. Cerone by the throat and pin his head back up against the wall.  He said he heard Lieutenant Rodriguez ask Mr. Cerone in a “loud, stern” and “aggressive” voice, “How does it feel to have a gun in your face, motherfucker?”
When he was interviewed in the Porto’s I investigation, Detective Schiffner said the following:
He recalled hearing a rumor about Lieutenant Omar Rodriguez interviewing a subject who was being questioned as part of this investigation, but who was not in-custody.  He heard that Lieutenant Rodriguez took his gun and “shoved it in the guy’s eye socket, actually making contact, said something to him…are you gonna’ talk now? Or whatever… (Ex. B, 00132).
3. The Investigation:  Porto’s I
On December 28, 2007, the Porto’s Bakery in the City of Burbank was robbed by MS-13 gang members. (See Ex. 3, Arbitrator Award at 4; Ex. 4, Misquez Decl. ¶ 4.)  The BPD began investigating the robbery and brought in several people for questioning on December 29, 2007. (See Ex. 3, Arbitrator Award at 4.)  Four months later, Lieutenant Puglisi was informed of a rumor circulating that Lt. Omar Rodriguez had put a gun to the head of one of the people brought in for questioning after the Porto’s robbery, later determined to be a civilian named David Ceron-Romero. (Ex. 4, Misquez Decl ¶ 5.)  The BPD then commenced an internal affairs investigation to determine the source, and the veracity, of the rumor with Lt. J.J. Puglisi and Sgt. Gerry Misquez conducting the investigation.  (Id., ¶ 6.)  This investigation became known as “Porto’s I.”
Plaintiff was one of many officers interviewed during Porto’s I.  He had been working on the night of the alleged assault and was involved with the underlying robbery investigation in a patrol capacity. (Ex. 5, Puglisi Decl. ¶ 6.)  During Porto’s I, and at the time of plaintiff’s interview, the investigators were unaware of any allegations that plaintiff specifically had engaged in misconduct. (Ex. 4, Misquez Decl ¶ 11.)  At the interview, plaintiff was instructed to be truthful and provide accurate answers to the questions, and he was expected to comply with the order to be truthful, regardless of whether he had a representative present. (Ex. 5, Puglisi Decl. ¶ 7; Ex. 4, Misquez Decl. ¶ 12; Ex. 6, Nichols’ Porto’s I Interview at p. 1:5-23; Ex. 12, Nichols Dep. at pp. 21:10-23, 22:16-24.)  Plaintiff denied knowledge of any physical force used on Romero and denied witnessing the incident himself – or even hearing rumors about physical force used on Romero. (Ex. 6, Nichols Porto’s I Interview at pp. 3:21-4:2)
Only July 16, 2008, the allegations against Rodriguez were found not sustained, meaning there was insufficient evidence to conclude an assault occurred. (See Ex. 3, Arbitrator’s Award at 8.)  The BPD then closed the investigation.
a. The First Interview of Nichols 
During the first investigation, IA obtained documents related to the robbery investigation, including police reports, shift reports, patrol logs, overtime slips, CAD printout for each officer on duty, officers’ logs for all the officers on duty and booking half sheets. (AR 2485-2488; Ex. 52, Misquez, 10:2-11:15; Ex. 51, Puglisi, 46:10-47:5; Ex. 27, 1029:9-18; 1032:24-1033:15; Exs. 3-7, 9).  Internal Affairs, through use of Department records, identified Nichols as being one of the transporting officers for Romero, and that he provided security in the hallway for the civilians on December 29th.  Therefore, IA understood that Nichols may have been a witness to the rumored incident of police misconduct. (AR 2289-2290, 2488; Ex. 27, 1037:11-23, 1038:3-15; Ex. 52, Misquez, 28:18-25, 99:1-5; Ex. 100; Ex. 22, Admission No. 9; Ex. 25, Scott Testimony, 46:16-19; Ex. 24, City, 42:16-43:1)  The investigators believed that if Nichols witnessed the alleged incident and did not report it, he could be subject to punitive action. (Ex. 24, City, 46:8-22; Ex. 51, Puglisi, 81:4-82:2; Ex. 25, Scott Testimony, 51:17-52:2; Ex. 22, Admission No. 9; Ex. 25, Scott Testimony, 46:16-19).  Nevertheless, the Police Department decided that officers, including Nichols, being interviewed would not be provided their POBRA rights, and the Department would assert that they were “witness” officers and not “focus” officers who could be subject to discipline.
On May 8, 2008, Nichols was called into IA, but was not informed prior to the interview of the nature of the investigation (AR2296-2297, 2488-89); was not told what he was going to be questioned about; and not told who was to be present during the interview. (AR0411-423; 2296-2297, 2468, 2488; Ex. 27, Misquez 1039:2-1040:2; Ex. 28, Puglisi, 581:20-582:23; Ex. 35; Ex. 51, Puglisi, 63:4-164:15; Ex. 52, Misquez, 26:19-37:12; Ex. 26, Varner, 965:8-10).  Nichols appeared for the interview and the investigator’s recording was immediately started, initiating the interview. (AR0164, 2297).  Even though he could be subject to punitive action, Nichols was specifically told that his POBRA rights, including the right to representation, did not apply. (AR0411, 2285-2286, 2296, 2488-89, 2468: Def. Appendix, Decl. of Puglisi, 3:4-5; Ex. 51, Puglisi) Hence, the City’s position is that Nichols was subject to an “interview”, not an “interrogation.”
4. The Investigation:  Porto’s II
In approximately April 2009, the BPD first learned of new information related to the assault of Romero that had not been discovered during Porto’s I. (Ex. 8 LaChasse Dep. at pp. 54:22-56:6.)  They received information that Detective Dahlia had seen the assault of Romero, confirming his previously uncorroborated account.  The BPD initiated a second internal affairs investigation called “Porto’s II,” with outside investigator James Gardiner and BPD Captain Craig Varner conducting the investigation. (See Ex. 3 Arbitrator Award at 6.) The Los Angeles Sheriff’ Department (“LASD”) also assisted in this second investigation.
On June 19, 2009, Detective Angelo Dahlia was interviewed in connection with Porto’s II and admitted to BPD investigators for the first time that he witnessed Lt. Rodriguez assault Romero. (Ex. 8, LaChase Dep. at pp. 54:22-56:6.)  Importantly, Dahlia also said that he saw plaintiff present in the same hallway where the assault occurred and during the same time period. (Ex. 9, Dahlia AH Testimony at pp. 269:2-271:7, 277:3-8, 281:20-282:8, 283:19-284:8, 698:22-700:2, 827:7-10.)  Prior to Dahlia’s admissions, no witness in Porto’s I had identified plaintiff as being in the hallway during the assault. (Ex. 5, Puglisi Decl ¶¶ 4-5; Ex. 4, Misquez Decl. ¶ 11; Ex. 9, Dahlia AH Testimony at pp. 269:2-271:7, 277:3-8, 281:20-282:8, 283:19-284:8, 698:22-700:2, 827:7-10; Ex. 6, Nichols Porto’s I Interview at pp. 3:21-4:2.)
At this point, after Dahlia testified against his own interests and, also identified plaintiff as being a witness to the assault, investigators believed that plaintiff had lied in his prior interview about not seeing the assault.  Nichols was then suspected of both dishonesty and failure to report the assault, and investigators planned to interview him a second time as a “focus” witness.
Due to this new information discovered during Porto’s II, on August 12, 2009, plaintiff was provided with a memorandum to inform him that he was the focus of an administrative investigation. (Ex. 10, Aug. 12, 2009 Memorandum at p. 1)  The memorandum advised plaintiff of the nature of the investigation, including allegations of dishonesty during Porto’s I, obstruction of the internal administrative process, and violations of several provisions of the BPD Duty Manual and Burbank Police Officers’ Association Memorandum of Understanding (“MOU”), including not disclosing those who violate any of the rules of conduct, violate any law, or who conduct themselves in a manner which tends to discredit the profession. (Id. at pp. 1-2.)
a. The Second Interview of Nichols
Based on the reopening of the IA investigation, and given the information the Police Department already had from the first IA investigation, there was then a decision to re-interview Nichols, as he may be guilty of misconduct if he was present in the hallway when the assault occurred. (AR 2476, Ex. 26, Varner AH Testimony, 894:16-895:19.)  Nichols was served with a Notice of Investigation indicating the nature of the new investigation and indicating that the investigation was incorporating the prior investigation (AR 0230-234, Ex. 1, Ex. 20, City Answer, ¶ 10 and ¶ 12; Ex. 19, LaChasse Answer, ¶ 10 and ¶ 12; Ex. 24, City, 65:14-19; Ex. 26, Varner AH Testimony, 895:20-25.)
Prior to the further interview of plaintiff, counsel for Nichols sent a letter to the investigators requesting all reports and documents related to the Porto’s investigation. (AR 0236-37, 1691, 2455; Ex, 2, Ex. 20, City Answer, ¶ 10 and ¶ 12; Ex. 19, LaChasse Answer, ¶ 10 and ¶ 12.)  Other than providing Nichols with a CD-rom containing a copy of the recording of his first interrogation and a copy of the MOU, the Police Department did not provide any other information. (AR 240-241; Ex. 22, Admission No. 20.)  Specifically, the Department did not provide Nichols with a transcribed copy of any notes made by a stenographer, nor any reports or complaints made by investigators or other persons. (AR2454; Ex. 22, City Response to Admissions, Request No. 20; Ex. 1 (footnote); Ex. 24, City, 103:11-104:8; 106:21-110:2; Ex. 26, Varner AH Testimony, 910:21-911:16 86.)  Finally, Nichols was not provided a copy of any complaint or specific allegations of false statements. (AR 443-444, 446, 447.)
Nichols was interviewed for a second time in the Porto’s Internal Affairs investigation on or about August 20, 2009; some twenty-two months after the underlying incident. (AR 0234, 425-545, 2454; Ex. 20, City Answer, ¶ 10 and ¶ 12; Ex. 19, LaChasse Answer, ¶ 10 and ¶ 12; Ex. 24, City, 68:14-18; Ex. 1; Ex. 25, Scott Testimony, 55:2-5; Ex. 36; Ex. 26, Varner AH Testimony, 911:17-912:9; Ex. 59.)  Contemporaneous with the interview starting, Nichols, for the first time, was informed that the allegations being investigated could be considered criminal in nature and was advised of his rights. (AR 432; Ex. 36.)  Nichols’ attorney sought clarification regarding allegations not included in the notice and what the purported false statements were. (AR 443-444, 446-447.)  Nichols was questioned regarding his failure to report misconduct back in 2007 (AR 425-545; Ex. 36; Ex. 25, Scott Testimony, 55:6-9, and was questioned regarding the allegation that he was untruthful in his 2008 interview. (Ex. 25, Scott Testimony, 55:10-13.)
5.  The Plaintiff’s Termination and Appeal
On June 8, 2010, Chief La Chasse served plaintiff with a Notice of Termination in connection with Porto’s II.  The Notice indicated that Chief LaChasse’s decision was made after the pre-disciplinary Skelly meeting and that his decision about penalty was based solely on the charges, grounds, and written materials attached to the Notice of Proposed Termination. (Ex. 14, Notice of Termination at pp. 1-5.)  In other words, Chief LaChasse did not rely on the Los Angeles Sheriff’s Department Investigation to make his decision.  Skelly only requires those “materials relief upon to support the charges” to be provided to the employee. (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 206.)
The plaintiff appealed his termination.  Plaintiff was one of many officers terminated in connection with the Porto’s II IA investigations. (Ex. 15, Scott Depo at pp. 22:18 to 23:4)
6.  The Administrative Hearing
Plaintiff appealed his termination as allowed under the MOU.  Pursuant to the MOU, the parties began striking potential arbitrators and ultimately selected Mark Brunstein as the hearing officer. (Ex. 16, Bent Decl. ¶ 4; Ex. 17, August 4-17, 2010 Emails.)
After Mr. Burnstein was selected, plaintiff’s counsel began requesting wide-ranging and broad discovery from the City and BPD, including Pitchess-type discovery related to the confidential personnel files of other officers, to which the City objected. (Ex. 16, Ben Decl. ¶¶ 5-22; Ex. 18, May 23, 2011 Email; Ex. 19, June 3, 2011 Letter; Ex. 20 June 20, 2011 Writ Petition; Ex. 21, June 22-23, 2011 Email; Ex. 22, July 6, 2011 amended Petition.)  After informal efforts to resolve the discovery issues failed, at plaintiff’s request, Mr. Burnstein authorized subpoenas for the wide-ranging discovery. (Id.)  Pursuant to the MOU, the City sought court relief by filing a petition for writ of mandate to overturn the subpoenas.  The writ petition briefing and decision lasted over a year, during which the court issued a tentative order.  Mr. Burnstein disagreed with all the terms of the order and later recused himself. (See id.)
After Mr. Burnstein recused himself, the parties conducted another striking process to select a second hearing officer, Michael Prihar, who in turn recused himself after plaintiff’s counsel objected to him having conducted a CLE for prior outside defense counsel’s firm; and then the parties conducted yet another striking process to select a third hearing officer, Norman Brand. (Id; also see Ex. 16, Bent Decl. ¶¶ 13-19; Ex. 23, June 29-July 7 Emails; Ex. 24, December 19, 2011 Notice of Lodging of Proposed Orders and Responses; Ex. 25, February 6-9, 2012 Emails; Ex. 26, February 10-13, 2012 Emails; Ex. 27, April 4-6, 2012 Emails; Ex. 28, June 11, 2012 Emails; Ex. 29, July 16-August 2, 2012 Emails.)
Ultimately, per the court’s direction, Mr. Brand conducted an in-camera review of the requested documents to determine which, if any, should be disclosed to plaintiff. (Ex. 16, Bent Decl. ¶¶ 20-22; Ex. 36, Order re Pitchess Production.)  Following Mr. Brand’s ruling on the production of documents, plaintiff was provided with the documents ordered to be produced, subject to a protective order. (Id.; Ex. 2, Protective Order.)
As a result of the appellate writ petition process and the need to go through multiple arbitrators after two recused themselves, and the coordination of several parties’ schedules, the administrative hearing for plaintiff’s appeal commenced in March 2013. (Ex. 16, Bent Decl. ¶¶ 5-22; Ex. 18, May 23, 2011 Email; Ex. 19, June 3, 2011 Letter; Ex. 20, June 20, 2011 Writ Petition; Ex. 21, June 22-23, 2011 Email; Ex. 22, July 6, 2011 Amended Petition; Ex. 16, Bent Decl. ¶¶ 23-24.)  The hearing lasted ten days over the course of a year. (Ex. 16, Bent, Decl. ¶¶ 24-25; Ex. 30, Plaintiff’s RFA Supp. Responses, Nos. 8 and 9.)  During the hearing, plaintiff’s counsel used the documents that the City had produced.  The HO conducted evidentiary hearings in city offices on March 18, 19, 20, 21, 22, August 6, September 11, and December 13, 2013, and March 6 and 12, 2014.  The parties called as witnesses Detective Ken Schiffer, Detective Steve Karagosian, retired Lieutenant Omar Rodriguez, and Nichols.
Both parties were present at the hearings and represented by counsel.  Each had a full opportunity to examine and cross-examine witnesses, present evidence, and argue its position.  A court reporter recorded the proceedings.  At the close of the hearing, the parties asked to file post-hearing briefs and reply briefs.  They filed their reply briefs on July 7, 2013, at which time the hearing closed.
7.  Hearing Officer Finds Termination Proper and City Manager Issues Final Decision
On September 8, 2014, Mr. Brand issued an advisory award, concluding that plaintiff’s termination was with just cause and rejecting plaintiff’s affirmative defenses related to POBRA and due process, most of which plaintiff has raised again in this lawsuit. (Ex. 3, Arbitrator’s Award.)
Thereafter, City Manager Mark Scott reviewed the administrative record and even met with plaintiff and his counsel, though he was not required to so, before issuing a final decision. (Ex. 15, Scott Dep. at pp. 22:18-23:4, 40:24-41:12, 63:8-64:1; Ex. 30, Plaintiff’s RFA Supp. Responses, Nos. 10 and 11; Ex. 1, Excerpts from Memorandum of Understanding at pp. 53-56, 62-64; Ex. 15, Scott Dep. at 23:23-24:5.)  This process took more than 30 days due to the voluminous (10 days of hearing and voluminous exhibits), and due to plaintiff’s request for an in-person meeting prior to issuance of a decision. (See id.)  In July 2015, City Manager Scott issued a final decision to uphold plaintiff’s termination. (Ex. 14, Notice of Termination.)
8. The Charges
By letter dated March 25, 2010, Chief Scott LaChasse informed Officer Nick Nichols of his intention to terminate him.  Chief LaChasse found Nichols violated eight provisions of the Burbank Police Officer’s Association (“BPOA”) Memorandum of Understanding (“MOU”) and the Police Department Duty Manual.  The charges are listed as follows:
A. BPOA MOU Article VI, Section B.22 --  Violation of administrative rules and regulations Under BPOA MOU, Article VI, Section B.22:
“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.22 Violation of administrative rules and regulations.”  [POBRA Ex. 71- 000055]
B. BPD Duty Manual, Part 1, Section 2,  Article 6.4 Peace Officers shall maintain the integrity of their profession through complete disclosure of those who violate any of the rules of conduct, violate any law, or who conduct themselves in a manner which tends to discredit the profession.   
Under BPD Duty Manual, Part 1, Section 2, Article 6.4:“Peace Officers shall maintain the integrity of their profession through complete disclosure of those who violate any of the rules of conduct, violate any law, or who conduct themselves in a manner which tends to discredit the profession.”  [POBRA Ex. 100-- 000002].  
C. BPD Duty Manual, Part 2, Section 9.27The highest standard of truthfulness shall be maintained by every employee.  No employee shall make a false official statement to any other employee, nor knowingly enter or cause to be entered in any record or report, any inaccurate, false, or improper information.  
(The text of BPD Duty Manual, Part 2, Section 9.27 has not been provided to the court). 
D. BPOA MOU Article VI, Section B.2—Neglect of Duty Under BPOA MOU, Article VI, Section B.2:
“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.2    Neglect of duty” [POBRA Ex. 71-- 000054].
E. BPOA MOU Article VI, Section B.5—Conduct of a disgraceful or scandalous nature Under BPOA MOU, Article VI, Section B.5:
“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.5    Conduct of a disgraceful or scandalous nature” [POBRA Ex. 71-- 000054].
F. BPOA MOU Article VI, Section B.17—Conduct unbecoming a public officer or employee
Under BPOA MOU, Article VI, Section B.17:“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.17 Conduct unbecoming a public officer or employee” [POBRA Ex. 71-- 000056].
G. BPOA MOU Article VI, Section B.21—Willfully making any false statements, certificates, or reports or in any manner committing or attempting to commit fraud. Under BPOA MOU, Article VI, Section B.21:
“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.21    Willfully making any false statements, certificates, or reports in any manner committing or attempting fraud” [POBRA Ex. 71-- 000056]. 
H. BPOA MOU Article VI, Section B.24—Incompetency or inefficiency in the performance of required duties. Under BPOA MOU, Article VI, Section B.24:
“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.24    Incompetency or inefficiency in the performance of required duties” [POBRA Ex.71-- 000055].  
[From Motion and POBRA Exhibit 69—000032 through 000034 (Advisory Award & Opinion, Hearing Officer Norman Brand, Esq.  09/08/2014)]
9. The Hearing
Nichols and the City chose an arbitrator from the agreed upon list in the MOU between the City and the BPOA.  The MOU in this matter sets forth the “manner required by law,” for the subject hearing pursuant to CCP section 1094.5 (b). 
Litigation ensued concerning discovery and the first arbitrator then recused himself. A second arbitrator also recused him or herself.  On August 7, 2012, the parties chose a third arbitrator through the process contained in the MOU.  Norman Brand, Esq became the Hearing Officer.  After the Hearing Officer examined subpoenaed documents in camera on August 23, 2012, the documents were provided to Nichols pursuant to a protective order.   Disciplinary evidentiary hearings presided over by the Hearing Officer were held in City offices on March 18, 19, 20, 21, 22, August 6, September 11 and December 13, 2013 and on March 6 and 12, 2014.  Both parties were present at the hearings and represented by counsel.  Both sides had a full opportunity to examine and cross-examine witnesses, present evidence, and argue their positions.   The following witnesses appeared and testified:
Angelo Dahlia, former Detective, Burbank Police Department 
Lieutenant J.J. Puglisi, Burbank Police Department, Internal Affairs Division   
Chief Scott LaChasse, Burbank Police Department 
Nick Nichols, former Officer, Burbank Police Department
Lieutenant Gerry Mizquez, Burbank Police Department 
Captain Craig Varner, Burbank Police Department, Retired 
Sergeant Robert Lopez, Burbank Police Department 
Lieutenant Omar Rodriguez, Burbank Police Department
[From exhibits of “sworn testimony” during administrative appeal hearing.  [POBRA Appendix, p. 3, Exs. 26-31]. 
A court reporter recorded the proceedings.   At the close of the hearings the parties asked to file post-hearing briefs and reply briefs.  Reply briefs were filed on July 7, 2014, at which time the hearing was closed.  
10. The Decision
On September 8, 2014, the Hearing Officer Norman Brand, Esq. issued an Advisory Award & Opinion, finding that “Appellant was terminated for just cause.”   [POBRA Ex. 69]. 
With respect to each specific charge, the Hearing Officer’s Advisory Award & Opinion found that defendants had established that plaintiff had engaged in conduct supporting six of the eight charges, as follows:
A. BPOA MOU Article VI, Section B.22 --  Violation of administrative rules and regulationsUnder BPOA MOU, Article VI, Section B.22:
“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.22 Violation of administrative rules and regulations.”  [Ex. 71]
The Hearing Officer’s Advisory Award & Opinion states:“Nichols violated the two Duty Manual sections cited below.  The violations are discussed with those sections.”
B. BPD Duty Manual, Part 1, Section 2,  Article 6.4 Peace Officers shall maintain the integrity of their profession through complete disclosure of those who violate any of the rules of conduct, violate any law, or who conduct themselves in a manner which tends to discredit the profession.   
Under BPD Duty Manual, Part 1, Section 2, Article 6.4:“Peace Officers shall maintain the integrity of their profession through complete disclosure of those who violate any of the rules of conduct, violate any law, or who conduct themselves in a manner which tends to discredit the profession.”  [Ex. 100].  
The Hearing Officer’s Advisory Award & Opinion states:“Nichols saw Rodriguez assault Romero, grabbing his neck and placing a gun to his face.  As noted in the LASD investigation, Rodriguez’s acts potentially constitute two criminal acts:  Assault Under Color of Authority, 149 P.C.; Assault With a Deadly Weapon Likely to Produce Great Bodily Harm, 245(a)(1) P.C.
Nichols also understood Rodriguez’s conduct was an improper use of force, which he had a duty to report.  (Tr. 164:13-165:3).   Nichols did not report Rodriguez’s action.”
C. BPD Duty Manual, Part 2, Section 9.27
The highest standard of truthfulness shall be maintained by every employee.  No employee shall make a false official statement to any other employee, nor knowingly enter or cause to be entered in any record or report, any inaccurate, false, or improper information.  
(The text of BPD Duty Manual, Part 2, Section 9.27 has not been provided to the court). 
The Hearing Officer’s Advisory Award & Opinion states:“In his Porto’s II IA interview Captain Varner ordered Nichols to be completely truthful, and told him failing to do so would constitute insubordination and lead to discipline.  Chief LaChasse testified that Nichols’ IA interview was an official investigation.  (Tr. 69:3-4).  Nichols understood that he was obliged to disclose that he saw Rodriguez put a gun to Romero’s face if asked about it during an IA investigation. (Tr. 173:14-23).  Nichols made a false statement during his Porto’s II IA interview on August 20, 2009, when he denied seeing Rodriguez grab Romero or put a gun to his face.”   
D. BPOA MOU Article VI, Section B.2—Neglect of Duty Under BPOA MOU, Article VI, Section B.2:
“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.2    Neglect of duty” [Ex. 71].
The Hearing Officer’s Advisory Award & Opinion states:“Nichols knew he had a duty to report an improper use of force.  (Tr. 164: 13-15).
He failed in his duty to report Rodriguez’s improper use of force.”
E. BPOA MOU Article VI, Section B.5—Conduct of a disgraceful or scandalous nature Under BPOA MOU, Article VI, Section B.5:“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.5    Conduct of a disgraceful or scandalous nature” [Ex. 71].
The Hearing Officer’s Advisory Award & Opinion states:“The City failed to show how Nichols’ not reporting the assault and lying about seeing it constitute ‘disgraceful’ or ‘scandalous’ conduct.”
F. BPOA MOU Article VI, Section B.17—Conduct unbecoming a public officer or employee Under BPOA MOU, Article VI, Section B.17:“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.17 Conduct unbecoming a public officer or employee” [Ex. 71].
The Hearing Officer’s Advisory Award & Opinion states:
“Lying about seeing illegal behavior by a fellow officer constitutes conduct unbecoming a public officer.  Failing to report a crime also constitutes conduct unbecoming a public officer.  Nichols lied during his interviews in Porto’s II on August 20, 2009, when he said he did not see Rodriguez assault Romero.  Nichols failed to report seeing Rodriguez assault Romero at any time after the event.”  
G. BPOA MOU Article VI, Section B.21—Willfully making any false statements, certificates, or reports or in any manner committing or attempting to commit fraud. 
Under BPOA MOU, Article VI, Section B.21:
“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.21    Willfully making any false statements, certificates, or reports in any manner committing or attempting fraud” [Ex. 71]. 
The Hearing Officer’s Advisory Award and Opinion states:
“Nichols made a false statement during his interview in Porto’s II on August 20, 2009, when he denied seeing Rodriguez grab Romero by the neck and put a gun up to his eye.”
H. BPOA MOU Article VI, Section B.24—Incompetency or inefficiency in the performance of required duties. 
Under BPOA MOU, Article VI, Section B.24:
“Suspension, demotion, or dismissal of an employee may be accomplished for one or more of the following reasons:
B.24    Incompetency or inefficiency in the performance of required duties” [Ex. 71].  
The Hearing Officer’s Advisory Award and Opinion states:
“The City failed to show how Nichols’ not reporting the assault and lying about seeing it constitutes incompetence or inefficiency in the performance of required duties.”  
[From POBRA Exhibit 69—000032 through 000034 (Advisory Award & Opinion, Hearing Officer Norman Brand, Esq.  09/08/2014)]
In summary, the Advisory Award & Opinion found that the City had failed to make the appropriate showing with respect to two charges: (1) How Nichols’ conduct constituted “disgraceful” or “scandalous” conduct under BPOA MOU Article VI, Section B.5, and (2) How Nichols’ conduct constituted incompetency or inefficiency in the performance of required duties under BPOA MOU Article VI, Section B.24. 
The Hearing Officer also stated in the Advisory Award & Opinion, that while he did not conclude POBRA had been violated in connection with Porto’s I, that finding was not necessary given that the discipline was appropriately imposed in connection with Porto’s II.  [See Ex. 69, Advisory Award & Opinion, p. 000024-000025]
The Advisory Award & Opinion went on to conclude that, “The only appropriate penalty for Nichols’ failing to report Rodriguez’ assault on an unthreatening person in custody and dishonesty during his interview in Porto’s II is termination.”  [Id].  The Advisory Award & Opinion also addressed several affirmative defenses, finding that the failure to give Nichols his POBRA rights during the first investigation was not a violation of POBRA, and that, in any case Nichols had cited no “fruits” of the statements made in the initial interview that were used in Porto’s II, and that the discipline in Porto’s II, in connection which Nichols was provided his POBRA rights, would stand. [POBRA Ex. 69]. 
The Advisory Award & Opinion also rejected arguments made by Nichols that the discipline was untimely, that the Porto’s II interview was unlawful because Nichols was not provided with documents and was not informed of the full nature of the investigation, that Nichols was not timely provided documents when further proceedings were contemplated, and that he was not given a timely administrative hearing.   
On July 23, 2015 the City Manager issued a Memorandum, adopting the Hearing Officer’s Advisory Award & Opinion, denying the appeal and upholding the termination as being for just cause.    [POBRA Ex. 70].
The Decision by the City Manager expressly included the Porto’s I interview as a basis for denying the appeal and finding the termination as being for just cause.
“The Arbitrator did not rely on Appellant’s dishonesty during his Porto’s I interview to support the finding of just cause and upholding the termination.  After reviewing the record, I agree with the Police Chief and do find that the Appellant’s dishonesty during his Porto’s I interview is a separate ground supporting that the Appellant was terminated for just cause and that the penalty of termination was appropriate.”   
[POBRA Ex 70—000003]. 
D. Analysis
Plaintiff Nichols argues that defendants violated his due process rights to a fair hearing and his POBRA rights, and that the City Manager’s findings and determination are unsupported by the weight of the evidence.
1. POBRA
Plaintiff Nichols alleges that defendants engaged in various violations of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”).   The claimed violations, as alleged in the First Amended Complaint, are separately set forth, but may be addressed together.   
a. First Interview—May 8, 2008, by Investigator Misquez and Puglisi:
Violation of Government Code section 3303 (b):  Failure to inform officer, prior to interrogation, of rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons
to be present during the interrogation.
b. First Interview—May 8, 2008, by Investigator Misquez and Puglisi:
Violation of Government Code section 3303 (c):  Failure to inform officer of the nature of the investigation prior to any interrogation.
c. First Interview—May 8, 2008, by Investigator Misquez and Puglisi:
Violation of Government Code section 3303 (g):  Failure to afford the officer the ability to record all aspects of the interrogation.
d. First Interview—May 8, 2008, by Investigator Misquez and Puglisi:
Violation of Government Code section 3303 (h):  Failure to advise of constitutional rights.
e. First Interview—May 8, 2008, by Investigator Misquez and Puglisi:
Violation of Government Code section 3303 (i):  Failure to afford officer right to representation 
Plaintiff argues that in connection with the initial interview of May 8, 2008, defendants violated Government Code § 3303, specifically, the following provisions: 
“When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions.  For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment….
(b) The public safety officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation….
(c) The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation….
(g) The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer's personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation….
(h)  If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights. 
(i) Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation….”
With the exception of subdivision (i), discussed further below, there does not appear to be any dispute that these provisions were not complied with prior to the initial interview in the Porto’s I investigation.   
Government Code section 3303 sets forth the conditions and procedural safeguards which must be afforded to a police officer who is under investigation and subject to police department interrogation which could lead to punitive action.  See also White v. County of Sacramento, (1982) 31 Cal.3d 676, 681 (stating that POBRA “is concerned primarily with affording individual police officers certain procedural rights during the course of proceedings which might lead to the imposition of penalties against them”).  If prior to, or during the interrogation, it is deemed that the police office may be charged with a criminal offense, he shall be immediately notified of his constitutional rights.  Government Code §3303(h).  
 Plaintiff argues here that the interview in Porto’s I was conducted in circumstances where Internal Affairs was investigating excessive force and a failure to report, so that the failure to intercede or report such behavior, an assault, could be misconduct by the officer that observed it and could subject that officer to discipline, so that the interrogation focused on matters which were likely to result in punitive action, triggering the obligation to comply with POBRA and to provide plaintiff with his right to representation.    
The City argues that the conditions under POBRA did not apply, as plaintiff was not under investigation, but that the purpose was to determine the source and veracity of a rumor that another officer, Lt. Rodriguez, had assaulted a civilian during the Porto’s I investigation.  The City argues that plaintiff had not been identified as having any involvement with, or knowledge of, the rumor, and plaintiff had not been identified as having any knowledge of the assault, and was not a focus of the investigation, and not even perhaps a witness.  
The inquiry is whether the plaintiff’s POBRA rights were triggered by Nichols being “under investigation and subjected to interrogation…that could lead to punitive action,” or, under subdivision (i), whether “an interrogation focuses on matters that are likely to result in punitive action.”  
Government Code § 3303 provides, in pertinent part, that when any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety departments that could lead to punitive action, the interrogation shall be conducted under the certain conditions. (Gov’t Code § 3303.)  Because Nichols’ failure to report the misconduct coupled with the BPD knowledge prior to Nichols’ first interview that he would have witnessed the conduct had it occurred, Nichols would have been subjected to discipline for his failure to report, which trigger this POBRA statute before both the first and second interviews.  As such, for both of Nichols’ interviews, he was subject to an “interrogation” and not an “interview.”
The mandated conditions under the statute include the following:  (b) the public safety officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation; (c) the officer under investigation shall be informed of the nature of the investigation prior to any interrogation; (g) the complete interrogation of a public safety officer may be recorded.  If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time; (h) if prior to or during the interrogation of the officer it is deemed that he may be charged with a criminal offense, he/she shall be immediately informed of his or her constitutional rights; and (i) upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.  The law requires that the notices be provided prior to any interrogations require that the officer be informed of his constitutional rights, and that the officer be allowed representation.  City of Los Angeles v. Superior Court, (1997) 57 Cal.App.4th 1506; Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822; Paterson v. City of Los Angeles (2009) 174 Cal.App.4th 1393.
In addition, these notice provision requires that the notices are to be given prospectively and “prior to the interrogation.” (See Gov’t Code §3303.).  The required notices must allow time to meaningfully consult with a representative of the officer’s choosing and the notices must include enough specificity in the allegations for the officer to adequately prepare. (Ellins v. City of Sierra Madre (2016) 244 Cal.App.4th 445; Updated Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294.)  The purpose of these rules is to mandate that the officer is in receipt of adequate notice of the content and substance to be discussed, and long enough in advance of the interrogation to understand what the charges specifically are and to prepare an adequate response.
The record includes testimony by witnesses who indicate that they had some concerns about conducting the initial interviews and treating them as witness interviews, and not affording POBRA rights to those interviewed.  Specifically, J.J. Puglisi, who conducted the interview, describes the interview with Nichols an interview with a witness who was instructed he was not entitled to POBRA rights as a mere witness.  However, Puglisi previously had advised Deputy Chief Taylor of his concern that someone interviewed as a witness, including Nichols, who potentially witnessed misconduct and did not report it, would be subject to discipline, and thus he should be afforded POBRA rights.  Nevertheless, Deputy Chief Taylor instructed Puglisi not to give Nichols his POBRA rights.  The records show that at the time of the initial investigation into whether alleged victim David Romero had been assaulted in the hallway, and Romero’s claim that one of the transporting officers had witnessed the assault, the interview of Nichols was conducted in the context of an alleged assault, had he witnessed it.  This scenario gives rise to a violation of POBRA rights, as Puglisi told Nichols that he was not entitled to representation.
Defendants argue that plaintiff, in support of his argument concerning whether his POBRA rights were invoked during the first interview in Porto’s I, improperly cites to, and includes with the record, two unpublished opinions from the Second District, one involving an entirely different matter in which a Burbank police officer sought records concerning his demotion and eventual dismissal from the police department (Taylor decision), and the other involving the same Porto’s I and Porto’s II investigations as they pertain to an interview of another officer, Pete Allen, a former detective with the Burbank police department (Allen decision).  Plaintiff cites to the Allen decision contending that the failure to afford that officer his POBRA rights before interrogating him on matters that could lead to punitive action, such as discipline for failing to report another officer’s misconduct, is a violation of Government Code section 3303.
Defendants note that the Taylor opinion is not referenced in plaintiff’s papers, and also object to the consideration of the Allen decision, which is discussed.  As the opinions were ordered not to be published, they cannot be cited by any party.
Under CRC Rule 8.115:
“(a) Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”
Subdivision (b) states:
“An unpublished opinion may be cited or relief on:
(1) When the opinion is relevant under the doctrines of law of the case, res judicata or collateral estoppel; or
(2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.”
Plaintiff argues that the Allen opinion is relevant under the doctrine of collateral estoppel.
To establish claim preclusion under a theory of collateral estoppel, it must be established that the actions arose from the same primary right, that a prior judgment was obtained, and that the matters were actually litigated in the prior action:
“First, the issue sought to be precluded from re-litigation must be identical to that decided in the former proceedings.  Second, this issue must have been actually litigated in the former proceeding.  Third, it must have been necessarily decided in the former merits.  Finally, the party against whom preclusion is sought must be the same as, or in the privity with, the party to the former proceeding.”
Lucido v. Superior Court (1990) 51 Cal.3d 335, 341
As this court has previously determined in connection with the motions in limine filed and previously argued, plaintiff here has failed to meet this burden, as the Allen proceeding did not involve plaintiff, but a different officer, and there was no determination of the issue presented here with respect to whether under the circumstances plaintiff’s POBRA rights were violated.  The Allen opinion and the Taylor opinion are not considered by the court in connection with this matter.  Also, the Allen opinion does not invoke the doctrine of collateral estoppel.
A review of the record leads to a conclusion that Nichols was during his first interview in fact under investigation and subjected to interrogation…, that could lead to punitive action,” under Government Code section 3303, and hence, was subject to the protections of that section.  Even the investigating detective was concerned that POBRA rights should have been afforded to Nichols.
In fact, the Hearing Officer based his determination on Porto’s II, indicating in the Advisory Award & Opinion, that while he did not conclude POBRA had been violated in connection with Porto’s I, that finding was not necessary given that the discipline was appropriately imposed in connection with Porto’s II only. [See POBRA Ex. 69, Advisory Award & Opinion, p. 000024-000025.]
The Decision by the City Manager expressly included the Porto’s I interview as a basis for denying the appeal and finding the termination as being for just cause.
“The Arbitrator did not rely on Appellant’s dishonesty during this Porto’s I interview to support the finding of just cause and upholding the termination.  After reviewing the record, I agree with the Police Chief and do find that the Appellant’s dishonesty during his Porto’s I interview is a separate ground supporting that the Appellant was terminated for just cause and that the penalty of termination was appropriate.”
[POBRA Ex. 70---000003.]
The court finds, based on the evidence,  that there were POBRA violations in connection with the first interview in Porto’s I, consisting of, at a minimum, violations of Government Code section 3303, subdivisions (b), (c), (g), and (h).
However, as noted above, the court examines a POBRA violation for harmless error.  Hinrichs, supra, 125 Cal.App.4th at 928.  In Hinrichs, the court of appeal held that even if an officer had been deprived of her POBRA rights in connection with an interrogation, the violation in that case was harmless as a matter of law:
“However, procedural due process violations, even if proved, are subject to a harmless error analysis. (People v. Woodward (1992) 4 Cal.4th 376, 387, 14 Cal.Rptr.2d 434, 841 P.2d 954.)  In this case, Hinrichs does not even argue that the Department’s failure to expressly inform her of the name and rank of the officers interrogating her, or of the nature of the investigation, prejudiced her.  She does not contend that either Sergeants Schmutz or Taylor were unknown to her at the time of the initial questioning, nor does she assert that she was confused about the nature of the investigation during that initial questioning.”
Heinrichs, at 928.
Government Code Section 3309.5 (d) provides:
“(d)(1) In any case where the superior court finds that a public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer.
As discussed, it would be improper here to grant an order or injunction prohibiting the department from taking punitive action against the public safety officer because independent evidence was garnered from Porto’s II.  The second interview in connection with which Nichols was provided his POBRA warnings and rights, is sufficient to support the findings as set forth by the Hearing Officer in the Advisory Award & Opinion, as adopted by the City Manager.  Specifically, it appears that the circumstances of the first interview, and Nichols’ statements at that interview, even if introduced in the administrative hearing, were not relied upon by the Hearing Officer in reaching the determination that during the second interview in Porto’s II Nichols had engaged in misconduct by providing false statements, which by itself supported the penalty which was imposed.
To the extent the City Manager made a further finding that the Porto’s I interview also supported the imposition of the penalty imposed, the court finds this to be harmless error, as the Hearing Officer, as well as this court, recognize that the conduct which occurred during the second interview in Porto’s II is sufficient alone to support the findings of the City Manager, and the imposition of the penalty imposed.  The court recognizes that under Government Code section 3309.5(d), where there is a finding that there has been a violation of any of the provisions of the chapter, “the court shall render appropriate injunctive or other extraordinary relief to remedy the violation.”  The court finds that if it were to issue an injunction prohibiting defendants from taking any punitive action against Nichols based on his conduct in the first interview in Porto’s I, this would be meaningless act, as defendants are entitled to take punitive action based on Nichols’ separate conduct in the Porto’s II interview.
As to Government Code section 3303, subdivision (i), the City argues that this provision was not violated on the additional ground that this subdivision, requiring that the office be provided representation, was not triggered in connection with the first interview because Nichols did not request such representation.
Subdivision (l) provides:
“(i) Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation.”
The statute requires that the officer make a request to have representation.
(The facts here show that Nichols did not request representation in connection with the 
first interview in Porto’s I. [Ex. 6, Nichols’ Interview.]
The Hearing Officer found in the Advisory Award & Opinion that “Nichols also admitted he did not request a representative during the May 8, 2008 interview which is fatal of his claim as Government Code section 3303, subdivision (i) plainly provides that an officer must request counsel to avail himself of the rights under the section.” [POBRA Ex. 69.]
Plaintiff fails to provide any significant legal analysis on this issue to defeat the plain language of the statute, either in the moving papers or in the reply.  The court accordingly finds that no violation occurred with respect to this subdivision.  The court also finds that even if such a violation had been established even in the absence of a request for representation by Nichols, which may in fact be consistent with the overall policies intended to be served by POBRA, as discussed above, such a violation is harmless and does not warrant any other or injunctive relief for the same reasons discussed above.
 
