Filed 10/8/26 Occhipinti v. County of Los Angeles CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JOE OCCHIPINTI, B347108
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. 23STCP03564
v.
COUNTY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Hausman & Sosa, Jeffrey M. Hausman, Larry D. Stratton,
and Vincent C. McGowan for Defendant and Appellant.
Rains Lucia Stern St. Phalle & Silver and Gidian R. Mellk,
for Plaintiff and Respondent.
_______________________________
This is an appeal from a judgment directing a writ of
mandate to defendant County of Los Angeles (the County), and
Los Angeles County Sheriff’s Department (LASD), to rescind all
discipline imposed on Deputy Joe Occhipinti relating to an on-
duty patrol vehicle crash, and to pay him back wages for his
suspension served as part of that discipline.
Substantial evidence supports the trial court’s conclusion
that the statute of limitations barred the discipline against
Occhipinti. We therefore affirm the judgment.
BACKGROUND
Occhipinti worked out of the Lancaster LASD station from
sometime in 2019 through July 2022. On the night of June 19,
2022, while on solo patrol responding to a report of a man with a
gun at 1748 East Avenue J, he crashed an LASD patrol vehicle
into a raised median at the intersection of 20th Street East and
East Avenue I. No other vehicles were involved in the crash.
After the crash, Occhipinti called his direct supervisor,
Sergeant Andrew Stowers. Occhipinti told Sergeant Stowers he
had been involved in a “minor” traffic collision. He claimed his
steering wheel had “locked up” and his tire hit a curb. This, he
reported, had left the wheel rim “slightly bent.”
Sergeant Stowers went to the scene. Upon his arrival, he
“observed that this was not a minor collision. The tire was
slanted. It was necessary to tow the vehicle.”
The record contains two divergent accounts by Sergeant
Stowers of how he further assessed the damage when he saw it.
In an April 2023 interview with Sergeant Timothy Langdon of
the LASD Internal Affairs Bureau (IAB), conducted as part of
IAB’s eventual investigation relating to the crash, Sergeant
Stowers stated: “My conclusion [observing the damage] was that
it was possible [Occhipinti] was maybe driving too fast when he
2
was making that turn and that’s why he didn’t make [it]. From
my experience, I’ve never had an issue with the steering wheel
locking up and I’ve been driving cars for approximately 20 years,
so.” Sergeant Stowers also testified that he knew at the time of
the crash Occhipinti had previously “be[en] in pretty hellacious
traffic collisions where he was violating multiple policies when
driving.”
But in a declaration he filed in the trial court, Sergeant
Stowers claimed to have taken Occhipinti’s mechanical
malfunction story “at face value” and assessed the damage as
consistent with “what [Occhipinti] was saying.”
At the scene of the crash, Occhipinti told Sergeant Stowers
that he (Occhipinti): (1) had not been wearing a seatbelt, which
would be a violation of LASD policy if not justified by
circumstances requiring a quick exit; and (2) had been driving
approximately 20 to 25 miles per hour at the time of the crash.1
In Sergeant Stowers’s declaration to the trial court, he called
Occhipinti’s failure to wear his seatbelt a “potential[]” policy
violation. But in his IAB interview, Sergeant Stowers stated
without equivocation that it was unreasonable for Occhipinti to
have been unbuckled since he was at least a mile away from the
location of the call for service.
Some time after Sergeant Stowers arrived at the scene,
Deputy Vincent Clark arrived to conduct a traffic investigation.
This is “standard procedure” and does not imply fault or
suspicion of fault. Deputy Clark prepared a report that evening
1 Occhipinti made a written report dated a week after the
crash. Unlike his statements to Sergeant Stowers at the scene,
the report said he took the turn at just 15 to 20 miles per hour
and added that “the brakes did not respond well.”
3
describing the scene of the crash and Occhipinti’s statements, but
deferring determination of the cause to “the traffic office.”
The day after the crash, Sergeant Stowers notified
Lancaster station Watch Commander Sergeant Adam Zeko about
the alleged mechanical failure of Occhipinti’s patrol vehicle.
