Fear Not Law Articles: BRESLIN v. CITYANDCOUNTY OF SAN FRANCISCO PART II

BRESLIN v

BRESLIN v. CITYANDCOUNTY OF SAN FRANCISCO

Filed 1/16/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

GREGORY W. BRESLIN et al.,

Plaintiffs and Appellants,

CITY AND COUNTY OF SAN FRANCISCO et al.,

Defendants and Respondents.

A111455

(San Francisco County

Super. Ct. No. CPF04504029)

STORY CONTINUED FROM PART Iâ€¦â€¦â€¦.

B. During Civil Action

1. Nexus Requirement

The officers also raise various challenges to the application of the civil litigation tolling provision. Under this provision, the one-year statute of limitations must be tolled during the time period that a civil action is pending if the investigation involves a matter in civil litigation in which the public safety officer is named as a party defendant. (See § 3304(d)(6).) On appeal, the officers raise three challenges to the application of this provision.

First, they contend that the civil action tolling provision does not apply because the civil action filed by Diane DeToy had no actual effect on the OCC investigation. This issue presents a question of statutory interpretation--a question of law for us to determine anew on appeal. (See Shamrock, supra, 24 Cal.4th at p. 432; Riveros v. City of Los Angeles, supra, 41 Cal.App.4th at pp. 1349-1350.) When construing the meaning of the language of section 3304, we apply basic principles that apply in all statutory construction cases. We seek to ascertain the Legislature's intent so that we may effectuate the law's purpose. Our goal is to interpret the language of the statute--not to insert what has been omitted or omit what has been inserted. We look first to the language of the statute itself, read as a whole, seeking to harmonize all parts of the statutory scheme. If the words contained in the statute are reasonably free from ambiguity and uncertainty, we look no further than those words to ascertain the provision's meaning. (Sulier, supra, 125 Cal.App.4th at p. 26; see Burden v. Snowden, supra, 2 Cal.4th at p. 562.) Only if the words are ambiguous or unclear may we turn to extrinsic aids to help us determine the Legislature's intent. (Burden v. Snowden, supra, at p. 562.)

The pertinent language of section 3304 is not ambiguous or unclear. It provides that the one-year statute of limitations must be tolled if the investigation involves a matter in civil litigation. (See § 3304(d)(6).) Thus, the only nexus required to trigger the civil action tolling provision is that the investigation and civil action involve the same underlying incident. (See ibid.)

Those requirements have been satisfied in this matter. The same incident--the May 13, 1998 shooting--was the subject of both the OCC investigation and the DeToy civil action. The statutory language does not require that the OCC investigation into that matter actually be affected by the civil action, nor does it require that the OCC be aware of the action. It merely requires that a civil action be filed involving the underlying incident as the OCC investigation.^{^[1]} (See § 3304(d)(6).) We have no power to graft onto the language of section 3304 the additional nexus that the officers would require. (See Sulier, supra, 125 Cal.App.4th at p. 26.)

2. Named Defendants

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

When a plaintiff is ignorant of the names of a defendant, the plaintiff may sue using a fictitious name for the defendant, amending the pleading when the defendant's true name is discovered. (Code Civ. Proc., § 474.) In this case, DeToy sued Breslin and multiple Doe defendants. She might have been able to amend her pleadings to plead the true names of Moran, Siragusa or Zerga, but she did not do so.^{^[2]} Although we must liberally construe the fictitious names statute to avoid the bar of the statute of limitations, the city cites no authority in which the plaintiff could have but did not actually exercise this authority by substituting true names for Does by amendment. (See, e.g., Sobeck & Associates, Inc. v. B & R Investments No. 24 (1989) 215 Cal.App.3d 861, 866-867; Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1034-1037; see also Code Civ. Proc., § 474.) Thus, its cases are distinguishable on the facts.

The resolution of the issue before us turns on the meaning of the language of section 3304, not on the application of the fictitious names statute. The issue of what section 3304 means is a question of law for us to determine anew on appeal. (See Shamrock, supra, 24 Cal.4th at p. 432; Riveros v. City of Los Angeles, supra, 41 Cal.App.4th at pp. 1349-1350.) The civil action tolling provision specifically requires that the public safety officer be named a defendant in the civil action. (See § 3304(d)(6).) Moran, Siragusa and Zerga were not named as defendants in the DeToy civil action. The language of the civil action tolling provision clearly excludes those three officers from its application.

Despite the clear import of the statutory language, the city argues that it is impractical and against the public interest for it to pursue disciplinary charges against Moran, Siragusa and Zerga during the pendency of the civil action naming Breslin as a defendant. However, our role is not to rule on the wisdom of the Legislature's enactments, but to interpret the meaning of its words. (See Estate of Horman (1971) 5 Cal.3d 62, 77, cert. den. sub nom. Gumen v. California (1972) 404 U.S. 1015.) The city's interpretation of the statute would require us to ignore the â€

Description	Pendency of civil action against peace officer tolls one year period in which factually related departmental misconduct charges may be brought under Public Safety Officers Procedural Bill of Rights Act regardless of whether the civil action impacted on the misconduct investigation. Pendency of civil action does not toll one year period with respect to officers who were not named defendants in the action even if they could have been named by amendment as Doe defendants. Statutory provision tolling limitations period where the alleged misconduct is the subject of a multijurisdictional investigation does not apply where the only agencies involved are the police department and an independent civilian complaint investigating agency of the city and both are under jurisdiction of a single entity, such as city police commission, with power to require coordination of the investigations. Provision allowing reasonable tolling during investigation of multiple officers could not be applied given unreasonableness of delaying filing of charges against those officers during period that another officer was defendant in a civil suit based on incident involving all the officers. Delay of 10 months in bringing charges against officer cleared in civil suit was unreasonable and could not support tolling under multiple-officer rule where time in which to charge other officers involved in incident had expired while suit was pending.
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