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

            This appeal poses important questions about the application and interpretation of the one-year statute of limitations for bringing disciplinary charges against police officers.  (See Gov. Code,^[1] §  3304, subd. (d) (hereafter §  3304(d)).)^[2]  In this matter, the trial court denied a petition for writ of mandate and for injunctive relief filed by appellant Gregory W. Breslin and three other San Francisco police officers who sought dismissal of police disciplinary charges pending against them before respondent San Francisco Police Commission (commission).  The officers appeal the order denying issuance of a writ of mandate and denying the request for injunctive relief,^[3] contending that the disciplinary charges are time-barred.  (See §  3304.)  In November 2005, we granted the officers' petition for writ of supersedeas staying the underlying disciplinary proceedings until the appeal was resolved.

            We find that three statutory exceptions to the one-year limitations period were erroneously applied in this matter.  As a result, we conclude that the disciplinary charges were not timely filed against any of the four officers.  Thus, we reverse the trial court order denying mandamus relief and remand for further proceedings.

I.  FACTS

A.  Incident

            On May 13, 1998, four San Francisco police officers were conducting a surveillance in an attempt to locate a known fugitive, Raymondo Cox.  The officers--appellants Gregory W. Breslin, Michael Moran, Peter Siragusa and James Zerga--observed Cox leave an apartment complex and enter a vehicle driven by Michael Negron.  Seventeen-year-old Sheila DeToy was also a passenger in the car.  The officers attempted to stop the car as it left the apartment complex.  As Negron evaded the officers, Breslin and Moran fired several shots into the car.  One of Breslin's bullets struck and killed Sheila DeToy.

B.  Investigation and Charges

            Immediately after the incident, respondent San Francisco Police Department (department) and the district attorney conducted investigations of the incident and the four officers' involvement in it.  (See S.F. Police Dept. Gen. Order No. 8.11.)  The officers maintained that Breslin acted in self-defense after Negron attempted to run him down with the vehicle.

            On June 10, 1998, the city's Office of Citizen Complaints (OCC)^[4] received a complaint about the May 13, 1998 incident from an eyewitness.  Later that month, the OCC sought department documents pertaining to the incident.  It began its own investigation, interviewing witnesses and reviewing initial police reports received in response to its first request for department documents.  Eyewitnesses disputed the officers' self-defense claim.  Some of the physical evidence and other witness testimony was consistent with the eyewitnesses' testimony.

            On July 10, 1998, the OCC obtained from the district attorney transcripts of the officers' interviews with department investigators.  The OCC submitted two more requests for documents from the department in October and December 1998.

            On February 10, 1999, the district attorney announced that it had completed its criminal investigation of the four officers and had concluded that no criminal conduct had occurred.  Meanwhile, criminal charges had been filed against Negron and Cox stemming from the shooting incident.  In February 1999, the four officers testified at the preliminary hearing that Breslin acted in self-defense.^[5]  In March 1999, an information was filed against Negron and Cox including charges stemming from the May 1998 incident.  The information charged Negron with the murder of Sheila DeToy, as well as the attempted murder of and assault with a deadly weapon against Breslin.  On March 30, 1999, Negron pled guilty inter alia to the involuntary manslaughter of DeToy and assault with a deadly weapon--specifically, an automobile--against Breslin.  (See Pen. Code, §§  192, subd. (b), 245, subd. (a)(1).)  Cox pled guilty to a drug charge.  (See Health & Saf. Code, §  11351.)  On April 27, 1999, after Cox and Negron were sentenced, their attorney first authorized them to be interviewed by the OCC.

            On May 13, 1999, Diane DeToy--the mother of Sheila DeToy--filed a civil rights and wrongful death action against the city, Breslin and several unnamed Doe defendants.  (DeToy v. City and County of San Francisco (Super. Ct. S.F. City and County, No. 303475); see fn. 6, post.)  In June 1999, the city attorney--acting on behalf of the city and Breslin--answered the complaint, asserting inter alia that Negron and Cox were solely responsible for Sheila DeToy's death.  The action was removed to federal district court.  (U.S. Dist. Ct. No. C99-3072 CRB.)

