Case Number: BS140529    Hearing Date: September 16, 2014    Dept: 82

Los Angeles Police Protective League
v.
City of Los Angeles, et al.

Tentative Decision and Order Denying Writ of Mandate

This lawsuit was filed on November 16, 2012 by Petitioner Los Angeles Police Protective League (“LAPPL” or “League”) against Respondents City of Los Angeles and the Chief of Police. The League is the recognized employee organization representing Los Angeles Police Department (“Department”) police officers. Petitioner seeks a writ of mandate under Code of Civil Procedure section 1085 commanding Respondents to provide an administrative appeal to police officers assigned to an advanced paygrade or bonus position prior to adoption of Special Order 47, and who were thereafter removed or reassigned from those positions but did not previously file an administrative appeal (“Affected Members”). The Court rules as follows:

Requests for Judicial Notice

The parties’ unopposed requests for judicial notice are granted.

Evidentiary Objections

Petitioner’s objection no. 2 to the declaration of Theresa Hartter is sustained. Respondents’ objection and motion to strike paragraph 6 of the declaration of Joe Vigueras are moot. The parties’ remaining objections are overruled and the motions to strike are denied.

Statement of the Case

The Department’s Administrative Order Number 6 (“AO6”) has governed administrative appeals of downgrades and bonus deselections since it was issued on August 25, 2003. (Kalinski Decl. ¶11, Pet. RJN Exhibit H). AO6 states in relevant part:

I. MATTERS SUBJECT TO PAYGRADE/BONUS ADMINISTRATIVE APPEAL HEARING. A sworn non-probationary employee from the rank of Lieutenant or below may administratively appeal a reassignment from an advanced paygrade position or a deselection from a bonus position.

II. ADMINISTRATIVE APPEAL HEARING REQUEST – An employee electing to administratively appeal a reassignment from an advanced paygrade position or a deselection from a bonus position shall submit an Administrative Appeal, Form 1.84, to the Employee Relations Administration, within 20 calendar days after the Transfer Order reporting the change in paygrade or bonus status is published or the effective date of the employee’s change in paygrade or bonus status, whichever is later. If the employee fails to request an Administrative Appeal Hearing within the specified time, the Department’s action to reassign the employee to a lower paygrade or deselect the employee from a bonus position shall be final. However, the 20 day period shall be tolled during, any period when an employee is on an authorized leave of absence, is away from work sick or injured, or is otherwise reasonably and legitimately absent from duty when the Transfer Order is published. The time period shall resume when the employee returns to duty or is otherwise notified of the action taken on the Transfer Order.

(Id. at p.1 (emphasis added). AO6 was later made part of the Department Manual as Section 3/763.56. (Monroe Decl. ¶2, Respondents’ RJN Exhibit A). In addition, although Section 9.0 of the Memorandum of Understanding between the City and Petitioner (effective July 1, 2011 to June 30, 2014) contains a similar standard, it also states, in relevant part: “This section is not applicable for matters involving reassignment of a sworn employee from an advanced paygrade position, deselection from a bonus position, or denial of promotion on grounds other than merit. Such matters shall be conducted in conformance with rules and procedures adopted by the Department.” (Kalinski Decl. ¶12, Petitioner’s RJN Exhibit I, pp.86-87).

On October 30, 2009, the Department issued Special Order No. 47 (“SO47”). See Los Angeles Police Protective League v. City of Los Angeles, 2013 WL 2099749 at *2 (“LAPPL”). Special Order No. 47 removed Section 7/763.60 of the Department Manual, which provided that officers in an advanced pay rank could not be reclassified to a lower pay rank without good cause. LAPPL, supra, 2013 WL 2099749 at *1, 12. In removing the good cause requirement, Special Order No. 47 vested a commanding officer with discretion to determine whether to reclassify a police officer to a lower pay grade. See LAPPL, supra, 2013 WL 2099749 at *2.

