Filed 1/22/20 Earley v. City of L.A. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

DAWN EARLEY,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES et al.,

Defendants and Respondents.

B296279

(Los Angeles County

Super. Ct. No. BS171715)

APPEAL from judgment of the Superior Court of Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed.

Law Offices of Gregory G. Yacoubian and Gregory G. Yacoubian for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Scott Marcus, Chief Civil Litigation Branch, Blithe S. Bock, Assistant City Attorney, and Paul. L. Winnemore, Deputy City Attorney, for Defendants and Respondents.

Following an administrative hearing on a three-count personnel complaint, Dawn Earley was discharged as a peace officer from the Los Angeles Police Department (Department). Earley appeals from a judgment denying in part her petition for writ of administrative mandate. The petition sought an order directing the City of Los Angeles (City) and its then-Chief of Police, Charlie Beck, to set aside Earley’s termination. The trial court upheld the misconduct findings in count 1 for unauthorized absences, and in count 3 for refusing to submit to an investigative interview. The court remanded the matter to reconsider on an appropriate penalty based on its findings in counts 1 and 3. Earley contends count 1 is barred by the applicable statute of limitations, and count 3 is based on an invalid order. For the first time on appeal, she also contends her discharge is invalid because the Department failed to follow a mandatory process.

We conclude count 1 is not barred by the statute of limitations, and count 3 is based on a valid order. Finally, we deem Earley’s new argument forfeited for her failure to raise it below. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Investigation and Personnel Complaint

Earley was employed by the Department as a senior lead officer. In 2002, Earley developed dermatitis after she took medications for work-related injuries. Although the Department fully compensated Earley for her work injuries as part of a 2008 workers’ compensation settlement, it did not impose work restrictions or contemplate future time off. The Department subsequently provided Earley accommodations that included a front desk assignment.

In June 2015, Lieutenant Shawn Gregory called Earley after discovering she had accrued significant unaccounted sick time. After initially refusing to provide information, Earley later submitted a series of notes from her dermatologist. None of the notes reported any kind of medical condition or work restriction. After Gregory called her again, Earley stated she could not come into work due to a skin condition and prior back and knee injuries. Gregory informed Earley that the paperwork she submitted was inadequate, and she needed to submit a completed injury status report. The record contains 11 injury status reports from July 2015 to July 2016; outside of notating “avoid contact [with] public” in three of the eleven reports, Earley’s dermatologist never specified a work restriction.

In October 2015, Earley’s commanding officer, Captain Donald Graham, determined Earley was being documented as “Absent without Leave.” An absence without leave, which signifies an officer’s absences are unapproved and unpaid, constitutes actionable misconduct. Earley admits she consistently failed to report for duty between October 2015 and January 2017.

On October 27, 2015, the Department sent Earley a correspondence letter informing her that she had fully exhausted her sick time, and her absences were unauthorized. “Based on the current circumstances, you are therefore ordered to return to work immediately. Any additional absences from duty will . . . result in disciplinary action against you.”

Graham ordered a misconduct investigation into Earley’s ongoing absences. To determine why Earley continued to absent herself from duty, her supervising officer, Sergeant Robert Grant, called Earley on March 23, 2016, and issued her a direct order to submit to an investigative interview by March 31, 2016. During the call, Grant attempted to make reasonable accommodations for the interview, but Earley informed him she would not submit to an interview because she was “not medically able to do it” based on the information contained in her doctor’s notes. In response, Grant stated there was no compelling reason for her not to participate in an interview, and her failure to comply would constitute insubordination, which is considered serious misconduct. Earley never made herself available for an interview prior to, on, or after March 31, 2016. Instead, her dermatologist submitted a letter the day of the interview stating Earley could not give an “Intelligent Interview” because her “medications cause drowsiness and dry mouth.”

Having concluded his investigation, Grant found Earley’s absences between February 8 and September 8, 2016 to be unjustified. He also found Earley failed to comply with direct orders to return to work and submit to an interview. Based on these findings, and because Earley was a senior officer, Graham found that Earley’s misconduct had a “tremendous detrimental impact on . . . command.”

On December 1, 2016, the Department filed a three-count complaint against Earley. In count 1, the Department alleged that “[b]etween February 8, 2016 and September 8, 2016, [Earley] failed to report for [her] scheduled duty assignment, as required.” Count 3 alleged that “[o]n or about March 31, 2016, [Earley] failed to submit to administrative interviews after being ordered to do so.”