            During 1999, the OCC investigation continued.  In March 1999, the OCC interviewed four more witnesses.  By September 1999, the OCC had not received all the documents that it sought from the department.  It made a fourth request for documents from the department that month.  The OCC interviewed Negron and Cox on September 28 and October 5, 1999, respectively.

            During October 1999, the OCC received the first two sets of documents it sought from the department.  On January 5, 2000, the OCC received its final documents from the department.  At this time, the OCC had obtained the complete department file on this matter.

            From March through June 2000, the OCC interviewed seven police officers, including the four appellants, who again asserted that Breslin had acted in self-defense.  The OCC interviewed yet another officer in September 2000.  In all, the OCC interviewed 16 witnesses--the four accused officers, Negron, Cox, six citizen witnesses and four other officers--and reviewed 78 tapes and transcripts and more than 7,000 pages of documents.

            In November 2000, the civil action filed by Diane DeToy against the city and Breslin was settled.  On December 5, 2000, the federal district court ordered that the civil action be dismissed with prejudice.^[6]  On February 21, 2001, the commission adopted procedures for use when the chief of police and the OCC were unable to agree about whether to bring disciplinary charges against a police officer.

            On March 30, 2001, the OCC formally completed its investigation^[7] and notified all four officers of its preliminary findings.^[8]  It forwarded the case to the chief of police--then Fred Lau--recommending that sustained allegations against all four officers be submitted to the commission.  The report recommended that charges be filed against Breslin and Moran for discharging their weapons without justification; against Zerga for neglect of duty for filing an inaccurate incident report; and against all four officers for conduct reflecting discredit on the police department for misrepresenting the circumstances of the shooting in interviews with the department and the OCC, and in their testimony at the Cox and Negron preliminary hearing.  (See S.F. Police Dept. Gen. Order Nos. 2.01 (rules 9, 21), 5.01, 5.02.)

            On April 16, 2001, the OCC submitted its final report to the department and Chief Lau.  The commission also received the case on that date.  Over the course of the next three and one-half months,^[9] Chief Lau reviewed thousands of documents in the matter.  The OCC and Chief Lau considered and negotiated what would constitute appropriate discipline in this matter.  On August 30, 2001, Chief Lau formally notified the OCC that he disagreed with its recommendations.

            From September 2001 through February 2002, the OCC and the department engaged in informal discussions and negotiations, but were unable to reach an agreement about what disciplinary charges should be filed against the four officers.  On March 5, 2002, the OCC sent verified complaints to Chief Lau charging all four officers.

            Again, the department and the OCC attempted to negotiate matters in order to resolve their differences.  The OCC believed that Chief Lau would support filing a single charge against Breslin for use of unnecessary force.  Acting on that belief, the OCC withdrew its original charges and, on May 6, 2002, submitted a single charge against Breslin.  However, Chief Lau did not act on the revised recommended charge.

            On June 7, 2002, the OCC urged the commission to order Chief Lau to file the original charges against all four officers.  On June 26, 2002, Chief Lau wrote a letter to the commission opposing the filing of the verified complaints, reasoning that Negron alone was responsible for Sheila DeToy's death and that Breslin acted in self-defense.  That day, the commission recommended that Chief Lau serve the original verified charges against all four officers.  On June 28, 2002, Chief Lau filed the original disciplinary charges against the four officers.  Between June 28 and July 9, 2002, each of the four officers was formally served with notice of the disciplinary charges.^[10]

C.  Administrative and Trial Court Proceedings

            On September 10, 2003, the four officers filed a motion to dismiss the charges with the commission, alleging that they were filed outside the one-year statute of limitations.  (See §  3304.)  The OCC opposed the motion.  On December 10, 2003, the commission denied the motion to dismiss, finding that periods of tolling and extensions of the one-year statute of limitations rendered timely the filing of all disciplinary charges against the four officers.  (See §  3304(d)(1), (3), (4), (6).)