f. One Year Statute of Limitation:  May 9, 2009 
Violation of Government Code section 3304 (d)(1):
No punitive action shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct...In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year, except as provided in paragraph (2).
This claim is based on Government Code section 3304 (d)(1), which provides:
“(d)(1) Except as provided in this subdivision and subdivision (g), no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. This one-year limitation period shall apply only if the act, omission, or other misconduct occurred on or after January 1, 1998. In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year, except as provided in paragraph (2). The public agency shall not be required to impose the discipline within that one-year period.”
Plaintiff fails to set forth the exception set forth in subdivision (g), which is the subdivision on which the City has long relied, and which provides as follows:
“(g) Notwithstanding the one-year time period specified in subdivision (d), an investigation may be reopened against a public safety officer if both of the following circumstances exist:
(1) Significant new evidence has been discovered that is likely to affect the outcome of the investigation.
(2) One of the following conditions exist:
(A) The evidence could not reasonably have been discovered in the normal course of investigation without resorting to extraordinary measures by the agency.”
Plaintiff argues that his notice of discipline was untimely, as he was first interviewed on May 8, 2008, but was not issued a notice of intent to discipline him until March 25, 2010.  Plaintiff argues that the statute of limitations expired on May 9, 2009, and so he could not be lawfully disciplined after that time. 
The City argues that the date of discovery was not when the Department was notified of the rumor, because the rumor was not substantiated during the Porto’s I investigation in 2008, and was related to an officer having assaulted a witness, and that the evidence demonstrates that no one interviewed during Porto’s I mentioned or identified plaintiff has being present at the time of the assault.   The City argues that “significant new evidence” came to light in April of 2009, when the investigation was reopened based on information expected to come forward from Dahlia regarding the assault, and more precisely on June 19, 2009, when Detective Dahlia was interviewed in Porto’s II and first stated on the record that he saw the assault and he expressly identified Nichols as being in the hallway when the excessive force occurred, so the department first heard evidence that plaintiff was an eyewitness to the assault though, he had failed to report it.  Defendants provided plaintiff with a notice of intent to discipline on March 25, 2010, within the one-year statute of limitations based on either date.  
In Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321, the California Supreme Court,  in construing the requirements of the one year statute set forth in Government Code section 3304 (d), noted,  “The one-year period runs from the time the misconduct is discovered.”   The party seeking to establish an affirmative defense bears the burden of establishing the application of the defense.   See Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 969.  
The facts here support a finding that the requirements of Government Code section 3304 (g) are satisfied, and that the investigation was properly reopened in a timely fashion. 
First, the court finds that under Government Code section 3304 (g)(1), the circumstances exist that significant new evidence was discovered that was likely to affect the outcome of the investigation.   
Plaintiff argues the statute of limitations was violated based on discipline imposed more than a year after the actual incident. (Pl. Mot’n at 26.)  However, as discussed above, the date of discovery was June 19, 2009, when Detective Dahlia was interviewed in Porto’s II.  During the interview, Dahlia stated that he saw the assault and expressly identified plaintiff as being in the hallway when the excessive force occurred.  It was then that defendants discovered the assault had actually occurred, and they first heard evidence that plaintiff may have been an eyewitness to the assault, though he had failed to report it.  This new evidence obviously affected the outcome of the investigation because the BPD closed the Porto’s I investigation as “unsubstantiated,” not based on a finding of “unfounded.”  This new evidence changed the course of the investigation from unsubstantiated in Porto’s I to substantiated in Porto’s II.
Second, the court finds that under subdivision (g)(2)(A), the significant new evidence could not reasonably have been discovered in the normal course of investigation without resorting to extraordinary measures by the agency.  Plaintiff contends the statute of limitations expired on May 9, 2009, and thus he could not lawfully be disciplined. (See id.)  However, plaintiff’s misconduct was not discovered at the earliest, until April of 2009, but, actually not until June 19, 2009.   
Plaintiff’s argument incorrectly assumes the date of discovery was when the Department was notified of a rumor that a Lieutenant may have assaulted a witness, i.e., by April 26, 2008.  But the rumor was not substantiated during the Porto’s I investigation in 2008.  Moreover, the rumor was related to a Lieutenant having assaulted a witness, not to plaintiff (and/or other transport officers in the vicinity) having seen the assault and failing to report it.
The evidence demonstrates that no one interviewed during Porto’s I mentioned or identified plaintiff as being present in the hallway at the time of the assault. (See, e.g., Ex. 5, Puglisi Decl. ¶¶ 4-5; Ex. 4, Misquez Decl. ¶ 11.)  The first investigation occurred to determine whether the rumor of a Lieutenant using excessive force on a potential suspect was true or not.  In Porto’s I, plaintiff, who was interviewed because had been working on the case that night, denied witnessing any misconduct or hearing any rumor(s) about it.  Thus, at the time of Porto’s I, there was no evidence demonstrating or suggesting that plaintiff was present during an assault.  The first investigation was not sustained; investigators could not determine if an inappropriate use of force occurred or not after their interviews. (See Ex. 3 Arbitrator Award at 8.)
In April 2009, former Chief Stehr ordered the investigation into the use of force by Rodriguez to be re-opened because he believed some information was going to come forward from Dahlia regarding the assault. On June 19, 2009, when Detective Dahlia was interviewed in Porto’s II, he first stated on the record that he saw the assault.  He expressly identified plaintiff as being in the hallway when the excessive force occurred.  It was then that defendants discovered the assault had actually occurred and they first heard evidence that plaintiff was an eyewitness to the assault, though he had failed to report it.  It is this information which was never before revealed to investigators and is the “significant new evidence” as related to plaintiff.  This date, i.e., June 19, 2009, is the discovery date that starts the statute of limitations.
The Hearing Officer found that Dahlia’s decision to come forward and report Rodriguez’s misconduct, with severe consequences for his own career, was “significant new evidence.” (Ex. 3, Arbitrator Award at 27.)  He also held that the notice of discipline of plaintiff was issued within one year of discovery of the misconduct and, thus, it was timely. (See id.; Gov. Code § 3304(d)(2).)  “the one-year period runs from the time the misconduct is discovered.” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321, emphasis added.)  Plaintiff bears the burden of establishing the affirmative defense that the statute was violated. (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 969 [a party advancing an affirmative defense bears the burden of proof].)  Defendant has failed to carry his burden of proof on this issue.
As such, defendants had one year from June 19, 2009, the date they discovered plaintiff saw the assault, failed to report it, and lied about seeing it, to provide plaintiff with a notice of intent to discipline.  Defendants did so nine months later, on March 25, 2010, well within the one-year statute of limitations.  Plaintiff’s attempt to use the December 29, 2007 assault date – which was only an unsubstantiated rumor about a Lieutenant’s use of excessive force at that time – to commence the statute of limitations ignores the plain language of the statute, which provides that the limitations period shall commence on the date when the public agency discovers the misconduct.  The fact that the assault occurred on December 29, 2007 did not commence the statute of limitations period for Plaintiff.  Instead, the date that plaintiff’s dishonesty and neglect of duty (failure to report) was discovered – June 19, 2009 – commenced the statute for him. (see Ex. 3 Arbitrator Award at 27.)
This result is consistent with the findings of the Hearing Officer, as the Advisor Award & Opinion found that Dahlia’s decision to come forward and report Rodriguez’s misconduct, with severe consequences for his own career, was, “significant new evidence,” and that the notice was issued within one year of the discovery of the misconduct, and so was timely.  [POBRA Ex. 69—0000027].  
The City also argues that in the alternative, if the Court determines that plaintiff should have been afforded his POBRA rights during his Porto’s I interview in May 2008, which only involved suspected misconduct by Rodriguez, then the statute is subject to tolling during the concurrent criminal investigation of Rodriguez by the Los Angeles Sheriff’s Department.   
The argument is based on Government Code section 3304(d)(2)(A), which provides:
“(2)(A) If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.”  
The evidence shows that the Sheriff’s Department conducted a criminal investigation of Rodriguez from April 26, 2009 through March 10, 2010.   
The reply addresses this argument only in a footnote, arguing briefly that the Rodriguez investigation began after the statute of limitations, as construed by plaintiff, had already run, and also argues that defendant cites no legal authority for this proposition, so the matter has been waived. The opposition cites the plain language of the statute, however, with respect to criminal investigation.   Nevertheless, the court will find that it is not necessary to reach this particular tolling argument, or the potential challenge that such a provision would toll the statute as to Rodriguez, but not as to the conduct of Nichols at issue here, because the court has found that the circumstances fall within the provisions of subdivision (g).    Nevertheless, the court in the alternative finds that the statute of limitations was tolled during the period of the Sheriff’s independent investigation, which constituted a criminal investigation in which Nichols was under investigation was one of the subjects.
g. Re-Open Investigation—April 26, 2009
Violation of Government Code section 3304(g):
Defendants, including former Chief Stehr reopened investigation without (1) discovery of significant new evidence that is likely to affect the outcome of the investigation, and (2) the evidence could not reasonably have not been discovered in the normal course of investigation without resorting to extraordinary measures by the agency.
This claim is based on the exception to Government Code section 3304 (d), discussed at length above.   Based on that discussion, the court finds that there is no POBRA violation with respect to this provision of the statute.
h. Prior to further interrogation on August 20, 2009, by Defendants and/or Investigators Gardner/Captain Craig Varner
Violation of Government Code section 3303(b): Failure to inform officer, prior to  interrogation, of rank, name and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation.
i. Prior to further interrogation on August 20, 2009, by Defendants and/or Investigators Gardner/Captain Craig Varner
Violation of Government Code section 3303(c):  Failure to inform officer of the nature of the investigation prior to any interrogation.
j. Prior to further interrogation on August 20, 2009, by Defendants and/or Investigators Gardner/Captain Craig Varner
Violation of Government Code section 3303(g): Failure to provide officer with transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators 
k. Prior to further interrogation on August 20, 2009, by Defendants and/or Investigators Gardner/Captain Craig Varner
Violation of Government Code section 3303 (h):  Failure to immediately advise of constitutional rights.  
Again, in connection with the Porto’s II interview, Nichols alleges that defendants violated Government Code § 3303, specifically, the following provisions: 
“When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions.  For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment….
(b) The public safety officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation….
(c) The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation….
(g) The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer's personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
(h)  If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights. 
Unlike the showing in connection with the initial interview in Porto’s I, the City has submitted evidence showing that it afforded Nichols his POBRA rights in connection with the second interview in the Porto’s II investigation, and that Nichols nevertheless chose to submit to the interview.  With respect to the notice, the evidence shows that there was no irregularity.  Specifically ([Ex. 10].    The notice sufficiently provided information concerning the interrogation, and those to be present, and informed plaintiff of the nature of the investigation.  
On August 12, 2009, Nichols was given advance notice of the nature of the investigation prior to his interview the following week.  Nichols was sent a notice by Captain Varner of an upcoming interview on August 20, 2009, in which Nichols would be the focus.  Nichols was advised that this investigation IA 04-16-09-1 would incorporate the earlier investigation IA 04-26-08-1 because it was broader in scope and included subsequent conduct. (Ex. 10, 8/12/09 Memo from Varner to Plaintiff.)  Additionally, the Memorandum from Captain Varner that plaintiff acknowledged and received prior to his Porto’s II interview sufficiently gave him notice of any allegation related to “failure to report” misconduct.
The Memo notified plaintiff that the investigation included “[a]llegations of dishonesty” during Porto’s I “regarding the initial allegations of officer misconduct related to the enforcement/ post-robbery action of BPD officers” and plaintiff’s “alleged obstruction of the internal administrative investigation process,” including “dishonesty regarding the conduct of you and/or others during the Porto’s Bakery Robbery and/or during the post robbery BPD investigation.” (See id. at 1.)  The Memorandum further notified plaintiff that he had possibly violated several provisions of the BPD Duty Manual and MOU, including “neglect of duty” and failure to “maintain the integrity of their profession through complete disclosure of those who violate any of the rules of conduct, violate any law, or who conduct themselves in a manner which tends to discredit the profession.” (Id.)  Any “failure to report” misconduct would be captured by the written allegations in this memorandum, as a peace officer has a duty to report any observed misconduct. (Id.; see also, Ex. 8 LaChasse Dep. at pp. 67:5-68:2.)
In addition, plaintiff’s claim that defendants did not provide him adequate notice that he may be subject to a criminal investigation is without support. (See pl. Mot’n at 24.)  Under POBRA, if an officer may be charged with a criminal offense, then he must be informed of his constitutional rights either “prior to or during the interrogation.” (Gov. Code § 3303. Subd. (h), emphasis added.)  The plain statutory text provides that this provision is satisfied if notice of constitutional rights is provided either before or during an interrogation.  Here, the evidence shows that during plaintiff’s Porto’s II interview, before any substantive questioning of plaintiff, the investigator notified plaintiff that the administrative investigation could be considered criminal in nature and advised plaintiff of his constitutional rights including those under Miranda and Lybarger. (Ex. 11, Nichols’ Porto’s II interview at pp. 8:20-(:6.)  Plaintiff indicated that he understood those rights before the interview proceeded further. (Id. at p. 9:5-6.)  Thus, there is no POBRA violation on this separate basis either.
In Hinrichs, supra, 125 Cal.App.4th at 933, the court of appeal stated it did “not necessarily disagree with the Department’s contention that it was not obligated to give [plaintiff officer] more than a general description of the allegations against her.”  Under this standard, the notice given to Nichols was more than adequate. 
The language of the Memorandum notifying Nichols that the investigation concerned possible violations of the BPD Duty Manual and MOU, including “neglect of duty,” and failure to “maintain the integrity of their profession through complete disclosure of those who violate any of the rules of conduct, violates any law, or who conducts themselves in a manner which tends to discredit the profession,” sufficiently captures any failure to report misconduct, and meets this standard. ([See Ex. 10]). 
In addition, as discussed above, Hinrichs noted that POBRA violations “are subject to a harmless error analysis.”   Hinrichs, at 923.   Plaintiff has failed to show here that he would have answered any questions differently if the topics for the subject interview had been more specific.   There are no POBRA violations based on the notice under subdivisions (b) and (c).  
It is also shown through further evidence that plaintiff had been advised of his constitutional rights during the interrogation, as permitted by the statute, satisfying subdivision (h).  
Under POBRA, if an officer may be charged with a criminal offense, then he must be informed of his constitutional rights either “prior to or during the interrogation.”  Government Code, § 3303, subd. (h), emphasis added.  The plain statutory text provides that this provision is satisfied if notice of constitutional rights is provided either before or during an interrogation. 
The California Supreme Court has explained that these constitutional rights are the Miranda rights as modified by the Lefkowitz/Garrity rule.  Lybarger v. City of Los Angeles, (“Lybarger”) (1985) 40 Cal.3d 822, 829829.  In other words, if section 3303(h) is implicated, an interrogated officer must be informed, inter alia, that although he has the right to remain silent and not incriminate himself, (1) his silence could be deemed insubordination, leading to administrative discipline and (2) any statement made under the compulsion of the threat of such discipline could not be used against him in any criminal proceeding.  Ibid.
Here, the evidence shows that during plaintiff’s Porto’s II interview, before any substantive questioning of plaintiff, the investigator notified plaintiff that the administrative investigation could be considered criminal in nature and advised Plaintiff of his constitutional rights.  [Ex. 11, Nichols’ Porto’s II Interview at pp. 8:20-9:6.]   Plaintiff indicated that he understood those rights before the interview proceeded further. [Id. at p. 9:5-6.].)
Thus, there is no POBRA violation in connection with the second interview on this basis as well.
This posture leaves the issue of whether there was a violation of subdivision (g). 
Plaintiff argues that he was not provided with stenographic notes, reports and complaints, as he had requested prior to his August 2009 interview.  
The record indicates that plaintiff received a notice of interview on August 12, 2009. (Ex. 10, 8/12/09 Memo from Varner.)  Plaintiff’s attorney, Michael Nasatir, wrote a letter to Captain Varner dated August 14, 2009, which requested: (1) all reports, and documents related to the Porto’s bakery robbery prepared/reviewed by Nichols; (2) copy of any previous statements made by Nichols at any prior IA investigation on this matter; and (3) a copy of the BPD MOU. (Ex. 33, 8/14/09 Letter from Nasir to Varner.) 
BPD responded and indicated Nichols had not prepared a police report but provided a CD with the audio of Nichols’ prior interview and a copy of the police union’s MOU.  BPD noted that discovery was not required for an internal affairs interview, but the documents were provided as a courtesy. [Ex. 34, 8/17/09 Letter from Varner to Nasir.] At the subsequent interview, plaintiff’s attorney acknowledged that he had reviewed the previous statements. (Ex. 11, Nichols 8/20/09 Interview at 10, 14.) 
Although Nichols was provided with a CD recording of his May 2008 interview, Nichols now complains he did not receive “a transcribed copy of any notes made by a stenographer or any reports or complaints made by investigators or other persons.” 
The City argues that not only was this not requested prior to his August 20, 2009 interview, but the transcribed interview and reports were not required until after Nichols was questioned as a focus of an investigation.  Government Code section 3300(g) states that an officer “shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.”  Government Code, § 3300(g).
It is generally required that this “provision should…be interpreted as requiring that… recordings and notes…be produced after interrogation.”  Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 (interpreting predecessor statute). 
Defendant argues that since it is only after the interrogation that transcribed notes and other documents are to be provided, not before, there was no violation of POBRA because Nichols had not yet been interrogated in the subject investigation.  
The California Supreme Court has held that POBRA does not grant pre-interrogation discovery rights to an officer under investigation.  Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 569.   The Court recognized that “there is nothing in the statute that can be interpreted as indicative of the Legislature’s intent to grant an officer under administrative investigation the right to discovery of reports and complaints before the officer’s interrogation.”   Pasadena Police Officers, at 576-577. 
The Hearing Officer found that BPD validly denied plaintiff’s counsel’s request for documents because “granting discovery before [an] interrogation could frustrate the effectiveness of any investigation, whether criminal or administrative.”  The Hearing Officer also stated that POBRA “does not require the City to provide an officer discovery of reports in its possession before he is interrogated.” [POBRA Ex. 69, Advisory Award & Opinion, 0000028]. 
After the briefing was completed in this matter, defendants on April 29, 2021, filed a Notice of New Authority Relevant to POBRA Briefing, indicating that a published decision had been issued by the court of appeal on April 26, 2021, which decision is relevant to the issues raised in the POBRA briefs concerning what materials must be provided prior to conducting further interrogations.   The case is Oakland Police Officers’ Association v. City of Oakland (2021) 2021 WL 1608876. (“City of Oakland”).  In City of Oakland, the court of appeal applied the Supreme Court analysis in Pasadena Police Officers’ Association  v. City of Pasadena, supra, (“City of Pasadena”) in circumstances where police officers and their union had filed a petition for a writ of mandate alleging that the City of Oakland’s community police review agency had violated the officers’ POBRA rights by refusing to disclose reports and complaints prior to holding supplemental interrogations in connection with its investigation of purported officer misconduct.  The court of appeal vacated the trial court’s order granting the petition, and remanded the matter for further proceedings.  
The court of appeal conducted a detailed analysis of the statutory language, the case precedent, the legislative history, and the policies underlying POBRA and concluded the following:
“We conclude that mandatory disclosure of complaints and reports prior to any subsequent interrogation of an officer suspected of misconduct is inconsistent with the plain language of the statute and undermines a core objective under POBRA—maintaining the public's confidence in the effectiveness and integrity of law enforcement agencies by ensuring that internal investigations into officer misconduct are conducted promptly, thoroughly, and fairly. Under our reading of section 3303, subdivision (g), an investigating agency's disclosure obligations should instead be guided by whether the agency designates otherwise discoverable materials as confidential. While confidential materials may be withheld pending the investigation—and may not be used as the basis for disciplinary proceedings absent disclosure—nonconfidential material should be disclosed upon request. Accordingly, we reverse the judgment and remand the matter for further proceedings consistent with this opinion.”
City of Oakland, at 13.
With respect to the plain language of the statute, the City of Oakland court of appeal observed:
“Subdivision (g) of section 3303 permits the “complete interrogation of a public safety officer” to be recorded by the investigating agency as well as by the officer through a personal recording device. The provision then states: “If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.”
There is only one express timing directive in this statutory language—namely, a police officer whose interrogation has been recorded must be granted access to that recording “if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.” (§ 3033, subd. (g), italics added; see City of San Diego, supra, 98 Cal.App.4th at p. 785, 120 Cal.Rptr.2d 609 [noting that “[t]he express mention in section 3303, subdivision (g) of the tape recording of an officer's interview covers the distinct mandate that requires a single category of material (any tape recording of the first interview of the accused officer) be provided before the officer may be re-interviewed,” some italics added].) In contrast, the plain language of the statute “does not specify when an officer's entitlement to the reports and complaints arises.” (City of Pasadena, supra, 51 Cal.3d at p. 575, 273 Cal.Rptr. 584, 797 P.2d 608; see also Gilbert, supra, 130 Cal.App.4th at pp. 1292-1293, 31 Cal.Rptr.3d 297 [same].)
The discovery obligation for the other three types of material—stenographer's notes, reports, and complaints—is contained in the next sentence and does not provide a time frame for disclosure. As the Supreme Court observed, the phrase “prior to” is absent from this sentence, a notable omission given that when the Legislature wanted certain acts described in section 3303 to take place before an interrogation, it used the words “ ‘prior to.’ ” (City of Pasadena, supra, 51 Cal.3d at p. 576, 273 Cal.Rptr. 584, 797 P.2d 608 [“When the Legislature ‘has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.’ ”].) Applying this statutory canon, it is apparent that the Legislature did not intend to establish a post-interrogation deadline for the disclosure of “reports or complaints” as it had in the preceding sentence for tape recordings “prior to any further interrogation.” (§ 3303, subd. (g); see City of San Diego, supra, 98 Cal.App.4th at p. 785, 120 Cal.Rptr.2d 609 [opining that the maxim expressio unius est exclusio alterius “would support the claim that City need not provide [the other three] categories of materials before re-interviewing an officer”].)
City of Oakland, at 8-9, italics in original.
The City of Oakland court also discussed the legislative history and the purposes of POBRA, as emphasized by the Supreme Court in City of Pasadena, and pointed out that mandating discovery prior to subsequent interrogations of an officer, “could severely hamper the agency’s investigation, and therefor undermine the public’s confidence in the integrity of the law enforcement agency,” particularly in cases where disclosures made before a subsequent investigation “might color the recollection of the person to be questioned or lead that person to confirm his or her version of an event to that already questioned,” and that concerns would be magnified in situations where there were significant discrepancies in the testimony of various officers.  City of Oakland, at 12-13.    
City of Oakland also discussed the case of Santa Ana Police Officers’ Association v. City of Santa Ana  (2017) 13 Cal.App.5th 317 (“City of Santa Ana”), evidently followed by the trial court in the City of Oakland case, in which another court of appeal had reversed a trial court order sustaining a demurrer without leave to amend where officers had filed suit alleging in part that the refusal of the investigating entity to produce discovery under section 3303 (g) prior to second interrogations of officers was a violation of POBRA.   City of Oakland points out that the officers in the City of Santa Ana case had not been provided access to tape recordings of the initial interrogations, so that “their complaint stated a cause of action under POBRA on this basis alone.”   City of Oakland, at 7.   As for the disclosure of reports and complaints, the City of Oakland case also points out that while the appellate court in City of Santa Ana had acknowledged that subdivision (g), “’does not specify when an officer’s entitlement to the reports and complaints arises,’” the court of appeal went on to conclude that because discovery rights to reports and complaints were “coextensive with discovery rights to tape recordings of interrogations,” those reports and complaints must also be produced prior to further interrogation.   
The City of Oakland appellate court disagreed with that analysis based on its detailed analysis discussed above, and concluded:
“In sum, we conclude that requiring reports and complaints to be provided to a police officer under subdivision (g) of section 3303 “prior to any further interrogation” is inconsistent with the plain language of section 3303, subdivision (g), and undercuts a core purpose of POBRA of ensuring that investigations into officer misconduct are conducted with the seriousness, diligence, and fairness that is required of these positions of public trust.” 
City of Oakland, at 14.
The City of Oakland case accordingly found that documents are not required to be provided prior to a second interrogation, but provided to officers subsequent to the interrogation, with no post-interrogation statutory deadline, but upon request, and subject to confidentiality objections.   The direction to the trial court in that case reflected the following procedure:
“On remand, the trial court shall determine whether the City had a basis for withholding otherwise discoverable reports and complaints due to their confidential nature as that concept is explained herein. Petitioners must demonstrate that the City had a present duty under section 3303, subdivision (g), to disclose the requested materials to establish entitlement to mandamus relief. (See Gilbert, supra, 130 Cal.App.4th at p. 1291, 31 Cal.Rptr.3d 297.) Should disciplinary proceedings be commenced or resumed, the City may not make adverse personnel decisions concerning the Doe Officers based on any confidential materials, or the portions thereof, that have not been de-designated and made available to the Doe Officers.”
City of Oakland, at 14.
The City of Oakland case accordingly necessarily determined the timing issue with respect to the disclosure of documents, while the City of Santa Ana case did not require such a determination, since a POBRA violation cause of action had been stated on another ground.   The City of Oakland case also provides reasoning which is consistent with the Supreme Court precedent in City of Pasadena, and which this court finds appropriate, and will apply in this matter.  See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 (where appellate decisions are in conflict, the trial courts have discretion to choose between them).   
In this matter, the facts show that Nichols was in fact provided with a CD recording of his prior interview prior to the second interrogation, which satisfies the statutory requirement that “If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.”  There was accordingly no POBRA violation on this basis.  As to other documents requested, they were not required to be produced prior to the second interrogation, and all non-confidential documents or confidential documents upon which defendants intended to rely, were provided prior to the commencement of the administrative hearing.  Hence, the court accordingly finds that Plaintiff’s POBRA rights were not violated on this ground.
l. When Further Proceedings Contemplated
In December 2009/January 2010, by Defendants and/or Defendant LaChasse:
Violation of Government Code section 3303(g):   Failure to provide officer with transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons when further proceedings were contemplated.
This claim is again made pursuant to Government Code section 3303(g), under which, 
again:
“When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions.  For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment….
(g) The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer's personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation….”
Plaintiff argues that certain materials should have been provided to plaintiff once it was determined that the disciplinary action was contemplated as reflected in the March 25, 2010 letter from Chief LaChasse.  As discussed above, there is no statutory deadline included in the POBRA statute for the production of documents.
Defendants argue that they actually provided numerous documents for plaintiff’s review with the Notice of Proposed  Termination sent by Chief LaChasse on March 25, 2010, including 17 items that constituted the evidentiary basis of the charges against him. 
Pre-disciplinary due process requires that plaintiff be provided with “of the proposed action, the reasons therefor, a copy of the charges and the materials upon which the action is based.”  Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215.
It is held that the term “materials” does not include every document identified in an administrative investigation.  See Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1280; Holmes v. Hallinan (1998) 68 Cal.App.4th 1523 (“We have uncovered no authority for the proposition that [the officer] was entitled to discovery before [discipline was imposed]. [The officer] was given notice of the allegations against him and the evidence underlying the allegations. He was entitled to nothing more.”).  “Constitutional principles of due process do not create general rights of discovery.”  Gilbert, at 1280.
Under Gilbert, an employee would be entitled to materials which provide “an explanation of the employer’s evidence,” and “notice of the substance of the relevant supporting evidence…sufficient to enable appellant to adequately respond at the pretermination stage.”  Gilbert, at 1280, citing Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 546.  
The U.S. Supreme Court explained in Cleveland Board of Education v. Loudermill that the pretermination hearing, “though necessary, need not be elaborate,” and that, “[i]n general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action.”   Id., at 545.  This result is due to the nature of the hearing in such cases:
“the pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. 
The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.  The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.
Cleveland Board of Education, at 546, citations omitted.  
Although the Court applied provisions of Ohio public employment law, there are no broad discovery rights provided under California’s POBRA.  In construing the specific provision, the court of appeal in Gilbert reasoned:
“It is unreasonable to suppose that the Legislature intended section 3303, subdivision (g), to afford an officer under investigation far-reaching disclosure rights, akin to the statutory discovery rights in criminal prosecutions, following an administrative interrogation of the officer when the Act does not expressly so provide but rather gives the investigating agency power to deem reports confidential, excludes such confidential items from the duty to disclose, and provides no mechanism for challenging such designation. The more reasonable interpretation, in light of the other features of section 3303 and other provisions of the Bill of Rights Act, is that the minimal rights of disclosure included in subdivision (g) were intended to prevent grossly abusive interrogation tactics and protect an officer's personnel file.”
Gilbert, at 1291.  
 
