Nazir v.
Angeles
Filed 4/2/13 Nazir v. County of Los Angeles CA2/8
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opinion has not been certified for publication or ordered published for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
EIGHT
REHAN NAZIR,
Plaintiff
and Appellant,
v.
COUNTY OF LOS ANGELES et al.,
Defendants
and Respondents.
B238477
(Los Angeles
County
Super. Ct.
No. BC458675)
APPEAL
from the judgment of the Superior Court
of
County. Teresa
Sanchez-Gordon, Judge. Affirmed.
Lackie
Dammeier & McGill and Michael A. Morguess for Plaintiff and Appellant.
Lawrence
Beach Allen & Choi, Paul B.
Beach, Nathan A. Oyster and Matthew P. Allen for Defendants and Respondents.
* *
* * * * * * * *
Plaintiff
and appellant Rehan Nazir appeals from the trial court’s order sustaining the
demurrer without leave to amend of defendants and respondents
County of Los
Angeles, Los Angeles County District Attorney’s
Office, and Lawrence E. Mason to the original complaint. We conclude the demurrer was properly
sustained without leave to amend and a judgment
of dismissal properly entered in defendants’ favor. We therefore affirm.
FACTS
We
summarize below the material facts set forth in the complaint.
In 2007, plaintiff
was employed by the City of Torrance Police Department. Plaintiff had completed his period of
probation and was assigned as a patrol officer.
On April 14, 2007,
he was working on patrol with another Torrance Police Department officer. Plaintiff and his partner learned that a
robbery had occurred at a local convenience store. They were given a description of the robbery
suspect. During that same shift,
plaintiff and his partner talked with a confidential informant to arrange a
narcotics purchase from a suspected drug dealer.
While
on patrol later in the shift, plaintiff and his partner saw a man who generally
matched the description of the robbery suspect they had been given
earlier. The man was “act[ing]
suspiciously†in the general vicinity of the convenience store where the
robbery had occurred. The man also
matched the description of the suspected drug dealer with whom their
confidential informant was going to arrange a narcotics purchase. Plaintiff and his partner decided to make
contact with the man to see if he was either the robbery suspect or the
suspected drug dealer.
Plaintiff
and his partner “initiat[ed] a consensual encounter†with the man and
determined he was the suspected drug dealer.
Plaintiff and his partner placed him under arrest. They reported the arrest to their sergeant,
who arrived on the scene to assist with the arrest. Plaintiff and his partner explained the
circumstances of the detention and arrest to their sergeant, including the
involvement of the confidential informant.
Pursuant
to training plaintiff received from the Torrance Police Department, plaintiff
prepared a probable cause declaration omitting the information regarding the
confidential informant because there was an independent basis supporting
probable cause to detain the individual.
Plaintiff also prepared the accompanying arrest report. Plaintiff’s probable cause declaration and
the arrest report “were reviewed with approval†by plaintiff’s partner, and the
“Watch Commander†on duty for that shift.
Shortly
thereafter, the arrest information was presented to defendant and respondent
Los Angeles County District Attorney’s Office.
The district attorney’s office filed criminal charges against the
arrestee. “[C]ontemporaneous with the
filing†of the criminal charges, the district attorney’s office was advised of
the involvement of the confidential informant in the circumstances surrounding
the arrest. The district attorney’s
office proceeded with the prosecution notwithstanding receipt of that
information.
Sometime
in October 2008, the arrestee’s defense counsel learned that plaintiff and his
partner had used a confidential informant on the night of the arrest and moved
to have the criminal charges against his client dismissed. The district attorney’s office dismissed the
charges. (The record is not clear, but
apparently there were federal charges pending against the arrestee as
well.)
Following
the dismissal of the charges, the Torrance Police Department initiated an
investigation into the circumstances surrounding the arrest.