            On March 9, 2004, Breslin, Zerga, Moran and Siragusa filed a verified petition for writs of mandate and administrative mandate, seeking to have the disciplinary charges dismissed as untimely.  The petition also alleged causes of action for injunctive and declaratory relief.  The officers brought this action against respondents city, department and commission.^[11]  The commission answered the petition in July 2004.

            In January 2005, the officers moved for a writ of mandate.  The trial court conducted a hearing on the petition for writ of mandate in April 2005.  On June 17, 2005, it denied the request for a writ of mandate.  The denial order was filed on June 20, 2005.  Notice of entry of the order was mailed on June 21, 2005.

II.  APPEALABILITY OF ORDER

            The four officers filed a timely notice of appeal from the order denying issuance of a writ of mandate.  They do not explain in their opening brief why the order denying issuance of a writ of mandate is an appealable order.  (See Cal. Rules of Court, rule 8.204(a)(2)(B).)  At one time, it was thought to be settled law that an order denying a writ of mandate was an appealable order unless the trial court contemplated further orders or action on the petition.  (Elmore v. Imperial Irrigation Dist. (1984) 159 Cal.App.3d 185, 190-191; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§  97, 106, pp. 159-160 [final judgment in special proceeding is appealable], 169-170 [order denying writ of mandate is appealable as judgment in special proceeding].)  However, recent California Supreme Court cases have disapproved this line of authority.  (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697-698 (Griset); Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 736-744; see Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52 fn. 5; Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536, 538-540.)  In this matter, the trial court order denied the petition for writ of mandate and the request for injunctive relief.  It did not purport to rule on the other two causes of action--administrative mandate and declaratory relief--that were pled in the petition.

            Despite these facts, we are satisfied that the order before us constitutes a final judgment for the purposes of this appeal.  A judgment is a final determination of the rights of the parties.  When we determine whether an adjudication is final and appealable, the substance and effect of the adjudication is determinative, not the form of the decree.  When no issue is left for further consideration, the decree is final.  (Griset, supra, 25 Cal.4th at p. 698.)  In Griset, a unanimous California Supreme Court held that an appeal was taken from a judgment disposing of all causes of action even though there was no formal entry of judgment when the trial court completely resolved an allegation that was essential to all alleged causes of action.  (See id. at pp. 698-699.)

            This is precisely the situation in the case before us--the four officers appealed from an order effectively disposing of all four causes of action pled in the petition notwithstanding the lack of a formal judgment so stating.  They assert as much in their filing about this appeal.  (See Cal. Rules of Court, rule 8.100(f).)  The trial court resolved the statute of limitations issue essential to all four alleged causes of action such that the officers cannot prevail on any of them.  In these circumstances, we treat the trial court's order denying issuance of a writ of mandate as the equivalent of a final judgment on all of these causes of action.  (See Griset, supra, 25 Cal.4th at pp.  698-699.)  As the appeal from this order was timely filed, we may consider the merits of the issues that the four officers raise.

III.  PRELIMINARY MATTERS

A.  Statutory Overview

            The officers were served with disciplinary charges between June 28 and July 9, 2002--more than four years after the OCC received the citizen complaint on June 10, 1998.  On appeal, the four officers contend that the one-year statute of limitations bars these disciplinary proceedings.  They reason that no statutory exception to that one-year limitations period applies and seek the dismissal of the disciplinary charges against them.  (See §  3304(d).)

            The one-year statute of limitations is set out in section 3304, which is part of the Public Safety Officers Procedural Bill of Rights Act.  (See Sulier v. State Personnel Bd. (2004) 125 Cal.App.4th 21, 24 (Sulier); see also §  3300 et seq.)  The act is primarily a labor relations statute, cataloging the basic rights and protections that must be afforded to all peace officers by the public entities that employ them.  (Sulier, supra, 125 Cal.App.4th at p. 26; Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 63; Runyan v. Ellis (1995) 40 Cal.App.4th 961, 964.)  Effective law enforcement depends on the maintenance of stable public employer-public safety employee relations--relations that benefit the public as well as public safety officers.  (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1421; see Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572.)