In addition, as noted in Gilbert, and, also noted above in the City of Oakland case, disclosure is subject to confidentiality concerns.  Government Code section 3303 (g) expressly permits disclosure of notes, reports, or complaints, “except those which are deemed by the investigating agency to be confidential.”  
Under Penal Code section 832.7 (a), pertaining to the personnel records of peace officers, with certain enumerated exceptions, “the personnel records of peace officers and custodial officers and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.”
The Supreme Court in City of Pasadena, supra, 51 Cal.3d at p. 580 appeared to suggest, albeit in dicta, that Penal Code section 827.7(a) could supply a statutory basis for claiming confidentiality of notes, reports and complaints pursuant to the exception stated in the POBRA statute.  
The record here shows that the proceedings afforded plaintiff by the City was all which was required under the law, and that plaintiff did obtain all documents requested, including many confidential documents, during the administrative appeal process.  Plaintiff received all the documents to which he was entitled for the Porto’s II interview/interrogation.  Plaintiff also received all the documents to which he was entitled before and during the administrative disciplinary discovery proceedings, which plaintiff utilized successfully to obtain numerous new documents.  Many of the documents, which plaintiff requested for his Porto’s II interview, to which he was not entitled to at that time under POBRA, he received in connection with his disciplinary hearing.
Plaintiff argues that prior to the Notice of Proposed Termination he was entitled to review all “investigative materials.”  This assertion is incorrect.  Government Code section 3303, subdivision (g) provides: “The complete interrogation of a public safety officer may be recorded.  If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further investigation at a subsequent time.  The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. (Id., emphasis added.)  As discussed above, plaintiff was provided all documents pertinent to his discipline.
Plaintiff complains that after being served with the Notice of Proposed Termination and before his pre-disciplinary Skelly hearing, he was given limited documents from the IA investigations but was “not provided a complete, unredacted copy of the internal affairs investigation nor was he provided, at that time, all documents referenced in the disciplinary notice or materials he was provided.” (Pl. Mot’n at 25; FAC ¶ 9:12-18.)  But plaintiff did obtain these documents during the administrative appeal process.  Before his evidentiary hearing, pursuant to the MOU, plaintiff requested a broad range of discovery, including identified documents above. (Ex. 16, Bent Decl. ¶ 5.)  Defendants, as was their right pursuant to the MOU, sought court review of the issued subpoenas and filed a petition for writ of mandate. (Id. ¶¶ 7-8.)
In that proceeding, the court ordered an in-camera inspection to be performed by the arbitrator, who ultimately reviewed and ordered many documents produced, and defendants complied with this order. (See Id., Bent Decl. ¶¶ 14-22.)  Nowhere in plaintiff’s brief does he complain that he never received all the documents that were ordered to be produced.  He simply complaints about when he should have received them.  There is no requirement under POBRA as to when documents must be produced.  The Hearing Officer noted that plaintiff was provided with all required documents by October 30, 2012.  “The first day of hearing was October 18, 2013.  The last day of hearing was March 12, 2014.” (Ex. 3 Arbitrator Award at p. 31.)  Plaintiff received all of the documents to which he was entitled, and thus there is no POBRA violation on this ground.
Before his evidentiary hearing, pursuant to the MOU, Plaintiff requested a broad range of discovery.   (Ex. 16, Bent Decl. ¶ 5.) Defendants, as was their right pursuant to the MOU, sought court review of the issued subpoenas and filed a petition for writ of mandate. (Id. ¶¶ 7-12.) In that proceeding, the court ordered an in camera inspection to be performed by the arbitrator, who ultimately reviewed and ordered many documents produced, and Defendants complied with this order. (See id., Bent Decl. ¶¶ 14-22.) Nowhere in Plaintiff’s brief does he complain that he never received all the documents that were ordered to be produced. He simply complains about when he should have received them. And, notably, there is no requirement under POBRA as to when documents must be produced.
The Hearing Officer noted in the Advisory Award & Opinion:
“… the dispute over documents continued for at least a year.  To the extent Nichols argues documents were not timely produced as measured from the date of discipline, his argument implicitly suggest the City is not entitled to the right of court review contained in the MOU. That cannot be correct.  If a court reviews by mandamus a dispute over providing documents, it cannot be denial of due process to wait until the court’s decision before providing the documents in accordance with the court’s orders. 
After the parties chose this arbitrator, and after the in camera examination, substantially all the required documents were provided before the first day of hearing.  To the extent other documents were provided later (mostly due to subsequent requests), and to the extent that hearing dates were added to accommodate Nichols, the document production in this case created no prejudice.”  
[POBRA, Ex. 69-000031]. 
The Hearing Officer notes in a footnote:  “Nichols complaints that some documents were not provided until October 30, 2012.  The first day of hearing was October 18, 2013.  The last day of hearing was March 12, 2014.”  [POBRA, Ex. 69-000031, fn. 35].    
The plaintiff has not established any irregularity which violated this provision.  Also, the plaintiff has not established any prejudice.
m. One Year Statute of LimitationsOn March 25, 2010, Defendant LaChasse served Plaintiff with a Notice of Intent to Discipline for misconduct that allegedly occurred in December of 2007, and was known by Defendants no later than April 2008.  
Violation of Government Code section 3303 (d)(1):  (1)  No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for an act, omission, or other allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.  In the event that the public agency determines that discipline may be taken it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year, except as provided in paragraph (2).
This claim is made pursuant to Government Code section 3303(d), but appears to be intended to refer to Government Code section 3304(d)(1), under which:
“(d)(1) Except as provided in this subdivision and subdivision (g), no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. This one-year limitation period shall apply only if the act, omission, or other misconduct occurred on or after January 1, 1998. In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year, except as provided in paragraph (2). The public agency shall not be required to impose the discipline within that one-year period.”
As discussed above at some length, the statute of limitations was tolled in this matter pursuant to subdivision (g) of Government Code section 3304.  Also, the information leading to the opening of the second investigation was discovered at the earliest in April of 2009.  The court is relying primarily on this finding.  Defendants provided plaintiff with a notice of intent to discipline on March 25, 2010, within the one-year statute of limitations. 
   