On May 20, 2010, the LAPPL filed suit in state court, case no. BC437997, challenging Special Order No. 47. (Pet. RJN, Exhibit D). On February 24, 2012, the trial court issued a permanent injunction enjoining the LAPD from enforcing Special Order No. 47 against LAPPL member officers employed in advanced pay ranks at the time the order was issued. (Pet. RJN, Exhibit F). On appeal, the Second District affirmed the trial court’s decision in an unpublished opinion filed on May 16, 2013, finding that Department police officers in advanced pay ranks possessed vested property rights in the Department Manual’s good-cause requirement existing at the time of the officers’ promotions, and that Special Order No. 47’s unilateral removal of the good cause requirement constituted an unconstitutional impairment of contract. LAPPL, supra, 2013 WL 2099749 at *9-12. The Court of Appeal issued its remittitur on July 17, 2013. (Monroe Decl. ¶3, Respondents’ RJN Exhibit B).

Relevant here, on March 15, 2012 counsel for Petitioner sent a letter containing a “formal request for appeal” to Commander Jeri Weinstein, Employee Relations Administrator for the Department, on behalf of all Petitioner “represented employees duly assigned to advanced paygrade and/or bonus positions prior to October 30, 2009, who were thereafter removed/reassigned after the adoption of Special Order No. 47 on October 30, 2009.” (Levine Decl. ¶3, Exhibit A). Notably, the formal request for an administrative appeal excluded those employees who had “previously filed their respective appeal.” (Id.). Commander Weinstein denied Petitioner’s request in a letter dated March 26, 2012. (Levine Decl. ¶4, Exhibit B). Thereafter, the League filed this lawsuit.

Standard of Review

The Court’s review of the Department’s challenged action is governed by Code of Civil Procedure section 1085. Code of Civil Procedure section 1085(a) provides in relevant part:

A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.

There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704. “Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy . . . .” Pomona Police Officers’ Ass’n v. City of Pomona (1997) 58 Cal.App.4th 578, 583-84. Writ review under Code of Civil Procedure section 1085 is deferential: the agency’s findings must be upheld unless arbitrary, capricious, or entirely lacking evidentiary support. Strumsky v. San Diego County Employees Retirement Assn., (1974) 11 Cal.3d 28, 34–35, fn. 2.

Analysis

The doctrine of exhaustion of administrative remedies is well settled in California. Campbell v. Regents of University of California, (2005) 35 Cal.4th 311, 321; Roth v. City of Los Angeles, (1975) 53 Cal.App.3d 679, 686. “If an administrative remedy is provided by statute, it must be invoked and exhausted before judicial review of the administrative action is available.” Roth, supra, 53 Cal.App.3d at p. 686. “The rule ‘is not a matter of judicial discretion, but is a fundamental rule of procedure … binding upon all courts.’ [Citation.] We have emphasized that ‘Exhaustion of administrative remedies is ‘a jurisdictional prerequisite to resort to the courts.’ [Citation.]” Campbell, supra, 35 Cal.4th at p. 321. The exhaustion doctrine also applies to proceedings under Code of Civil Procedure section 1085 whenever judicial relief is sought where a remedy is available at the administrative level. See Endangered Habitats League, Inc. v. State Water Resources Control Bd., (1997) 63 Cal.App.4th 227, 237.

In this lawsuit, Petitioner concedes that AO6 required the Affected Members to submit an administrative appeal within 20 calendar days from the later of either: the Transfer Order reporting the change in paygrade or bonus status is published; or the effective date of the employee’s change in paygrade or bonus status. (Opening Brief, pp. 4-6). However, Petitioner contends that the Affected Members were not obligated to comply with AO6 until June 15, 2013, the date on which the judgment in case no. BC437997 became final. As noted above, Petitioner sent “a formal request for [an administrative] appeal” regarding the Affected Members on March 15, 2012. (Levine Decl. ¶3, Exhibit A). For the reasons that follow, the Court finds that the League’s petition for writ of mandate should be denied.

