This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 10:27:48 (UTC).

AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES

Case Summary

On 09/27/2017 AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES was filed as an Other - Declaratory Judgment lawsuit. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7520

  • Filing Date:

    09/27/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Declaratory Judgment

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiffs and Petitioners

AMERICAN FEDERATION OF STATE COUNTY AND

DOE JANE

FOE JAMES

DOES 1 TO 60

ROE JACK

ROE JONE

DOE JOHN

AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES LOCAL 685 AFL-CIO

Defendants and Respondents

COUNTY OF LOS ANGELES PROBATION DEPART-

LOS ANGELES COUNTY OF

COUNTY OF LOS ANGELES PROBATION DEPARTMENT

COUNTY OF LOS ANGELES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LIZARDO ESTEBAN ESQ.

LIZARDO ESTEBAN DON ESQ.

Defendant Attorney

SHELDON GEOFFREY SCOTT

 

Court Documents

Motion for Summary Judgment

8/6/2019: Motion for Summary Judgment

Minute Order

2/6/2018: Minute Order

RULING: (1) DEMURRER TO FIRST AMENDED COMPLAINT; (2) MOTION TO STRIKE RE: FIRST AMENDED COMPLAINT

2/6/2018: RULING: (1) DEMURRER TO FIRST AMENDED COMPLAINT; (2) MOTION TO STRIKE RE: FIRST AMENDED COMPLAINT

JOINT STIPULATION TO CONTINUE TRIAL DATE, FINAL STATUS CONFERENCE AND RELATED PRE-TRIAL DEADLINES

5/29/2018: JOINT STIPULATION TO CONTINUE TRIAL DATE, FINAL STATUS CONFERENCE AND RELATED PRE-TRIAL DEADLINES

DEFENDANT COUNTY OF LOS ANGELES'S NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF TIMOTHY BOUNDY TO RESPOND TO WRITTEN DISCOVERY AND FOR MONETARY SANCTIONS; ETC.

7/26/2018: DEFENDANT COUNTY OF LOS ANGELES'S NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF TIMOTHY BOUNDY TO RESPOND TO WRITTEN DISCOVERY AND FOR MONETARY SANCTIONS; ETC.

DEFENDANT COUNTY OF LOS ANGELES'S NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF DENNIS CAM POS TO RESPOND TO WRITTEN L)ISCO VERY AND FOR MONETARY SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES; DEC

7/26/2018: DEFENDANT COUNTY OF LOS ANGELES'S NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF DENNIS CAM POS TO RESPOND TO WRITTEN L)ISCO VERY AND FOR MONETARY SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES; DEC

Minute Order

7/31/2018: Minute Order

Motion for Terminating Sanctions

10/12/2018: Motion for Terminating Sanctions

Proof of Personal Service

10/19/2018: Proof of Personal Service

Notice

11/30/2018: Notice

Notice

11/30/2018: Notice

Order

2/13/2019: Order

Minute Order

2/13/2019: Minute Order

DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS? FIRST AMENDED COMPLAINT; ETC

12/27/2017: DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS? FIRST AMENDED COMPLAINT; ETC

CASE MANAGEMENT ORDER

12/14/2017: CASE MANAGEMENT ORDER

TRIAL PREPARATION ORDER

12/14/2017: TRIAL PREPARATION ORDER

Minute Order

12/12/2017: Minute Order

Minute Order

12/14/2017: Minute Order

43 More Documents Available

 

Docket Entries

  • 03/02/2020
  • Hearingat 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 02/25/2020
  • Hearingat 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/22/2019
  • Hearingat 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 08/06/2019
  • DocketMotion for Summary Judgment; Filed by County of Los Angeles Probation Department (Defendant)

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  • 08/06/2019
  • DocketSeparate Statement; Filed by County of Los Angeles Probation Department (Defendant)

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  • 08/06/2019
  • DocketDeclaration (Defendant's Appendix of Evidentiary Support of Motion for Summary Judgment); Filed by County of Los Angeles Probation Department (Defendant)

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  • 05/16/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Summary Judgment

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  • 05/02/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Summary Judgment

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  • 04/16/2019
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Summary Judgment

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  • 04/08/2019
  • Docketat 09:30 AM in Department 47, Randolph M. Hammock, Presiding; Non-Jury Trial - Not Held - Continued - Stipulation

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124 More Docket Entries
  • 11/01/2017
  • DocketDEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAFNTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ALEX V. WONG PURSUANT TO C.C.P. 430.41

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  • 10/20/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 10/20/2017
  • DocketProof-Service/Summons; Filed by American Federation of State County, and Municipal Employees Local 685, AFL-CIO (Plaintiff)

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  • 10/20/2017
  • DocketProof-Service/Summons; Filed by American Federation of State County, and Municipal Employees Local 685, AFL-CIO (Plaintiff)

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  • 10/20/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 09/28/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 09/28/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 09/27/2017
  • DocketSUMMONS

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  • 09/27/2017
  • DocketComplaint; Filed by American Federation of State County, and Municipal Employees Local 685, AFL-CIO (Plaintiff); Jane Doe (Plaintiff); Jone Roe (Plaintiff) et al.

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  • 09/27/2017
  • DocketCOMPLAINT FOR DECLARATORY RELIEF; PRELIMTNARY AND PERMANENT INJUNCTION AND OTHER EXTRAORDINARY RELIEF FOR VIOLATION OF THE PUBLIC SAFETY OFFICERS PROCEDURAL BILL OF RIGHTS [GOV. CODE SECTIONS 3303 AND 3309.5]

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Tentative Rulings

Case Number: BC677520    Hearing Date: November 19, 2019    Dept: 47

American Federation of State, County and Municipal Employees Local 685, et al. v. County of Los Angeles, et al.

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION, AGAINST PLAINTIFFS

ALFONSO AGUIRRE, ODEAN JOHNSON AND LUIS SOSA

MOVING PARTY: Defendants County of Los Angeles and County of Los Angeles Probation Department

RESPONDING PARTY(S): Plaintiffs Alfonso Aguirre, Odean Johnson, and Luis Sosa

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that the named individual Plaintiffs were disciplined based on responses to Department investigators that they made as witnesses without any warning that they were the subject of a Department investigation and that the investigators violated the public safety officers’ Procedural Bill of Rights (“PBOR”) in the way they conducted the investigation.

Defendants County of Los Angeles and County of Los Angeles Probation Department move for summary judgment or summary adjudication against three of the individual Plaintiffs, Alfonso Aguirre, Odean Johnson, and Luis Sosa. There is one more motion for summary judgment/adjudication on calendar after this one, on November 19.

There does not seem to be any particular rhyme or reason to why these three plaintiffs were grouped together in this motion. Their discipline related to different incidents involving different minors, two were involved in incidents with one minor and one was not, two were originally interviewed as witnesses and one was not, two were terminated for different reasons than the other, and so on. It appears that what they have in common is that they all either eventually became subjects of investigation (Aguirre and Johnson) or started out that way (Sosa). But given that Defendant filed four separate motions for summary judgment/adjudication, it does not make much sense to group plaintiffs together who are not identical in relevant part. Aguirre and Johnson probably should have been grouped together without Sosa.

TENTATIVE RULING:

Defendants County of Los Angeles and County of Los Angeles Probation Department’s motion for summary judgment is DENIED.

Defendants’ alternative motion for summary adjudication is DENIED.

DISCUSSION:

Defendant’s Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows:

Declaration of Stacy Ford

No. 3: OVERRULED. Sufficient foundation. Not hearsay. Not irrelevant. Not vague and ambiguous.

No. 4: OVERRULED. Sufficient foundation. Not hearsay. Not irrelevant. Not vague and ambiguous.

Declaration of Esteban Lizardo

No. 16: OVERRULED. Sufficient foundation; not irrelevant; document may be authenticated before trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.)

No. 19: OVERRULED. Sufficient foundation; document may be authenticated before trial; not irrelevant; not vague and ambiguous.

Motion For Summary Judgment

As discussed in connection with Defendants’ motion for summary adjudication below, Defendants have not demonstrated that it is entitled to prevail as to each cause of action asserted against it. Accordingly, the motion for summary judgment is DENIED.

Motion for Summary Adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

When deciding whether to grant summary judgment or adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Ibid.)

1. Issue No. 1a: “Defendants are entitled to summary judgment, or in the alternative, summary adjudication, of the First Cause of Action because Aguirre cannot establish a violation of the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”), Government Code section 3303, subdivisions (c), (e), (f), (h), and (i).”