n. Notice of Proposed Discipline—March 25, 2010 served by Defendants/LaChasse
Violation of Government Code section 3303(g):  Failure to provide officer with transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons when further proceedings were contemplated.
This claim is made pursuant to Government Code section 3303(g), under which, again:
“When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions.  For the purpose of this chapter, punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment….
(g) The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer's personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation….
This argument has been addressed above, and the court finds that Nichols was timely provided a CD of his previous interrogation prior to the second interrogation, and that prior to the administrative hearing, plaintiff was provided with all documents to which he was entitled, so that no violation has been shown. 
o. Notice of Proposed Discipline—March 25, 2010 served by Defendants/LaChasse
Violation of Government Code section 3305:  
No public safety officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment, except that such entry may be made if after reading such instrument the public safety officer refuses to sign it. Should a public safety officer refuse to sign, that fact shall be noted on that document, and signed or initialed by such officer.
This claim is brought under Government Code section 3305, which provides:
“No public safety officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment, except that such entry may be made if after reading such instrument the public safety officer refuses to sign it. Should a public safety officer refuse to sign, that fact shall be noted on that document, and signed or initialed by such officer.
It is not clear from the motion if this claim, as set forth in the FAC, and notice of motion, is being pursued here.  The argument is not addressed by any legal argument in the memorandum of points and authorities, and plaintiff has failed to meet his burden of establishing that there was any comment entered into Nichols’ personnel file without Nichols first having read and signed as required, or refused to sign, and such was not noted.  The motion on this claim accordingly is denied. 
p. Notice of Proposed Discipline—March 25, 2010 served by Defendants/LaChasse
Violation of Government Code section 3306.5 (a):
Every employer shall, at reasonable times and at reasonable intervals, upon the request of a public safety officer, during usual business hours, with no loss of compensation to the officer, permit that officer to inspect personnel files that are used or have been used to determine that officer’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action. 
The claim is brought under Government Code section 3306.5 (a), which provides:
“(a) Every employer shall, at reasonable times and at reasonable intervals, upon the request of a public safety officer, during usual business hours, with no loss of compensation to the officer, permit that officer to inspect personnel files that are used or have been used to determine that officer's qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.
Again, although this claim is included in the FAC and in the notice of motion, it is not addressed in any legal analysis in the memorandum.  Nichols has failed to point to any evidence showing that he requested to inspect his personnel files, but was denied access in a manner which would violate this section, or that Nichols suffered any prejudice from such action.  The motion as to this claim accordingly is denied. 
q. Notice of Proposed Discipline—March 25, 2010 served by Defendants/LaChasse
Violation of Government Code section 3305.5 (a):
A punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or that the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83.
This claim is brought under Government Code section 3305.5 (a), which provides: 
“(a) A punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against any public safety officer solely because that officer's name has been placed on a Brady list, or that the officer's name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83.”
As argued by the City, this statute had not yet been enacted at the time of the discipline, but was enacted in 2013.  The court accordingly finds that plaintiff has not established any POBRA violation based on this statute. 
Moreover, the City argues that the fact plaintiff’s name would have to be disclosed pursuant to Brady was mentioned only in the Hearing Officers Advisory Award & Opinion, not in the proposed or final notice of discipline.  The argument is that it was not improperly relied upon in determining whether there had been misconduct and the appropriate penalty.   There is no sufficient evidence submitted showing a violation of this section.  
r. Administrative Appeal (culminating in September 2014) 
Violation of Government Code section 3304 (b): 
No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.
The claim is brought under Government Code section 3304 (b), under which: 
“(b) No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.”
It is not clear how plaintiff is arguing that he did not have an opportunity for an administrative appeal, as the administrative hearing was conducted, as discussed above, after plaintiff had such an opportunity, and was afforded all of the rights to which he was entitled under POBRA.  
The motion argues that defendants failed to provide Nichols with an administrative appeal which afforded due process, in further reliance on Government Code section 3304.5, which provides, in pertinent part, that “an administrative appeal instituted by a public safety officer under this chapter shall be conducted in conformance with rules and procedures adopted by the local public agency.”   Plaintiff does not dispute that the rules and procedures here are those set forth in the MOU.  
Plaintiff first argues that the MOU improperly required Nichols to pay half of all expenses related to the administrative appeal.  Plaintiff does not cite to the portion of the MOU which includes this requirement.  
The opposition points out that the MOU provision at issue states: 
“All costs for the service of the arbitrator, including but not limited to, per diem expenses, travel and subsistence expenses, a transcript, and court reporter (if there is one) will be borne equally by the City and the BPOA.” 
[POBRA, Ex. 71-- 000058, MOU, Art. VI, D.12]. 
As argued by defendants, there does not appear to be any impropriety in this provision, as it does not in fact state that the employee is required to pay any expenses.  It is also not established that Nichols did in fact incur any expenses, when they were required to be borne by the BPOA.  There is no argument based on statutory or case law that this provision should be invalidated.  The court finds no irregularity in the proceedings or denial of due process on this basis. 
The opposition also argues that this argument, as well as several other arguments arising out of alleged failure to comply with the MOU, have not been previously raised by Nichols, and so he has failed to exhaust his administrative remedies.  
This argument does not apply to POBRA violations.   As Nichols argues in the reply, Government Code section 3309.5(c) provides: “The superior court shall have initial jurisdiction over any proceeding brought by any public safety officer against any public safety department for alleged violations of this chapter.” 
It is held that the inclusion of the word “initial” in section 3309.5 removes the defense of
failure to exhaust administrative remedies in a claim for a POBRA violation:
“The word ‘initial’ in section 3309.5 simply deprives the employer of defeating court action by arguing the employee has failed to exhaust administrative remedies.”
Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 54; Mounger v. Gates (1987, 2nd Dist.) 193 Cal.App.3d 1248, 1254-1256.  
The court accordingly does not reject plaintiff’s argument in the POBRA action for failure to exhaust administrative remedies. 
Plaintiff then argues that the MOU mandates that the employee be allowed to inspect the City’s evidence, and that this does not limit the inspection to just incriminating evidence.    Again, plaintiff fails to set forth the language of the MOU at issue.  The provision appears to be Article VI, E.4 which provides:
“In major disciplinary matters, the employee’s rights include presenting testimony and evidence, inspection of City evidence, and representation by BPOA or an attorney. A full trial type evidentiary hearing is not required in pre-disciplinary hearings. ” 
[POBRA Ex. 71—000058, MOU, Art. VI, E.4]. 
The argument is then that, “[a]s discussed above, plaintiff was not allowed to inspect or receive the City’s evidence.” [Motion, p. 28:1].  Plaintiff has failed to point to any specific evidence he was not ultimately allowed to inspect or receive, or any evidence he was not allowed to inspect in advance of pre-disciplinary hearings, which the statute indicates are not contemplated to be full trial type evidentiary hearings.  As discussed above, Nichols was provided with all required evidence in time for the administrative hearing.  
The motion then argues that the Nichols was not provided with a timely administrative appeal hearing.  Nichols argues that he was terminated effective June 8, 2010, timely requested an administrative appeal of his termination, but was not provided an evidentiary hearing until March 18, 2013, and that this three year delay was not in compliance with Government Code section 3304.  It is not clear where in the MOU there is a provision concerning the timing of an administrative appeal hearing, and the court could not locate one. Nichols relies on Skelly, supra, 15 Cal.3d 194, without specifying where a discussion of a timeline for the hearing is included in that decision. 
In any case, there is evidence here that the delay was due to various related and unrelated factors.  Many of the delays were associated with both parties exercising their procedural rights under the MOU for the disciplinary hearing.  Other delays were due to the unavailability of counsel.
Plaintiff complains that he was terminated June 8, 2010, and timely requested an administrative appeal, but he did not receive a hearing until March 2013. (Pl. Mot’n at 28.)  Plaintiff admits that some of this delay was that the initially agreed upon hearing officer, Mark Burstein, recused himself. (Id.)  Plaintiff characterizes this as due to the City’s refusal to stipulate that Burstein was a neutral and not an agent for the City. (Id.)  But this occurred only after a writ was taken to challenge Burstein’s ruling providing confidential Pitchess and other documents to plaintiff, a process that the City was permitted to engage in pursuant to the MOU. (See Ex. 1, MOU at 55.)
Defendants also have presented evidence that there were many reasons for the delay, including allowing defendants’ proper petition for writ of mandate to run its course after plaintiff served broad-ranging subpoenas; plaintiff’s counsel unnecessarily prolonging the arbitrator striking process; having to engage in the striking process three times because two of the selected arbitrators recused themselves (one due to plaintiff’s counsel’s objection about Prihar having provided CLE training to former outside defense counsel’s law firm); having an evidentiary hearing span across ten days due in large part to plaintiff’s counsel’s case-in-chief involving numerous witnesses; and coordinating multiple parties’ schedules, including the arbitrator’s busy schedule and accommodating plaintiff’s counsel’s schedule for surgery.  (Bent Decl. ¶ 4; Ex. 17, August 4-17, 2010 Emails; Ex. 18, May 23, 2011 Email; Ex. 19, June 3, 2011 Letter; Ex. 20, June 20, 2011 Writ Petition; Ex. 21, June 23-23, 2011 Email; Ex. 22, Amended Writ Petition.)
The motion also argues that after the evidentiary hearing was conducted, the Advisory Award & Opinion was provided to the City Manager on or about September 8, 2014.   Nichols argues that the MOU provides that the City Manager shall review the arbitrator’s decision and make a final decision within thirty working days of its receipt, again without referring to the specific section references, or quoting it.    The MOU at Article VI, section E.12, provides in pertinent part:
“The arbitrator’s written award shall be submitted within thirty (30) calendar days from the last day of the hearing.  The arbitrator’s decision shall be forwarded to the City Manager, who shall review the award and make the final decision within thirty (30) working days of its receipt.” 
[POBRA, Ex. 71- 000061, MOU, Art. VI, E.12]. 
Defendants do not dispute that the City Manager did not make the final decision within thirty working days of the receipt of the arbitrator’s written award.   
Defendants argue that although the MOU contains the word “shall,” it does not provide any penalty for noncompliance with the 30-day time period.   Defendants argue that therefore, the time period for the City Manager to issue a final decision should be considered directory, not mandatory.   See, e.g., In Re C.T. (2002) 100 Cal.App.4th 101, 111 (“When a statute does not provide any consequence for noncompliance, the language should be considered directory rather than mandatory.”)
Defendants also argue that there is no prejudice to Nichols from the delay, particularly since he asked for and participated in the April 2015 meeting with the City Manager, a meeting was well beyond the 30-day MOU deadline of which he now complains.  Nor does the MOU mandate a 30-day period to confirm the disciplinary recommendation of the Hearing Officer.
Plaintiff complains that the advisory award of the hearing officer was provided to the City Manager Scott on September 8, 2014, but that Scott did not issue a final decision until    July 23, 2015. (Pl. Mot’n at 28.)  The MOU provides that the City Manager “shall review the [arbitrator’s] award and make the final decision within thirty (30) working days of its receipt.” (Ex. 1, MOU at p. 64.)  Plaintiff argues that the City Manager was required to issue a final decision within 30 days of receiving the arbitrator’s award.  Although the MOU contains the word “shall,” it does not provide any penalty for noncompliance with the 30-day time-period. (See Id. at 53-56, 62-64.)  Therefore, the time-period for the City Manager to issue a final decision should be considered directory, not mandatory. (See, e.g., In Re C.T. (2002) 100 Cal.App.4th 101, 111 [“When a statute does not provide any consequences for noncompliance, the language should be considered directory rather than mandatory.”].)
Indeed, to support the directory nature of this provision and to explain the reasons why the review process took longer than usual, the City Manager testified that it would be humanly impossible for him to have reviewed the voluminous administrative record and transcripts and issue a final decision in just 30 days, given his other responsibilities as the city Manager. (Ex. 15, Scott Dep. at 24:10-18, 26:5-13; 39:21-40:11.)  In addition, there is no prejudice to plaintiff, especially since he asked for and participated in the April 2015 meeting with the City Manager.  This meeting was not required by the MOU but was done at plaintiff’s request and occurred well beyond the 30-day MOU deadline of which he now complaints. (Ex. 15, Scott Dep. at pp. 22:18-23:4; 40:24-41:12, 63:8-64:1; Ex. 30 Plaintiff’s RFA Supp. Responses, Nos. 10 and 11; Ex. 1, MOU at pp. 53-56, 62-64.)
The court under the circumstances finds that the subject provision was not mandatory, and did not include any penalty, including invalidating any untimely action by the City Manager, and that, given the failure of plaintiff to point to any prejudice or actual damage in support of a POBRA remedy, there was no POBRA violation based on this conduct. 
The motion also seems to argue that part of the delay was due to the City causing the mutually agreed upon neutral to recuse himself as the City refused to stipulate that Burstein was a neutral and not an agent for the City.  The motion argues that the MOU selection process states that the selected arbitrator shall arbitrate the matter, and seems to argue that the City violated the MOU in causing this recusal.   Again, the MOU provision is not cited or set forth by Nichols in the motion.  
To the extent this contention may be an argument that defendants failed to comply with the MOU provision for selection of an arbitrator, the MOU provision provides:
“The BPOA and the Management Services Director shall attempt to mutually agree upon an arbitrator.  If they cannot agree, they shall strike names from the panel of arbitrators below until one name remains. [NOTE:  The parties reserve the right to incorporate additional, mutually agreed upon, arbitrators to this panel at any time.]  The final arbitrator’s name remaining on the list shall arbitrate the dispute.  The order of striking shall be determined by a coin toss. The arbitrator shall be notified of his or her selection by a joint letter from the parties requesting that he or she set a time and place for the hearing, subject to the availability of the City and Union representatives. 
PANEL OF ARBITRATORS
Sara Adler
Norman Brand
Charles Askin
Buddy Cohn
Michael Prihar 
Joe Gentile 
Robert Austin 
Howard Block
William Dorsey
Walter Daugherty
Mark Burstein 
Philip Tamoush
Additional Arbitrators TBD”
[POBRA Ex. 71—000058-000059, MOU, Article VI, E.7]. 
The name of the arbitrator ultimately selected, Norman Brand, appears on the list.  The evidence submitted shows that the parties complied with the striking process for a selection of the Hearing Officer pursuant to the terms of the MOU.
Specifically, in terms of the arbitrator selection process, the MOU governs the selection of arbitrator, and this process was followed.  Specifically, when major discipline is upheld by the Police Chief or his designee, the parties shall attempt to mutually agree upon an arbitrator, if they cannot agree, they shall strike names from the panel of arbitrators below until one name remains. (Ex. 1, MOU at 53-54.)  Defendants had a right to file a writ regarding an evidentiary order, and following the return of the writ, which took nearly a year, Burstein recused himself. (See Ex. 16, Bent Decl. ¶¶ 14-17.)  If petitioner had a disagreement about the striking process in his case, he needed to follow the MOU grievance procedures.  He failed to do so and has now forfeited this argument, because he failed to grieve the process, it should be disregarded by this court as waived.
 The court will find no POBRA violation based on an alleged failure to comply with the MOU procedure for selecting the arbitrator.
Nichols’ also argues that public safety officers are entitled to an evidentiary hearing before a neutral fact finder, but that in this case the final decision-maker was represented or received legal advice from the legal representative of defendants, which resulted in an unfair hearing.   Nichols argues that in this case the involvement of the City Attorney’s office at all stages of the investigation, discipline and administrative appeal has caused the appearance of bias.  The argument is that due to the involvement and the failure to establish an ethical wall, bias must be presumed.  
Plaintiff seems to argue that there is some burden on defendants to establish the existence of an ethical wall.   However, in connection with this case in which plaintiff is claiming POBRA violations, the initial burden would be on plaintiff to establish the elements of a violation.  Plaintiff has cited no legal authority in which the involvement of a City Attorney has given rise to a recognized POBRA violation.   
Plaintiff cites, for example, Morongo Band of Mission Indians v. State Water Resources Control Board (2009) 45 Cal.4th 731, in which the California Supreme Court rejected an argument that bias in an administrative agency proceeding could be shown where the agency attorney prosecuting an administrative license revocation proceeding had concurrently advised the adjudicator in a separate albeit unrelated matter.  The Court reasoned: 
“Unless they have a financial interest in the outcome (see Haas v. County of  San Bernardino, supra, 27 Cal.4th at p. 1025, 119 Cal.Rptr.2d 341, 45 P.3d 280), adjudicators are presumed to be impartial (Withrow v. Larkin, supra, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712). Here, the Morongo Band has presented no evidence that the Board, or any of its members, is actually prejudiced against it. Instead, it argues that when the agency attorney who is prosecuting an administrative license revocation proceeding has concurrently advised the adjudicator in a separate albeit unrelated matter, the risk that the agency adjudicator will be biased in favor of the prosecuting agency attorney is of a magnitude sufficient to overcome the presumption of impartiality. We disagree. As we explain, any tendency for the agency adjudicator to favor an agency attorney acting as prosecutor because of that attorney's concurrent advisory role in an unrelated matter is too slight and speculative to achieve constitutional significance.
By itself, the combination of investigative, prosecutorial, and adjudicatory functions within a single administrative agency does not create an unacceptable risk of bias and thus does not violate the due process rights of individuals who are subjected to agency prosecutions. (Withrow v. Larkin, supra, 421 U.S. 35, 54, 95 S.Ct. 1456, 43 L.Ed.2d 712; see Adams v. Commission on Judicial Performance (1995) 10 Cal.4th 866, 880–884, 42 Cal.Rptr.2d 606, 897 P.2d 544; Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 833–835, 264 Cal.Rptr. 100, 782 P.2d 239; Pierce, Administrative Law Treatise (4th ed.2002) § 9.9, pp. 688–689.) Thus, “[p]rocedural fairness does not mandate the dissolution of unitary agencies, but it does require some internal separation between advocates and decision makers to preserve neutrality.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 10, 50 Cal.Rptr.3d 585, 145 P.3d 462.)
As we recently explained 738 (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., supra, 40 Cal.4th at pp. 8–9, 50 Cal.Rptr.3d 585, 145 P.3d 462), the state Administrative Procedure Act (Gov.Code, § 11400 et seq.) was revised in 1995 in accordance with recommendations of the California Law Revision Commission, after the commission had studied the matter for seven years. (See Recommendation: Administrative Adjudication by State Agencies (Jan.1995) 25 Cal. Law Revision Com. Rep. (1995) p. 55.) To ensure the impartiality of administrative adjudicators, the act generally prohibits ex parte communications (Gov.Code, § 11430.10) and requires “internal separation of functions” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., supra, 40 Cal.4th at pp. 8–9, 50 Cal.Rptr.3d 585, 145 P.3d 462; see Gov.Code, §§ 11425.10, subd. (a)(4), 11425.30).
Significantly, however, the state Administrative Procedure Act requires the internal separation of prosecutorial and advisory functions on a case-by-case basis only. (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., supra, 40 Cal.4th at p. 16, fn. 12, 50 Cal.Rptr.3d 585, 145 P.3d 462 [“As ... the text of [the state Administrative Procedure Act] plainly allows, the separation of functions can be accomplished on a case-by-case basis.”].) The act does not prohibit an agency employee who acts in a prosecutorial capacity in one case from concurrently acting in an advisory role in an unrelated case. We have summarized the act's relevant restrictions this way: “The agency head is free to speak with anyone in the agency and to solicit and receive advice from whomever he or she pleases—anyone except the personnel who served as adversaries in a specific case. [Citations.] Indeed, the agency head can even contact the prosecutor to discuss settlement or direct dismissal. [Citations.] Virtually the only contact that is forbidden is communication in the other direction: a prosecutor cannot communicate off the record with the agency decision maker or the decision maker's advisers about the substance of the case.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., supra, at pp. 16–17, 50 Cal.Rptr.3d 585, 145 P.3d 462, italics added, fn. omitted; see also Gov.Code, § 11430.30, subd. (a) [allowing ex parte communication “for the purpose of assistance and advice to the presiding officer from a person who has not served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage” (italics added)].)
Morongo Band, at 757-738, italics in original. 
Plaintiff also cites Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, in which the Second District addressed the issue of whether the City Attorney had advised and assisted the hearing officer during a hearing in connection with making evidentiary rulings or determining legal issues.   While the Second District found that substantial evidence supported the trial court’s conclusion that counsel had participated in the administrative review by advising and assisting the hearing officer, the trial court and court of appeal found the appropriate remedy in that case was to remand the matter for a new hearing. 
Defendants rely on People v. Conner (1983) 34 Cal. 3d 141, arguing that what is at issue here is whether City Manager Scott was influenced by the City Attorney to exercise his judgment in anything other than an even-handed manner.   In People v. Conner, the California Supreme Court upheld the trial court’s order recusing the entire Santa  Clara County District Attorney’s from prosecuting a criminal defendant where a deputy district attorney who was employed in the office was both a witness to, and arguably a victim of, the criminal conduct for which defendant was being prosecuted.  The Court interpreted Penal Code section 1424, applicable to motions to disqualify a district attorney, which requires a showing by the evidence “that a conflict of interest exists such as would render it unlikely that defendant will receive a fair trial.”    The Court held that a “conflict” within the meaning of that section “exists whenever the circumstances of a case evidence a reasonable possibility that the DA’s office may not exercise its discretionary function in an evenhanded manner.”   People v. Conner, at 148.  Under the extreme circumstances before it, the Court was unwilling to find that the trial court had erred in issuing its order.  
Applying this standard, plaintiff appears to rely on evidence that the City Attorney’s Office had privileged communications with investigators about Porto’s II, and that City Attorney Amy Albano had consulted with City Manager Scott about POBRA in general.   Plaintiff also suggests that City Attorney Albano served as a witness against him at his administrative hearing. The evidence relied upon is a declaration signed by Albano indicating she signed a settlement release in a separate matter.  Such conduct would be permitted under the very authority cited by plaintiff.   Defendants have submitted the deposition testimony of the City Manager, in which he states that he did not seek any substantive legal advice from the City Attorney on plaintiff’s case, and that he conducted the review of the file himself.   [Scott Depo., p. 23:23- 24:5] 
To the extent plaintiff argues that defendant is obligated to establish that an ethical wall was in place in this matter, plaintiff relies on Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1587, which involved a motion to disqualify a county counsel’s office in circumstances where the county counsel’s office planned to represent the sheriff’s department at an administrative hearing before a quasi-independent administrative tribunal, the county employment appeals board, and also to advise the board at the hearing and throughout the decision-making process, as well as to prepare the board’s written decision.  Defendant, a deputy sheriff challenging employment decisions, objected.  The court recognized the conflict in that matter with respect to the representation, involving counsel’s dual role as both advocate for a party and adviser to the tribunal which was intended to be the neutral decisionmaker.  The court of appeal discussed various cases in which attorneys acted as advocates as well as advisors to the decisionmaker in administrative settings, and noted that in the procedural posture where an administrative decision has already been rendered and was sought to be invalidated, under the applicable case law, “a showing of actual bias or prejudice is necessary.”  Howitt, at 1585.   
The court of appeal in Howitt, which was in the procedural posture where a disqualification motion was made before a decision had been rendered, determined that there was a sufficient showing that county counsel intended to have one attorney advocate at the hearing, and another attorney from county counsel advise the appeals board.  The question then remained whether performance of both roles by the same office, the county counsel’s office, but by different attorneys in that office, could be established as appropriate.  The court of appeal noted that “Performance of both roles by the same law office is appropriate only if there are assurances that the adviser for the decision maker is screened from any inappropriate contact with the advocate.” Howitt, at 1586.  The court of appeal noted that the burden is on the party relying on such a defense to demonstrate its existence and effectiveness, and denied the petition for writ of mandate without prejudice to the petitioner renewing the petition to permit the county counsel’s office to address the screening issue which had not been addressed previously at the trial court level.   
In this case, a decision has already been rendered, and plaintiff has the initial burden of establishing that there was advocacy by the City Attorney with respect to the administrative hearing, and that the City Attorney also acted as an advisor to the decisionmaker, or that the circumstances would give rise to a finding that there was a reasonable possibility that the decisionmaker in this matter did not render the decision in an evenhanded manner.  No POBRA or other violation has been established. 
Plaintiff makes a brief final argument that given the sheer number of POBRA violations, and the effect the violations had on the interviews, discipline, and appeal of Nichols, there is little doubt that there was a clear disregard for Nichols’ rights under POBRA, and an intent to inhibit Nichols’ ability to defend the charges against him, and that the failure to produce evidence and delay in the appeal further demonstrate defendants were not acting under the concept of fairness or due process but were about winning at any cost. 
This appears to be an argument that the court should make a finding of malice.  However, the argument is not as clear as it should be with respect to such a serious finding, and plaintiff refers to no specific evidence.   
As set forth above, in connection with POBRA, under Government Code section 3309.5 (e):
“(e) In addition to the extraordinary relief afforded by this chapter, upon a finding by a superior court that a public safety department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) to be awarded to the public safety officer whose right or protection was denied and for reasonable attorney's fees as may be determined by the court. If the court so finds, and there is sufficient evidence to establish actual damages suffered by the officer whose right or protection was denied, the public safety department shall also be liable for the amount of the actual damages.”
      Overall, the court is finding only a handful of violations occurred in connection with the initial interview, which were in fact harmless under the circumstances, so the court does not find that defendants maliciously violated any provision of the chapter with intent to injure Nichols.  
s. Administrative Appeal (culminating in September 2014) 
Violation of Government Code section 3304.5:
An administrative appeal instituted by a public safety officer under this chapter shall be conducted in conformance with rules and procedures adopted by the local public agency.
The claim is brought under Government Code section 3304.5, which provides;
“An administrative appeal instituted by a public safety officer under this chapter shall be conducted in conformance with rules and procedures adopted by the local public agency.”
Plaintiff appears to address this claim in the arguments made in connection with the section discussed above.  As discussed, plaintiff has failed to establish that any provisions of the MOU are improper, that defendants failed to comply with them, or that any failure to comply gives rise to any of the remedies sought in this action.  The motion as to this claim accordingly is denied.  
t. Administrative Appeal (culminating in September 2014) 
Violation of Government Code section 3305.5 (c):
Evidence that a public safety officer’s name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, shall not be introduced for any purpose in any administrative appeal of a punitive action, except as provided in subdivision (d). [(d) Evidence that a public safety officer’s name was placed on a Brady list may only be introduced if, during the administrative appeal of a punitive action against an officer, the underlying act or omission for which that officer’s name was placed on a Brady list is proven and the officer is found to be subject to some form of punitive action. If the hearing officer or other administrative appeal tribunal finds or determines that a public safety officer has committed the underlying acts or omissions that will result in a punitive action, denial of a promotion on grounds other than merit, or any other adverse personnel action, and evidence exists that a public safety officer’s name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, then the evidence shall be introduced for the sole purpose of determining the type or level of punitive action to be imposed.]
This claim is brought under Government Code section 3305.5 (c), which provides certain rules and procedures where placement of a public safety officer’s name on a Brady list, and limitations on the introduction of evidence of such a name being placed on a Brady list.  
As argued by the City, this statute had not yet been enacted at the time of the discipline, but was enacted in 2013.  The court accordingly finds that plaintiff has not established any POBRA violation based on this statute. 
u. City Manager’s Final Review/Decision
Violation of Government Code section 3304 and/or 3304.5:
City Manager Mark Scott delayed review/decision, and dual representation by City Attorney’s office denied Plaintiff a proper hearing under Government Code §3304 and/or 3304.5
The claims are again based on Government Code sections 3304, and 3304.5, are not separately argued, and would appear to be encompassed by the discussion above with respect to the various MOU and due process violations argued. 
2.  THE POLICE OFFICER TERMINATION FOR JUST CAUSE
a. Whether the City Proceeded in a Manner Required by Law in Accordance with A Writ of Mandamus Pursuant to CCP Section 1094.5
In determining whether an agency, in this case the city, has proceeded in the manner required by law, the court must identify the law or laws that govern the agencies practices and procedures.  In this case, there existed the MOU, entered into by and between the City and the BPD which sets forth extensive rules and procedures governing discipline and disciplinary proceedings. See Ryan v. California Interscholastic Fed’n (2001) 94 Cal. App. 4th 1048, 1049.
This issue of the City’s proceeding in the manner required by law is closely interwoven with the allegations of the POBRA violations and, also concerns the City’s “compliance” with the MOU and what rights and remedies are available under the MOU.  Hence, this discussion of this issue and the court’s rationale in reaching its decision is not necessarily limited to the discussion found in this section of the court’s ruling.
In this case, Nichols received a fair hearing.  The City followed the correct process in disciplining him as governed by the MOU.  Petitioner was represented by counsel at all significant steps of the discipline process, including at his interview during Porto’s II, his pre-disciplinary meeting prior to termination, the arbitration, and his meeting with the City Manager.  The HO presided over the hearing, heard, and considered testimony of all witnesses, reviewed, and considered all written documents, and permitted the parties to prepare opening and closing briefs.  After the HO independently reviewed the administrative record, he wrote a well-reasoned statement of decision based on the evidence before him, including plaintiff’s defenses. (AR 2778-2812.)  Also, except for one minor violation, there were no other POBRA violations.  There is no doubt the City proceeded in a manner required by law.
The City argues that three of plaintiff’s arguments must be disregarded by the court because they are not properly before the court due to Nichols’ failure to arbitrate them in accordance with the grievance procedures outlined in the applicable MUO.  
Those arguments are the following: (1) the City did not comply with its own rules with respect to the arbitrator striking process, (2) the City Manager did not reach his decision in 30 days, and (3) the City allegedly thwarted the issuance of subpoenas.  It also appears that defendant the City is arguing that plaintiff has not previously addressed claims that the hearing officer failed to disclose he was serving as the hearing officer in other matters.
Although, as discussed above, the claims under POBRA are not subject to this argument.  However, in connection with the writ of mandate, the court will consider the failure of plaintiff to have raised these grievances as required under the MOU as a waiver of those arguments.  Such waiver is sometimes referred to as a “forfeiture” of rights.
California decisions treat labor-management agreements as enforceable contracts which should be interpreted to execute the mutual intent and purpose of the parties. See Labor Code, § 1126; Glendale City Employees’ Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 339.  
The failure to arbitrate in accordance with the grievance procedures in a collective bargaining agreement is “analogous to the failure to exhaust administrative remedies.” Service Employees Internat. Union, Local 1000 v. Department of Personnel Admin. (2006) 142 Cal.App.4th 866, 870.   “In general, a party must exhaust administrative remedies before resorting to the courts.”  Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.  This exhaustion doctrine “‘is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).’”  Coachella Valley, at 1081, quoting Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391; see also Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1158 fn. 4 (“While the parties and case law refer to a ‘waiver’ of the issue on appeal, the correct legal term for the loss of a right based on failure to assert it is ‘forfeiture,’ because a person who fails to preserve a claim forfeits that claim”). 
The MOU here requires that any grievance be considered and processed, within particular time frames, and if not presented within the time frame, will be considered waived:
“No grievance shall be considered and/or processed unless it is submitted within fifteen (15) working days after the employee concerned has become aware or should have become aware, through the use of reasonable diligence, of the occurrence of the event giving rise to the  alleged grievance.  If a grievance is not presented within the time limits set forth above it shall be considered waived.”  
[POBRA, Ex. 71-000063, MOU, Art. VII (A)]
The MOU defines “grievance” as a “dispute or difference of opinion raised by an employee, or group of employees (with respect to a single common issue), or the BPOA covered by this Memorandum of Understanding (MOU) involving the meaning, interpretation or application of the provisions of this MOU.”  [POBRA, Ex. 71-000063 (B.1)].
The issues identified by the City here, the process by which the arbitrator was selected, and any alleged failure to disclose service with respect to other cases, the interpretation of the 30 day time limit for the City Manager’s decision, and the appropriate consequence, and the dispute as to subpoenas, appear to be disputes involving the meaning, interpretation or application of the provisions of the MOU, which should have been raised within the time frames designated, or deemed waived under the MOU.  The failure to timely pursue them through the agreed upon process would also be deemed a forfeiture or failure to exhaust under the cited case law. 
Plaintiff argues that pursuing the matters through the MOU procedures would have been futile, but fails to submit sufficient evidence to establish such futility as to any particular issue in this particular case.   See Coachella Valley, at 1081 (“For the futility exception to apply, it is not sufficient that a party can show what the agency’s ruling would be on a particular issue or defense.  Rather the party must show what the agency’s ruling would be on a particular case.”)    To the extent the argument appears to be that the obligation to arbitrate such disputes would result in delay, there is no factual showing that such a delay would have been too slow to be effective, or would result in irreparable harm.  See Service Employees, at 873-874.   There would be no irreparable harm from delay, or futility, for example, in requiring the parties to first arbitrate the issue of the meaning and interpretation of the MOU provision concerning the City Manager’s decision being rendered within thirty working days, and would make more sense for the parties to arbitrate that issue before resorting to court analysis of the issue.  
    