Defendant
and respondent County of Los Angeles promulgated Special Directive 02-08,
pursuant to which the district attorney’s office created an internal repository
of information to facilitate compliance with prosecutorial discovery
obligations under Brady v. Maryland
(1963) 373 U.S. 83 (Brady). The repository is referred to as the “Brady
Alert System†and is maintained by the Bureau of Prosecution Support
Operations, Brady Compliance Unit, of the district attorney’s office. The repository identifies peace officers and
government-employed expert witnesses for which “Brady materialâ€
name="_ftnref1" title="">[1] exists.
The Brady Alert System is accessible to all deputy district attorneys to
assist in compliance with discovery obligations during criminal proceedings and
to otherwise use in the discharge of their duties.
The Brady
Compliance Unit of the district attorney’s office conducted an investigation
into the circumstances surrounding plaintiff’s arrest of the arrestee. In February 2009, the Brady Compliance Unit
notified plaintiff that it had determined his probable cause declaration and
arrest report contained false information within the meaning of
any reference to the use of a confidential informant. The Brady Compliance Unit further notified
plaintiff that his name was tentatively being placed in the district attorney’s
office “Brady Alert System†as a result of that finding. Plaintiff was advised he was permitted to
file written objections or other written materials explaining his conduct, and
that such information would be considered by defendant and respondent Lawrence
E. Mason, senior special assistant in the district attorney’s office, before a
final decision was made.
Plaintiff
submitted written objections and declarations (including declarations from
other Torrance Police Department officers) explaining his conduct on the night
of the arrest, and otherwise stating the reasons why his conduct did not
warrant placement in the Brady Alert System.
Plaintiff was advised that Mason would be making the final decision and
that plaintiff’s employer would be notified in the event the final decision was
to include plaintiff’s name in the Brady Alert System. Plaintiff was not allowed to appear
personally or otherwise make a formal presentation to the district attorney’s
office before a decision was rendered.
On
June 3, 2010, the district attorney’s office rendered its decision that
plaintiff’s name would be included in the Brady Alert System, and specifically
found that plaintiff was the focus of the Torrance Police Department’s internal
investigation surrounding the arrest, that plaintiff falsified his probable
cause declaration and arrest report by omitting the confidential informant
information, and that plaintiff’s conduct involved moral turpitude. A week later, Mason formally notified
plaintiff’s employer, the Torrance Police Department, of the decision to
formally place plaintiff’s name in the Brady Alert System.
Shortly
thereafter, the Torrance Police Department notified plaintiff of its intent to
discharge him for making false statements in his probable cause declaration and
his arrest report concerning the arrestee, and due to his placement in the
Brady Alert System. On September 9, 2010, the Torrance Police
Department discharged plaintiff from his position as a police officer for the
reasons set forth in its notice of intent.
PROCEDURAL
BACKGROUND
Plaintiff
filed this action against the County
of Los Angeles, the district
attorney’s office and Mason, alleging three causes of action.
against the entity defendants only, sought relief under the Public Safety
Officers Procedural Bill of Rights Act or POBRA (Gov. Code, § 3300 et seq.). Plaintiff sought equitable relief, compelling
defendants to provide him a process to administratively appeal their decision
to place him in the Brady Alert System.
Plaintiff also requested imposition of the statutory
well as actual damages according to proof.
Plaintiff’s
second and third causes of action, stated against all three defendants, sought
an administrative writ and a traditional writ, respectively, compelling
defendants to remove his name from the Brady Alert System or, alternatively,
compelling defendants to afford plaintiff an administrative appeal of the
decision that comports with POBRA.
Defendants
demurred, arguing multiple bases why plaintiff’s claims fail as a matter of
law, including that POBRA claims may only be brought against an employing
agency and defendants were never plaintiff’s employer, plaintiff failed to
allege compliance with the Government Claims Act, and the decision to place
plaintiff in the Brady Alert System was a discretionary prosecutorial function
which may not be reviewed by the judicial branch.
Following
oral argument, the court issued its decision sustaining defendants’ demurrer to
plaintiff’s original complaint without leave to amend. The court entered a judgment of dismissal in defendants’
favor. This timely appeal followed.