The Court first notes that Defendants erroneously seek “summary judgment . . . of the First Cause of Action,” as an alternative to summary adjudication. Summary judgment is available only when the entire “action has no merit.” (CCP § 437c (a)(1).) If Defendants were entitled to summary adjudication of both the first and second causes of action, Defendants would be entitled to summary judgment. But Defendants are not entitled to summary “judgment” of individual causes of action.

As for Defendants’ request for summary adjudication of the first cause of action on the ground that Aguirre cannot establish that Defendants violated subdivisions (c), (e), (f), (h), and (i) of Government Code § 3303 (the “POBR”), it poses another dilemma. Namely, summary adjudication must completely dispose of the cause of action to which it is directed. (CCP § 437c (f)(1).) Defendant’s motion does not appear to do so.

In the first cause of action, Plaintiffs allege that Defendants “denied to the individual peace officer plaintiffs the rights required under California Government Code Section (a), (c), (d), (e), (f), (h), & (i).” (1AC ¶ 40[1] (bold emphasis added).) In other words, Plaintiffs allege violations of portions of the POBR as to which Defendants make no showing in their motion. None of Defendants’ subsequent issues address § 3303(a) or (d). This is problematic, in light of the importance of the pleadings when considering a motion for summary judgment or adjudication.

The pleadings play a key role in a summary judgment motion. “‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’” and to frame “the outer measure of materiality in a summary judgment proceeding.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381, 282 Cal.Rptr. 508.) As our Supreme Court has explained it: “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250, 91 Cal.Rptr.3d 532, 203 P.3d 1127 (Conroy).)

(Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Therefore, although Defendants need not refute “some theoretical possibility not included in the pleadings,” they do have the burden to “negate plaintiff's theories of liability as alleged in the complaint.” (Ibid. (emphasis in original).) Defendants have seemingly made no attempt to refute Plaintiffs’ allegations regarding § 3303(a) and (d), and the relevant issues are measured by the operative pleading, which includes those allegations.

Nor do any of Defendants’ 874 (!) allegedly undisputed facts establish that Plaintiffs no longer claim violations of § 3303(a) or (d). The “Golden Rule” of summary adjudication is that “if it is not set forth in the separate statement, it does not exist.” (United Cmty. Church v. Garcin (1991) 231 Cal.App.3d 327, 337, 282 Cal. Rptr. 368 (Ct. App. 1991) (superseded by statute on another ground); see also Allen v. Smith (2002) 94 Cal.App.4th 1270, 1282 [“[A]ll material facts must be set forth in the separate statement. . . . ‘Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.’” (citation omitted)].)

Plaintiffs’ opposition is as unhelpful as the opposition filed in connection with Defendants’ first motion for summary judgment in this case – which is truly astonishing, given that Plaintiffs prevailed on the previous motion primarily for reasons unrelated to the arguments in their opposition that Plaintiffs certainly could have incorporated into this opposition – but fortunately for them, they do not have to help, if Defendants do not meet their initial burden. Reviewing all of the evidence presented by Defendants, even leaving aside the separate statement, they did not present any discovery responses or other evidence indicating that these Plaintiffs have narrowed the issues they intend to prove at trial. “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) Once the moving party has met that burden, section 437c shifts the burden to the opposing party to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. If the opposing party cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

Subsections (a) and (d) of Section 3303 provide as follows:

(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty, or during the normal waking hours for the public safety officer, unless the seriousness of the investigation requires otherwise. If the interrogation does occur during off-duty time of the public safety officer being interrogated, the public safety officer shall be compensated for any off-duty time in accordance with regular department procedures, and the public safety officer shall not be released from employment for any work missed.

* * *

(d) The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue being investigated. The person under interrogation shall be allowed to attend to his or her own personal physical necessities.

(Gov. Code, § 3303(a), (d).)

The closest Defendants’ separate statement comes to any undisputed fact relevant to subsections (a) and (d) is Number 16, which states that Aguirre’s interview lasted from 12:57 p.m. to 1:42 p.m. with one 20-minute break in which investigators showed him a video of the incident. (Defendants’ Separate Statement of Undisputed Fact (“UF”) No. 16.) Number 49 also indicates that his subject interview was from 2:24 p.m. to 2:47 p.m. These facts suggest that his interviews probably were at a reasonable hour and for a reasonable period, and Plaintiffs do not dispute these facts. (Plaintiffs’ Separate Statement of Material Facts in Dispute (“SS”) Nos. 16, 19.) That may be why the specific paragraphs related to Aguirre do not mention subsections (a) or (d). Ultimately, however, Defendants did not affirmatively establish that the interviews complied with these subsections, and they made no attempt to do so, having ignored Paragraphs 3 and 40 of the 1AC.

Had Defendants wanted to move for summary adjudication of a legal issue that “does not completely dispose of a cause of action,” there is a procedure for that. (CCP § 437c (t).) Defendants could have submitted a joint stipulation to have the issue or issues heard and sought permission to file the motion. (Ibid.) Defendants did not do so here.

Accordingly, Defendants’ motion for summary adjudication is DENIED as to Issue 1a.

2. Issue No. 2a: “Defendants are entitled to summary adjudication of the First Cause of Action because Aguirre cannot establish a violation of the POBR, Government Code section 3303, subdivision (c), because Defendants gave Aguirre notice of the nature of the investigation prior to his interviews.”

3. Issue No. 3a: “Defendants are entitled to summary adjudication of the First Cause of Action because Aguirre cannot establish a violation of the POBR, Government Code section 3303, subdivision (i), because Aguirre was not entitled to representation during his initial witness interview because he was not under investigation and was interviewed as a witness only during that interview. Furthermore, Aguirre was given the right to have a representative of his choice at his subsequent subject interview and Aguirre’s union representative actually represented him during his subject interview.”

4. Issue No. 4a: “Defendants are entitled to summary adjudication of the First Cause of Action because Aguirre cannot establish a violation of the POBR, Government Code section 3303, subdivision (h), because Aguirre was not entitled to be provided his constitutional rights given that Defendants did not have a basis to believe that he may be charged with a criminal offense prior to or during his interview, and even though Aguirre was never charged criminally, Defendants still advised Aguirre of his constitutional rights at his subject interview.”

5. Issue No. 5a: “Defendants are entitled to summary adjudication of the First Cause of Action because Aguirre cannot establish a violation of the POBR, Government Code section 3303, subdivision (e), because Defendants did not use or direct any offensive language at Aguirre, nor did they threaten him with punitive action during his interviews.”

6. Issue No. 6a: “Defendants are entitled to summary adjudication of the First Cause of Action because Aguirre cannot establish a violation of the POBR, Government Code section 3303, subdivision (f), because Aguirre did not make statements during his interview under duress, coercion or threat of punitive action that were admitted in any subsequent civil or administrative proceeding.”

The motion for summary adjudication is DENIED as to Issues 2a through 6a for the reasons discussed in connection with Issue 1a.

7. Issue No. 1b: “Defendants are entitled to . . . summary adjudication of the First Cause of Action because Johnson cannot establish a violation of the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”), Government Code section 3303, subdivisions (c), (e), (f), (h), and (i).”

8. Issue No. 2b: “Defendants are entitled to summary adjudication of the First Cause of Action because Johnson cannot establish a violation of the POBR, Government Code section 3303, subdivision (c), because Defendants gave Johnson notice of the nature of the investigation prior to his interviews.”

9. Issue No. 3b: “Defendants are entitled to summary adjudication of the First Cause of Action because Johnson cannot establish a violation of the POBR, Government Code section 3303, subdivision (i), because Johnson was not entitled to have a representative during his initial witness interview because he was not under investigation and was interviewed as a witness only during that interview. Furthermore, Johnson was given the right to have a representative of his choice at his subsequent subject interviews and Johnson’s union representative actually represented him during his subject interviews.”

10. Issue No. 4b: “Defendants are entitled to summary adjudication of the First Cause of Action because Johnson cannot establish a violation of the POBR, Government Code section 3303, subdivision (h), because Johnson was not entitled to be provided his constitutional rights during his interviews given that Defendants did not have a basis to believe that he may be charged with a criminal offense prior to or during the interviews. Furthermore, even though Defendants did not have a basis to believe that Johnson may be charged with a criminal offense prior to or during his subject interviews, and even though Johnson was never charged criminally, Defendants still advised Johnson of his constitutional rights at his subject interviews.”

11. Issue No. 5b: “Defendants are entitled to summary adjudication of the First Cause of Action because Johnson cannot establish a violation of the POBR, Government Code section 3303, subdivision (e), because Defendants did not use or direct any offensive language at Johnson, nor did they threaten him with punitive action during his interviews.”