Even if the court were to consider these matters on their merits, they would not invalidate the decision, as discussed in connection with the alleged POBRA violations above.  The court finds that the City proceeded in a manner required by law as set forth in the MOU.  In other words, the City fully complied with the MOU in rendering its decision to terminate Nichols.
b. Whether the City’s Decision to Terminate Nichols was Supported by the Weight of the Evidence
As noted above, the trial court determining a writ of mandate must draw its own and 
reasonable inferences from the evidence and make its own credibility determinations.  Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (203, 2nd Dist.) 107 Cal.App.4th 860, 868.  In exercising its independent judgment, the court must make credibility determinations of the witnesses both sides presented at the disciplinary hearing before the HO.  In particular, the court must make a credibility determination for the City’s chief witness, Detective Dahlia.
 
Evidence Code section 780, with respect to considerations in connection with proof of truthfulness provides as follows:
“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:
(a) His demeanor while testifying and the manner in which he testifies.
(b) The character of his testimony.
(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.
(d) The extent of his opportunity to perceive any matter about which he testifies.
(e) His character for honesty or veracity or their opposites.
(f) The existence or nonexistence of a bias, interest, or other motive.
(g) A statement previously made by him that is consistent with his testimony at the hearing.
(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.
(i) The existence or nonexistence of any fact testified to by him.
(j) His attitude toward the action in which he testifies or toward the giving of testimony.
(k) His admission of untruthfulness.”
(Emphasis added)
Corroboration is the support by additional evidence, which may direct or circumstantial.  Blacks Law Dictionary, 8th Edition. Corroborating evidence differs from the primary evidence but strengthens or confirms that evidence. (Id.) The court is utilizing corroboration as well as the application of EC 780 in making its credibility determinations.
In the criminal context, corroboration is governed primarily by statute:
“As said in People v. Todd, 9 Cal.App.2d 237, 241, 49 P.2d 611, 613, “corroborative evidence need not be strong, or nor even be sufficient in itself, without the aid of other evidence to establish the fact. [Citations.]  The circumstances legally sufficient to sustain a conviction may consist of the extra-judicial statements, declarations, admissions, or confessions of the accused [citations]; his silence in the face of accusatory statements [citations]; or, as stated, where he voluntarily becomes a witness in his own behalf, it may be gathered from his own testimony (People v. Watson, supra [21 Cal.App. 692, 132 P. 836]) or his conduct and attitude as a witness (State v. Miller, supra [24 W. Va. 802].)” 
People v. Saehorn (1956) 140 Cal.App.2d 138, 148.
In this case, the court is assessing the credibility of Detective Dahlia based on the indicia of credibility set forth in EC 780 and based on other evidence which corroborates Detective Dahlia’s testimony.
The City carried the burden of proof to show that the misconduct occurred, i.e., that Romero was assaulted by Officer Rodriguez in the police building, that Nichols witnessed the misconduct and that he lied about witnessing the conduct.  The City’s main witness was Detective Dahlia, who consistently testified that he saw Nichols witness the conduct because Nichols had a clear view of the misconduct because Nichols was on guard in the hall at a position in the hallway right next to Dahlia.  This essential testimony by Dahlia is reasonably credible and supported by the evidence.  Nichols’ testimony to try to account for time when the incident occurred where timesheets and other police records do not place him in the hallway at the time of the incident is not credible.  This lack of credibility is additional evidence that corroborates Dahlia’s testimony.  Other evidence corroborates Dahlia’s testimony, which is bolstered by the factors in EC 780.
Despite overwhelming evidence to the contrary, Nichols contended in the hearings that the assault did not occur.  This contention weighs heavily against Nichols, degrades his credibility severely such that it is corroboration that Dahlia’s testimony about Nichols witnessing the misconduct is true.  Dahlia testified in detail about this misconduct, was able to view clearly, the misconduct and was deeply troubled by the misconduct.  The victim Romero testified about the misconduct, which the City did not credit in the Porto’s I investigation because it was not substantiated.
In the first investigation, the BPD did not interview Edyi Munoz, who was waiting in the hallway to be interrogated.  When she saw the misconduct, she was horrified and started screaming, which caused Dahlia to enter the hallway to see what was causing Munoz to scream.  To even further degrade Nichols’ own credibility, he called Lt. Rodriguez to deny that the misconduct occurred.  Nichols’ failure to acknowledge that this misconduct occurred, in a scenario in which he could have fully preserved his defense that he did not witness the misconduct because he was not in the hallway when the misconduct occurred, made Nichols not credible as to the rest of his defense.  The court notes by implication that the HO’s decision was affected by Nichols’ posturing on this issue because it flew in the face of the testimony of the victim Romero, and the other person waiting to be interrogated, Ms. Munoz.  This alleged implausibility that the assault did not occur impacted all other matters of Nichols’ defense, because with his testimony that he did not witness the assault on Romero, Nichols was in essence saying he did not witness the assault because it did not occur.
As it turned out, Romero was an innocent civilian who was not involved in the robbery.  He had no motive to fabricate the assault.  Munoz, who never met Rodriguez or Nichols, selected Rodriguez from a BPD photo line-up as the person who assaulted Romero, and also identified Nichols as the officer who witnessed the assault.  This testimony and witness identification of both Nichols and Rodriguez is credible, especially given the fact that Munoz was not involved in the robbery and was not charged with any crimes.  This testimony of Romero and Munoz is strong corroboration that supports Dahlia’s testimony that Nichols was in the hallway and witnessed the assault.  Again, this independent third-party testimony strongly undercuts Nichols’ credibility.
In addition, this situation was not a case of mistaken identity as to Nichols or Perez.  Dahlia knew Nichols before he became a police officer as Nichols’ father brought Nichols to the BPD shooting range before Nichols was hired by BPD. (AR 001750.)  Dahlia had known Perez since he was seven or eight years old, as Perez played sports with Dahlia’s children. (AR 001750-001751.)  Dahlia, on the other hand, had no motive to lie.  He had no “immunity agreement” and faced termination.
Nichols had a very significant motive to lie about his observations of Rodriguez’s improper use of force.  Specifically, had Nichols admitted observing the assault during the Porto’s I interview, he would have essentially admitted he had failed to report the improper use of force when it occurred.  Nichols had the same motive during the administrative hearing, as an admission of having witnessed Rodriguez’s misconduct would have proved Nichols’ failure to immediately disclose the misconduct, a clear violation of the MOU and possibly a criminal offense.
Unlike Dahlia, who eventually was forthcoming during the LASD’s investigation, Nichols was not forthcoming. (AR 001505-001508.)  For example, on May 13, 2009, Nichols could not recall: (1) the date of the robbery; (2) the number of suspects he transported; (3) the date he transported the suspects; (4) the gender of the suspects he transported; (5) where he left the suspects he transported to the station; (6) whether he transported the suspects during the day or night; (7) the names of any of the officers at the location where he picked up the suspects for transport; (8) whether he picked up the suspects from the Blythe location; (9) whether he provided security in the hallway for the suspects he transported to the station; (10) whether any officers were providing security in the hallway; or (11) whether he saw any of the suspects in the robbery in the hallway waiting to be interviewed. (AR 001505-001508.)  Nichols’ recall was so bad that the LASD investigators asked Nichols if he was “taking prescription medication for memory loss.” (AR 002528-002529.)
Nichols was intentionally evasive about these facts because he did not want to be “nailed down” to a timeline which would show he was in fact in the hallway when the assault occurred.  As will be discussed later herein, Nichols’ effort to present a timeline, which would support the argument that he was not in the hallway when the assault occurred, fails.  However, his lack of recall of important events in a major investigation independently undermines his credibility in addition to the motive to lie to “fudge” the timeline to argue for the false conclusion that he was not in the hallway when the misconduct occurred.
Of course, Rodriguez had a very significant motive to lie about his misconduct.  Specifically, an admission by Rodriguez would not only implicate him of misconduct, but also would subject him to criminal and possibly civil rights violations (AR 002220-002221.)  In addition, Rodriguez was dishonest during the administrative hearing.  For example, Rodriguez testified that he had entered into a settlement agreement with the City that included a confidentiality agreement. (AR 002192.)  However, the release he entered into with the City after his state lawsuit was summarily adjudicated against him does not include a confidentiality provision. (AR 000673, 000680.)  The HO found that this misstatement called his credibility into question.
Also, this court calls Nichols’ credibility into question for relying on Rodriguez’s testimony that the assault did not occur.  Again, the implausibility of this position corroborates Dahlia’s testimony.  The HO also found Rodriguez’s testimony as utterly self-serving without even hearsay evidence to support the truthfulness of his assertion that the assault did not occur.  In other words, Rodriguez’s testimony is the only testimony that the assault did not occur.
Nichols accuses Dahlia of lying or being mistaken about the assault and about Nichols being in the hallway when the assault occurred.  Nichols’ main argument that Dahlia was lying about the assault occurring is based on Dahlia’s inconsistent statements in his prior interviews when Dahlia denied seeing the assault.  Nichols is not arguing a faulty memory as much as he is arguing that Dahlia is not credible due to inconsistent testimony.  According to Nichols, Dahlia is not credible due to his inconsistent prior statements.  Because Dahlia did an “about face” on his testimony, Dahlia’s testimony is supposedly unreliable to sustain the City’s burden of proof.
Dahlia admitted to lying when he was interviewed as a witness on April 29 and May 8, 2008 about rumors there was misconduct in the detective hallway. (Porto’s I)(Tr. 711:9-712:7.)  He testified to being afraid because he was being asked questions about criminal misconduct and he did not have an attorney to guide him.  He said the following:
I was afraid.  I had numerous questions.  I had concerns for my safety, and
I was not a hundred percent forthright. (Tr. 692:12-693:1
Lieutenant Puglisi believed Deputy Chief Taylor interfered with the investigation by not permitting IA to interview Dahlia as a “focused” person who might be subject to discipline. (Tr. 574:8-11.)  As previously noted, Puglisi testified as follows:
I felt that if someone was provided with their rights under the Peace 
Officer Bill of Rights and they were focused, that it was likely, given 
the gravity of the misconduct that we’re dealing with, that they would 
have legal counsel and that sound legal counsel would probably have 
advised them to come forward. (Tr. 574:13-19.)
Puglisi further testified that he felt Dahlia was not being truthful and asked Taylor if they could work out some deal that Dahlia would be disciplined for lying but not terminated if he told the truth.  He thought this was a way to get to the truth about what happened that night.  Taylor became angry at the suggestion and reported Puglisi to the Chief.  This was of particular concern to Puglisi because he was on the Captain’s promotion list at the time. (Tr. 572:15-573:22.)
Again, the court notes that Dahlia did not receive an immunity agreement and in fact was terminated for lying in the Porto’s I investigation.  As a consequence, Dahlia had no motive to lie to fulfill a “cooperation agreement to “give up” Nichols in the investigation.
Nichols’ argument that Dahlia lied or was mistaken about Rodriguez assaulting Romero in the detective hallway is not credible.  When Dahlia spoke to the FBI, and voluntarily participated in the LASD criminal investigation, Porto’s I was closed as not sustained.  He had nothing to gain by inventing a story about Rodriguez assaulting Romero.  Nichols could not put Dahlia in the hall when the assault occurred without implicating himself.  Dahlia was now safe from retribution.  He had everything to lose by reporting the assault.  He knew that if he told the truth his job was in jeopardy.  He could be, and was, terminated for lying in Porto’s I.  It is highly improbably that he invented the story about Rodriguez assaulting Romero.  This court finds that the weight of the evidence supports the HO’s finding that Rodriguez assaulted Romero in the hallway.
It is equally improbable that Dahlia was mistaken and saw someone other than Rodriguez assault Romero or saw some proper police activity that he mistakenly believed as an assault.  Dahlia worked as a sworn member of the BPD with Rodriguez for almost 22 years. (Tr. 41:3-8.)  The only possible conclusion is that Dahlia’s testimony is credible: Rodriguez put a gun to Romero’s face saying, “How does it feel to have a gun in your face motherfucker?” in the hallway of the detective bureau on December 29, 2007.  The weight of the evidence supports the HO’s finding that the assault occurred.
For the same reasons, Dahlia had no reason or motive to lie about seeing Nichols in the hallway when Rodriguez assaulted Romero.  There is no evidence of animosity, bias, or motive, given that Dahlia was eventually fired for lying in the Porto’s I investigation.  However, being truthful does not eliminate the possibility that Dahlia is innocently mistaken about have seen Nichols in the hallway.
Nichols’ main attack on the credibility of Dahlia is that he is “mistaken” about seeing Nichols in the hallway when the assault occurred because Dahlia had a faulty memory and because Nichols allegedly accounts for his time as being elsewhere in the building when the assault occurred, which is his so-called “time-line” defense.  Nichols’ argument on both counts fails because the weight of the evidence shows Dahlia’s memory loss was not faulty and the weight of the evidence shows that the timeline reveals that Nichols was not otherwise occupied when the assault occurred such that it is reasonable to conclude that Nichols was in the hallway when the assault occurred and witnessed it.
Nichols argues that Dahlia was “mistaken” in his testimony that he saw Nichols in the hallway when the assault occurred.  However, Dahlia testified to walking through the doorway to the detective bureau into the hallway.  He heard screaming.  Perez was to Dahlia’s immediate left in the hallway; Nichols was to his immediate right.  Dahlia looked to his left and saw Rodriguez assault Romero.  Nichols was 15-18 feet from where the assault was occurring. (Tr. 47:22-54:8) Dahlia has known Nichols for approximately 15 years, 12 while he was on the force and three more from seeing him shoot at the department range where Nichols’ father is the range master. (Tr. 40:8-18.)  Nichols is well over six feet tall.  Dahlia is much shorter.  If Nichols was where Dahlia says he saw him, there is no doubt he witnessed the assault because Dahlia was not blocking Nichols’ view.  Nichols denied seeing anything in his witness and focused IA interviews, as well as at the hearing.  The point is that because Nichols was standing right next to Dahlia, there is no doubt that Dahlia had clear view of Nichols and would not have overlooked him.  In other words, Dahlia had the unfiltered ability to perceive Nichols’ presence such that it is highly improbable that Dahlia mistakenly identified Nichols as the officer standing right next to him when the assault occurred.
Nichols makes the further argument that Dahlia was mistaken about identifying Nichols in the hallway when the assault occurred because he was merely “assuming” Nichols was there because Dahlia’s memory was faulty.  The court notes that during the interview when Dahlia provided the information about Nichols being in the hallway Dahlia did so from his independent and unrefreshed recollection.  He did not ask the interviewer for any information about the events in question.  However, when pressed further by the interviewer whether Dahlia was “sure” that Nichols was in the hallway, Dahlia corroborated his own memory by saying it was Nichols’ assignment to stand guard in the hallway at all times, and to watch over his trainee, Officer Perez.  In support of this answer when the interviewer asked him to elaborate on facts, Dahlia independently recalled from his then present unrefreshed recollection that Nichols was present in the hallway, and thereafter used the word “assume.”  However, the court finds that Dahlia’s testimony about Nichols being in the hallway when the assault occurred is credible and not based on any “assumptions” because his memory is supposedly faulty.  His memory was not faulty because he did not need his memory refreshed and because he made no inconsistent statements about Nichols’ presence in the hallway when the assault occurred.
Moreover, Nichols elaborate timeline defense to allegedly show that he could not have been in the hallway when the assault occurs falls flat.  Dahlia testified initially that the assault occurred sometime between 9:30 p.m. to midnight on the evening of December 29, 2007.  Later on, Dahlia stated that he was sure the assault occurred about 10:00 p.m. that evening.  The police time sheets and booking records show that Nichols made a trip to a Rite Aid drug store as part of the investigation and returned to the station around 7:00 p.m. that evening.  The records also show that Nichols and Perez booked three suspects at the police station during the time-period 8:00 p.m. to shortly after 9:00 p.m. that evening.  The records show that Nichols clocked out at around 11:45 p.m. that evening.  The timeline clearly shows that Nichols would have been on duty with Perez in the hallway at around 10:00 p.m. when the assault occurred.  The records show that Romero left the station at 10:45 p.m.  The court has gone to great lengths to see if the “timeline” exonerated Nichols based on police work and activity reports such that he could not have been in the hallway when the assault occurred.  The court finds that the “timeline” does not exonerate Nichols.  This failure of the timeline defense independently corroborates Dahlia’s testimony.
In fact, Nichols in the hearing acknowledged the “gap” in the timeline and attempted to provide an explanation for his whereabouts at the time the assault occurred.  The HO rejected Nichols’ explanation about his whereabouts in the station house when the assault occurred.  Other booking records presented to the HO at the disciplinary hearing showed Nichols’ booking suspects between 9:00 p.m. and 9:30 p.m. that evening, well before the assault which occurred at 10:00 p.m.  The assault must have occurred at that time given Romero left the station at 10:45 p.m. when a police officer drove him home.
Nichols offered two explanations for his absence from the hallway when the assault occurred.  One explanation was that he did not return from Rite Aid until shortly after 9:00 p.m., although other records show he returned shortly after 7:00 p.m.  Nichols also stated that looked up dust masks on a computer and wrote a report about it which allegedly took about an hour and three quarters.  He also states he was gone to Rite Aid earlier for about an hour and one-half.  However, he admits that his primary and most important assignment was to guard the persons in the hallway who were being interviewed.  Nichols also admits that he was Perez’s supervising officer and was not supposed to leave Perez alone, who was a brand-new officer still in training.  The HO found this narrative “highly improbable.”  This court as well finds that Nichols is not credible on this issue of his “timeline” defense.
Also, Nichols’ dust mask story does not make sense.  Nichols’ report says the surveillance tape showing who bought dust masks that he asked to see would be available on Monday, December 31, 2007. (Ex. P-9.)  Nichols was vague about what research he was doing on   December 29 on dust masks, and as to why, and where.  He gave no plausible reason for doing any such research.  After doing this alleged research, Nichols does not explain why he would write a report for an hour instead of returning to his hallway security assignment.  Nor does he explain why he left his trainee as the only officer assigned to guard the witnesses in the hallway.  Nichols’ explanation of what he did instead of returning to his hall security assignment is not credible.  The credible evidence shows Nichols returned to the hallway no later than shortly after 9:00 p.m.  The court finds that Nichols’ “timeline” defense is not credible.  It is not credible because police booking records and other records show that he was not “otherwise occupied” at the critical time period when the assault occurred, and therefore he was in the hallway at the time the assault occurred.  It is also not credible because Nichols’ explanation to fill the gap in the timeline makes no sense, and hence is not credible.
In conclusion, the court finds that the weight of the substantial evidence presented at the disciplinary hearing supports the conclusion that the City acted correctly in terminating Nichols for just cause.  The court finds that the testimony of witnesses presented by the City was credible and the testimony of witnesses presented by Nichols, including his own testimony, was not credible.  The court notes that the HO made no demeanor credibility determinations and that this court of course is unable to do so.
In summary, pursuant to EC 780(b), the court finds that the testimony of Dahlia is credible as to the overall character of his testimony.  His testimony made sense in light of the overall facts of the case, and in light of independent third-party corroboration and the implausibility of Nichols’ defense.  Pursuant to EC 780(c) and (d), the court finds Dahlia’s testimony credibility due to his capacity to perceive the assault and see Nichols from where Dahlia was standing and further finds that Dahlia’s failure to recollect some minor facts as to when and which officers where at the station at the night in question does not impair his credibility.  The court further finds, pursuant to EC 780(f), that Dahlia has no bias against Nichols and his no motive or interest to give false testimony because Dahlia had no “immunity agreement” and was fired for the false statements made in the Porto’s I investigation.
Finally, the court finds Dahlia credible pursuant to EC 780(j) regarding his attitude in the disciplinary proceedings based on his soul searching and sincere testimony given the fact that he knew there would be a good chance that he would be fired for coming forward with truthful information in the Porto’s II investigation.  Dahlia was in fact fired.  The court in its independent examination of all evidence finds Dahlia credible.  The court also finds Dahlia is credible due to the corroborating evidence previously mentioned.
On the other hand, pursuant to EC 780, the court finds Nichols not credible.  Pursuant to EC 780(b), the court finds that the character of Nichols’ testimony is not credible as it related to his whereabouts when the assault happened.  The court finds under this section that all of Nichols’ testimony that he did not see the assault is not credible.  Pursuant to EC 780(f), the court finds that Nichols has a strong motive to give false testimony because he knew he would get fired for both lying about the witnessing the assault and for his failure to report.  He was trapped into lying from the beginning for his failure to report the assault when it occurred.  Pursuant to EC 780(h), the court finds that Nichols made inconsistent statements to the IA investigating officers compared to his testimony at the disciplinary hearing.  Finally. Nichols’ testimony is not credible pursuant to EC 780(i) for his reliance on Rodriguez’s testimony to present evidence of a non-existent fact: namely that the assault never occurred.  The court notes that there was no corroborating evidence as to any of Nichols’ testimony concerning the core issue that he allegedly did not witness the assault.
The court finds that the weight of the evidence supports the HO’s decision to terminate Nichols and that there exists substantial evidence to support that decision.  The court’s conclusion is based on the court’s independent assessment of all the evidence and the court’s credibility determinations.  The court finds that Nichols has not sustained his burden to show that the City’s decision to terminate Nichols was not supported by the weight of the evidence. 
c. The City Properly Imposed Termination as the Correct Discipline
The Hearing Officer stated in his advisory decision: “The only appropriate penalty for Nichols’ failing to report Rodriguez’s assault on an unthreatening person in custody and dishonesty during his interview in Porto’s II is termination.”  (AR 002812.)
The standard of review for the penalty is distinct from the independent judgment test set forth above, which applies to the HO’s factual findings.  “The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)  “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.”  (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)
“[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer.  Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties.”  (Talmo v. Civil Service Com. (1991) 21l cal.App.3d 210, 231); see also Pasos v. Los Angeles County Civil Service Commission (2020) 52 Cal.App.5th 690.)  “The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 72; County of Santa Cruz v. Civil Service Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1583.)  In this case, due to plaintiff’s dishonesty and failure to report misconduct, termination was the proper discipline.
7. Ruling
The petition for writ of mandate is DENIED in all its respects. The Court finds as follows:
As to plaintiff’s second cause of action in his First Amended Complaint and the Motion for Relief for Violations of Government Code section 3300, et seq., Pursuant to Government Code section 3309.5:
The Court finds that in connection with the first interview of Officer Nick Nichols conducted in connection with the initial investigation, Porto’s I, defendants failed to comply with Government Code section 3303, subdivisions (b), (c), (g), (h) and (i).    
The Court also finds that the violations were harmless error, as the record shows that Nichols participated in a second interview, which was conducted in compliance with POBRA and the MOU, and at which Nichols engaged in sufficient misconduct to justify the penalty imposed, as discussed in connection with the writ of mandate.  The court finds that the appropriate injunctive relief in connection with the POBRA violations, in effect, that defendants be enjoined from imposing the penalties imposed on plaintiff pursuant to the Porto’s I interview, would be a futile act, given that the court will not enjoin defendants from imposing the same penalties based on plaintiff’s conduct in connection with the Porto’s II interview, which is separate conduct, not in any way the fruit of, or tainted by, the Porto’s I POBRA violations.   
The Court further finds that Nichols has failed to establish any other conduct by defendants which was in violation of the various POBRA provisions as alleged, except as noted above.    Plaintiff is accordingly entitled to no relief under the second cause of action, and judgment will be in favor of defendants. 
As to the third cause of action for civil rights violations, the Court finds that plaintiff has failed to establish that defendant is engaged in any civil rights violations, and plaintiff is not entitled to judgment on his claims, and judgment will be entered in favor of defendants. 
Evidentiary Objections:
Plaintiff’s Evidentiary Objections are OVERRULED. 
The Court notes that plaintiff appears to argue that the court cannot consider the evidence included in the record which was considered by the Hearing Officer, and, in turn, the City Manager, because it is hearsay.  The Court has considered the evidence pursuant to its authority in this proceeding.   
Under CCP section 1094.5 (c):
“(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.”
As the California Supreme Court observed in Bixby v. Pierno (1971) 4 Cal.3d 130, 143:  “If the decision of an administrative agency will substantially affect” a vested, fundamental right, “the trial court…examines the administrative record for errors of law” and “also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.”  
The court of appeal goes on to note:
“The trial court must exercise its independent judgment upon the weight of the evidence produced or which could not, in the exercise of reasonable diligence, have been produced before the administrative agency and any evidence which might have been improperly excluded by the administrative agency.  After the trial court has exercised its independent judgment upon the weight of the evidence, an appellate court need only review the record to determine whether the trial court's findings are supported by substantial evidence. The substantial evidence test requires the trial court to review the entire record.”
Bixby, at 143, n.10, citations omitted. 
The court has exercised its independent judgment and is sustaining the City’s decision to terminate Nichols.  
 