            One protection codified in section 3304 is the speedy adjudication of conduct that could result in discipline.  (Parra v. City and County of San Francisco (2006) 144 Cal.App.4th 977, 988, petn. for review pending, petn. filed Dec. 26, 2006, S149041 (Parra); Sulier, supra, 125 Cal.App.4th at p. 26; Alameida v. State Personnel Bd., supra, 120 Cal.App.4th at p. 63; Runyan v. Ellis, supra, 40 Cal.App.4th at p. 964.)  The act provides that disciplinary charges against a public safety officer must be filed within one year, subject to certain statutory exceptions.  (§  3304(d).)  The act itself was enacted in 1976, but the one-year statute of limitations for receiving notice of proposed disciplinary charges set out in section 3304(d) did not take effect until 1998.  (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 908 (Jackson); California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 304; see Parra, supra, 144 Cal.App.4th at p. 988 fn. 7.)  It seeks to balance competing interests--the public interest in maintaining the integrity and efficiency of the police force with the individual officer's interest in receiving fair treatment.  (Jackson, supra, at p. 909; see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.)

            The statute allows for tolling or extension of the one-year limitations period under specified circumstances.  (See §  3304(d).)  The application of this provision is not merely a municipal issue, but a matter of statewide concern.  (§  3301; Jackson, supra, 111 Cal.App.4th at pp. 906-908; see Baggett v. Gates (1982) 32 Cal.3d 128, 139-140; Shoemaker v. Myers, supra, 2 Cal.App.4th at p. 1421.)  The meaning of these tolling and extension provisions was at issue before the commission, in the trial court, and in this appeal.

B.  Commission and Trial Court Findings

            The shooting that prompted the disciplinary charges occurred on May 13, 1998.  The OCC received its citizen complaint on June 10, 1998.  The commission found that the statutory one-year limitations period was tolled from June 10, 1998,^[12] until February 10, 1999, while the criminal investigation into the officers' conduct was pending.  (See §  3304(d)(1).)  It found that the one-year statute of limitations began to run from February 10, 1999, and continued running until May 13, 1999, when Diane DeToy filed her civil action against the city and Breslin.  The commission found that the statute of limitations was tolled during this period for all four officers--not just Breslin--from May 13, 1999, until December 5, 2000, when the civil action was dismissed.  At this point, the commission found, the statute of limitations began to run again.  (See §  3304(d)(6).)  It concluded that the OCC investigation was completed on March 30, 2001, at which time the officers were notified of its preliminary findings.^[13]  In addition to the criminal investigation and civil tolling provisions, the commission applied the multiple employee and multijurisdictional extension provisions of section 3304, finding that a 10-month extension of the limitations period was reasonable.  (See §  3304(d)(1), (3), (4), (6).)  It found that the combined effect of the tolling provisions and extensions of the limitations period rendered timely the June and July 2002 charges against the four officers.

            The trial court agreed with the commission's legal interpretation of section 3304, concluding that its rulings were not arbitrary, erroneous or contrary to the weight of evidence.  It found that the criminal investigation and civil lawsuit tolling provisions applied from the date on which the June 10, 1998 complaint was filed through February 10, 1999, and from May 13, 1999, through December 5, 2000, respectively.  (See §  3304(d)(1), (6).)  (See fn. 6, ante.)  It applied the civil lawsuit tolling provision to all four officers, although only Breslin was named as a party to that action, noting that the other three officers could have been named as Doe defendants if the lawsuit had not been settled.  The trial court applied the commission's interpretations of the multijurisdictional and multiple employee extensions, and upheld the commission's conclusion that a 10-month extension of time in this matter was reasonable under these two provisions.  (See §  3304(d)(3), (4).)