Sergeant Zeko informed Lancaster station Traffic Sergeant
Michael Politano of the crash and the alleged mechanical issues,
and asked that Sergeant Politano initiate a mechanical
inspection of the crashed vehicle. Sergeant Politano understood
the purpose of the requested inspection was “to determine if the
vehicle suffered a mechanical problem that may have caused or
contributed to the collision.” “[A]s soon as [Sergeant Politano]
heard about [the alleged] mechanical issue [he] brought it up to
. . . the captain and said [‘]hey, we ought to have this car sent
down to be inspected. And see if there’s a mechanical issue.’ ”
The “captain” Sergeant Politano referred to was Captain
Lecrivian, the unit commander at LASD’s Lancaster station. This
is important because unit commanders are authorized under
LASD policy to initiate an administrative investigation into
potential misconduct of its peace officers. (LASD Manual of Policy
and Procedures, § 3-04/020.05.)
In his declaration, Captain Lecrivain testified: “Through
briefing by my subordinates, I was advised that [Occhipinti] had
reported mechanical problems with his patrol vehicle at the time
of [sic] on-duty traffic collision on June 19, 2022. Consequently, a
mechanical inspection of [his] patrol vehicle was conducted by the
Communications and Fleet Management Bureau [(CFMB)].” Put
another way, the mechanical inspection was performed as a
consequence of Captain Lecrivain’s communication with a
subordinate about Occhipinti’s claim of a mechanical failure.
4
The only reasonable interpretation of this is that Captain
Lecrivain approved or directed his subordinate(s) to pursue the
mechanical inspection.2 As described in the IAB’s “Investigative
Summary” (the IAB Report), it indeed was Captain Lecrivain
“who decided the patrol vehicle should have a mechanical
evaluation and a download of its [event data recorder (EDR)]
system” (sometimes called the “black box” of a vehicle).
After getting the go-ahead from Captain Lecrivain,
Sergeant Politano requested a download of the vehicle’s EDR
from LASD’s Risk Management Bureau, Traffic Services Detail
(RMB/TSD) and to provide the crash data report “when it
becomes available.” He also requested a mechanical inspection
from CFMB.
RMB/TSD completed the EDR download on June 27, 2022,
four days after Sergeant Politano requested it. It confirmed
Occhipinti was not wearing his seatbelt at the time of the crash.
It showed the vehicle was displaying no brake or anti-lock brake
system (ABS) warning lights. It further showed that (1) five
seconds before the crash, the vehicle was travelling at 81 miles
per hour and decelerated from there due to Occhipinti braking;
(2) two seconds before the crash Occhipinti, well into his turn,
was still going 47 miles per hour and triggered ABS activity; and
(3) Occhipinti was still going 28 miles per hour when he struck
the raised median.
2 To the extent there is any other reasonable interpretation,
our review for substantial evidence compels us to interpret the
evidence in the light most favorable to the judgment. (See Triyar
Hospitality Management, LLC v. WSI (II)—HWP, LLC (2020)
57 Cal.App.5th 636, 640 (Triyar Hospitality).)
5
CFMB completed the mechanical inspection on July 14,
2022. It revealed “no conclusive evidence of mechanical issues
with the vehicle’s suspension or braking system that could have
contributed to the incident in question.” The only defects noted
were a result of the impact. Otherwise, there were no flaws noted
in the vehicle’s steering, suspension, or brake system.
CFMB Captain David Sum wrote a memo to Captain
Lecrivain summarizing the findings of the mechanical inspection.
This memo reflects the mechanical inspection was performed “[i]n
response to [Captain Lecrivain’s] request.” Though the memo is
dated August 11, 2022, Captain Lecrivain declared to the trial
court that he did not review it until August 22, 2022. The record
contains no explanation for the delay between the memo date and
Captain Lecrivain’s review. Captain Lecrivain declared, “Prior to
August 22, 2022, [he] did not have any documentation or
information to call into question the representations made by
[Occhipinti] about how the traffic collision had occurred. This
included, but was not limited to, [Occhipinti’s] statements and
representations about the patrol vehicle having a mechanical
malfunction, how the accident occurred, and the speed of the
patrol vehicle at the time of the accident.”