The Court also notes that the City has argued that plaintiff includes in his Appendix of Evidence numerous confidential documents, and documents ordered produced only pursuant to a protective order to protect Pitchess discovery.   The parties are ordered to meet and confer concerning which documents are subject to confidentiality and the protective order.  Plaintiff is ordered to file within ten days a noticed motion to file the subject documents under seal, which motion fully complies with CRC Rule 2.550, in particular CRC 2.550(b)(2) and CRC 2.550(d).   
Defendants’ counsel is ordered to prepare a proposed judgment, serve it on Nichols’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC Re: Entry of Judgment is set for July 7, 2021 at 1:30 p.m.   
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: EC064617    Hearing Date: April 23, 2021    Dept: D

TENTATIVE RULING

Calendar: 29

Date: 4/23/2021

Case No: EC 064617 Trial Date: April 30, 2021

Case Name: Nichols v. City of Burbank, et al.

DEMURRER TO ANSWERS

Moving Party: Plaintiff Nick Nichols

Responding Party: Defendants City of Burbank, Burbank Police Department,

Scott LaChasse, and Mark Scott

RELIEF REQUESTED:

Sustain demurrer to First Amended Answers

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff/Petitioner Nick Nichols alleges that he was terminated in June of 2010 from his position as a police officer with defendant the City of Burbank Police Department, based on an investigation of an incident occurring during a take-over robbery by MS 13 gang members of the Portos Bakery in Burbank, with respect to concerns that an unknown officer had assaulted a witness in a police department hallway and another officer had witnessed the incident and failed to report it.

Plaintiff alleges that the investigation was improperly conducted, and that defendants and their witnesses caused undue delays in the administrative appeal process. Defendant Mark Scott is alleged to be the City Manager for the City of Burbank, and defendant Scott LaChasse is alleged to be the Chief of Police for the City of Burbank.

The complaint alleges a cause of action for a writ of mandate, inquiring into the validity of the administrative order terminating Nichols, and also alleges causes of action for violations of the Public Safety Officers Procedural Bill of Rights (“POBRA”) and alleged Violation of Civil Rights.

The file shows that on February 5, 2021, the court granted plaintiff’s motion for leave to file a First Amended Complaint.

Defendants filed answers to the First Amended Complaint, and plaintiff filed a demurrer to those answers. The demurrer was rendered moot due to the filing of First Amended Answers.

Plaintiff now challenges the sufficiency of the First Amended Answers.

ANALYSIS:

CCP section 430.20 provides, in pertinent part:

“A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a defense.”

With respect to a demurrer, under CCP section 430.30, an objection may be taken by demurrer to a pleading, “[w]hen any ground for objection to” an “answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice…”

Plaintiff argues that defendants have failed to allege each of the elements of the claimed affirmative defenses with sufficient facts, in reliance on FPI Development, Inc. v. Nakashima (1993) 231 Cal.App.3d 367, in which the court of appeal affirmed the granting of a motion for summary judgment, in part on the ground that the conclusory affirmative defenses stated in defendants’ answer were insufficient to place facts in issue.

“All of the allegations are proffered in the form of terse

legal conclusions, rather than as facts "averred as carefully and with as much

detail as the facts which constitute the cause of action and are alleged in the

complaint." (See Pomeroy, Code Remedies, supra, @ 563, at p. 917.) The only

affirmative defenses that are mentioned in the summary judgment proceedings,

fraud in the inducement and failure of consideration, are not well pled,

consisting of legal conclusions, and would not have survived a demurrer.

(See e.g., Metropolis etc. Sav. Bank v. Monnier (1915) 169 Cal. 592, 596

[147 P. 265] (Metropolis); Riegel v. Wollenshlager (1920) 49 Cal.App.

300, 301-302 [193 P. 160].)”

FPI, at 384.

The argument here is that the affirmative defenses consist primarily of a recitation of the defense. FPI Development is not persuasive, however, because it stands for the generic proposition that mere allegations in a pleading are insufficient to withstand summary judgment. It does not stand for the proposition of a heightened pleading standard for affirmative defenses in an answer.

In fact, plaintiffs rarely demur to answers, even though they have such a right pursuant to CCP § 430.30(a). The practice is disfavored due to the notice-based aspects of pleadings. South Shore Land Co. v. Peterson (1964) 226 Cal.App.2d 725, 733; Civil Proc. Before Trial, Weil & Brown, (the Rutter Group 2020 rev.) 6:476. The affirmative defenses here sufficiently state allegations to provide plaintiff notice of what is being asserted in those defenses.

In addition, to the extent the argument is that defendant has failed to sufficiently allege that affirmative defense that the FAC fails to allege facts sufficient to constitute a cause of action,

it appears that under California statutory law, this is a valid objection to a pleading, as under CCP Section 430.80, it is expressly designated a valid objection which cannot be waived even if a party fails to timely assert it:

“(b) If the party against whom an answer has been filed fails to demur thereto, that party is deemed to have waived the objection unless it is an objection that the answer does not state facts sufficient to constitute a defense.”

Since this defense cannot be waived even if not asserted, it evidently can be asserted in an answer, and need not be alleged with any particularity. See, also, Stevens v. Torregano (1961) 192 Cal.App.2d 105, 112, in which the court of appeal expressly observed, “[T]he point that a complaint does not state a cause of action is never waived. The point may be raised by answer, and it is not improper to do so…” Stevens, at 112, citations omitted. The demurrer is overruled on this ground as well.

Plaintiff also seems to argue that the affirmative defenses have been waived by failure to assert many of them in response to the initial complaint. Plaintiff was granted leave to amend to file a First Amended Complaint, however, and has failed to explain how the new affirmative defenses were not asserted directly in response to the amended allegations, or somehow required to be asserted in response to the initial complaint. Under CCP section 471.5 (a), if a complaint is amended, “The defendant shall answer the amendments, or the complaint as amended…”

In addition, this waiver argument does not appear to be a statutory ground for demurring to an answer.

The opposition also points out that the demurrer is directed to three separate answers, including different content, in one demurrer, which also appears improper. The demurrer is in fact confusing as it refers repeatedly to a joint answer, which is apparently directed to the initial answer, not the amended answers, which answer has been superseded by the First Amended Answers, which are stated separately.

The demurrer is overruled.

RULING:

Demurrer to First Amended Answers to Verified Complaint is OVERRULED.

The Court notes that the demurrer was filed to the First Amended Answers without providing a showing to the Court that the moving party met and conferred with defendants concerning the First Amended Answers, as required under CCP section 430.41 (a), and as expressly set forth in this Court’s order of April 9, 2021 (‘The parties are also reminded of their obligations under CCP § 430.41 (a) in connection with any further challenge to the amended pleadings (“If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.’)).”

The meet and confer presented with the moving papers occurred with respect to the initial answer to the FAC, not the First Amended Answers, which is improper. The Court has nevertheless declined to continue the demurrer for appropriate meet and confer, but considered the demurrer on its merits.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC064617    Hearing Date: April 9, 2021    Dept: D

TENTATIVE RULING
Calendar:    17
Date:          4/9/2021
Case No: EC064617 Trial Date:  April 30, 2021 
Case Name: Nichols v. City of Burbank, et al.
DEMURRER TO ANSWER
Moving Party:           Plaintiff Nick Nichols   
Responding Party:   Defendants City of Burbank, Burbank Police Department, 
Scott LaChasse, and Mark Scott     
ANALYSIS:
Defendants filed First Amended Answers in this action on March 24, 2021 and March 25, 2021, after the filing of the demurrer, and on or before the date opposition was due in connection with the demurrer.
Under CCP § 472:
“(a) A party may amend its pleading once without leave of the court at any time before the answer, demurrer or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.  A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation of the parties….”
The pleading here was appropriately amended once without leave of the court, and the demurrer is taken off calendar as moot. 
RULING: 
Demurrer to Unverified Answer to Verified Complaint is taken off calendar as MOOT in light of the filing on March 24 and March 25, 2021 of First Amended Answers. 
The parties are also reminded of their obligations under CCP § 430.41 (a) in connection with any further challenge to the amended pleadings (“If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”). 
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: EC064617    Hearing Date: February 05, 2021    Dept: D

TENTATIVE RULING
Calendar: 17
Date: 2/5/2021
Case No: EC064617 Trial Date: April 5, 2021 
Case Name: Nichols v. City of Burbank
MOTION FOR LEAVE TO FILE FIRST AMENDED
COMPLAINT  
MOTION TO PERFECT AND AUGMENT ADMINISTRAVE RECORD
Moving Party:      Plaintiff Nick Nichols   
Responding Party:       Defendants City of Burbank, Burbank Police Department, Mark Scott 
and Scott La Chasse   
RELIEF REQUESTED:
Amend 
File a First Amended Complaint
Administrative Record
Order compelling City of Burbank to perfect administrative record and for an order permitting plaintiff to augment the administrative record
Date Original Complaint filed:   October 30, 2015
Effect of Amendment 
Clarification of facts, allegations of specific violations of the Public Safety Officers Procedural Bill of Rights Act, clarification of relief seeking under the Act  
RELEVANT FACTS:
Plaintiff/Petitioner Nick Nichols alleges that he was terminated in June of 2010 from his position as a police officer with defendant the City of Burbank Police Department, based on an investigation of an incident occurring during a take-over robbery by MS 13 gang members of the Portos Bakery in Burbank, with respect to concerns that an unknown officer had assaulted a witness in a police department hallway and another officer had witnessed the incident and failed to report it.   Plaintiff alleges that the investigation was improperly conducted, and that defendants and their witnesses caused undue delays in the administrative appeal process.   Defendant Mark Scott is alleged to be the City Manager for the City of Burbank, and defendant Scott LaChasse is alleged to be the Chief of Police for the City of Burbank.  The complaint alleges a cause of action for a writ of mandate, inquiring into the validity of the administrative order terminating Nichols, and causes of action for violations of the Public Safety Officers Procedural Bill of Rights (“POBRA”), and Violation of Civil Rights.  
GROUNDS FOR RELIEF:
Declaration by moving party:
Includes proposed additions:        Generally 
 