C.  Standard of Review

            As a preliminary matter, the parties disagree about the standard of review to be applied.  Much of their dispute centers on the standard to be applied to disputed factual issues.  To the extent that the issues presented in this appeal present legal issues involving the interpretation of the language of section 3304, the law is settled.  On these legal issues, the trial court was required to exercise its independent judgment, while examining the administrative record for any errors of law committed by the commission.  (See Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 914; see also Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811 [independent judgment exercised on both legal and factual issues] (Fukuda).)  On appeal, 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.  (See Burden v. Snowden (1992) 2 Cal.4th 556, 562; Parra, supra, 144 Cal.App.4th at p. 992; Jackson, supra, 111 Cal.App.4th at p. 902; Runyan v. Ellis, supra, 40 Cal.App.4th at p. 964; Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1806, cert. den. (1994) 510 U.S. 1194.)  Statutory interpretation is a clear question of law for our determination anew on appeal.  (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 (Shamrock); Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1349-1350; see Merrill v. Department of Motor Vehicles, supra, 71 Cal.2d at p. 917.)

            On factual issues, the trial court had a duty to weigh the evidence and to exercise its independent judgment on the facts.  In so doing, it was assisted by the commission's work in sifting the evidence and making its findings, which came to the trial court with a strong presumption of correctness.  (See Fukuda, supra, 20 Cal.4th at pp. 808, 811, 816-819; Parra, supra, 144 Cal.App.4th at p. 992; Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 368.)  In the trial court, the officers had the burden of proof to show that the commission's decision was not supported by the weight of the evidence--that is, that the decision was not supported by the preponderance of the evidence.  (See Fukuda, supra, 20 Cal.4th at pp. 808, 817, 819-822; Chamberlain v. Ventura County Civil Service Com., supra, 69 Cal.App.3d at p. 368; see also Code Civ. Proc., §  1094.5, subd. (c) [administrative mandate standard].)  The presumption of correctness is the starting point for the trial court's review, but this rebuttable presumption may be overcome by the evidence.  When applying the independent judgment test, the trial court may reweigh the evidence and substitute its own findings for those of the commission, after first giving due respect to the commission's findings.  (See Fukuda, supra, 20 Cal.4th at p. 818; Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 86.)  In its statement of decision, the trial court acknowledged applying thisstandard of review.

            When--as in this matter--the trial court reviews the commission's decision under the independent judgment standard of review and we review this ruling on appeal, we determine whether the record provides substantial evidence supporting the trial court's factual findings.^[14]  (Fukuda, supra, 20 Cal.4th at p. 824; Parra, supra, 144 Cal.App.4th at p. 992; Jaramillo v. State Bd. for Geologists & Geophysicists (2006) 136 Cal.App.4th 880, 889 (Jaramillo); Jackson, supra, 111 Cal.App.4th at p. 902; Riveros v. City of Los Angeles, supra, 41 Cal.App.4that p.  1350; see also Code Civ. Proc., §  1094.5, subd. (c).)  Applying the substantial evidence test on appeal, we may not reweigh the evidence, but consider that evidence in the light most favorable to the trial court, indulging in every reasonable inference in favor of the trial court's findings and resolving all conflicts in its favor.  (Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308; Jaramillo, supra, 136 Cal.App.4th at p. 889.)  The question on appeal is whether the evidence reveals substantial support--contradicted or uncontradicted--for the trial court's conclusion that the weight of the evidence supports the commission's findings of fact.  (See, e.g., Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72-73.)  We uphold the trial court's findings unless they so lack evidentiary support that they are unreasonable.  We may not uphold a finding based on inherently improbable evidence or evidence that is irrelevant to the issues before us.  (See Jaramillo, supra, 136 Cal.App.4th at p. 889.)

IV.  TOLLING OF STATUTE OF LIMITATIONS

A.  During Criminal Investigation

            First, the officers contend that the criminal investigation tolling exception to the statute of limitations did not apply to render the filing of these disciplinary proceedings timely.  The act requires the tolling of the one-year statute of limitations while a criminal investigation is pending if the misconduct is the subject of that investigation.  (See §  3304(d)(1); Parra, supra, 144 Cal.App.4th at p. 993, fn. 10.)  The officers argue that the criminal investigation tolling provision is â€