12. Issue No. 6b: “Defendants are entitled to summary adjudication of the First Cause of Action because Johnson cannot establish a violation of the POBR, Government Code section 3303, subdivision (f), because Johnson did not make statements during his interview under duress, coercion or threat of punitive action that were admitted in any subsequent civil or administrative proceeding.”

The motion for summary adjudication is DENIED as to Issue Nos. 1b to 6b for the reasons discussed in connection with Issue No. 1a.

13. Issue No. 1c: “Defendants are entitled to . . . summary adjudication of the First Cause of Action because Sosa cannot establish a violation of the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”), Government Code section 3303, subdivisions (c), (e), (f), (h), and (i).”

14. Issue No. 2c: “Defendants are entitled to summary adjudication of the First Cause of Action because Sosa cannot establish a violation of the POBR, Government Code section 3303, subdivision (c), because Defendants gave Sosa notice of the nature of the investigation prior to his interview.”

15. Issue No. 3c: “Defendants are entitled to summary adjudication of the First Cause of Action because Sosa cannot establish a violation of the POBR, Government Code section 3303, subdivision (i), because Sosa was given the right to have a representative of his choice at his administrative interview and Sosa’s union representative actually represented him during the interview.”

16. Issue No. 4c: “Defendants are entitled to summary adjudication of the First Cause of Action because Sosa cannot establish a violation of the POBR, Government Code section 3303, subdivision (h), because even though Defendants did not have a basis to believe that Sosa may be charged with a criminal offense prior to or during his interview, and even though Sosa was never charged criminally, Defendants still advised Sosa of his constitutional rights.”

17. Issue No. 5c: “Defendants are entitled to summary adjudication of the First Cause of Action because Sosa cannot establish a violation of the POBR, Government Code section 3303, subdivision (e), because Defendants did not use or direct any offensive language at Sosa, nor did they threaten him with punitive action during his interview.”

18. Issue No. 6c: “Defendants are entitled to summary adjudication of the First Cause of Action because Sosa cannot establish a violation of the POBR, Government Code section 3303, subdivision (f), because Sosa did not make statements during his interview under duress, coercion or threat of punitive action that were admitted in any subsequent civil or administrative proceeding.”

The motion for summary adjudication is DENIED as to Issue Nos. 1c to 6c for the reasons discussed in connection with Issue No. 1a. In addition, Plaintiffs appear to raise issues regarding Defendant Sosa’s ability to “attend to his . . . personal physical necessities” as required by subsection (d), in raising issues regarding “excessive heat” during his interview. (Declaration of Stacy Ford ¶ 5.)

19. Issue No. 7a: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because Aguirre cannot establish a violation of the POBR, Government Code section 3303, subdivisions (c), (e), (f), (h), and (i), that would entitle Aguirre to injunctive relief.”

20. Issue No. 7b: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because Johnson cannot establish a violation of the POBR, Government Code section 3303, subdivisions (c), (e), (f), (h), and (i), that would entitle Johnson to injunctive relief.”

21. Issue No. 7c: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because Sosa cannot establish a violation of the POBR, Government Code section 3303, subdivisions (c), (e), (f), (h), and (i), that would entitle Sosa to injunctive relief.”

As with Issue Nos. 1a, 1b, and 1c in connection with the first cause of action, Defendants seek summary adjudication of the second cause of action on the ground that Plaintiffs cannot establish a violation of “subdivisions (c), (e), (f), (h), and (i).” As with the first cause of action, however, Plaintiffs allege in their second cause of action that they were denied their rights under subsections (a) and (d) in addition to those listed by Defendants. (1AC ¶¶ 45-47.)

Because Issue Nos. 7a, 7b, and 7c do not dispose of complete causes of action, the motion for summary adjudication is DENIED as to Issue Nos. 7a, 7b, and 7c.

22. Issue No. 8a: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because, even if Aguirre could establish a technical violation of the POBR, Aguirre did not suffer any prejudice that would entitle Aguirre to injunctive relief (i.e., prohibiting use of the interviews in question).”

Here, Defendants raise a proper issue for summary adjudication, in that it would completely dispose of the second cause of action – if a showing of prejudice is required for injunctive relief. Defendants essentially argue that any violation of the POBR was harmless, because Aguirre would have been fired anyway, no matter what happened during his interview.

When a public safety department has violated the POBR, 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.” (Gov’t Code § 3309.5(d)(1).) Particular injunctive relief may not be “appropriate,” however, when the employee is “placed in no worse position” than if the alleged violation of the POBR had never taken place. (Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 205.) In Williams, the plaintiff police officer should have been informed that his statements to investigators could not be used against him in a criminal proceeding, but he was not. (Id. at 201.) He chose to answer the investigators’ questions anyway, and therefore the court concluded that he “could not have been prejudiced by the failure to advise him properly.” (Ibid.) In other words, there was no “possibility his case could have ended differently even had he been fully advised of his rights,” since that information would have given him an additional incentive to speak to the investigators, if anything. (Ibid.) Therefore, the trial court abused its discretion in granting injunctive relief precluding the use of his statements. (Id. at 204.) The court analogized to the cases in which public employees are discharged both because of dissatisfaction with their performance and because of their exercise of their constitutional rights, invoking the “underlying rationale” of those cases: that the constitutional principle at stake is “sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the [protected] conduct.” (Id. at 205.) The principles at stake in Williams were “sufficiently vindicated” if he was “placed in no worse position than if the investigators had fully advised him of his rights in the first place.” (Ibid.)

Even assuming that Defendants would be entitled to summary adjudication of this issue if this lack of prejudice were undisputed, however, Plaintiffs do dispute it. (SS Nos. 288, 289, 291, 293.) Although their attorney’s declaration (erroneously identified as Exhibit 1 when it is Exhibit 2 of Plaintiffs’ Compendium of Evidence) would not be sufficient evidence to raise a question of material fact on its own,[2] the Notice of Intent to Discharge Defendants submitted with their motion indicates that the proposed discharge was based, in part, on Aguirre’s “[f]ailure to cooperate in an administrative investigation” and “[p]roviding false information in the course of an administrative investigation.” (Defendant’s Compendium of Evidence, Exh. 7.) The Notice of Discharge he received contains the same statements regarding the basis for his discharge. (Id., Exh. 8.) In that letter, the Probation Department refers extensively to Plaintiff Aguirre’s statements during his administrative interviews. (Id. ¶¶ 13-51.) Under the heading “IMPACT,” the letter also specifically states that Aguirre “provided false information during the course of [his] first administrative interview and . . . failed to cooperate with the administrative investigation by choosing not to provide truthful and complete responses to the questions asked by the investigators.” (Id., at p. 13.) The letter then goes into detail about Aguirre’s statements during his interview and, immediately thereafter states that his “untruthful statements during the first administrative interview were unbecoming of a sworn peace officer” and that his conduct “failed to meet the expectations, standards and requirements” of his position. (Ibid.) Given the extensive documentation of Aguirre’s statements during his administrative interview in his termination letter, Defendants have not shown that he would have been fired regardless of his responses at that interview. It stands to reason that responses considered important enough to detail in connection with his termination were an important part of the decision to terminate him.

Accordingly, the motion for summary adjudication is DENIED as to Issue 8a.

23. Issue No. 8b: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because, even if Johnson could establish a technical violation of the POBR, Johnson did not suffer any prejudice that would entitle Johnson to injunctive relief (i.e., prohibiting use of the interview in question).”

24. Issue No. 8c: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because, even if Sosa could establish a technical violation of the POBR, Sosa did not suffer any prejudice that would entitle Sosa to injunctive relief (i.e., prohibiting use of the interview in question).”

As with Aguirre, the Notices of Intent to Discharge and Notices of Discharge received by Johnson and Sosa establish that there is a dispute of material fact as to whether they suffered prejudice as a result of their administrative interviews. (Defendant’s Compendium of Evidence, Exh. 23 [indicating that Johnson’s proposed discharge was, in part, due to “[f]ailure to cooperate during an administrative investigation]; Exh. 26 [indicating that Johnson’s discharge was due, in part, to his “[f]ailure to cooperate during an administrative investigation” and detailing his failure to cooperate]; Exh. 32 [indicating that Sosa’s proposed discharge was due, in part, to his “[f]ailure to cooperate in administrative investigation” and “[p]roviding false information during an administrative investigation”]; Exh. 33 [indicating that Sosa was being discharged, in part, for “[f]ailure to cooperate in administrative investigation” and “[p]roviding false information during an administrative investigation,” and indicating that he “exacerbated the entire situation by failing to provide complete truthful response to investigators thus failed to cooperate with the investigation,” immediately followed by a conclusion that he failed to “adhere to exemplary moral and ethical standards”].) On summary adjudication, with all inferences favoring the non-moving party, it is impossible to ignore these statements of the importance of the administrative interviews or to conclude that the result would have been the same had they fully cooperated in those investigations.