DISCUSSION
Our
review of the trial court’s determination of the legal sufficiency of
plaintiff’s complaint is de novo. We
exercise “‘our independent judgment about whether the complaint states a cause
of action as a matter of law. [Citations.]
We give the complaint a reasonable interpretation, reading it as a whole
and viewing its parts in context.
[Citations.] We deem to be true
all material facts properly pled.
[Citation.] We must also accept
as true those facts that may be implied or inferred from those expressly
alleged. [Citation.]’†(Westamerica
Bank v. City of Berkeley
(2011) 201 Cal.App.4th 598, 606-607 (Westamerica
Bank); accord, City of Dinuba v.
County of Tulare (2007) 41 Cal.4th 859, 865 (City of Dinuba).)
When, as here, a
demurrer “is sustained without leave to amend, we decide whether there is a
reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its
discretion and we reverse.†(
“‘The plaintiff bears the burden of demonstrating a reasonable
possibility to cure any defect by amendment.
[Citations.]’†(
leave to amend was an abuse of discretion, the appellate court must affirm the
judgment if it is correct on any theory’â€].)
The First
Cause of Action Pursuant to POBRA.
In his first cause
of action, plaintiff seeks equitable relief pursuant to Government Code section
3309.5
compelling the district attorney’s office to afford him an administrative
appeal of its decision to place him in its Brady Alert System. Plaintiff alleges entitlement to an
administrative appeal of the decision that comports with the minimum
requirements of POBRA, as well as statutory penalties and damages. Plaintiff concedes that defendants have never
been his employer, but asserts that the POBRA claim nonetheless lies against
those public agencies because the decision to place him in the Brady Alert
System amounted to “punitive action†within the meaning of POBRA. We are not persuaded.
Our Supreme Court
has explained that POBRA “sets forth a list of basic rights and protections
which must be afforded all peace officers (see § 3301) by the public entities which employ them.†(Baggett
v. Gates (1982) 32 Cal.3d 128, 135, italics added; accord,
Cal.3d 676, 679 (White);
Cal.App.4th 373, 380-381.) Indeed, POBRA
contains an express declaration of legislative intent evincing the
labor-relations context of the statutory scheme: “The Legislature hereby finds and declares
that the rights and protections provided to peace officers under this chapter
constitute a matter of statewide concern.
The Legislature further finds and
declares that effective law enforcement depends upon the maintenance of stable
employer-employee relations, between public safety employees and their
employers. In order to assure that
stable relations are continued throughout the state and to further assure that
effective services are provided to all people of the state, it is necessary
that this chapter be applicable to all public safety officers, as defined in
this section, wherever situated within the State of California.†(§ 3301, italics added.)
Statutory language
should be given a plain and common sense meaning, and statutory provisions are
to be “ ‘read in context, considering the nature and purpose of the
statutory enactment.’ [Citation.]†(Torres
v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777.) Reading the
and in context with one another, the legislative focus on the employment
relationship between peace officers and the public agencies that employ them is
patently clear.
For instance,
section 3303 catalogues the minimum rights and protections to be afforded a
peace officer “under investigation and subjected to interrogation
other member of the employing public safety department.†(§ 3303, italics added.) “[POBRA] was not designed to provide public
safety officers any greater right than other persons in connection with
investigations by law enforcement agencies in which they are not employed. By its own terms, the protections of section
3303 apply only to investigations ‘by [the public safety officer’s] commanding
officer, or any other member of the employing public safety department, that
could lead to punitive action . . . .’ As used in the statute, ‘punitive action
means any action that may lead to dismissal, demotion, suspension, reduction in
salary, written reprimand, or transfer for purposes of punishment.’ (Ibid.) This language was held . . .
[citation] to render section 3303 inapplicable to interrogations of public
safety officers by representatives of a law enforcement agency that does not
employ the interrogated officer.†(
v. State of California (2000) 82 Cal.App.4th 294, 306 (Correctional Peace Officers Assn.).)
Similarly,
sections 3305 and 3306 pertain to the placement of
personnel file, and the officer’s corresponding rights to notice and an
opportunity to provide a responsive statement.