Captain Lecrivain further declared that, because the
mechanical inspection showed there was no mechanical problem
with the vehicle, Sergeant Politano “was instructed to review the
collision report, photographs and other evidence relating to the
traffic collision. This included the [EDR download] from
[Occhipinti’s] patrol vehicle.”
Even though RMB/TSD completed the EDR download
around 10:00 a.m. on June 27, 2022, and even though Sergeant
Politano had requested it “when it becomes available,” he did not
complete his formal analysis of the information until November
6
8, 2022. His report of that date does not say when he received the
EDR download. Sergeant Politano concluded in the report that
“Occhipinti caused th[e] collision by making an unsafe turn, a
violation of [Vehicle Code section 22107], with an associated
factor of unsafe speed for conditions, a violation of
[section 22350].”
Sergeant Politano prepared a memo to Captain Lecrivain
also dated November 8, 2022, subject “Traffic Collision Involving
Deputy Joe Occhipinti Request for Administrative Investigation.”
Captain Lecrivain did not review this memo until more than a
month later, on December 10, 2022.
After reviewing Sergeant Politano’s report, Captain
Lecrivain initiated an administrative investigation into
Occhipinti’s crash. The formal request to IAB to conduct the
investigation is dated January 11, 2023. The request states that
August 22, 2022, was the “[d]ate a Sergeant, or above, became
aware of an act, omission, or other misconduct.” It specified the
“One Year Statute Date” as August 21, 2023. This presumably
refers to the one-year limitation period for notifying a peace
officer of discipline under Government Code section 3304,
subdivision (d)(1) (Section 3304(d)(1)), part of the Public Safety
Officers Procedural Bill of Rights Act (POBRA; § 3300 et seq.).
IAB conducted the investigation. The IAB Report included
a comprehensive review of LASD records relating to the crash
and four witness interviews, conducted in April 2023. These
interviews, including of Sergeants Stowers and Politano, were
recorded and transcribed as exhibits to the IAB Report.
Based on the IAB’s investigation, LASD concluded
Occhipinti had violated several LASD policies warranting
discipline. The County issued Occhipinti a “Letter of Intent” to
impose discipline—30 days’ suspension without pay—on August
7
20, 2023. Among the alternative grounds for discipline was that
Occhipinti drove dangerously at excessive speeds; failed to wear
his seatbelt; lied to Sergeant Stowers about how fast he
(Occhipinti) was going before the crash; and lied about the vehicle
having mechanical problems.3
Occhipinti filed a grievance with LASD, which was denied
following a hearing in November 2023. By letter dated December
28, 2023, the County formally imposed the 30-day suspension on
the same grounds stated in the Letter of Intent.
Occhipinti filed in the trial court a petition for writ of
mandate under Code of Civil Procedure section 1085 and
Government Code section 3309.5. By the petition, he sought a
determination that the discipline rendered against him was
barred by the one-year limitations period contained in
Section 3304(d)(1).4
In his opening brief below, Occhipinti argued the
Section 3304(d)(1) limitations period commenced on June 19,
2022, based on Sergeant Stowers’s knowledge of the
circumstances surrounding the crash and Sergeant Stowers’s
admitted doubts about Occhipinti’s explanation for it. In any
3 The Letter of Intent also asserted violations of LASD policy
on “Code 3”—driving with lights and sirens activated—and use of
a body-worn camera. The County conceded these grounds were
unfounded, so we omit further discussion of them.
4 Occhipinti also sought the related declaration that a
sergeant of LASD is “a person authorized to initiate an
investigation” for purposes of Section 3304(d)(1). The trial court
ultimately resolved this issue against him, concluding that only
Captain Lecrivain, as the Lancaster station unit commander, was
so authorized. Occhipinti does not challenge this determination
on appeal, so we omit further discussion on the topic.