Hearing and Decision by the Board of Rights

The Board of Rights (Board) convened to adjudicate the complaint on August 28, 2017. After pleading not guilty to each count, Earley moved to dismiss count 1 based on the one-year statute of limitations set forth under the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.), and the Los Angeles City Charter (Charter). Earley argued count 1 accrued on October 28, 2015, when she failed to return to work after receiving an order to return to duty, and was untimely because the Department filed the personnel complaint on December 1, 2016. After denying the motion, the Board reviewed 38 exhibits and heard testimony from 12 witnesses.

Graham testified that Earley did not report for work between February 8 and September 8, 2016, and did not request leave without pay, which would have prevented any alleged misconduct. In her own testimony, Earley agreed she had responsibilities as a full duty, senior peace officer without medical restrictions, and was required to submit paperwork to authorize her leaves of absence.

One of the exhibits admitted into evidence was Special Order No. 7 (Special Order), which provides, inter alia, that “[a]ny employee with permanent medical restrictions may request a permanent reasonable accommodation to perform the essential job functions of his or her civil service classification.” The Special Order covers employees who have been injured on or after August 1, 2006, and commences upon an employee providing a physician’s note listing any permanent medical restriction. Tim Sands, a workers compensation expert who testified on Earley’s behalf, stated that “[a]nother way that [Earley] could have been handled is through the inner [sic] active process, which is [the] Special Order.” In closing arguments, Earley’s advocate echoed Sands’s testimony when he said the Department “could have started the process as Tim Sands said.”

A majority of the three-member Board found Earley guilty on all three counts. In light of the Board’s recommendation, the Chief of Police discharged Earley from her position on September 7, 2017.

Trial Court Proceedings

Three months later, Earley filed a petition for writ of administrative mandate seeking reinstatement. In her supporting motion, Earley stated she had “two primary arguments against this action.” In her first argument, Earley reasserted that count 1 was barred by the one-year statute of limitations, which she argued accrued no later than October 28, 2015, the day after the Department issued her a return to work order, which she conceded she consistently breached. In her second argument, Earley contended count 3 was “invalid as a matter of law” because she could not commit an act of insubordination as an off-duty and off-payroll officer. As a remedy, Earley sought reinstatement. Following her request for reinstatement, Earley relied on the language in the Special Order by stating that “[i]f it then appears to [the Department], through competent medical evidence, that she is unable to perform [her] duties, and the City’s Pension Board determines she is unable to perform those duties due to her work-related injury, it should move to award her a service-connected disability pension.”

The Department opposed the petition, and Earley filed a reply. At the hearing on her petition, Earley modified her argument in count 3, stating the City “beared [sic] the responsibility to affirmatively put [Earley] on notice that she would be compensated,” which she claimed did not happen.

In its ruling and judgment, the court upheld the findings in counts 1 and 3. As to count 1, the court found that under the continuous accrual doctrine, each unjustified absence beginning in February 8, 2016, was independently actionable and timely under the one-year statute of limitations. As to count 3, the court found Earley was an active employee at the time of the order, and her refusal to submit to an investigative interview constituted insubordination. In light of these findings, the court remanded the matter to the City so it could reassess the appropriate penalty.

Earley filed a timely notice of appeal.

DISCUSSION

On appeal, Earley contends count 1 is barred by the one-year statute of limitations, and count 3 is based on an invalid order. For the first time, she also contends the Department could not discharge her position because it did not follow mandated procedures set forth in the Special Order.

Standards of Review

A trial court’s factual findings and judgment on a petition for writ of administrative mandate are upheld if supported by substantial evidence. (Sulier v. State Personnel Bd. (2004) 125 Cal.App.4th 21, 25–26 (Sulier).) When examining the interpretation of a statute, “we are not bound by any legal interpretation made by the commission or the trial court. Instead, we make an independent review of any questions of law necessary to the resolution of this matter on appeal. [Citations.] Statutory interpretation is a clear question of law for our determination anew on appeal. [Citations.]” (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077 (Breslin).)

The principles governing the construction of a statute are well established. Our fundamental goal is to ascertain the Legislature’s intent so that we may give effect to the law’s purpose. (Breslin, supra, 146 Cal.App.4th at p. 1083.) In ascertaining this intent, we first look to the words of the statute, giving them their usual, ordinary import consistent with the Legislature’s purpose and intention. (Sulier, supra, 125 Cal.App.4th at p. 26; Pasadena Metro Blue Line Construction Authority v. Pacific Bell Telephone Co. (2006) 140 Cal.App.4th 658, 664.) If the statutory language is clear, we shall not change it to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (Id. at p. 664.)