Therefore, for the reasons discussed in connection with Issue No. 8a, the motion for summary adjudication is DENIED as to Issue No. 8b and Issue No. 8c.

25. Issue No. 9: “Defendants are entitled to summary adjudication of Plaintiffs’ claims for statutory penalties and general damages because Plaintiffs failed to comply with the provisions of the California Government Claims Act (Gov. Code §§ 900, et seq.), which is a jurisdictional prerequisite to maintaining a claim for money damages against a public entity, including for statutory penalties and damages under the POBR.”

26. Issue No. 10a: “Defendants are entitled to summary adjudication of Aguirre’s claims for statutory penalties, general damages and attorney’s fees because Aguirre cannot establish a malicious violation of the POBR, Government Code section 3303.”

27. Issue No. 10b: “Defendants are entitled to summary adjudication of Johnson’s claims for statutory penalties, general damages and attorney’s fees because Johnson cannot establish a malicious violation of the POBR, Government Code section 3303.”

28. Issue No. 10c: “Defendants are entitled to summary adjudication of Sosa’s claims for statutory penalties, general damages and attorney’s fees because Sosa cannot establish a malicious violation of the POBR, Government Code section 3303.”

Only a claim for damages “as specified in 3294 of the Civil Code” – in other words, a claim for punitive damages – may be summarily adjudicated. (CCP § 437c(f)(1).) To seek summary adjudication of a “claim for damages other than punitive damages,” Defendants needed to follow the statutory requirements discussed above. (CCP § 437c(t).) Defendants argue that statutory penalties under Government Code § 3309.5 are “similar to the punitive or exemplary damages for malice provided for in Civil Code section 3294” (Motion, at 28:1-3), but CCP § 437c(f)(1) provides for summary adjudication of damages claims “as specified in 3294” – not “similar to” those specified in 3294.

Because Defendants did not follow the necessary procedures to seek summary adjudication of non-punitive damages claims, the motion for summary adjudication is DENIED as to Issue Nos. 9, 10a, 10b, and 10c.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: November 19, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1] Although Paragraphs 13, 21, and 25, which contain allegations related to Plaintiffs Aguirre, Johnson, and Sosa, do not mention subsections (a) and (d), Paragraph 40 applies, by its express language, to all “individual peace officer plaintiffs,” and Paragraph 3 of the 1AC includes Aguirre, Johnson, and Sosa in that category. Paragraphs 3 and 40 cannot be written out of the pleading on summary judgment, especially when viewed in the light most favorable to the non-moving parties.

[2] An “opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.)

********************************************************************************************************************

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION, AGAINST PLAINTIFFS ALEX ALFARO, DENNIS CAMPOS, TIMOTHY BOUNDY, AND AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES LOCAL 685

MOVING PARTY: Defendants County of Los Angeles and County of Los Angeles Probation Department

RESPONDING PARTY(S): Plaintiffs Alex Alfaro, Dennis Campos, and Timothy Boundy[1]

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that the named individual Plaintiffs were disciplined based on responses to Department investigators that they made as witnesses without any warning that they were the subject of a Department investigation and that the investigators violated the public safety officers’ Procedural Bill of Rights (“PBOR”) in the way they conducted the investigation.

Defendants County of Los Angeles and County of Los Angeles Probation Department move for summary judgment or summary adjudication against three of the individual Plaintiffs, Alex Alfaro, Dennis Campos, Timothy Boundy, and AFSCME. This is the last of the four summary judgment motions in this case, and these are the last of the plaintiffs.

This is the first time that Defendants do seek summary adjudication as to subsections (a) and (d) regarding one of the Plaintiffs (Boundy) – but failed to analyze another subsection alleged in Paragraph 40 as to that Plaintiff (subsection (i)).

TENTATIVE RULING:

Defendants County of Los Angeles and County of Los Angeles Probation Department’s motion for summary judgment is DENIED.

Defendants’ alternative motion for summary adjudication is GRANTED as to Issue No. 13 and Issue No. 14 and is otherwise DENIED.

DISCUSSION:

Evidentiary Objections

Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows:

Declaration of Stacy Ford

Nos. 3-9: SUSTAINED. Statements regarding Mr. Sosa’s interviews are irrelevant to this motion, in which he is not one of the Plaintiffs at issue.

Declaration of Esteban Lizardo

No. 22: OVERRULED. Sufficient foundation; not irrelevant; document may be authenticated before trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-49.)

No. 24: OVERRULED. Sufficient foundation; document may be authenticated before trial; not irrelevant; not vague and ambiguous.

No. 26: OVERRULED. Sufficient foundation; document may be authenticated before trial; not irrelevant; not vague and ambiguous.

Motion For Summary Judgment

As discussed in connection with Defendants’ motion for summary adjudication below, Defendants have not demonstrated that they are entitled to prevail as to each cause of action asserted against them. Accordingly, the motion for summary judgment is DENIED.

Motion for Summary Adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

When deciding whether to grant summary judgment or adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Ibid.)

 

1. Issue No. 1a: “Defendants are entitled to summary judgment, or in the alternative, summary adjudication, of the First Cause of Action because Alfaro cannot establish a violation of the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”), Government Code section 3303, subdivisions (c), (e), (f), (h), and (i).”

The Court first notes that Defendants erroneously seek “summary judgment . . . of the First Cause of Action,” as an alternative to summary adjudication. Summary judgment is available only when the entire “action has no merit.” (CCP § 437c(a)(1).) If Defendants were entitled to summary adjudication of both the first and second causes of action, Defendants would be entitled to summary judgment. But Defendants are not entitled to summary “judgment” of individual causes of action.

As for Defendants’ request for summary adjudication of the first cause of action on the ground that Alfaro cannot establish that Defendants violated subdivisions (c), (e), (f), (h), and (i) of Government Code § 3303 (the “POBR”), it poses another dilemma. Namely, summary adjudication must completely dispose of the cause of action to which it is directed. (CCP § 437c(f)(1).) Defendant’s motion does not appear to do so.

In the first cause of action, Plaintiffs allege that Defendants “denied to the individual peace officer plaintiffs the rights required under California Government Code Section (a), (c), (d), (e), (f), (h), & (i).” (1AC ¶ 40[2] (bold emphasis added).) In other words, Plaintiffs allege violations of portions of the POBR as to which Defendants make no showing in their motion. None of Defendants’ subsequent issues address § 3303(a) or (d). This is problematic, in light of the importance of the pleadings when considering a motion for summary judgment or adjudication.

The pleadings play a key role in a summary judgment motion. “‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’” and to frame “the outer measure of materiality in a summary judgment proceeding.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381, 282 Cal.Rptr. 508.) As our Supreme Court has explained it: “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250, 91 Cal.Rptr.3d 532, 203 P.3d 1127 (Conroy).)

(Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Therefore, although Defendants need not refute “some theoretical possibility not included in the pleadings,” they do have the burden to “negate plaintiff's theories of liability as alleged in the complaint.” (Ibid. (emphasis in original).) Defendants have seemingly made no attempt to refute Plaintiffs’ allegations regarding § 3303(a) and (d), and the relevant issues are measured by the operative pleading, which includes those allegations.

Nor do any of Defendants’ 1107 (!) allegedly undisputed facts establish that Plaintiffs no longer claim violations of § 3303(a) or (d) (and Defendants do acknowledge that Plaintiff Boundy alleges violations of those subsections, as discussed below). The “Golden Rule” of summary adjudication is that “if it is not set forth in the separate statement, it does not exist.” (United Cmty. Church v. Garcin (1991) 231 Cal.App.3d 327, 337, 282 Cal. Rptr. 368 (Ct. App. 1991) (superseded by statute on another ground); see also Allen v. Smith (2002) 94 Cal.App.4th 1270, 1282 [“[A]ll material facts must be set forth in the separate statement. . . . ‘Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.’” (citation omitted)].)

Plaintiffs’ opposition is as unhelpful as the opposition filed in connection with Defendants’ first motion for summary judgment in this case – which is truly astonishing, given that Plaintiffs prevailed on the previous motion primarily for reasons unrelated to the arguments in their opposition that Plaintiffs certainly could have incorporated into this opposition – but fortunately for them, they do not have to help, if Defendants do not meet their initial burden. Reviewing all of the evidence presented by Defendants, even leaving aside the separate statement, they did not present any discovery responses or other evidence indicating that these Plaintiffs have narrowed the issues they intend to prove at trial. “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) Once the moving party has met that burden, section 437c shifts the burden to the opposing party to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. If the opposing party cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

Subsections (a) and (d) of Section 3303 provide as follows:

(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty, or during the normal waking hours for the public safety officer, unless the seriousness of the investigation requires otherwise. If the interrogation does occur during off-duty time of the public safety officer being interrogated, the public safety officer shall be compensated for any off-duty time in accordance with regular department procedures, and the public safety officer shall not be released from employment for any work missed.