  Explains why the amendment is necessary and proper:  Seek all relief afforded under Act 
Specifies when facts giving rise to amendment discovered:    No
Reason why request not made earlier:    No  
ANALYSIS:
Leave to Amend 
Procedural 
As noted above, the motion fails to comply with several procedural requirements for bringing a motion to amend a pleading.  
Rule 3.1324(a) of the CRC provides that a motion to amend a pleading before trial
 “must:..
(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allocations are located; and
(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph and line number, the additional allegations are located.”
Subdivision (b) requires that a separate declaration accompany the motion which 
“must specify:...
(1) The effect of the amendment;
(2) Why the amendment is necessary and proper;
(3) When the facts giving rise to the amended allegations were discovered; and
(4) The reasons why the request for amendment was not made earlier.”
Although the motion indicates generally that the pleading is amended to clarify facts and the specific relief sought under designated sections of the Act, there is no designation by page, paragraph or line number what is new.  The motion is accompanied by what appears to be a red-lined version of the proposed pleading, which appears to provide the information necessary to evaluate the motion.  
In addition, the declaration itself only vaguely states the effect of the amendment, and fails to address when the facts giving rise to the amendment were discovered or why amendment was not sought earlier.  This situation is likely because the facts are not new, however, and that the amendment is sought now to provide a better guideline for trial, as suggested during trial preparation court hearings.  The court will consider the motion on its merits.
Opposition Untimely
The reply argues that the opposition was untimely. 
Under CCP §1005(b):
“All papers opposing a motion…shall be filed with the court and a copy served on each party at least nine court days… before the hearing.” 
Under CRC Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” 
Here, the opposition was served by electronic service and filed on January 25, 2021 for a February 5, 2021 hearing date, only eight court days prior to the hearing, so was filed one court day late.  Defendants also failed to allow the additional two days for service by electronic service.  The court, in its discretion, could refuse to consider the untimely opposition, but will consider it only because a timely reply has been filed addressing the merits of the opposition.
Substantive 
CCP § 473 (a)(1) provides that “The court may..., in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading...”  The court’s discretion should usually be exercised liberally to permit amendment of pleadings.    Nestle v. City of Santa Monica (1971) 6 Cal.3d 920, 939.  This consideration is especially true where the motion to amend is timely made and the granting of the motion will not prejudice the opposing party.  Morgan v. Superior Court (1959, 2nd Dist.) 172 Cal.App.2d 527, 530.  
The Second District in Record v. Reason (1999) 73 Cal.App.4th 472, set forth the standard for reviewing the trial court’s discretionary determination on a motion to amend:
“"[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]" (Bedolla v. Logan & Frazer (1975) 52 Cal. App. 3d 118, 135-136 [125 Cal. Rptr. 59].)”
Record, at 486.
In this case, it appears that the amendments will appropriately assist the parties and the court in directing the trial of this matter with respect to the specific violations of the Act being pursued by plaintiff at trial.
Defendants argue in opposition that defendants would be extremely prejudiced by the filing of this late amendment on the eve of trial, the proposed amendment contains new POBRA violations that are not actionable against defendants, and the proposed amended pleading creates additional uncertainty and confusion. 
The opposition sets forth what defendants characterize as eleven new facts, and new claims, specifically a theory that by accepting counsel from the City Attorney’s Office, defendant Scott violated plaintiff’s POBRA rights.  There is an argument that additional discovery may necessary if the FAC is allowed, and that the amendment will also impact trial preparation.   There is also an argument that plaintiff improperly relies on a statute to allege violations of plaintiff’s rights under the Act in connection with a Notice of Proposed Discipline, which statute was not effective at the time of the alleged violation.  The motion also points out some confusing language in the proposed pleading. 
This does not appear to be the type of prejudice which would warrant the court denying leave to amend, particularly as it is not specified what additional discovery would be necessary, and this is not a situation where evidence on any specified facts is likely no longer available due to the delay.  To the extent defendants take the position that there is an alleged violation which is not legally viable, the court will consider motions in limine on such issues to eliminate any such violation from trial, if appropriate.  
Absent prejudice, delay alone is held not to be a sufficient ground for denial of leave to amend, and where no prejudice is shown, “the liberal rule of allowance prevails.”  Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.
The motion accordingly is granted, and plaintiff permitted leave to file the First Amended Complaint.     
Administrative Record 
Plaintiff seeks an order compelling the City of Burbank to perfect the administrative record and for an order permitting plaintiff to augment the record. 
Again, as discussed above, the reply objects that the opposition papers were not timely. The court will again in its discretion consider the untimely papers, only because the reply has addressed the opposition on its merits. 
Under CCP § 1094.5 (e), with respect to review of administrative orders or decisions:
“(e) Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.”
In Pomona Valley Hospital Medical Center v. Superior Court (1997, 2nd Dist.) 55 Cal.App.4th 93, the Second District directed the trial court in a writ of mandamus action to set aside an order granting a motion of real party in interest to depose the former president of a hospital medical staff.   The Second District set forth the general rule in writ of administrative mandamus proceedings:
“"The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency. [Citation.]" (Toyota of Visalia, Inc. v. New Motor Vehicle Bd., supra, 188 Cal. App. 3d at p. 881.) Augmentation of the administrative record is permitted only within the strict limits set forth in section 1094.5, subdivision (e) which provides as follows: "Where the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case." (§ 1094.5, subd. (e); Armondo v. Department of Motor Vehicles (1993) 15 Cal. App. 4th 1174, 1180 [19 Cal. Rptr. 2d 399].) In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. ( Toyota of Visalia, Inc. v. New Motor Vehicle Bd., supra, 188 Cal. App. 3d at p. 881.) Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. ( Armondo v. Department of Motor Vehicles, supra, 15 Cal. App. 4th at p. 1180.)”
Pomona Valley, at 101.
Plaintiff initially seeks here to have the City perfect the administrative record. There does not appear to be any statutory mechanism for the court ordering the City to include further documents in an administrative record.  As pointed out in the opposition, the statute relied upon in the moving papers, CRC Rule 3.2225, applies to CEQA actions, and does not appear to apply to general administrative review proceedings. 
Under CCP section 1094.6;
“(c) The complete record of the proceedings shall be prepared by the local agency or its commission, board, officer, or agent which made the decision and shall be delivered to the petitioner within 190 days after he has filed a written request therefor. The local agency may recover from the petitioner its actual costs for transcribing or otherwise preparing the record. Such record shall include the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence, and any other papers in the case.”
Defendants also rely on LASC Local Rule 3.231, which provides:
“(g) Preparation of the Record. A record is required for administrative mandamus and for traditional mandamus review of quasi-legislative agency actions. The record in administrative mandamus cases generally consists of the pleadings, all notices and orders, the exhibits presented at hearing, all written evidence, the proposed and final decision, any post-decision actions, and any reporter's transcripts. In cases under Code of Civil Procedure section 1094.5, the petitioner must ensure that the record is prepared as necessary for the court's decision. The petitioner may elect to prepare the record or ask the respondent agency to prepare the record. As transcripts are often prepared separately by a court reporter, a petitioner often must contact both the respondent agency and the reporter to obtain the complete record. In cases under Code of Civil Procedure section 1094.6, the local agency must prepare the record. Whichever party prepares the record, the parties must cooperate to ensure timely completion of a record which they agree is complete and accurate. Under both Code of Civil Procedure sections 1094.5 and 1094.6, the petitioner bears the cost of preparing the record unless proceeding in forma pauperis, and in that circumstance the respondent bears the cost.
(1) The record must be consecutively numbered (“Bates-stamped”) from beginning to end, including any transcript pages, and the parties must cite only to Bates-stamped page numbers in their briefs (e.g., “AR 23”).
(2) The record must be bound in appropriate side-bound three-inch binders. Spiral binding is preferred and three-ring binders are acceptable. If three-ring binders are used, the volume number and an enumeration of the enclosed Bates-stamped pages must be listed on the outside spine of each binder (e.g., Vol. 1, pages 1-323).
(3) The evidence in administrative mandamus cases is confined to the administrative record, unless the exception in Code of Civil Procedure section 1094.5(e) applies. Any motion to augment the record under Section 1094.5(e) must be filed as a noticed motion. A party considering filing a motion to augment should discuss the timing of the motion with the court at the trial setting conference.”
In any case, plaintiff is arguing that the City is omitting the following documents from the hearing and administrative case:
1. Records of three selections process for an Arbitrator
2. Records of two arbitrators withdrawing from the matter after selection
3. Plaintiff’s requests for discovery, the Arbitrator’s issuance of subpoenas, the City’s Petition for Writ of Mandate overturning the issuance of subpoenas
4. The Arbitrator’s in-camera inspection, which plaintiff was not permitted to attend, at which argument was made by the City on the merits, and the Arbitrator disclosed to the City only that he was involved in another arbitration proceeding involving the City and officers disciplined in the Portos investigation
5. Records establishing the City Manager’s review of the advisory opinion. 
  Plaintiff argues the he intends to argue that the operative Memorandum of Understanding provides a selection process for picking a neutral arbitrator, and that the City did not follow that process, as they caused the selected arbitrator to recuse himself, which resulted in plaintiff having the matter heard by an arbitrator plaintiff has stricken during the selection process.  Plaintiff indicates he further intends to argue that he was denied access to relevant information and undue delay by the City’s actions during the hearing, and that the City denied plaintiff a fair hearing by failing to comply with its own rules.  
Plaintiff then argues that the City should be ordered to provide the court with a proper, full and complete administrative record including these items, or that plaintiff may augment the record with the documents and records referenced. 
It is not until the reply that plaintiff argues that the material above falls within the definitions of the record, including “transcripts,” such as the transcripts of the in camera review, “pleadings,” such as the discovery/subpoenas and the pleadings from the writ of mandate taken to challenge the issuance of subpoenas, and “notices” and “orders,” such as the notices of recusal by the first two selected arbitrators.   The argument is that these materials should be included in the record under these categories.   
This appears to encompass at least a subset of what is requested to be included in the record, but it is difficult to evaluate the motion without reference to particular documents which plaintiff evidently has in his possession and is prepared to submit to augment the record.  
Apparently, two days after the motion was filed, plaintiff filed a Notice of Lodging of Records Proposed to be Included in the Administrative Record or Augmented Record, which includes approximately 734 pages of documents.  
Defendants object that this lodgment is untimely, is not bates’ stamped or marked for reference, and there is no indication of which document falls into which category for purposes of evaluating plaintiff’s argument.  This situation makes it difficult to evaluate the motion.  One solution may be to require further briefing with a document submitted setting forth each category of documents sought to be added, and referencing and attaching each specific document within that category, with distinct exhibit numbers, along with an explanation of why that document should be included in the record.   
In any case, with respect to the above categories, the following analysis appears to apply. With respect to items 1 and 2, request for records of three selections processes for an arbitrator and the records of two arbitrators withdrawing from the matter after selection, the reply briefly indicates that there were “notices” of recusal by the first two selected arbitrators.  
It would appear that if there are notices or orders with respect to the arbitators recusing themselves, these could be appropriately included in the record.  However, it would appear that the documents reflecting the selection process or recusal process which were evidently in existence but not submitted by plaintiff for consideration at the administrative hearing would be subject to plaintiff making a showing to augment the record under CCP section 1094.5 (e), which would require a showing that the evidence is relevant, and that, in the exercise of reasonable diligence, it could not have been produced or that was improperly excluded at the hearing before the City.  
Plaintiff does not clearly argue how the documents would be relevant to the writ of mandate proceeding, which will focus on the issue to be addressed by the writ of mandate proceeding, in effect, whether the termination of plaintiff was supported by sufficient evidence. To the extent the argument by plaintiff now appears to be that the City procured the recusal of one arbitrator so that the matter was ultimately determined by an arbitrator that plaintiff had previously challenged, it is not clear why plaintiff did not make this argument at the original hearing, and submit the evidence concerning that irregularity then.  That evidence is also not clearly submitted now concerning the relevance of the documents on the arbitration selection and recusal process.
In addition, it is not clear that the documents at issue, many of which were authored or received by counsel for plaintiff, did not exist so could not be produced at the hearing in the exercise of reasonable diligence, or were improperly excluded from the administrative proceeding.  It also appears that plaintiff conceded to the arbitrator who did preside, and that any after the fact objection should have been brought up to the administrative agency during the proceeding. 
With respect to the records of other potential hearing officers who withdrew from the case prior to the hearing, these records do not appear to fall within the definition of records constituting the administrative record, and plaintiff has not attempted to establish how the records of hearing officers who did not preside over the case are (1) relevant to the issue of whether the termination was proper, or (2) could not have been produced at the hearing in the exercise of reasonable diligence or were improperly excluded.  
With respect to the documents concerning requests for discovery, the arbitrator’s issuance of subpoenas, and the City’s Petition for Writ of Mandate overturning the issuance of subpoenas, the reply argues that the materials constitute pleadings or other documents which would ordinarily be produced as part of the administrative record.  It does appear that these types of documents concerning such proceedings might ordinarily be produced by the agency as part of the administrative record, and the court is inclined to permit their submission subject to a determination at the proceeding whether they are relevant to any issue properly before the court on the writ proceeding.  The court rules that those documents should be permitted to be submitted to constitute part of the record, with ultimate admissibility to be determined by the trial court.  
Similarly, the transcripts and documentation of the in camera hearing may fall within the administrative record consisting of transcripts and pleadings.  There appears to be a copy of the transcripts of the in camera proceedings attached to the Notice of Lodgment, beginning at page 308.  The arbitrator does appear to have disclosed an involvement in another arbitration.  [See p. 312:12-18].  The court finds that these transcripts fall within the definition of record.  The transcripts could also well fit within the requirements of CCP section 1094.5(e), as relevant to the issue of the propriety of the determination to terminate, and information which plaintiff, in the exercise of reasonable diligence, could not have produced at the hearing, as the circumstances concerning the in-camera hearing revelations only came to his attention after the administrative hearing. The court permits augmentation of the record to include the documents and transcripts with respect to this discovery dispute, the in-camera review and document concerning the writ.  
With respect to the records establishing the review of the City Manager of advisory the opinion, there is no dispute here that the pursuant to the Memorandum of Understanding, the review was required, and was not conducted prior to the administrative hearing, so material concerning that review would be both relevant to this matter, and material which in the exercise of reasonable diligence could not have been produced at the hearing, because it did not exist.  See Curtis v. Board of Retirement (1986, 2nd Dist.) 177 Cal.App.3d 293, 299 (“We conclude that the superior court is authorized under section 1095.5, subdivision (e) to receive relevant evidence of events which transpired after the date of the agency’s decision.”). 
Plaintiff argues that the administrative record fills up approximately two boxes and contains documentary evidence, video recording, and audio recordings, but the City Manager has testified that he received a box of materials, which did not include video or audio taped evidence, the LASD investigation report, or police reports generated by Nichols, and does not recall seeing other exculpatory evidence which should have been included in what was reviewed.  Plaintiff is entitled to augment the record to show evidence concerning how the review was conducted by the City Manager.   
The opposition does not appear to initially argue that the information regarding the review is not relevant or does not fit within the statute, but argues that the motion fails to identify with specificity what documents exist regarding the City Manager’s review. 
The case is in a position where the City evidently will not, or claims it cannot, produce what was reviewed by the City Manager in the review, leaving the evidence of the post-hearing review to be gleaned from the deposition testimony of the City Manager and the City’s PMQ, Scott LaChasse. There is an argument in the opposition that such evidence is a red herring, as not available at the administrative hearing, and that the depositions were permitted only in connection with the POBRA action.  However, this after-hearing evidence appears to pertain to the overall review required, and it does not appear to be at this point in the litigation that the evidence would not be relevant to the main issue in this matter. 
  The court finds that plaintiff has sufficiently established cause to augment the record to include such evidence in the administrative record before this court. 
The opposition also argues that several items included in the Notice of Lodging of Records are not referenced in the moving papers, and so should not be included in any augmented record. 
Specifically, the argument is that the Notice of Lodging of Records includes decisions from other administrative cases. [See Allen Opinion, pp. 656-686; Perez Advisory Award pp. 710-734].  These are not referenced in the motion or reply, and plaintiff has failed to establish grounds to include them in the record in this matter.   
   
RULING:
Plaintiff’s Motion for Leave to File First Amended Complaint:
The Court in its discretion has considered the untimely opposition, only because the Court received reply papers responding to the opposition on its merits. However, defendants are cautioned that in the future the Court may refuse to consider papers not filed in compliance the applicable rules, statutes, and deadlines. 
Motion is GRANTED.  
Plaintiff is ordered to file the First Amended Complaint on eCourt this date, and the motion will be deemed served as of the date of efiling. 
Request in Reply that the court deem defendants’ answer already on file as a denial of the First Amended Complaint is DENIED, in the absence of such a request by defendants.   
Plaintiff’s Motion for Order Compelling City to Perfect Administrative Record and Motion to Augment the Administrative Record:
The Court in its discretion has considered the untimely opposition, only because the Court received reply papers responding to the opposition on its merits. However, defendants are cautioned that in the future the Court may refuse to consider papers not filed in compliance the applicable rules, statutes, and deadlines. 
Motion is GRANTED IN PART:
The Court finds that plaintiff has established that the following categories of documents are to be appropriately included in an augmentation of the record:
With respect to items 1 and 2 set forth in the moving papers, request for records of three selections processes for an arbitrator and the records of two arbitrators withdrawing from the matter after selection, the motion is GRANTED in part and the record may be augmented to include notices or orders with respect to arbitrators recusing themselves.  
The motion is DENIED as to the remaining documents in these categories, as plaintiff has failed to sufficiently show under CCP section 1094.5 (e) that the evidence is relevant, and that, in the exercise of reasonable diligence, it could not have been produced or that was improperly excluded at the hearing before the City.  
Motion as to items 3 and 4 set forth in the moving papers, pertaining to plaintiff’s requests for discovery, the Arbitrator’s issuance of subpoenas, the City’s Petition for Writ of Mandate overturning the issuance of subpoenas; and the Arbitrator’s in-camera inspection, is GRANTED. The material consists of pleadings, orders and transcripts, and plaintiff has further established that much of the matter is relevant and in the exercise of reasonable diligence could not have been produced at the hearing.  
Motion as to item 5 set forth in the moving papers, records establishing the City Manager’s review of the advisory opinion, is GRANTED.  Plaintiff has sufficiently shown under CCP section 1094.5 (e) that the evidence is relevant, and that, in the exercise of reasonable diligence, it could not have been produced at the hearing before the City.  The City appears to take the position that it is not in possession of any records reflecting this review.  The City will be given an opportunity to produce such records if they exist.  Regardless, the Court will consider the deposition testimony of the City Manager and the PMQ on these issues which were taken in this matter, to the extent that testimony is admissible.
Motion is DENIED as to all documents not falling within these categories, specifically documents included in the Notice of Lodging Records which are not addressed in the moving or reply papers or this order.  
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: EC064617    Hearing Date: January 22, 2021    Dept: D

TENTATIVE RULING

Calendar: 15

Date: 1/22/2021

Case No: EC064617 Trial Date: April 5, 2021

Case Name: Nichols v. City of Burbank

MOTION TO DISQUALIFY COUNSEL

Moving Party: Plaintiff Nick Nichols

Responding Party: Defendants City of Burbank, Burbank Police Department,

Mark Scott, and Scott La Chasse

RELIEF REQUESTED:

Order disqualifying attorney Alfonso Estrada and the law firm of Atkinson, Andelson, Loya, Ruud & Romo from representing defendants in this action

SUMMARY OF FACTS:

Plaintiff/Petitioner Nick Nichols alleges that he was terminated in June of 2010 from his position as a police officer with defendant the City of Burbank Police Department, based on an investigation of an incident occurring during a take-over robbery by MS 13 gang members of the Portos Bakery in Burbank, with respect to concerns that an unknown officer had assaulted a witness in a police department hallway and another officer had witnessed the incident and failed to report it. Plaintiff alleges that the investigation was improperly conducted, and that defendants and their witnesses caused undue delays in the administrative appeal process. Defendant Mark Scott is alleged to be the City Manager for the City of Burbank, and defendant Scott LaChasse is alleged to be the Chief of Police for the City of Burbank. The complaint alleges a cause of action for a writ of mandate, inquiring into the validity of the administrative order terminating Nichols, and causes of action for violations of the Public Safety Officers Procedural Bill of Rights (“POBRA”), and Violation of Civil Rights.

ANALYSIS:

Procedural

Defendants argue in the opposition that the motion must be denied on the ground it was not brought on sufficient notice. Defendants argue that the moving papers here were electronically served on December 29, 2020, when they were required to have been served on December 24, 2020.

Under CCP section 1005(b):

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”

The subdivision provides that if the notice is served by mail, the period of notice before the hearing shall be increased by five calendar days. Under CCP § 1010.6(a)(4), where electronic service is made, the time is extended “by two court days.”

Here, the motion was noticed to be heard on January 22, 2021. Sixteen court days prior to this date computing the time by counting backward from the hearing date, excluding the day of the hearing, as required under CCP § 12c (a), was December 28, 2020. Adding two court days for service by electronic service would require that the motion have been filed and served on December 24, 2020. The motion was filed on December 30, 2020, and served on December 29, 2020, nearly a week late.

The reply does not dispute that the motion was brought on insufficient notice, but argues that while plaintiff originally scheduled this motion for March 12, 2021, the court advanced and rescheduled the hearing for January 22, 2021, meaning that the motion had to be filed two months earlier, during the holiday period, and that it was difficult to obtain declarations and file the motion within the shortened time period.

If plaintiff was not prepared to file the motion for an earlier hearing date, plaintiff should have sought an order shortening time or other relief from the court in advance. However, the motion will not be denied based on insufficient notice

The court notes that the opposition has responded to the motion on its merits. It is held that insufficient or defective notice may be waived if opposing counsel appears at the hearing and argues the merits of the motion. Alliance Bank v. Murray (1984, 2nd Dist) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000, 2nd Dist.) 77 Cal.App.4th 690, 697. The court finds that any objection to the notice has been waived. The court will proceed to consider the motion on its merits.

Substantive

Plaintiff Nichols seeks an order disqualifying from representing defendants the attorney Alfonso Estrada, and the law firm Atkinson, Andelson, Loya, Ruud & Romo. On January 31, 2020, defendants filed and served a Notice of Association of Counsel, associating these attorneys as attorneys for defendants City of Burbank, Burbank Police Department, Mark Scott, and Scott LaChasse in this action. [Glave Decl., para. 6, Ex. 1].

Plaintiff argues that attorney Estrada previously represented in connection with the incident which gives rise to this action, Tomas Perez, an officer of the Burbank Police Department who was the partner of plaintiff Nichols, who together with Nichols on the night in question transported suspects and witnesses to the Burbank Police Department. These two were alleged to have engaged in misconduct themselves, or to have failed to report the misconduct of other officers. Plaintiff argues that during the administrative appeal, the various attorneys representing the officers, including Nichols’ and Perez’s attorneys, shared information and evidence, that Perez met with Estrada and engaged in privileged communications, and is now “switching sides” in the underlying controversy.

CCP section 128(a)(5) provides that the court shall have the power “To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every manner pertaining hereto.

The moving papers rely on the State Bar Rules of Professional Conduct, Rule 3-310(E), which provides that “a member shall not, without the informed consent of the client or former client, accept employment adverse to the client or former client, where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.” It is held that the former client may move to disqualify counsel who violates this rule. Flatt v. Superior Court (1994) 9 Cal.4th 275.

The issue of disqualification ultimately involves a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility, and the trial court’s determination will not be disturbed unless there is an abuse of discretion. Forrest v. Baeza (1997) 58 Cal.App.4th 65, 73.

The motion argues that a non-client has standing to seek to disqualify an attorney in situations such as this one where parties with a common interest had shared information while the attorney was working for one such party and then switched sides. Plaintiff relies on Meza v. Muelstein & Co., Inc. (2009) 176 Cal.App.4th 969, in which the Second District affirmed the trial court’s granting of a motion to disqualify counsel which had previously represented one of multiple defendants in a personal injury action and participated in meetings where information had been exchanged concerning the case regarding the client’s common interests. The Second District found that despite that fact that the parties moving for disqualification did not have an attorney-client relationship with counsel sought to be disqualified, they and their counsel, “ clearly had an interest in protecting confidential attorney work product disclosed” to counsel “during the time he participated in joint defense efforts.” Meza, at 980-981.

Plaintiff also relies on O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, in which the Second District reversed the trial court’s denial of a motion to disqualify counsel where an executive with a company, although not a licensed attorney at the time, participated in discussions and received communications protected by the lawyer-client privilege, and received information on an internal investigation of two employees, and then later joined a law firm which represented one of those former employees in his claims against the company. The Second District observed:

“Because Richie never had an attorney-client relationship with O'Gara Coach while employed as its president and chief operating officer, the trial court correctly rejected O'Gara Coach's argument for disqualification of Richie and Richie Litigation based on a theory of improper successive representation. However, the court erred in failing to consider O'Gara Coach's alternate argument that disqualification of Richie and his law firm was required as a prophylactic measure because the firm was in possession of confidential information, protected by O'Gara Coach's attorney-client privilege, concerning Ra's allegedly fraudulent activities at issue in this litigation. (See, e.g., Roush v. Seagate Technology, LLCsupra, 150 Cal.App.4th at p. 219, 58 Cal.Rptr.3d 275[although the “classic disqualification case involves the attorney switching sides, ... [¶] [i]n other cases, counsel may be disqualified where counsel has obtained the secrets of an adverse party in some other manner”; “[d]isqualification is warranted in these cases, not because the attorney has a direct duty to protect the adverse party's confidences, but because the situation implicates the attorney's ethical duty to maintain the integrity of the judicial process”].)

O’Gara Coach, at 1128.

The motion argues that for disqualification purposes, the moving party must show directly or by reasonable inferences that the challenged attorney acquired material confidential information, and that this can be shown by showing a substantial relationship between the former and current representation.

Plaintiff argues that in this case, the factual issues overlap, as Nichols and Perez were accused of the same misconduct, were part of the same internal affairs investigations, and were both subject to the same disciplinary action, which is sufficient to satisfy the substantial relationship test. Moreover, plaintiff argues that there is evidence that confidential information was disclosed and shared among the parties.

Plaintiff submits a declaration of plaintiff’s counsel, who has represented plaintiff throughout the pre-disciplinary due process hearing, administrative appeal and this litigation, and states that Nichols and Perez were partners at all times relevant to the Porto’s I and Porto’s II internal affairs investigations, it was alleged that one of the transporting officers observed a police lieutenant engage in serious acts of misconduct, and that Nichols and Perez were investigated in the same investigations, were charged with the same allegations of misconduct, and were both disciplined. [Glave Decl., para. 2]. Nichols and Perez were represented by the same attorney in their Portos II internal affairs investigation, but Nichols then retained his current attorney, and Perez retained the firm of Green & Shinee, where Estrada was employed at the time. [Glave Decl., para. 3]. The attorney states:

“During the administrative appeal process, the officers’ attorneys that involved in the disciplinary appeals, including counsel for Nichols and Perez, shared information and evidence in a joint effort to overturn the disciplinary actions. This would mean that Mr. Estrada acquired material confidential information through his representation of Officer Perez.”

[Glave Decl., para. 4].

Plaintiff also submits a declaration of Tomas Perez, in which he states that he and a number of other officers, including Nichols, were subject to investigation into their conduct during a robbery investigation related to the Porto’s Bakery. [Perez Decl., para. 8]. The declaration states:

“9. I retained/hired the law firm of Green & Shinee, to provide legal representation during the administrative appeal portion of my case. My point of contact with Green & Shinee was an attorney by the name of Alfonso Estrada. He and I met in person, at least once, regarding my case. During Green & Shinee’s representation of me, I provided privileged communications regarding the administrative investigation and/or my defense to the administrative allegations.

10. During the pendency of disciplinary appeals by myself, Officer Nichols and other officers that were disciplined, the various lawyers working on the cases shared non-privileged information and evidence.”

[Perez Decl., paras. 9, 10].

Plaintiff also submits the declaration of Richard Shinee, a senior partner in the law firm of Green & Shinee, who confirms that Estrada had privileged conversations with Perez, and that the attorneys working for Perez and Nichols exchanged information and evidence:

“2. My law firm, Green and Shinee, represented Burbank Police Officer Tomas Perez in regards to the administrative investigation related to a take-over robbery at the Porto’s Baker in the City of Burbank. Officer Perez was initially assigned another attorney in the firm and was reassigned to Alfonso Estrada. During his representation by the firm, as was the practice of the firm, Mr. Estrada would have had numerous privileged communications with Mr. Perez….

4. During the pendency of disciplinary appeals by Officer Perez, Officer Nichols and other officers that were disciplined, the various lawyers working on the cases shared information and evidence.”

[Shinee Decl, paras. 2, 4].

The court finds there is a substantial relationship between Attorney Estrada’s representation of Perez in the disciplinary proceeding and his representation of the City in this matter. Flatt v. Superior Court (1994) 9Cal. 4th 275, 283. The substantial relationship exists due to the similarity of the two factual situations, the legal questions raised and the nature and extent of Attorney Estrada’s involvement in both matters. Also, the information obtained by Attorney Estrada is material to the current representation. See Morrison Knudson Corp. v. Hancook Rothert & Bunshift (1999) 69 Cal.App.4th 223, 234.

This presentation constitutes a sufficient showing to support a reasonable inference that confidential information was shared between Estrada, Perez, and Nichols as a nonclient. Because, there is a substantial relationship between the legal representation of Attorney Estrada in this case and the Perez matter, there is the presumption that confidential information was exchanged. See Med-Trans Corp., Inc. v. City of Calif. (2007) 156 Cal.App.4th 655, 665, 666, 669.

Plaintiff further argues that with Estrada being properly disqualified, his entire firm must also be disqualified. See O’Gara Coach, at 1131 (“the law is now well-established that, once a showing has been made that someone at the adverse party’s law firm possesses confidential information materially related to the proceedings before the court, a rebuttable presumption arises athat the information has been used or disclosed in the current employment.”). The Second District in O’Gara Coach found this to be particularly appropriate where there was no evidence provided in opposition to the motion to disqualify that the attorney “had been screened” from the other lawyers working on the litigation. Id.

Defendants in opposition argue that plaintiff, who was never a client of Estrada’s himself, lacks standing to seek disqualification based on successive representation.

However, the argument is that there was a relationship between the representation of Perez in connection with the same incident, and current representation of parties on the opposite side of the dispute, in which confidential information available through Perez including that pertaining to, or from Nichols, was exchanged. In applying Meza, and rejecting such a standing argument, the court of Appeal in Kennedy v. Eldridge (2011) 201 Cal.App.4th

1197, observed:

“It makes no sense for a court to stand idly by and permit conflicted counsel to participate in a case merely because neither a client nor former client has brought a motion. As one court put it, “Protection of the attorney-client privilege is not the only ground for a motion to disqualify an attorney.” (Meza, supra, 176 Cal.App.4th at p. 980.) “[T]he court has an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them.” (In re A.C. (2000) 80 Cal.App.4th 994, 1001 [96 Cal. Rptr. 2d 79], italics added.) Accordingly, we conclude that where an attorney's continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel.”

Kennedy, at 1204-1205.

The opposition recognizes that courts have held that an attorney may have a duty to preserve the confidences of nonclients but argues that plaintiff has failed to meet his burden or establishing in such a case that the attorney obtained confidential information regarding the nonclient in the course of representing a client, and that an unfair advantage might accrue were the attorney to pursue substantially related litigation against the nonclient.

Defendants rely on the declaration of counsel Estrada, in which he states:

“6. Former Burbank Police Officer Tomas Perez (“Perez”) was a client of the Green & Shinee firm during the time I worked there. I was not the attorney assigned to Perez’s case but spoke with him on occasion to provide status updates on behalf of Richard Shinee, the handling attorney on the case. This was the extent of my involvement in the case, as Senior Partner Richard Shinee was the assigned handling attorney.

7. I have reviewed Mr. Shinee’s declaration wherein he states that I was assigned the Perez case. I do not recall ever being assigned as the handling attorney for the Perez matter.

8. While at Green & Shinee, I never spoke with Plaintiff’s counsel, Corey Glave, at any time regarding his client Nichols or Nichols’ case. Further, after leaving Green & Shinee I did not have any conversations with Mr. Glave regarding this case other than in my role as defense counsel for Defendants.”

[Estrada Decl., paras. 6-8].