The Statute of Limitations Governs Individual Acts of Misconduct

Earley contends count 1 is barred by the one-year statute of limitations. Count 1 alleged Earley failed to report for duty between February 8, 2016, and September 8, 2016. Although the alleged misconduct in count 1 occurred within one year of the December 1, 2016 personnel complaint, Earley contends count 1 accrued no later than October 28, 2015, or the first day she violated the Department’s return to work order. By focusing on an ongoing pattern of conduct (i.e. absenting herself without approval) as opposed to individual acts of misconduct, Earley’s contention ignores the plain meaning of the governing statute of limitations.

The parties agree section 3304, subdivision (d)(1) provides the applicable statute of limitations for the misconduct alleged in count 1. Section 3304, subdivision (d)(1) states: “Except as provided in this subdivision and subdivision (g), no punitive action . . . shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. . . . In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline . . . except as provided in paragraph (2).” Charter section 1070(c)(1) echoes this limitations period. (See Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 910 (Jackson).)

The meaning of section 3304, subdivision (d)(1) is clear: for an agency to impose any punishment on a peace officer, it must complete an investigation “of the allegation” of misconduct and inform the officer of its proposed discipline within one year of discovering an “act, omission” or other instance of misconduct. The allegation in count 1 covers unauthorized absences between February and September 2016. Though enumerated as a sequence, the allegation covers every day Earley absented herself without approval between February and September 2016. Under section 3304, the December 1, 2016 personnel complaint timely notified Earley that she was subject to discipline for each day of unauthorized absence in that period of time. Though the complaint’s filing date would render Earley’s initial unauthorized absence in October 2015 untimely, it did not render her unauthorized absences untimely.

Our interpretation of section 3304 furthers the specific purpose behind the statute as well as the overall purpose behind POBRA. (See Ochoa v. County of Kern (2018) 22 Cal.App.5th 235, 245 [section 3304 exists so that an officer “‘will not be faced with the uncertainty of a lingering investigation, but will know within one year of the agency’s discovery of the officer’s act or omission that it may be necessary for the officer to respond in the event he or she wishes to defend against possible discipline’” (italics added)]; Jackson, supra, 111 Cal.App.4th at p. 909 [POBRA seeks to maintain “stable employer-employee relations between public safety employees and their employers” while also providing “effective law enforcement and effective services to all people of the State of California”]; see also § 3301.)

Our interpretation, though based on the plain meaning of section 3304, is consistent with the trial court’s use of the continuance accrual doctrine. The common law doctrine triggers “a new statute of limitations” for each instance of wrongful conduct or breach of an obligation. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1200 (Aryeh); Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 395 (Sabic Innovative Plastics).)

Earley contends the continuous accrual doctrine should not apply to POBRA claims because it is not an enumerated exception in section 3304. Though we are unaware of any statute of limitations codifying this doctrine, we are mindful of various cases that have applied it to claims covered by statute of limitations that are silent on whether it should apply. (E.g., Aryeh, supra, 55 Cal.4th at p. 1200 [Unfair Competition Law claims]; Blaser v. State Teachers’ Retirement System (2019) 37 Cal.App.5th 349, 365–366 [recoupment of overpaid retirement benefits]; Carroll v. City and County of San Francisco (2019) 41 Cal.App.5th 805, 812–813 [Fair Employment and Housing Act (FEHA) claims]; Sabic Innovative Plastics, supra, 14 Cal.App.5th at p. 396 [negligence claims]; Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1341–1343 [breach of contract claims].) This makes sense, as the doctrine was formulated as a “response to the inequities that would arise if the expiration of the limitations period following a first breach of duty or instance of misconduct were treated as sufficient to bar suit for any subsequent breach or misconduct.” (Aryeh, supra, 55 Cal.4th at p. 1198.)

By focusing on a pattern of repeated conduct, Earley’s interpretation consolidates multiple, albeit similar or even identical acts of misconduct. If utilized, her interpretation would immunize repeat offenders and would undermine effective law enforcement services that are provided to the public. Neither POBRA nor the continuous accrual doctrine was designed to facilitate this type of inequity. (See § 3301; Aryeh, supra, 55 Cal.4th at p. 1198.)

Count 3 is Based on a Valid Order

Earley contends her insubordination in count 3 was premised on an invalid order because her off-duty and off-payroll status prohibited the Department from ordering her to submit to an interview. Her contention is contrary to the law and the facts in this case.