* * *

(d) The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue being investigated. The person under interrogation shall be allowed to attend to his or her own personal physical necessities.

(Gov. Code, § 3303(a), (d).)

The closest Defendants’ separate statement comes to any undisputed fact relevant to subsections (a) and (d) is Number 22, which states that Alfaro’s interview lasted for approximately 30 minutes. (Defendants’ Separate Statement of Undisputed Fact (“UF”) No. 22.) Number 41 also indicates that his subject interview was from 12:00 p.m. to 12:55 p.m. These facts suggest that his interviews probably were at a reasonable hour and for a reasonable period, and Plaintiffs do not dispute these facts. (Plaintiffs’ Separate Statement of Material Facts in Dispute (“SS”) Nos. 22, 41.) That may be why the specific paragraphs related to Alfaro do not mention subsections (a) or (d). Ultimately, however, Defendants did not affirmatively establish that the interviews complied with these subsections, and they made no attempt to do so, having ignored Paragraphs 3 and 40 of the 1AC.

Had Defendants wanted to move for summary adjudication of a legal issue that “does not completely dispose of a cause of action,” there is a procedure for that. (CCP § 437c(t).) Defendants could have submitted a joint stipulation to have the issue or issues heard and sought permission to file the motion. (Ibid.) Defendants did not do so here.

Accordingly, Defendants’ motion for summary adjudication is DENIED as to Issue 1a.

3. Issue No. 3a: “Defendants are entitled to summary adjudication of the First Cause of Action because Alfaro cannot establish a violation of the POBR, Government Code section 3303, subdivision (i), because Alfaro was not entitled to representation during his witness interview because he was not under investigation and was interviewed as a witness only during that interview. Furthermore, Alfaro was given the right to have a representative of his choice at his subject interviews and Alfaro’s union representative actually represented him during his subject interviews.”

 

4. Issue No. 4a: “Defendants are entitled to summary adjudication of the First Cause of Action because Alfaro cannot establish a violation of the POBR, Government Code section 3303, subdivision (h), because even though Defendants did not have a basis to believe that Alfaro may be charged with a criminal offense prior to or during his interview, and even though Alfaro was never charged criminally, Defendants still advised Alfaro of his constitutional rights.”

5. Issue No. 5a: “Defendants are entitled to summary adjudication of the First Cause of Action because Alfaro cannot establish a violation of the POBR, Government Code section 3303, subdivision (e), because Defendants did not use or direct any offensive language at Alfaro, nor did they threaten him with punitive action during his interviews.”

6. Issue No. 6a: “Defendants are entitled to summary adjudication of the First Cause of Action because Alfaro cannot establish a violation of the POBR, Government Code section 3303, subdivision (f), because Alfaro did not make statements during his interview under duress, coercion or threat of punitive action that were admitted in any subsequent civil or administrative proceeding.”

The motion for summary adjudication is DENIED as to Issues 2a through 6a for the reasons discussed in connection with Issue 1a.

 

7. Issue No. 1b: “Defendants are entitled to . . . summary adjudication of the First Cause of Action because Campos cannot establish a violation of the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”), Government Code section 3303, subdivisions (c), (e), (f), (h), and (i).”

8. Issue No. 2b: “Defendants are entitled to summary adjudication of the First Cause of Action because Campos cannot establish a violation of the POBR, Government Code section 3303, subdivision (c), because even though Campos was not under investigation and was first interviewed as a witness only, Defendants gave Campos notice of the nature of the investigation at the commencement of his witness interview. Defendants then gave Campos notice of the nature of the investigation prior to his subject interview.”

 

9. Issue No. 3b: “Defendants are entitled to summary adjudication of the First Cause of Action because Campos cannot establish a violation of the POBR, Government Code section 3303, subdivision (i), because Campos, as a witness in the investigation, and not a subject, was not entitled to have a representative at his initial witness interview. Nevertheless, Campos was advised that he had the ability to suspend the interview to obtain representation and the interviewers actually did suspend the interview to allow him to obtain representation for his later subject interview. Campos was provided the right to have a representative of his choice at his subsequent subject interview and Campos’s union representative actually represented him during the interview.”

10. Issue No. 4b: “Defendants are entitled to summary adjudication of the First Cause of Action because Campos cannot establish a violation of the POBR, Government Code section 3303, subdivision (h), because Campos was not entitled to be provided his constitutional rights given that Defendants did not have a basis to believe that he may be charged with a criminal offense prior to or during his witness interview. Even though Defendants did not have a basis to believe that Campos may be charged with a criminal offense prior to or during his interview, and even though Campos was never charged criminally, Defendants still advised Campos of his constitutional rights prior to his subject interview.”

 

11. Issue No. 5b: “Defendants are entitled to summary adjudication of the First Cause of Action because Campos cannot establish a violation of the POBR, Government Code section 3303, subdivision (e), because Defendants did not use or direct any offensive language at Campos, nor did they threaten him with punitive action during his interview.”

 

12. Issue No. 6b: “Defendants are entitled to summary adjudication of the First Cause of Action because Campos cannot establish a violation of the POBR, Government Code section 3303, subdivision (f), because Campos did not make statements during his interview under duress, coercion or threat of punitive action that were admitted in any subsequent civil or administrative proceeding.”

The motion for summary adjudication is DENIED as to Issue Nos. 1b to 6b for the reasons discussed in connection with Issue No. 1a.

 

13. Issue No. 1c: “Defendants are entitled to . . . summary adjudication of the First Cause of Action because Boundy cannot establish a violation of the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”), Government Code section 3303, subdivisions (a), (c), (d), (e), (f), and (h).”

14. Issue No. 2c: “Defendants are entitled to summary adjudication of the First Cause of Action because Boundy cannot establish a violation of the POBR, Government Code section 3303, subdivision (c), because Defendants gave Boundy notice of the nature of the investigation prior to his interviews.”

15. Issue No. 3c: [omitted from Defendants’ notice of motion]

16. Issue No. 4c: “Defendants are entitled to summary adjudication of the First Cause of Action because Boundy cannot establish a violation of the POBR, Government Code section 3303, subdivision (h), because Defendants advised Boundy of his constitutional rights prior to his interviews.”

17. Issue No. 5c: “Defendants are entitled to summary adjudication of the First Cause of Action because Boundy cannot establish a violation of the POBR, Government Code section 3303, subdivision (e), because Defendants did not use or direct any offensive language at Boundy, nor did they threaten him with punitive action during his interviews.”

18. Issue No. 6c: “Defendants are entitled to summary adjudication of the First Cause of Action because Boundy cannot establish a violation of the POBR, Government Code section 3303, subdivision (f), because Boundy did not make statements during his interview under duress, coercion or threat of punitive action that were admitted in any subsequent civil or administrative proceeding.”

19. Issue No. 7: “Defendants are entitled to summary adjudication of the First Cause of Action because Boundy cannot establish a violation of the POBR, Government Code section 3303, subdivision (a), because his interviews were conducted while Boundy was on duty, during his normal waking hours, and he was fully compensated for all time spent during his interviews.

20. Issue No. 8: “Defendants are entitled to summary adjudication of the First Cause of Action because Boundy cannot establish a violation of the POBR, Government Code section 3303, subdivision (d), because his interviews were for a reasonable period of time and he was allowed to attend to his own personal physical necessities.

The motion for summary adjudication is DENIED as to Issue Nos. 2c to 6c, 7, and 8 for the reasons discussed in connection with Issue No. 1a.

21. Issue No. 9a: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because Alfaro cannot establish a violation of the POBR, Government Code section 3303, subdivisions (c), (e), (f), (h), and (i), that would entitle Alfaro to injunctive relief.”

22. Issue No. 9b: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because Campos cannot establish a violation of the POBR, Government Code section 3303, subdivisions (c), (e), (f), (h), and (i), that would entitle Campos to injunctive relief.”

 

23. Issue No. 9c: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because Boundy cannot establish a violation of the POBR, Government Code section 3303, subdivisions (a), (c), (d), (e), (f), and (h), that would entitle Boundy to injunctive relief.”