As a preliminary matter, the Court finds that Petitioner’s March 15, 2012 purported administrative appeal does not comply with AO6. First, the letter from Petitioner’s counsel was not submitted on Administrative Appeal, Form 1.84, as required by AO6. (See Pet. RJN Exhibit H: employee “shall submit an Administrative Appeal, Form 1.84”). Second, Petitioner did not list the name of the employees on whose behalf the purported appeal was being filed. Instead, Petitioner simply stated that it was submitting the appeal on behalf of “represented employees duly assigned to advanced paygrade and/or bonus positions prior to October 30, 2009, who were thereafter removed/reassigned after the adoption of Special Order No. 47 on October 30, 2009,” but excluding those employees that “previously filed their respective appeal.” (Levine Decl. ¶3, Exhibit A). Not surprisingly, Respondents objected to granting an appeal on behalf of “unknown employees.” (Levine Dec., Exhibit B). The problem with Petitioner’s failure to list or identify the employees on whose behalf the purported notice of administrative appeal was filed is illustrated by the fact that “[t]he total number of officers downgraded between October 30, 2009 and the end of 2013 was 100” and “[o]f those, 56 submitted timely requests for an administrative appeal,” leaving 44 outstanding. (Hartter Decl. ¶3). In addition, simply because a Department employee was removed or reassigned after the adoption of SO47 on October 30, 2009 does not mean that the Department applied Special Order No. 47 in deciding to downgrade or reassign the employee. And, in this very lawsuit, Petitioner appears to contend that Sergeant Robert Gasior and Officer David Chung are “Affected Members” even though they filed and then withdrew their administrative appeals. (Hartter Decl. ¶¶7-9). Quite simply, because Petitioner has not shown that the Department had a “clear, present and ministerial duty” to divine the names of Petitioner’s members subject to the “appeal,” the appeal was properly denied.

Further, while Petitioner has submitted declarations from Mike Boylls, Robert Gasior, David Chung, Marie Kardiban, and Randall McCain, who all state that they “did not receive an administrative appeal hearing on [their] removal from [their] advanced paygrade or bonus position,” none of them specify when or if they ever requested a hearing. These officers simply state that they were removed from the above advanced paygrade or bonus position as follows: Boylls on July 15, 2012, Gasior on July 1, 2011, Chung on March 27, 2011, Kardiban on October 9, 2011, and McCain in September 2011. At least as to Gasior and Chung, their conclusory statements are highly misleading since they filed and then withdrew their administrative appeals. (Hartter Decl. ¶¶7-9). Even if these officers did not request a hearing until March 15, 2012 (the date of Petitioner’s counsel’s letter), all of these effective dates, assuming they are later than the Transfer Order reporting the change, are beyond the 20 calendar day requirement of AO6, with the exception of Boylls. As for Boylls, since his effective date was after Petitioner’s March 15, 2012 letter, the purported administrative appeal does not apply to Boylls. In any event, Petitioner submits no evidence of when Boylls requested an appeal, and Boylls’ declaration does not state that he requested a hearing, only that he did not receive one. (Boylls Decl. ¶7).

The Court will assume, for the sake of argument, that the March 15, 2012 “formal request for appeal” is more than 20 calendar days after the Transfer Order reporting the change in paygrade or bonus status was published or the effective date of the employee’s change in pay grade or bonus status, for the Affected Members. However, Petitioner’s contention that the Affected Members’’ failure to comply with AO6 was excused because their claims were not “ripe” until the trial court’s judgment in case no. BC437997 became final on June 15, 2013 (or 30 days after the Court of Appeal issued its decision in the underlying case) is not persuasive. First, in the purported administrative appeal, Petitioner claimed that the 20-day statute of limitations began to run from the date the trial court signed the judgment in the case, February 24, 2012, not 30 days after the Court of Appeal issued its decision. (Levine Decl., Exhibit A). Second, Petitioner has not submitted any evidence that any Affected Member decided to wait until the underlying litigation was completed because he or she did not think the claim was “ripe.” This is not surprising given that “[a] controversy is ‘ripe’ when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171. Here, the Affected Members’ claims “sufficiently congealed” on the effective date of the change in the employee’s pay grade or bonus status. Indeed, of the 100 officers downgraded between October 30, 2009 and the end of 2013, 56 submitted timely requests for an administrative appeal, and some of these appeals were filed while the underlying litigation was pending. (Hartter Decl. ¶3). In addition, two of Petitioner’s declarants in this lawsuit, Gasior and Chung, filed, and then withdrew, administrative appeals after the underlying case was filed but before the judgment was entered.