8
event, Occhipinti continued, Captain Lecrivain should have been
charged with knowledge of Occhipinti’s misconduct no later than
August 11, 2022, the date of the CFMB memo addressed to him.
In response, the County argued Sergeant Stowers’s
knowledge was not relevant, and Captain Lecrivain could not be
charged with knowledge to trigger the limitations period any
earlier than August 22, 2022—the date he reviewed the August
11, 2022 CFMB memo.
In reply, Occhipinti argued that, even if Captain Lecrivain
did not know what Sergeants Stowers and Politano knew more
than a year before LASD issued its Letter of Intent, that
information was available to him and his failure to obtain it
constituted a lack of reasonable diligence.
The trial court agreed with Occhipinti that Captain
Lecrivain failed to exercise reasonable diligence in investigating
Occhipinti’s conduct. It found that as early as June 27, 2022,
when RMB/TSD completed the EDR download, and certainly by
July 14, 2022, when CFMB completed the mechanical inspection,
all facts necessary to substantiate the charges against Occhipinti
were available within LASD, and thus available to Captain
Lecrivain. The court found Captain Lecrivain’s declaration “not
. . . credible,” specifically mentioning his “vague[] state[ment]
that he did not have any ‘information to call into question’
Occhipinti’s explanation about the accident” before reading
CFMB Captain Sum’s memo. The court continued, “If Capt.
Lecrivain did not receive an oral report by mid-July [2022] from
either Sgt. Politano or Capt. Sum, he was negligent in not
requiring one before Sgt. Politano’s formal November 8, 2022
report.” It concluded “Capt. Lecrivain had a duty to investigate
and did not act reasonably diligently. He should have discovered
Occhipinti’s misconduct in mid-July 2022.”
9
As a result, the trial court entered a judgment and writ of
mandate requiring the County to set aside the discipline imposed
on Occhipinti and to pay him all back salary together with
interest at the legal rate and restore all other emoluments of
employment related to such discipline.
The County timely appealed.
DISCUSSION
I. POBRA and Section 3304(d)(1)’s Limitations Period
POBRA’s purpose is “to maintain stable employer-employee
relations [between law enforcement agencies and peace officers]
and thereby assure effective law enforcement.” (Lybarger v. City
of Los Angeles (1985) 40 Cal.3d 822, 826; see also Gov. Code,
§ 3301.) Among other things, POBRA “requires that law
enforcement agencies throughout the state afford minimum
procedural rights to their peace officer employees.” (Pasadena
Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564,
572, fn. omitted.)
One such procedural right is found in Section 3304(d)(1),
which provides, as relevant here: “no punitive action . . . shall be
undertaken for any . . . 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 . . . 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 by a Letter of Intent or Notice of
Adverse Action articulating the discipline that year . . . . The
public agency shall not be required to impose the discipline
within that one-year period.”
10
The term “discovery” in Section 3304(d)(1) is interpreted in
the same way courts have construed “discovery” in Code of Civil
Procedure section 338, subdivision (d). (Pedro v. City of Los
Angeles (2014) 229 Cal.App.4th 87, 106 (Pedro).) Thus, “the
one-year limitations period under [Section 3304(d)(1)] begins to
run when a person authorized to initiate an investigation
discovers, or through the use of reasonable diligence should have
discovered, the allegation of misconduct.” (Ibid.)
Occhipinti does not challenge the trial court’s finding that
only Captain Lecrivain was authorized to initiate an
investigation into the alleged misconduct. As the person claiming
the benefit of the statute of limitations, the burden lay on
Occhipinti to prove Captain Lecrivain either discovered, or
through the use of reasonable diligence should have discovered,
such an allegation. (Pollock v. Tri-Modal Distribution Services,
Inc. (2021) 11 Cal.5th 918, 945.)
II. Standard of Review
“The date that a person in the exercise of reasonable
diligence should have discovered the facts is a question of fact.”