As with Issue Nos. 1a, 1b, and 1c in connection with the first cause of action, Defendants seek summary adjudication of the second cause of action on the ground that Plaintiffs cannot establish a violation of “subdivisions (c), (e), (f), (h), and (i)” as to Alfaro and Campos, and “(a), (c), (d), (e), (f), and (h)” as to Boundy. As with the first cause of action, however, Plaintiffs allege in their second cause of action that they were denied their rights under subsections (a) and (d) in addition to those listed by Defendants, and subsection (i) as to all individual Defendants. (1AC ¶¶ 45-47.)

Because Issue Nos. 9a, 9b, and 9c do not dispose of complete causes of action, the motion for summary adjudication is DENIED as to Issue Nos. 9a, 9b, and 9c.

 

24. Issue No. 10a: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because, even if Alfaro could establish a technical violation of the POBR, Alfaro did not suffer any prejudice that would entitle Alfaro to injunctive relief (i.e., prohibiting use of the interviews in question).”

Here, Defendants raise a proper issue for summary adjudication, in that it would completely dispose of the second cause of action – if a showing of prejudice is required for injunctive relief. Defendants essentially argue that any violation of the POBR was harmless, because Alfaro would have been fired anyway, no matter what happened during his interview.

When a public safety department has violated the POBR, 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.” (Gov’t Code § 3309.5(d)(1).) Particular injunctive relief may not be “appropriate,” however, when the employee is “placed in no worse position” than if the alleged violation of the POBR had never taken place. (Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 205.) In Williams, the plaintiff police officer should have been informed that his statements to investigators could not be used against him in a criminal proceeding, but he was not. (Id. at 201.) He chose to answer the investigators’ questions anyway, and therefore the court concluded that he “could not have been prejudiced by the failure to advise him properly.” (Ibid.) In other words, there was no “possibility his case could have ended differently even had he been fully advised of his rights,” since that information would have given him an additional incentive to speak to the investigators, if anything. (Ibid.) Therefore, the trial court abused its discretion in granting injunctive relief precluding the use of his statements. (Id. at 204.) The court analogized to the cases in which public employees are discharged both because of dissatisfaction with their performance and because of their exercise of their constitutional rights, invoking the “underlying rationale” of those cases: that the constitutional principle at stake is “sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the [protected] conduct.” (Id. at 205.) The principles at stake in Williams were “sufficiently vindicated” if he was “placed in no worse position than if the investigators had fully advised him of his rights in the first place.” (Ibid.)

Even assuming that Defendants would be entitled to summary adjudication of this issue if this lack of prejudice were undisputed, however, Plaintiffs do dispute it. (SS Nos. 720-724.) Although their attorney’s declaration would not be sufficient evidence to raise a question of material fact on its own,[3] the Notice of Intent to Discharge that Defendants submitted with their motion indicates that the proposed discharge was based, in part, on Alfaro’s “[f]ailure to cooperate during an administrative investigation.” (Defendant’s Compendium of Evidence, Exh. 11.) A subsequent Notice of Intent to Discharge did not specifically mention this failure to cooperate, but it did mention that Alfaro “lied about the details” of the incident, and it attached the transcript of his interview. (Id., Exh. 12, p. 6 [referring to lying] & p. 9 [referring to “Admin Rights – SOI Boundy” as Exhibit III].) The Notice of Discharge also refers to his failure to cooperate during the administrative investigation. (Id., Exh. 13.) In that letter, the Probation Department refers extensively to Plaintiff Alfaro’s statements during his administrative interviews. (Id. pp. 7-10.) Under the heading “IMPACT,” the letter also specifically states that Alfaro “failed to provide accurate and truthful responses to investigators during [his] administrative interview.” (Id., at p. 16.) The letter then goes into detail about Alfaro’s statements during his interview. (Ibid.) Given the extensive documentation of Alfaro’s statements during his administrative interview in his termination letter, Defendants have not shown that he would have been fired regardless of his responses at that interview. It stands to reason that responses considered important enough to detail in connection with his termination were an important part of the decision to terminate him.

Accordingly, the motion for summary adjudication is DENIED as to Issue 10a.

25. Issue No. 10b: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because, even if Campos could establish a technical violation of the POBR, Campos did not suffer any prejudice that would entitle Campos to injunctive relief (i.e., prohibiting use of the interview in question).”

 

26. Issue No. 10c: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because, even if Boundy could establish a technical violation of the POBR, Boundy did not suffer any prejudice that would entitle Boundy to injunctive relief (i.e., prohibiting use of the interview in question).”

As with Alfaro, the Notices of Intent to Discharge, Notices of Intent to Suspend, Notices of Suspension, and Notices of Discharge received by Campos and Boundy establish that there is a dispute of material fact as to whether they suffered prejudice as a result of their administrative interviews. (Defendant’s Compendium of Evidence, Exh. 20 [indicating that Campos’s proposed discharge was, in part, due to “[f]ailure to cooperate during an administrative investigation”]; Exh. 22 [indicating that Campos’s discharge was due, in part, to his “[f]ailure to cooperate during an administrative investigation” and detailing his failure to cooperate]; Exh. 35 [indicating that Boundy’s proposed suspension was due, in part, to his violation of “Policies Procedures and Guidelines 910: Employees’ Cooperation in the Administrative Investigation Process”]; Exh. 36 [indicating that his proposed discharge was due, in part, to “[p]roviding false information in the course of an administrative investigation]; Exh. 37 [indicating that Boundy’s suspension was due, in part, to his violation of the policy on cooperation in the administrative investigation process]; Exh. 38 [indicating that Boundy was being discharged, in part, for “[p]roviding false information in the course of an administrative investigation”].) On summary adjudication, with all inferences favoring the non-moving party, it is impossible to ignore these statements of the importance of the administrative interviews or to conclude that the result would have been the same had they fully cooperated in those investigations.

Therefore, for the reasons discussed in connection with Issue No. 10a, the motion for summary adjudication is DENIED as to Issue No. 10b and Issue No. 10c. 

27. Issue No. 11: “Defendants are entitled to summary adjudication of Plaintiffs’ claims for statutory penalties and general damages because Plaintiffs failed to comply with the provisions of the California Government Claims Act (Gov. Code §§ 900, et seq.), which is a jurisdictional prerequisite to maintaining a claim for money damages against a public entity, including for statutory penalties and damages under the POBR.”

28. Issue No. 12a: “Defendants are entitled to summary adjudication of Alfaro’s claims for statutory penalties, general damages and attorney’s fees because Alfaro cannot establish a malicious violation of the POBR, Government Code section 3303.”

29. Issue No. 12b: “Defendants are entitled to summary adjudication of Campos’s claims for statutory penalties, general damages and attorney’s fees because Campos cannot establish a malicious violation of the POBR, Government Code section 3303.”

 

30. Issue No. 12c: “Defendants are entitled to summary adjudication of Boundy’s claims for statutory penalties, general damages and attorney’s fees because Boundy cannot establish a malicious violation of the POBR, Government Code section 3303.”

 

Only a claim for damages “as specified in 3294 of the Civil Code” – in other words, a claim for punitive damages – may be summarily adjudicated. (CCP § 437c(f)(1).) To seek summary adjudication of a “claim for damages other than punitive damages,” Defendants needed to follow the statutory requirements discussed above. (CCP § 437c(t).) Defendants argue that statutory penalties under Government Code § 3309.5 are “similar to the punitive or exemplary damages for malice provided for in Civil Code section 3294” (Motion, at 28:1-3), but CCP § 437c(f)(1) provides for summary adjudication of damages claims “as specified in 3294” – not “similar to” those specified in 3294.

Because Defendants did not follow the necessary procedures to seek summary adjudication of non-punitive damages claims, the motion for summary adjudication is DENIED as to Issue Nos. 11, 12a, 12b, and 12c.

31. Issue No. 13: “Defendants are entitled to summary judgment as to AFSCME because Plaintiffs cannot establish a violation of the POBR, Government Code section 3303, subdivisions (a), (c), (d), (e), (f), (h), and (i).”

32. Issue No. 14: “Defendants are entitled to summary judgment against AFSCME because AFSCME lacks standing.”

Issues 13 and 14 are essentially based on the same argument: that AFSCME cannot claim any violations of the POBR because it lacks standing. There were no facts to dispute as to Issue 13, and Plaintiffs do not dispute any of the facts proffered in support of Issue 14.

As Defendants indicate, the rights provided by the POBR belong to individual peace officers, not their union. (Gov. Code § 3309.5(c) [outlining the court’s jurisdiction over proceedings “brought by any public safety officer against any public safety department” for violations of the POBR].)