This testimony that Estrada did in fact speak with Perez but does not recall facts concerning his formal assignment is very weak in contrast to the testimony of the partner at the time concerning the nature of the representation, whereby the partner (Attorney Richard Shinee) states that Attorney Estrada was assigned to Mr. Perez’s case and that Attorney Estrada had numerous interactions with Mr. Perez. Estrada also states, “I do not possess any confidential information from Perez relevant to the current matter that is not already public information.” [Estrada Decl., para. 12]. This suggests that confidential information relevant to this matter was disclosed, but Estrada is taking the position it has since become public, which does not alleviate the concern here.

Plaintiff in reply submits a supplemental declaration of plaintiff’s counsel Glave, to refute the testimony of Estrada of his lack of involvement. Glave indicates that he reviewed emails from the period, and produces an email in which Estrada in fact is directly communicating with Glave on the case, and sharing information with Glave with respect to the evidence against both Perez and Nichols in the form of transcripts. [See Glave Decl., para. 5, Ex. 2].

A review of the Advisory Award and Opinion in the Perez matter submitted with the reply shows the interconnection between the case involving the discipline of Perez and this matter with respect to Nichols. The arbitrator’s discussion shows that the issue in that matter was whether Perez witnessed an assault on David Romero Ceron by Lieutenant Rodriguez, which concededly occurred, and the arbitrator concludes that for most of the relevant period both Nichols and Perez were together in the hallway where the assault occurred, and that according to the testimony of witnesses, and their identification of each of the officers, such that “there is strong confirmation that both were in the hallway when the assault occurred…” [Glave Decl., Ex. 1., pp. 9-10]. Any information or refutation of the testimonial evidence provided by Perez regarding the incident and whether Nichols was present would accordingly be critical in this matter.

As noted above, it has been suggested in the case law that the policy of maintaining public trust in the fairness of the justice system is particularly important in such cases:

“We also accept the possibility, given the realities of present-day law practice and law office management (see Adams v. Aerojet General Corp., supra, 86 Cal.App.4th at pp. 1336–1337), of some overinclusion as a necessary by product of the paramount solicitude for the maintenance of the public's trust in the fairness of the justice system and in the integrity of the bar manifested by the rule of necessity. (See SpeeDee Oil Change Systems, supra, 20 Cal.4th at pp. 1145–1147.)”

Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App. 4th 698, 714.

This is a situation where confidential information disclosed by Perez to Estrada is at issue, or confidential information shared among the interested parties, which information would impact Nichol’s position in this case. Disqualification is the proper remedy because there is a substantial relationship between Attorney Estrada’s representation of Perez in the disciplinary proceedings and his representation of the city in this matter. This result is correct especially given that Attorney Estrada in his representation of Perez received confidential information pertinent to Nichols, who is on the “opposite side” of Attorney Estrada in this matter. Therefore, Attorney Estrada has “switched sides” in his representation of the city.

The integrity of the justice system is implicated if counsel is permitted essentially to switch sides in this matter over the objection of plaintiff. In the balancing of competing interests, the court finds that the integrity of the justice system takes precedence over the city’s choice of counsel. The motion accordingly is granted.

The opposition also argues that the motion should be denied on the ground that plaintiff has waived his right to bring such a motion given his delay in bringing the motion until after counsel had been associated in since January of 2020.

In River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, the court of appeal reversed a disqualification order entered by the trial court finding an implied waiver the right to disqualify.

The court in River West found that even where there was former representation of an adversary, and a substantial relationship established between the former representation and present action, disqualification could still be avoided if there was an inexcusable postponement of objection to the current representation. The court of appeal set forth the following rule:

“a narrow exception should apply if the present client, by way of opposition, offers prima facie evidence of an unreasonable delay by the former client in making the motion and resulting prejudice to the current client. ( Estate of Harootenian (1951) 38 Cal.2d 242, 247 [238 P.2d 992]; Newport v. Hatton (1924) 195 Cal. 132, 148 [231 P. 987].) The trial court must have discretion to find laches forecloses the former client's claim of conflict. The burden then shifts back to the party seeking disqualification to justify the delay. That party should address: (1) how long it has known of the potential conflict; (2) whether it has been represented by counsel since it has known of the potential conflict; (3) whether anyone prevented the moving party from making the motion earlier, and if so, under what circumstances; and (4) whether an earlier motion to disqualify would have been inappropriate or futile and why.”

River West, at 1309.

Here, in response to defendants’ argument that counsel was associated in on January 31, 2020, and Estrada made several appearances before the court since that time, plaintiff in reply argues that it was not until October of 2020 just prior to a mandatory settlement conference that plaintiff spoke to Perez and discussed the City’s new attorney, and Perez informed plaintiff that Estrada had represented him previously in the Portos matter. [See Reply, Glave Decl., para. 4]. Counsel indicates that he did not previously recall Estrada’s prior involvement. [Id.]

It appears that rather than almost a year long delay, the conflict was not known for a long period of time before this motion was pursued, such that a waiver of the right to object will not bar plaintiff from seeking this relief.

In Forrest v. Baeza (1997) 58 Cal.App.4th 65, the court of appeal applied a standard of “extreme time delay or extreme prejudice,” in reliance on the following characterization of River West:

“Although inexcusable delay may occasion denial of a motion to disqualify counsel, the “delay must be extreme in terms of time and consequence.” (River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1311 *78 [234 Cal.Rptr. 33].) In River West, a defendant moved to disqualify plaintiffs' attorney because the attorney had represented the defendant in a “substantially related” matter some 27 to 30 years before. The motion was filed more than three years after the defendant had knowledge of the conflict, after the attorney had worked more than 3,000 hours on the case, at a cost of some $387,000. The defendant attempted to excuse the delay by claiming there had been no court available to hear the motion due to pending motions for change of venue and judicial disqualification. The reviewing court found the excuse insufficient, as there had been times within the period when a judge would have been available and, in any case, the inability of a court to determine the motion did not excuse the defendant from filing the motion to give notice to the plaintiffs and their attorney of the claimed conflict. (188 Cal.App.3d at p. 1314.)”

Forrest, at 77-78.

The delay here was not extreme, is reasonably explained, and the motion is not denied on this ground.

RULING:

Motion to Disqualify Defense Counsel Alfonso Estrada and the Law Firm of Atkinson, Andelson et al.:

The Court has considered the motion, despite the fact it was not brought technically on sufficient notice, only because defendants have addressed the merits of the motion in the opposition papers and given the need for a compressed hearing arising not of the trial date requested by the defendants in light of defendants’ failure to stipulate to extension of the 5-year rule beyond 30 days.

Motion is GRANTED. Attorney Alfonso Estrada, and the law firm Atkinson, Andelson, Loya, Ruud & Romo are disqualified from representing defendants in this matter. The court has reviewed all of the evidence submitted and finds that plaintiff has sufficiently established that confidential information was conveyed to attorney Estrada by then-client Perez, who shared a common interest with plaintiff Nichols, that counsel obtained otherwise secret information concerning Nichol’s positions in this matter, and the situation implicates the attorney’e ethical duty to maintain the integrity of the judicial process.

Defendants’ Evidentiary Objections to Declaration of Richard Shinee are OVERRULED.

Defendants’ Evidentiary Objections to Declaration of Tomas Perez: Objections Nos. 4 and 5 are SUSTAINED. Remaining Objections are OVERRULED.

Defendants’ Evidentiary Objections to Declaration of Corey Glave: Objection No. 5 is SUSTAINED. Remaining Objections are OVERRULED.

The court makes the following credibility findings: (a) the court finds that testimony of Attorney Alfonso Estrada found in the Declaration of Attorney Estrada is not credible; and (b) the court finds that the testimony of Attorneys Glave and Shinee and ex-officer Perez, in the Declarations of Corey Glave, Richard Shinee and Tomas Perez are all credible.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC064617    Hearing Date: January 31, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 21

Case Number: EC 064617

Date: 1/31/20 Trial date: March 9, 2020

Case Name: Nichols v. City of Burbank, et al.

MOTION FOR SUMMARY ADJUDICATION

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Plaintiff Nick Nichols

Responding Party: Defendants City of Burbank, Burbank Police Department, Mark Scott

and Scott Lachasse

Relief Requested:

Summary adjudication of issues in favor of plaintiff on the second cause of action and for violation of plaintiff’s civil rights under 42 U.S.C. 1983

Causes of Action from from Complaint

1) Petition for Writ of Mandate Pursuant to CCP § 1094.5

2) Relief for Violation of POBRA, Government Code § 3309.5

3) Violation of Civil Rights 42 USC § 1983

SUMMARY OF COMPLAINT:

Plaintiff/Petitioner Nick Nichols alleges that he was terminated in June of 2010 from his position as a police officer with defendant the City of Burbank Police Department, based on an investigation of an incident occurring during a take-over robbery by MS 13 gang members of the Portos Bakery in Burbank, with respect to concerns that an unknown officer had assaulted a witness in a police department hallway and another officer had witnessed the incident and failed to report it. Plaintiff alleges that the investigation was improperly conducted, and that defendants and their witnesses caused undue delays in the administrative appeal process. Defendant Mark Scott is alleged to be the City Manager for the City of Burbank, and defendant Scott LaChasse is alleged to be the Chief of Police for the City of Burbank. The complaint alleges a cause of action for a writ of mandate, inquiring into the validity of the administrative order terminating Nichols, and causes of action for violations of the Public Safety Officers Procedural Bill of Rights (“POBRA”), and Violation of Civil Rights.

ANALYSIS:

Defendants argue in the opposition that the motion is denied on the ground it was not brought on sufficient notice. Defendants argues that the moving papers here were electronically served on November 18, 2019, only 74 days before the hearing, when due to the use of electronic service, defendants were entitled to two additional days.

CCP § 437c(a)(2) requires that a motion for summary judgment be brought on 75 days’ notice:

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for the hearing.”

With respect to the 75 days’ notice requirement, the requirement is held mandatory in the absence of a stipulation between the parties. The Second District has considered whether trial courts may shorten this time

and concluded: “we hold that, in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.” McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118; See also Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764 (“the Legislature did not…authorize a trial court to shorten the minimum notice period for hearings on summary judgment motions. Such discretionary language is notably absent from the statute. Moreover, the statutory language regarding minimum notice is mandatory, not directive.”) See also Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596.

Here, the motion noticed a hearing date of January 31, 2020. Seventy-five days prior to this date was November 17, 2019, computing the time by counting backward from the hearing date, excluding the day of the hearing, as required under CCP § 12c (a) (“Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward from the hearing date, excluding the date of the hearing as provided by Section 12.”) November 17, 2019 was a Sunday.

The reply argues that the summary judgment statute does not address service by electronic filing, which should be considered akin to personal service, so that the service on Monday, November 18, 2019 was appropriate.

The summary judgment statute provides at CCP § 437c(a):

(2) Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.

(Emphasis added).

The argument is that the statute does not mention service by e-filing, which should be considered personal service, not a method of delivery providing for overnight delivery, as it is instantaneous.

It is true that the statute does not mention service by e-filing. Under CCP § 437c(b)(6), the summary judgment statute:

“(6) Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.”

However, the summary judgment statute above does not mention Section 1010.6, governing the electronic service of documents, which provides, in pertinent part:

“(4) Electronic service of a document is complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent. However, any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days…”

CCP § 1010.6(a)(4).

The statute sets forth exceptions that do not apply here, and also states, “(C) This extension applies in the absence of a specific exception provided by any other statute or rule of court.” CCP § 1010.6 (a)(4)(C).

Accordingly, since the summary judgment statute does not provide a specific exception with respect to electronic filing, the time period is extended by two court days under CCP § 1010.6, so that defendants correctly argue here that the motion was required to have been filed by November 14, 2019, so was four days late.

The reply also argues that since the deadline was a Sunday, plaintiff was permitted until the following court day to file the moving papers.

As discussed above, the deadline was actually two court days prior to the Sunday, so this argument does not assist plaintiff.

In addition, although the summary judgment statute does not mention CCP § 12a, the California Supreme Court long ago held that CCP § 12a does not apply to statutes, such as the one at issue, in which an act is required to be done “not less” than or “not later” than a given number of days before a designated time. Steele v. Bartlett (1941) 18 Cal.2d 573, 574.

In Steele, the Court ordered a peremptory writ of mandamus to issue, compelling a city clerk to omit names from a special election ballot of persons who had not timely filed nominating papers. In Steele, the nominating papers were required by statute to be filed “not later than twelve o’clock noon on the thirty-first day before the election.” The thirty-first day before election day was a Sunday, and six of the eleven candidates filed their nominating papers on the following Monday, only thirty days before the election. The Court held that this was improper, and that CCP § 12a could not be relied upon to extend the statutory time:

Griffin v. Dingley, 114 Cal. 481, 483, 46 P. 457, and Hutchins v. County Clerk, 140 Cal.App. 348, 35 P.2d 563, are authority for the proposition that while sections 12, 12a, and 13 of the Code of Civil Procedure and Political Code serve to extend one day the time within which or upon which an act may be done when the last day therefor falls on a Sunday or holiday, said sections are without application and do not extend the time for an act that must be performed ‘not less' than or ‘not later’ than a given number of days before a designated time. In the latter situations it is held that to permit such an extension would be to nullify the legislative intent that the act must be performed more than a designated number of days before the event specified.

As stated in Griffin v. Dingley, supra, 114 Cal. at page 483, 46 P. at page 457, ‘the statute does not fix the day upon which or the time within which the certificate is to be filed, but declares that it shall be filed ‘not less' than 30 days before the day of election. To hold that it could be filed 28 days [two consecutive holidays were there involved] before the day of election would be in manifest disregard of the provisions of the statute.’”

Steele, at 574.

The Court accordingly held the nominating papers were untimely:

“It necessarily follows that the nominating papers of the six candidates whose names are here sought to be kept off the ballot were filed one day late and the fact that the thirty-first day before the election fell on a Sunday did not serve to extend the time for such filing to the following day.”

Steele, at 574.

Here, as set forth above, the statute requires the motion to be served “at least 75 days before the time appointed for the hearing,” which is akin to the “not less than” language in which the Court in Steele recognized a legislative intent that the filing and service must be performed more than the designated number of days so specified. The motion accordingly is not considered by the court, as not brought on sufficient notice.

The papers concede that there was no stipulation between the parties to shorten time, and the court has no authority to, for example, continue the hearing date to cure this defect. See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268 (the Second District holding 76-day notice given on mailed motion was invalid, so that at the noticed motion hearing, “the trial court had no authority to continue the hearing a mere four days. At that point, the notice period had to begin anew…The four-day continuance was a violation of due process and an abuse of discretion.”).

The court declines to consider the motion as not brought on sufficient notice.

(Even if the court were to consider the substance of the motion, it would have to be denied. The motion is brought by plaintiff, seeking summary judgment in plaintiff’s favor, but does not address the issue of damages. It is held that he summary judgment procedures obligate a plaintiff to prove each element of plaintiff’s cause of action, including damages. In Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, the court of appeal expressly held that where issues of the calculation of damages remain to be determined, it is not appropriate to grant summary judgment:

Although we have determined that Blockbuster is liable to appellant, Code of Civil Procedure section 437c makes no provision for a partial summary judgment as to liability. Even summary adjudication may be granted only in limited instances. (Code Civ. Proc., § 437c, subd. (f)(1).) Because issues of the calculation of damages apparently remain to be determined, it is not appropriate to grant summary judgment for appellant at this time. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) ¶ 10:40.1, p. 10-17 [summary judgment or adjudication improper where amount of damages raises factual issue].) The correct procedure below would have been a motion to bifurcate the issue of liability, which the parties could have tried upon the undisputed facts. (Code Civ. Proc., § 598.) A decision on the issue of liability against the party on whom liability is sought to be imposed does not result in a judgment until the issue of damages is resolved.

Department of Industrial Relations, at 1097.

To the extent the motion purports to establish issues of “duty” owed to plaintiff, other than Issue No. 2, the motion is framed such that plaintiff is seeking both a determination that a duty was owed, and that it was violated. The “Issues” accordingly raised by the motion for summary adjudication are not addressed to, and do not appear to dispose of an entire cause of action, affirmative defense, a claim for damages, or issue of duty. See CCP § 437c(f)(1) (“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”) Issue No. 2, concerning whether defendants owed plaintiff a reasonable opportunity to obtain representation prior to his interrogation, was addressed in defendant’s previous motion for summary judgement/adjudication, and requires a factual

determination and weighing of the evidence submitted by each side concerning whether plaintiff was at the time of the interrogation “under investigation,” giving rise to entitlement to POBRA rights, and triable issues of material fact are again raised. See Opposition, pp. 14-16; Puglisi Decl. ¶¶ 3-7; Misquez Decl. ¶¶ 5-12).

RULING:

Plaintiff’s Motion for Summary Adjudication is NOT CONSIDERED BY THE COURT.

The motion was not served on sufficient notice but was served only 74 days prior to the time appointed for the hearing. Under CCP § 437c(a)(2) “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for the hearing.” This requirement is mandatory in the absence of a stipulation between the parties, and trial courts do not have authority to shorten the minimum notice period for summary judgment hearings. McMahon v. Superior Court (2003, 2nd Dist.) 106 Cal.App.4th 112, 118; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764; Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596.

To the extent the reply argues that plaintiff was entitled to file his motion on the court day following the 75th day, a Sunday, plaintiff cites no legal authority under which the time would be extended, particularly in light of the clear statutory mandate that service be made “at least 75 days before” the hearing. To the extent the reply argues that plaintiff was not required to permit an additional two court days for service by electronic filing, the argument is irrelevant in light of the deadline discussed above, which was clearly not met, and the court would also find that CCP § 1010.6 (a)(4) applies to extend the service deadline by two court days, making the service another two court days late.

The court notes that it has reluctantly considered the opposition papers and reply papers, despite the failure of the parties to submit to the court timely courtesy copies. See General Order Re Mandatory Electronic Filing for Civil Filed by the Superior Court of the State of California for the County of Los Angeles, filed November 5, 2018, requiring, that “Courtesy copies for filings with a hearing date of two days or less shall be delivered to the courtroom by 4:30 p.m. the same business day…,” and that “a printed courtesy copy…is required for the following documents: … C. Pleadings and motions that include points and authorities;…F. Motions for Summary Judgment/Adjudication.” See also Department D Policy, requesting courtesy paper copies lodged with Department D of “ALL REPLIES, OPPOSITIONS, AND OBJECTIONS, FOR THE MATTERS THE COURT HEARS ON FRIDAYS FOR ITS LAW AND MOTION CALENDAR.” The court may in the future refuse to consider papers efiled and submitted without the required printed courtesy copies.

The court also notes that the memorandum in support of the motion is 22 pages long, exceeding the 20-page limit, without plaintiff having obtained permission to file such a pleading. See CRC Rule 3.1113(d) (“In a summary judgment or summary adjudication motion, no opening or responding memorandum of points and authorities shall exceed 20 pages.”)

Case Number: EC064617    Hearing Date: January 17, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 17

Date: 1/17/20

Case No: EC 064617 Trial Date: March 9, 2020

Case Name: Nichols v. City of Burbank, et al.

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY (3)

Moving Party: Defendant City of Burbank

Responding Party: Plaintiff Nick Nichols

RELIEF REQUESTED:

Further Responses to Form Interrogatories—Employment, Set One

Further Responses to special Interrogatories, Set One

Further Responses to Requests for Admissions, Set One

FACTUAL BACKGROUND:

Plaintiff/Petitioner Nick Nichols alleges that he was terminated in June of 2010 from his position as a police officer with defendant the City of Burbank Police Department, based on an investigation of an incident occurring during a take-over robbery by MS 13 gang members of the Portos Bakery in Burbank, with respect to concerns that an unknown officer had assaulted a witness in a police department hallway and another officer had witnessed the incident and failed to report it. Plaintiff alleges that the investigation was improperly conducted, and that defendants and their witnesses caused undue delays in the administrative appeal process. Defendant Mark Scott is alleged to be the City Manager for the City of Burbank, and defendant Scott LaChasse is alleged to be the Chief of Police for the City of Burbank. The complaint alleges a cause of action for a writ of mandate, inquiring into the validity of the administrative order terminating Nichols, and causes of action for violations of the Public Safety Officers Procedural Bill of Rights (“POBRA”), and Violation of Civil Rights.

The court on May 17, 2018, heard discovery motions brought concerning discovery propounded by plaintiff in this matter, and entered an order limiting discovery to the following subjects:

“Plaintiff is permitted to conduct discovery in this matter limited to the following matters: Plaintiff's allegations that defendants failed to inform plaintiff of the nature of the investigation prior to interrogation, failed to permit plaintiff access to the transcribed notes made by a stenographer and other required information, failed to permit plaintiff to bring his own recording device to record any aspect of the interrogation, failed to permit plaintiff to be represented by a representative of his choice during the interrogation, failed to complete the investigation within one year, improperly reopened the investigation, failed to provide plaintiff with an opportunity for administrative appeal, and entered comments adverse to plaintiff's interest in his personnel file without following the appropriate procedures, and as further limited in connection with the subject discovery, as set forth below.”

[RFJN, Ex. J].

RULING:

Defendant City of Burbank’s Motion to Compel Further Responses to Defendant City of Burbank’s Form Interrogatories—Employment, Set One is GRANTED.

Plaintiff Nick Nichols concedes that he provided no timely response to Form Interrogatory No. 205.1. Plaintiff is ordered to serve a full and complete verified response to the subject interrogatory, with provides all information requested, and fully complies with the Discovery Act. Response is to be without objections, which have been waived.

Plaintiff Nick Nichols is ordered to serve further responses to Form Interrogatories Nos. 208.1, 209.1, 210.2, 210.3, 210.5, 210.6, 215.1, and 215.2 which respond to all subparts, and provide all information requested, and fully comply with the Discovery Act. The court has considered the asserted objections, and finds they are without merit, and plaintiff in opposition has failed to justify them, so further responses are to be served without objections. To the extent the opposition argues that the information is equally available to defendant, this objection was not asserted in the responses, and has according been waived, and, in any case, the court does not find this an acceptable response; propounding party is entitled to the information plaintiff has, and upon which he bases his action, and an equally available objection usually applies when a propounding party seeks to force another party to search public records equally available to both. Coy v. Superior Court (1962) 58 Cal.2d 210, 218 (“’no rule or authority is cited which authorizes refusal to answer an interrogatory simply on the ground that the answer is known to the party seeking the information,’” quotation citation omitted); Alpine Mutual Water Co. v. Superior Court (1968) 259 Cal.App.2d 45, 53. The court also does not find acceptable a response that plaintiff is looking for the requested information to respond, or that defendant is referred to the documents already produced in this case, which the opposition suggests plaintiff intends to do in further responses. See Coy, supra, at 217-219; see also Deyo v. Kilbourne (1978, 2nd Dist..) 84 Cal.App.3d 771, 783-784 (“it is not proper to answer [an interrogatory] by stating ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’”).

Responses to Form Interrogatories Nos. 210.2 and 210.3 must provide the basis for each calculation, with respect to each category-- income, benefits, and earning capacity-- being claimed as lost to date, and in the future. The court does not find acceptable a response that the numbers do not take unidentified factors into consideration.

Further responses to be served within ten days.

Monetary sanctions requested by the moving party are DENIED. The Notice of Motion fails to identify every person, party and attorney against whom the sanction is sought, as required under CCP § 2023.040 (“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought”). This is particularly appropriate here, as the memorandum of points and authorities suggests that sanctions are sought against plaintiff and counsel.

Plaintiff’s request for sanctions is DENIED.

Defendant City of Burbank’s Motion to Compel Further Responses to Defendant City of Burbank’s Special Interrogatories, Set One is DENIED.

The discovery at issue appears to be directed at the writ of mandate cause of action, and not matters in connection with the issues raised by the second and third causes of action in this matter, or the issues encompassed by the court’s previous discovery orders in this matter.

Monetary sanctions requested by the moving party are DENIED.

Monetary sanctions requested by the responding party are GRANTED. Sanctions are awarded in the amount of $800.00 [$800 requested] in favor of plaintiff Nick Nichols, and against defendant the City of Burbank, and its counsel of record, jointly and severally, payable within 30 days. CCP sections 2030.300(d).

Defendant City of Burbank’s Motion to Compel Further Responses to Defendant City of Burbank’s Requests for Admissions, Set One:

Motion is DENIED as to Requests Nos. 12 and 17, as the Requests appear to be directed at the allegations in connection with the writ of mandate cause of action, and not matters related to the issues raised by the second and third causes of action in this matter or encompassed by the court’s previous discovery orders in this matter.

Motion as Requests Nos. 3, 4, and 13 is GRANTED. The requests appear directed at plaintiff’s allegation in support of his second and third causes of action that there was a failure to complete the investigation within one year, and the City’s defense to that claim. Plaintiff Nick Nichols is ordered to provide further complete verified responses, which provide all information requested and which fully comply with the Code. See CCP § 2033.220(b):

(b) Each answer shall:  (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue.  (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.”

The court has considered the asserted objections and finds they are without merit, and plaintiff in opposition has failed to justify them. The court notes that it is held that it not proper ground for objection that a request for admission is vague or “ambiguous,” unless it is so ambiguous that the responding party cannot in good faith make an intelligent reply. See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 428-430. The court therefore overrules all objections, so that further responses are to be served without objections.

Further responses to be served within ten days.

Monetary sanctions sought by the moving party are DENIED.

Monetary sanctions sought by the responding party are DENIED.

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