Section 3308 provides that no public safety officer shall be required
“for purposes of job assignment or other personnel action†to disclose
specified financial information. And,
section 3309 prevents the search of a public safety officer’s locker at his or
her place of employment, except in his or her presence, with his or her
consent, or pursuant to a valid search warrant.
All of these provisions plainly relate to rights and protections
afforded a peace officer vis-Ã -vis his or her employing agency.
Section 3309.5
also uses language highlighting the employment context of the statutory
scheme. In pertinent part, it
reads: “(a) It shall be unlawful for
refuse to any public safety officer the rights and protections guaranteed to
him or her by this chapter. [¶]
. . . [¶] (c) The superior
court shall have initial jurisdiction over any proceeding brought by any public
safety officer against any public safety
department for alleged violations of this chapter. [¶]
(d)(1) In any case where the superior court finds that
any of the provisions of this chapter, 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.†(§ 3309.5, italics
added.)
In
court reversed, in part, a trial court order enjoining an alleged joint
investigation of state correctional officers by their employer, the California
Department of Corrections (CDC), and the Department of Justice (DOJ). (Correctional
Peace Officers Assn., supra, 82
Cal.App.4th at pp. 311-312.) The court
explained the equitable relief granted to the officers in their POBRA claim
against their employer for violations of section 3303 was valid and
legislatively authorized, but reversed the inclusion of the DOJ in the scope of
the injunction because there was no statutory basis for such relief against a
nonemploying agency. “Section 3309.5
authorizes injunctive relief only as to the employing public safety department,
which is the CDC. Nowhere does the
statute authorize enjoining the investigative activities of outside
DOJ.†(Correctional Peace Officers Assn., at p. 312.)
Nonetheless,
plaintiff argues that at least one provision of POBRA, section 3304,
subdivision (b), should be read as embracing the right to enforce POBRA claims
against any public agency. Section 3304,
subdivision (b) provides: “No punitive
action, nor denial of promotion on grounds other than merit, shall be
undertaken by any public agency against any public safety officer who has
successfully completed the probationary period that may be required by his or
her employing agency without providing the public safety officer with an
opportunity for administrative appeal.â€
Plaintiff contends the use of the phrase “any public agency†compels the
conclusion that a POBRA claim is viable against any public agency, even a nonemploying agency. We do not agree.
Section 3304 “provides
a number of procedural rights for public safety officers who may be accused of
misconduct in the course of their employment.â€
(Mays v. City of Los Angeles
(2008) 43 Cal.4th 313, 320.) Subdivision
(a) of section 3304 provides that no peace officer shall be subjected “to
punitive action, or denied promotion, or be threatened with any such treatment,
because of the lawful exercise of the rights granted under this chapter, or the
exercise of any rights under any existing administrative grievance procedure.†Being subjected to punitive action, being
denied a promotion, or being threatened with such action for exercising rights
under a grievance procedure all indicate a focus on the types of adverse acts
an employer may take against an employee.
Subdivision (a) also specifically provides that nothing in the section
precludes the head of the agency from ordering the public safety officer to
cooperate with the criminal investigations of other agencies. (§ 3304,
subd. (a).)
Additional
procedural requirements, such as a statute of limitations on misconduct
investigations, are also enumerated in section 3304. Subdivision (f) of section 3304 then provides
that if the public agency “decides to impose discipline,†the peace officer
shall be notified in writing of the decision.
(§ 3304, subd. (f).) Only an
employing agency would be in a position to “impose discipline†on a peace
officer within the meaning of POBRA.
We
will not read subdivision (b) of section 3304 in isolation from the balance of
the statutory scheme. The provision
plainly provides that peace officers must be afforded an administrative appeal
when punitive actions are taken against them, and the Supreme Court has stated
the concept of punitive action should be construed broadly to ensure against
the taking of erroneous action against peace officers. (White,
supra, 31 Cal.3d at pp.