Moreover, AFCSME would be entitled to associational standing only if the claims asserted and the relief requested did not require the “participation of individual members in the lawsuit.” (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (First Transit, Inc.) (2009) 46 Cal.4th 993, 1004.) Here, it is undisputed that the participation of the individual peace officers is necessary to the lawsuit. (UF Nos. 1104-1107.)

Accordingly, the motion for summary adjudication is GRANTED as to Issue No. 13 and Issue No. 14.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: November 19, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1] Although Plaintiffs’ counsel states that he represents AFSCME in the caption of his opposition, the opposition itself purports to be only submitted by Plaintiffs Alfaro, Boundy, and Campos.

[2] Although Paragraphs 15 and 27, which contain allegations related to Plaintiffs Alfaro and Campos, do not mention subsections (a) and (d), Paragraph 40 applies, by its express language, to all “individual peace officer plaintiffs,” and Paragraph 3 of the 1AC includes Alfaro, Campos, and Boundy in that category. Paragraphs 3 and 40 cannot be written out of the pleading on summary judgment, especially when viewed in the light most favorable to the non-moving parties.

[3] An “opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.)

Case Number: BC677520    Hearing Date: November 12, 2019    Dept: 47

American Federation of State, County and Municipal Employees Local 685, et al. v. County of Los Angeles, et al.

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION, AGAINST PLAINTIFFS DESIREE SERRANO AND ELENA MEDRANO

MOVING PARTY: Defendants County of Los Angeles and County of Los Angeles Probation Department

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that the named individual Plaintiffs were disciplined based on responses to Department investigators that they made as witnesses without any warning that they were the subject of a Department investigation and that the investigators violated the public safety officers’ Procedural Bill of Rights (“PBOR”) in the way they conducted the investigation.

Defendants County of Los Angeles and County of Los Angeles Probation Department move for summary judgment or summary adjudication against two of the individual Plaintiffs, Desiree Serrano and Elena Medrano. There are also two more motions for summary judgment/adjudication on calendar after this one, on November 14 and November 19.

TENTATIVE RULING:

Defendants County of Los Angeles and County of Los Angeles Probation Department’s motion for summary judgment is DENIED.

Defendants’ alternative motion for summary adjudication is GRANTED as to Issue No. 8a and Issue No. 8b and is otherwise DENIED.

DISCUSSION:

Motion For Summary Judgment

As discussed in connection with Defendant’s motion for summary adjudication below, Defendant has not demonstrated that it is entitled to prevail as to each cause of action asserted against it. Accordingly, the motion for summary judgment is DENIED.

Motion for Summary Adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

When deciding whether to grant summary judgment or adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Ibid.)

1. Issue No. 1a: “Defendants are entitled to summary judgment, or in the alternative, summary adjudication, of the First Cause of Action because Serrano cannot establish a violation of the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”), Government Code section 3303, subdivisions (c), (e), (f), (h), and (i).”

The Court first notes that Defendants erroneously seek “summary judgment . . . of the First Cause of Action,” as an alternative to summary adjudication. Summary judgment is available only when the entire “action has no merit.” (CCP § 437c(a)(1).) If Defendants were entitled to summary adjudication of both the first and second causes of action, Defendants would be entitled to summary judgment. But Defendants are not entitled to summary “judgment” of individual causes of action.

As for Defendants’ request for summary adjudication of the first cause of action on the ground that Serrano cannot establish that Defendants violated subdivisions (c), (e), (f), (h), and (i) of Government Code § 3303 (the “POBR”), it poses another dilemma. Namely, summary adjudication must completely dispose of the cause of action to which it is directed. (CCP § 437c(f)(1).) Defendant’s motion does not appear to do so.

In the first cause of action, Plaintiffs allege that Defendants “denied to the individual peace officer plaintiffs the rights required under California Government Code Section (a), (c), (d), (e), (f), (h), & (i).” (1AC ¶ 40[1] (bold emphasis added).) In other words, Plaintiffs allege violations of portions of the POBR as to which Defendants make no showing in their motion. None of Defendants’ subsequent issues address § 3303(a) or (d). This is problematic, in light of the importance of the pleadings when considering a motion for summary judgment or adjudication.

The pleadings play a key role in a summary judgment motion. “‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’” and to frame “the outer measure of materiality in a summary judgment proceeding.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381, 282 Cal.Rptr. 508.) As our Supreme Court has explained it: “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250, 91 Cal.Rptr.3d 532, 203 P.3d 1127 (Conroy).)

(Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Therefore, although Defendants need not refute “some theoretical possibility not included in the pleadings,” they do have the burden to “negate plaintiff's theories of liability as alleged in the complaint.” (Ibid. (emphasis in original).) Defendants have seemingly made no attempt to refute Plaintiffs’ allegations regarding § 3303(a) and (d), and the relevant issues are measured by the operative pleading, which includes those allegations.

Nor do any of Defendants’ 450 (45 more than the previous motion!) allegedly undisputed facts establish that Plaintiffs no longer claim violations of § 3303(a) or (d). The “Golden Rule” of summary adjudication is that “if it is not set forth in the separate statement, it does not exist.” (United Cmty. Church v. Garcin (1991) 231 Cal.App.3d 327, 337, 282 Cal. Rptr. 368 (Ct. App. 1991) (superseded by statute on another ground); see also Allen v. Smith (2002) 94 Cal.App.4th 1270, 1282 [“[A]ll material facts must be set forth in the separate statement. . . . ‘Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.’” (citation omitted)].)

Plaintiffs have not opposed this motion, but fortunately for them (at least in connection with several of the issues for summary adjudication), they do not have to, if Defendants do not meet their initial burden. Reviewing all of the evidence presented by Defendants, even leaving aside the separate statement, they did not present any discovery responses or other evidence indicating that these Plaintiffs have narrowed the issues they intend to prove at trial. “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) Once the moving party has met that burden, section 437c shifts the burden to the opposing party to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. If the opposing party cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

Subsections (a) and (d) of Section 3303 provide as follows:

(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty, or during the normal waking hours for the public safety officer, unless the seriousness of the investigation requires otherwise. If the interrogation does occur during off-duty time of the public safety officer being interrogated, the public safety officer shall be compensated for any off-duty time in accordance with regular department procedures, and the public safety officer shall not be released from employment for any work missed.

* * *

(d) The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue being investigated. The person under interrogation shall be allowed to attend to his or her own personal physical necessities.

(Gov. Code, § 3303(a), (d).)

The closest Defendants’ separate statement comes to any undisputed fact relevant to subsections (a) and (d) is Number 19, which states that Serrano’s interview lasted from 11:40 a.m. to 12:25 p.m. (Defendants’ Separate Statement of Undisputed Fact (“UF”) No. 19.) That fact suggests that the interview probably was at a reasonable hour and for a reasonable period. That may be why the specific paragraphs related to Serrano do not mention subsections (a) or (d). Ultimately, however, Defendants did not affirmatively establish that the interview complied with these subsections, and they made no attempt to do so, having ignored Paragraphs 3 and 40 of the 1AC.

Had Defendants wanted to move for summary adjudication of a legal issue that “does not completely dispose of a cause of action,” there is a procedure for that. (CCP § 437c (t).) Defendants could have submitted a joint stipulation to have the issue or issues heard and sought permission to file the motion. (Ibid.) Defendants did not do so here.

Accordingly, Defendants’ motion for summary adjudication is DENIED as to Issue 1a.

2. Issue No. 2a: “Defendants are entitled to summary adjudication of the First Cause of Action because Serrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (c), because even though Serrano was not under investigation and was interviewed as a witness only, Defendants gave Serrano notice of the nature of the investigation at the commencement of her witness interview.”

3. Issue No. 3a: “Defendants are entitled to summary adjudication of the First Cause of Action because Serrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (i), because Serrano, as a witness in the investigation, and not a subject, was not entitled to have a representative at her administrative interview. Nevertheless, she was advised that she had the ability to suspend the interview to obtain representation but chose not to.”

4. Issue No. 4a: “Defendants are entitled to summary adjudication of the First Cause of Action because Serrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (h), because Serrano was not entitled to be provided her constitutional rights given that Defendants did not have a basis to believe that she may be charged with a criminal offense prior to or during his interview.”

5. Issue No. 5a: “Defendants are entitled to summary adjudication of the First Cause of Action because Serrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (e), because Defendants did not use or direct any offensive, coercive or threatening language or conduct at Serrano during her interview.”

6. Issue No. 6a: “Defendants are entitled to summary adjudication of the First Cause of Action because Serrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (f), because Serrano did not make statements during her interview under duress, coercion or threat of punitive action that were subsequently admitted in any subsequent civil or administrative proceeding.”

The motion for summary adjudication is DENIED as to Issues 2a through 6a for the reasons discussed in connection with Issue 1a.