Among the various procedural protections provided by POBRA, section 3303 sets forth limits and guidelines for “investigations and interrogations of public safety officers in connection with disciplinary proceedings.” (Quezada v. City of Los Angeles (2014) 222 Cal.App.4th 993, 1003.) Section 3303 provides: “When any public safety officer is under investigation and subjected to interrogation . . . that could lead to punitive action, the interrogation shall be conducted under the following conditions. . . . [¶] (a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the public safety officer is on duty . . . . 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.” (§ 3303.)

Section 3303 plainly authorized the order for Earley to submit to an investigative interview. The statute expressly contemplates an interview take place off-duty, and does not require an interviewee to be paid in advance or notified that he or she would be compensated for the interview. The statute simply conditions compensation on the occurrence of the interview. (Cf. Baggett v. Gates (1982) 32 Cal.3d 128, 137 & fn. 12 [after reviewing section 3303, subdivision (a), the Supreme Court found POBRA “does not interfere with the setting of peace officers’ compensation”].)

Earley’s arguments to the contrary are premised on two cases. In Garvin v. Chambers (1924) 195 Cal. 212 (Garvin), the Supreme Court determined that a police officer who was discharged or suspended from office cannot commit an act of insubordination. (Id. at p. 224; see id. at pp. 224–225 [indefinitely suspended officer could not commit insubordination for refusing to submit to an interrogation].) In Sheehan v. Board of Police Com’rs (1920) 47 Cal.App. 29 (Sheehan), the court nullified a board’s insubordination finding against a disabled ex-police officer after it ordered him back to work, but had no “proof or showing” he could return to duty. (Id. at pp. 35–36; see id. at pp. 31–33 [board refused to consider any evidence that medically disabled plaintiff remained unable to work].)

Garvin and Sheehan are inapposite to this case. Earley was not suspended, but was under full duty and without any medical restrictions at the time she disobeyed a direct order. That she was unpaid for being absent and without sick or IOD time is of no consequence. (Negron v. Los Angeles County Civil Service Com. (2015) 240 Cal.App.4th 874, 883 [an officer on relieved-of-duty status or on leave from employment “‘makes him no less an employee’”]; Crowley v. City and County of San Francisco (1978) 83 Cal.App.3d 776, 779 [plaintiff did not “thereby cease to be a public employee” because he was on leave].) The Department’s conduct in this case is also fundamentally different from the board’s conduct in Sheehan because it continuously sought to ascertain why Earley absented herself from duty.

The undisputed facts support the trial court’s findings that, as a full duty officer under investigation, Earley was subject to an investigative interview under section 3303. When she refused to appear or subject herself to that interview, she disobeyed her supervising officer’s direct order and committed an act of insubordination. (See Sulier, supra, 125 Cal.App.4th at pp. 25–26.)

Earley Forfeited Her Mandatory Process Argument

For the first time on appeal, Earley contends the Department was prohibited from discharging her because it did not exhaust the procedures set forth in the Special Order, which was attached as an exhibit and referenced at the administrative hearing. Earley has forfeited this argument because she failed to raise it below.

“‘“As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried . . . . [I]t would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal.”’ [Citations.]” (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695; see JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) “Where the parties try the case on the assumption that certain issues are raised by the pleadings, or that a particular issue is controlling, neither party can change this theory for purposes of review on appeal.” (Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1041; accord, Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1519 [“a litigant may not pursue one line of legal argument in the trial court, and having failed in that approach, pursue a different, and indeed, contradictory line of argument on appeal”].)

Contrary to Earley’s contention, she did not argue at the administrative hearing that the Department failed to abide by a mandatory process set forth in the Special Order. In fact, Earley’s use of the Special Order cuts against her contention on appeal because she suggested the Department could have alternatively proceeded under the Special Order. Notwithstanding Earley’s conflicting use of the Special Order at the administrative hearing, at no point in the trial court did Earley argue or cite to the Special Order. Instead, she utilized the language in the Special Order as an event conditioned upon reinstatement—“Petitioner . . . is entitled to a writ of mandate, directing Respondents to set aside Earley’s termination, and to restore her to her employment . . . . If it then appears to Respondents, through competent medical evidence, that she is unable to perform those duties, and the City’s Pension Board determines she is unable to perform those duties due to her work-related injury, it should move to award her a service-connected disability pension.”

The Department could not divine Earley’s newly formed argument on appeal from her contradictory use of the Special Order at the administrative hearing, or from Earley’s use of the order (without any citation) when requesting future relief independent from her arguments in the trial court. Notwithstanding her failure to properly raise the argument below, we cannot resolve the issue because it requires consideration of new factual questions. (See NBC Universal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1237; Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1488.) We therefore deem the argument forfeited.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.