682-683.) However, in so explaining, the
Supreme Court analogized to the related statutory scheme set forth in the State
Civil Service Act (§ 18500 et seq.) and its provisions giving certain
protections to public employees from adverse or punitive actions
at pp. 682-683, citing Skelly v. State
Personnel Bd. (1975) 15 Cal.3d 194, 210.)
Section 3304, subdivision (b) cannot reasonably be read to authorize a
POBRA claim against a nonemploying public agency wholly unrelated to the peace
officer’s employing agency.
Not
surprisingly, plaintiff does not cite any authority that supports his
position. Neither Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347 (
nonemploying agencies may be sued, despite plaintiff’s assertion to the
contrary. Indeed, both
officers’ employing agency.
In
Hopson, the Board of Police
Commissioners for the Los Angeles Police Department issued a report concerning
an officer-involved shooting. The
board’s report found that the conduct of the officers involved had violated
department policy and resulted from severe lapses in judgment. The board ordered the report to be placed in
the officers’ personnel files. (
The officers were otherwise not disciplined following a decision by the
police chief that no discipline would be imposed. The issue on appeal was whether placing the
report in the officers’ respective personnel files constituted “punitive
action†within the meaning of POBRA because of the potential adverse impact on
the officers’ career advancement within the department. Hopson
held that it did, and that the officers were therefore entitled to an
administrative appeal pursuant to section 3304, subdivision (b) concerning
placement of the report in their personnel files. (Hopson,
at p. 354.)
pursuant to a city charter provision, was the head of the Los Angeles Police
Department, the officers’ employer. (
relief against a wholly separate agency, but were in fact seeking relief
against their employer and the City of Los Angeles, the public entity of which
the police department was an agency.
the San Diego County Sheriff’s Department filed an action against the county
and its civil service commission seeking an
POBRA. (Caloca, supra, 72
Cal.App.4th at p. 1212.) The deputies
sought to challenge a citizens review board report that the deputies had
engaged in misconduct. The citizens
review board was a public board established by the San Diego County Board of
Supervisors, following a voter-approved ballot measure, authorizing creation of
the county review board. The citizens
review board was established, in part, to review citizen complaints made
against peace officers, and to advise the board of supervisors and the county
sheriff about the results of their investigations of such complaints. (Id.
at pp. 1212-1213.) The citizens review
board was therefore an agency of the county which employed the deputies, and
the deputies’ action sought relief against the public entity that employed
them. (Id. at pp. 1220-1223.)
There
are no facts here similar to either Hopson
or Caloca. The district attorney’s office and the County
of Los Angeles are public entities, wholly independent and unrelated to
plaintiff’s employing agency, the City of Torrance Police Department. Plaintiff’s first cause of action under
POBRA, stated against two nonemploying agencies, is therefore defective as a
matter of law, and no amendment can cure that material defect. The demurrer to the first cause of action was
properly sustained without leave to amend.
The Second
and Third Causes of Action Seeking Writ Relief.
In his second
cause of action, plaintiff requests a writ of administrative mandamus, pursuant
to Code of Civil Procedure section 1094.5, compelling defendants to set aside
their decision to place him in the Brady Alert System, or alternatively,
compelling them to provide him with an administrative appeal to challenge that
decision. In his third cause of action,
plaintiff requests the same relief pursuant to a traditional writ under Code of
Civil Procedure section 1085. Neither
remedy is available to plaintiff.
Plaintiff seeks a
court order interfering with the conduct of the district attorney’s office in
creating and maintaining an internal database of suspected Brady material for use by its deputy district attorneys in
assessing witnesses, determining the viability of criminal charges, and in
complying with their discovery obligations during the course of criminal
proceedings. Such conduct by the
district attorney’s office is intimately connected to its executive branch
prosecutorial functions. The
powers precludes judicial interference with such functions. (See People
v. Birks (1998) 19 Cal.4th 108, 134 (Birks);
People v. Eubanks (1996) 14 Cal.4th
580, 589 (Eubanks).)