7. Issue No. 1b: “Defendants are entitled to . . . summary adjudication of the First Cause of Action because Medrano cannot establish a violation of the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”), Government Code section 3303, subdivisions (c), (e), (f), (h), and (i).”

8. Issue No. 2b: “Defendants are entitled to summary adjudication of the First Cause of Action because Medrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (c), because even though Medrano was not under investigation and was interviewed as a witness only, Defendants gave Medrano notice of the nature of the investigation at the commencement of her witness interview.”

9. Issue No. 3b: “Defendants are entitled to summary adjudication of the First Cause of Action because Medrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (i), because Medrano, as a witness in the investigation, and not a subject, was not entitled to have a representative at her administrative interview. Nevertheless, she was advised that she had the ability to suspend the interview to obtain representation but chose not to.”

10. Issue No. 4b: “Defendants are entitled to summary adjudication of the First Cause of Action because Medrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (h), because Medrano was not entitled to be provided her constitutional rights given that Defendants did not have a basis to believe that she may be charged with a criminal offense prior to or during her interview.”

11. Issue No. 5b: “Defendants are entitled to summary adjudication of the First Cause of Action because Medrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (e), because Defendants did not use or direct any offensive, coercive or threatening language or conduct at Medrano during her interview.”

12. Issue No. 6b: “Defendants are entitled to summary adjudication of the First Cause of Action because Medrano cannot establish a violation of the POBR, Government Code section 3303, subdivision (f), because Medrano did not make statements during her interview under duress, coercion or threat of punitive action that were subsequently admitted in any subsequent civil or administrative proceeding.”

The motion for summary adjudication is DENIED as to Issue Nos. 1b to 6b for the reasons discussed in connection with Issue No. 1a.

13. Issue No. 7a: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because Serrano cannot establish a violation of the POBR, Government Code section 3303, subdivisions (c), (e), (f), (h), and (i), that would entitle Serrano to injunctive relief.”

14. Issue No. 7b: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because Medrano cannot establish a violation of the POBR, Government Code section 3303, subdivisions (c), (e), (f), (h), and (i), that would entitle Medrano to injunctive relief.”

As with Issue Nos. 1a and 1b in connection with the first cause of action, Defendants seek summary adjudication of the second cause of action on the ground that Plaintiffs cannot establish a violation of “subdivisions (c), (e), (f), (h), and (i).” As with the first cause of action, however, Plaintiffs allege in their second cause of action that they were denied their rights under subsections (a) and (d) in addition to those listed by Defendants. (1AC ¶¶ 45-47.)

Because Issue Nos. 7a and 7b do not dispose of complete causes of action, the motion for summary adjudication is DENIED as to Issue Nos. 7a and 7b.

15. Issue No. 8a: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because, even if Serrano could establish a technical violation of the POBR, Serrano did not suffer any prejudice that would entitle her to injunctive relief (i.e., prohibiting use of the interview in question) because her interview was not used as a basis for discipline.”

Here, Defendants raise a proper issue for summary adjudication, in that it would completely dispose of the second cause of action – if a showing of prejudice is required for injunctive relief. Defendants essentially argue that any violation of the POBR was harmless, because Serrano would have been fired anyway, no matter what happened during her interview.

When a public safety department has violated the POBR, 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.” (Gov’t Code § 3309.5(d)(1).) Particular injunctive relief may not be “appropriate,” however, when the employee is “placed in no worse position” than if the alleged violation of the POBR had never taken place. (Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 205.) In Williams, the plaintiff police officer should have been informed that his statements to investigators could not be used against him in a criminal proceeding, but he was not. (Id. at 201.) He chose to answer the investigators’ questions anyway, and therefore the court concluded that he “could not have been prejudiced by the failure to advise him properly.” (Ibid.) In other words, there was no “possibility his case could have ended differently even had he been fully advised of his rights,” since that information would have given him an additional incentive to speak to the investigators, if anything. (Ibid.) Therefore, the trial court abused its discretion in granting injunctive relief precluding the use of his statements. (Id. at 204.) The court analogized to the cases in which public employees are discharged both because of dissatisfaction with their performance and because of their exercise of their constitutional rights, invoking the “underlying rationale” of those cases: that the constitutional principle at stake is “sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the [protected] conduct.” (Id. at 205.) The principles at stake in Williams were “sufficiently vindicated” if he was “placed in no worse position than if the investigators had fully advised him of his rights in the first place.” (Ibid.)

Here, Defendants have presented undisputed evidence that Serrano would have been – and was – discharged without any reliance on her statements to investigators. The Notice of Intent to Discharge that Serrano received does not reference her witness interview, and neither does her Notice of Discharge. (UF Nos. 311, 315; Exhs. 4, 5.) None of the charges against Serrano were based on dishonesty during the interview, and her statements during the interview were not used in connection with the decision to terminate her. (UF Nos. 313, 314; Declaration of Dennis Carroll ¶¶ 6-9; Exhs. 4, 6.) Rather, Serrano was discharged due to surveillance video showing that she witnessed and failed to stop abuse of a minor and that her reports of the incident had material factual omissions. (UF Nos. 316-318.)

Under these circumstances, Defendants have shown that Serrano would have been discharged even if she had not been interviewed. Having failed to oppose this motion, Plaintiffs have also failed to raise any triable issue of material fact on this point. Accordingly, the motion for summary adjudication is GRANTED as to Issue 8a.

16. Issue No. 8b [erroneously labeled 8a in Defendants’ brief]: “Defendants are entitled to . . . summary adjudication of the Second Cause of Action because, even if Medrano could establish a technical violation of the POBR, Medrano did not suffer any prejudice that would entitle her to injunctive relief (i.e., prohibiting use of the interview in question) because her interview was not used as a basis for discipline.”

As they did in connection with Serrano, Defendants have presented undisputed evidence that Medrano would have been – and was – discharged without any reliance on her statements to investigators. The Notice of Intent to Discharge that Medrano received does not reference her witness interview, and neither does her Notice of Discharge. (UF Nos. 365, 369; Exhs. 11, 12.) None of the charges against Medrano were based on dishonesty during the interview, and her statements during the interview were not used in connection with the decision to terminate her. (UF Nos. 367, 368; Declaration of Dennis Carroll ¶¶ 13-16; Exhs. 11, 12.) Rather, Medrano was discharged due to surveillance video showing that she witnessed and failed to stop abuse of a minor and that her reports of the incident had material factual omissions. (UF Nos. 370-372.)

Therefore, for the reasons discussed in connection with Issue No. 8a, the motion for summary adjudication is GRANTED as to Issue No. 8b.

17. Issue No. 9: “Defendants are entitled to summary adjudication of Plaintiffs’ claims for statutory penalties and general damages because Plaintiffs failed to comply with the provisions of the California Government Claims Act (Gov. Code §§ 900, et seq.), which is a jurisdictional prerequisite to maintaining a claim for money damages against a public entity, including for statutory penalties and damages under the POBR.”

18. Issue No. 10a: “Defendants are entitled to summary adjudication of Serrano’s claims for statutory penalties, general damages and attorney’s fees because Serrano cannot establish a malicious violation of the POBR, Government Code section 3303.”

19. Issue No. 10b: “Defendants are entitled to summary adjudication of Medrano’s claims for statutory penalties, general damages and attorney’s fees because Medrano cannot establish a malicious violation of the POBR, Government Code section 3303.”

Only a claim for damages “as specified in 3294 of the Civil Code” – in other words, a claim for punitive damages – may be summarily adjudicated. (CCP § 437c(f)(1).) To seek summary adjudication of a “claim for damages other than punitive damages,” Defendants needed to follow the statutory requirements discussed above. (CCP § 437c(t).) Defendants argue that statutory penalties under Government Code § 3309.5 are “similar to the punitive or exemplary damages for malice provided for in Civil Code section 3294” (Motion, at 28:1-3), but CCP § 437c(f)(1) provides for summary adjudication of damages claims “as specified in 3294” – not “similar to” those specified in 3294.

Because Defendants did not follow the necessary procedures to seek summary adjudication of non-punitive damages claims, the motion for summary adjudication is DENIED as to Issue Nos. 9, 10a, and 10b.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: November 12, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1] Although Paragraphs 9 and 11, which contain allegations related to Plaintiffs Serrano and Medrano, do not mention subsections (a) and (d), Paragraph 40 applies, by its express language, to all “individual peace officer plaintiffs,” and Paragraph 3 of the 1AC includes both Serrano and Medrano in that category. Paragraphs 3 and 40 cannot be written out of the pleading on summary judgment, especially when viewed in the light most favorable to the non-moving parties.