(Pedro, supra, 229 Cal.App.4th at p. 106.) Accordingly, we review
for substantial evidence the trial court’s determination that
Captain Lecrivain should have discovered the allegation of
Occhipinti’s misconduct not later than mid-July 2022. (See ibid.)
III. Substantial Evidence Supports the Trial Court’s
Determination
The following facts are sufficient to support the trial court’s
determination that Captain Lecrivain should have discovered,
within the meaning of Section 3304(d)(1), Occhipinti’s misconduct
more than a year before the County issued its Letter of Intent:
(1) Occhipinti was involved in a solo vehicle crash; (2) Occhipinti
11
claimed the crash was a result of a mechanical fault; (3) Sergeant
Politano apprised Captain Lecrivain of facts (1) and (2) within a
day or so of the crash; (4) based on facts (1) and (2), Captain
Lecrivain ordered or authorized an inspection of the vehicle to
determine whether it actually had a mechanical fault; (5) the
resulting investigation by LASD employees yielded conclusive
evidence (a) by June 27, 2022, that Occhipinti was driving at
excessive speed immediately prior to the crash and his brakes
were functioning properly; and (b) by July 14, 2022, that there
were no mechanical issues with the vehicle immediately prior to
the crash; and (6) rather than seek out this information, Captain
Lecrivain waited months for it to trickle in to him from sources
within LASD before taking further action in the matter.
Of these facts, the County seriously disputes whether
evidence substantial supports just one. It argues the record is
“equivocal at best regarding who ordered the mechanical
evaluation.” We disagree. Captain Lecrivain states in his own
declaration that a mechanical inspection was conducted as a
“[c]onsequen[ce]” of discussions he had with subordinates. For
reasons already stated, we interpret this to mean Captain
Lecrivain either ordered or authorized the inspection.
The County observes that, although the IAB Report says
Captain Lecrivain ordered the inspection, it elsewhere says
Sergeant Zeko did, and there was other evidence Sergeant
Politano did—he wrote in a report “Sergeant Zeko requested that
I initiate [the] inspection” and another memo said Sergeant
Politano had requested it.
Given all the evidence, including Captain Lecrivain’s
declaration, Sergeant Politano’s report about Sergeant Zeko’s
involvement, Sergeant Politano’s IAB testimony he related the
same information Sergeant Zeko told him to Captain Lecrivain
12
with the recommendation that there be a mechanical inspection,
and Sergeant Politano’s report that he requested the inspection,
the IAB Report’s different attributions of who requested the
inspection are consistent with the request moving up and down
the chain of command Captain Lecrivain headed.
In any event, even if the evidence could be reasonably
interpreted in different ways, the County’s effort to undermine
the trial court’s finding is nothing more than a request that we
reach a different conclusion from the evidence. This we cannot do.
(See Triyar Hospitality, supra, 57 Cal.App.5th at p. 640 [“Where
the trial court . . . has drawn reasonable inferences from the
evidence, we have no power to draw different inferences, even
though different inferences may also be reasonable.”].)
Turning to the inferences reasonably drawn from the facts,
we begin by noting the circumstances of the crash known to
Captain Lecrivain within a day or so after it happened were
inherently suspicious. Occhipinti’s claim of spontaneous
mechanical failure in an LASD patrol vehicle so severe as to
cause a crash obviously warranted review. As Sergeant Stowers
noted in his IAB interview, his experience as a driver for 20 years
cast immediate doubt on the notion that the steering wheel
“locked up,” leaving him to surmise Occhipinti was perhaps
“driving too fast when he was making that turn and that’s why
he didn’t make [it].”
When word of the crash and explanation reached Captain
Lecrivain, he, too, found the explanation sufficiently suspicious to
merit investigation. The mechanical inspection Captain Lecrivain
ordered or authorized on or about June 20, 2022, was “to
determine if the vehicle suffered a mechanical problem that may
have caused or contributed to the collision.” (Italics added.) Had
Captain Lecrivain lacked any suspicion as to Occhipinti’s
13
mechanical malfunction claim, an inspection to determine if there
had been a mechanical malfunction would have been
unnecessary. Thus, ordering or authorizing it evinces his doubts.