“The district
attorney of each county is the public prosecutor, vested with the power to
conduct on behalf of the People all prosecutions for public offenses within the
county. [Citations.] Subject to supervision by the Attorney
General [citations], therefore, the district attorney of each county independently
exercises all the executive branch’s discretionary powers in the initiation and
conduct of criminal proceedings.
[Citations.] The district
attorney’s discretionary functions extend from the investigation and gathering
of evidence relating to criminal offenses [citation], through the crucial
decisions of whom to charge and what charges to bring, to the numerous choices
the prosecutor makes at trial regarding ‘whether to seek, oppose, accept, or
challenge judicial actions and rulings.’ [Citations.]†(Eubanks,
supra, 14 Cal.4th at p. 589.)
“‘“[P]rosecutorial
discretion is basic to the framework of
the California criminal justice system.
[Citations.] This discretion,
though recognized by statute in California, is founded upon constitutional
principles of separation of powers and due process of law.â€â€™ [Citation.]
‘The district attorney’s function is quasi-judicial in nature
[citation], and . . . he is vested with discretionary power in
determining whether to prosecute in any particular case. An
unbroken line of cases in California has recognized this discretion and its
insulation from control by the courts . . . .’ [Citation.]â€
(Gananian,
accord, Birks, supra, 19 Cal.4th at p. 134 [prosecution’s authority is founded “on
the principle of separation of powers, and generally is not subject to
supervision by the judicial branchâ€].)
When the district
attorney’s office made the discretionary decision to include plaintiff in its
Brady Alert System, it was not directly engaged in the classic prosecutorial
function of making a charging decision.
However, that conduct, undertaken as part of the district attorney’s
office’s policy of maintaining an internal database of Brady material to facilitate the discharge of its constitutional
obligations under Brady, is so
inextricably intertwined with the district attorney’s core prosecutorial
functions that it cannot be divorced from them.
Plaintiff has not cited any legal authority that would allow a mandamus
action to lie to interfere with such discretionary authority, nor has our
research disclosed any.
Traditional
mandamus is not available in any case to compel the performance of a
discretionary act, such as the decision whether to include a peace officer in
the district attorney’s Brady Alert System.
“Generally, Code of Civil Procedure section 1085 may only be
employed to compel the performance of a duty which is purely ministerial in
character. [Citation.] [¶] A
ministerial act is an act that a public officer is required to perform in a
prescribed manner in obedience to the mandate of legal authority and without
regard to his own judgment or opinion concerning such act’s propriety or
impropriety, when a given state of facts exists. Discretion, on the other hand, is the power
conferred on public functionaries to act officially according to the dictates
of their own judgment. [Citation.]†(Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501-502.) “Mandamus does not lie to compel a public
agency to exercise discretionary powers in a particular manner, only to compel
it to exercise its discretion in some manner.â€
(AIDS Healthcare Foundation v. Los
Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700-701.)
Administrative
mandamus pursuant to Code of Civil Procedure section 1094.5 also is not
available because plaintiff cannot state any facts showing that the district
attorney’s office was mandated by law to provide a hearing or take evidence
before making a final decision whether to include a peace officer’s name in the
Brady Alert System. (See
County Sanitation Dist. (1996) 44 Cal.App.4th 1391, 1399.) The demurrer to the second and third causes
of action was properly sustained without leave to amend.
DISPOSITION
The
judgment of dismissal is affirmed.
Respondents shall recover their costs on appeal.
GRIMES,
J.
WE CONCUR:
BIGELOW,
P. J.
FLIER,
J.
name="_ftn1" title="">[1] Information
known to the prosecution that is exculpatory or otherwise favorable to the
defense, including impeachment evidence, and is material to either guilt or
punishment is commonly known as Brady
material, the suppression of which violates due process and is deemed a “
supra, 373 U.S. at p. 87;
281-282.)
name="_ftn2" title="">[2] The
Torrance Police Department is not a party to this action. Plaintiff stated in his opening brief that he
is pursuing a separate administrative appeal against his employer regarding his
discharge.