Petitioner also has not shown that resort to the Department’s administrative remedy would have been futile. The futility exception to the requirement of exhaustion of administrative remedies is a very narrow one. See County of Contra Costa v. State of California, (1986) 177 Cal. App. 3d 62, 77. In this case, Petitioner has not shown that the Department declared what its ruling would have been in every case had Affected Members filed administrative appeals. In fact, Jerilyn Weinstein, Commander for the Department and the Department’s Employee Relations Administrator, testified that “[f]or downgraded officers who wanted to wait for the SO 47 Suit to finish, we put their hearings on hold and kept a list of their names.” (Weinstein Decl. ¶6). And several officers have completed appeals of their downgrades and filed related petitions following their appeals. (Monroe Decl. ¶¶4-9, Respondents’ RJN Exhibits C-H). Importantly, as reflected in at least one of the downgrade cases initially brought under SO47, a hearing officer could have determined that the challenged downgrade was properly conducted under the “satisfactorily perform” language in Section 3/763.55 of the Department Manual that predated the issuance of Special Order No. 47 even if the actual downgrade took place after SO47 was adopted. (See, e.g., Respondents’ RJN Exhibit D, Francine Briscoe v. City of Los Angeles).

The Court also rejects Petitioner’s argument that the Affected Members were not required to exhaust their administrative remedy because their appeals would have raised “a pure question of law based on undisputed facts.” (Opening Brief, p. 8:7-8). The Court agrees that a litigant is not required to exhaust his or her administrative remedies where the challenge is to the constitutionality of the administrative agency. State of California v. Superior Court, (1974) 12 Cal.3d 237, 251. Here, however, Petitioner did not challenge the constitutionality of the regulatory scheme for hearing and determining claims challenging reassignments or deselection of police officers. Further, as discussed above in connection with Francine Briscoe’s case, a hearing officer could have determined that a challenged downgrade or deselection was properly made under the “satisfactorily perform” language in Section 3/763.55 of the Department Manual that predated the issuance of Special Order No. 47. Put another way, Petitioner has not shown that every Affected Members’ reassignment or deselection occurred solely as a result of the application of SO47. See In re Electric Refund Cases, (2010) 184 Cal.App.4th 1490, 1500-1501 (primary purpose of the exhaustion doctrine “is to afford administrative tribunals the opportunity to decide in a final way matters within their area of expertise prior to judicial review”). It is also well established that a court’s or government agency’s action pursuant to a law believed to be valid at the time of the court’s or agency’s action will not be later overturned as a result of the law’s subsequent invalidation. See Slater v. Blackwood, (1975) 15 Cal.3d 791, 796-97 (“In every instance where a rule established by case law is changed by a later case the earlier rule may be said to be ‘mistaken’ . . . Such ‘mistakes’ or ‘injustices’ are not a ground for equity’s intervention”). While Slater applied this principle under different circumstances, its rationale is persuasive. Presumably, at the time the Affected Members were downgraded or deselected, SO47 had not been invalidated.

Finally, Petitioner does not address the fact that it attempted, unsuccessfully, to obtain the same relief in the underlying LAPPL case that it seeks in this case: “actual damages” or back pay and related benefits after reinstatement. (Compare Opening Brief, p. 9:1-7, with Pet. RJN Exhibit B, pp. 24-25). Certainly, it is undisputed that the underlying LAPPL lawsuit is final and involved the same parties involved in this litigation. Further, LAPPL and this case involve the same primary right, harm to Petitioner’s members as a result of the application of SO47, even if Petitioner seeks additional or slightly different remedies than that sought in the LAPPL litigation. “The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.” Wulfjen v. Dolton, (1944) 24 Cal. 2d 891, 895-896. In short, Petitioner cannot split a cause of action into multiple lawsuits. 4 Witkin, Cal. Procedure (5th ed. 2008) Pleadings, § 34, pp. 98–99. Petitioner may also not collaterally challenge the trial court’s denial of its request for specific relief to Affected Members in LAPPL by simply bringing a new lawsuit for traditional mandamus. See Villacres v. ABM Industries, Inc., (2010) 189 Cal.App.4th 562, 576 (“if the rule were otherwise, litigation finally would end only when a party ran out of counsel whose knowledge and imagination could conceive of different theories of relief based upon the same factual background”). While the Court is mindful that the issuance of a writ of mandate is controlled by equitable principles, “equity abhors a multiplicity of actions [and it] is the policy of the law to reduce to the minimum the number of actions which may subsist between the same parties.” Simmons v. Superior Court of Los Angeles County, (1950) 96 Cal. App. 2d 119, 130.

Disposition

For these reasons, the petition for writ of mandate is denied. The Court also declares that, based on the arguments and evidence advanced by the League in this lawsuit, the Affected Members are not entitled to an administrative hearing.

Respondents shall file and serve a proposed judgment.

IT IS SO ORDERED.