Captain Lecrivain was therefore arguably on inquiry notice the
day after the crash that Occhipinti caused it by driving unsafely
and then lied about it.
A person should reasonably discover wrongdoing “when he
or she ‘has reason at least to suspect a factual basis for its
elements.’ [Citations.] ‘A [person] has reason to suspect when he
or she knows or has notice of circumstances that would cause a
reasonable person to investigate.’ ” (Pedro, supra, 229
Cal.App.4th at p. 104.) Ordering the inspection was Captain
Lecrivain’s first step in probing the veracity of Occhipinti’s false
claims.
After Captain Lecrivain began this probe, it quickly yielded
concrete information that Occhipinti had violated multiple LASD
policies in connection with the crash and then lied about it.
Within a week, the EDR download showed Occhipinti was driving
at excessive speeds immediately before the crash—more than
quadruple the speed he claimed in his written report of the crash;
the vehicle was displaying no brake warning lights prior to the
crash; the brakes functioned effectively to substantially reduce
Occhipinti’s speed in the moments before impact; and Occhipinti
was not wearing his seatbelt. Two weeks after that, the
mechanical inspection turned up no preexisting conditions that
would have led to the crash.
The foregoing is sufficient to support the trial court’s
determination that Captain Lecrivain should have uncovered
Occhipinti’s misconduct sufficient to trigger the duty to
investigate by mid-July 2022 after CFMB completed the
mechanical inspection.
14
A. The County’s Argument for an August 22,
2022, or Later Discovery Date Is Unavailing
The County urges August 22, 2022, is the earliest Captain
Lecrivain can be charged with knowledge of Occhipinti’s
misconduct because (1) that was the first date he actually
reviewed Captain Sum’s memo, and (2) he had no prior
documentation or information calling into question Occhipinti’s
version of events. These are not the determinative facts.
The discovery rule imposes on plaintiffs “presumptive
knowledge of an injury if they have ‘ “ ‘information of
circumstances to put [them] on inquiry’ ” ’ or if they have ‘ “ ‘the
opportunity to obtain knowledge from sources open to [their]
investigation.’ ” ’ [Citation.] In other words, plaintiffs are
required to conduct a reasonable investigation after becoming
aware of an injury, and are charged with knowledge of the
information that would have been revealed by such an
investigation.” (Fox v. Ethicon Endo-Surgery, Inc. (2005)
35 Cal.4th 797, 807–808, fn. & italics omitted.) Moreover, once a
suspicion of wrongdoing exists, “the plaintiff must go find the
facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly
& Co. (1988) 44 Cal.3d 1103, 1111.)
Applying these rules here, the record supports the trial
court’s factual determination that Captain Lecrivain acted
unreasonably in waiting until he reviewed the CFMB memo on
August 22, 2022, to inform himself of what several others at
LASD already knew. Contrary to the County’s assertion, this
conclusion does not depend on “imput[ation] [of] ‘discovery’ by
other [LASD] members to Captain Lecrivain,” in contravention of
the “person authorized” language in Section 3304(d)(1). LASD
employees had promptly alerted Captain Lecrivain to the
suspicious circumstance of Occhipinti claiming his vehicle
15
crashed itself and Captain Lecrivain promptly ordered or
authorized an inspection to test that claim. It was reasonable for
the court to conclude Captain Lecrivain’s failure to promptly
obtain information from LASD employees who had actually
discovered Occhipinti’s wrongdoing in June 2022 and July 2022
constituted a lack of diligence. That lack of diligence is sufficient
to impute knowledge to Captain Lecrivain as of the date he
should have discovered the information if he had been diligent.
(Pedro, supra, 229 Cal.App.4th at p. 106.)
Finally, the County’s arguments defending Captain
Lecrivain’s lack of diligence are not persuasive. The County
defends Captain Lecrivain for “not immediately leap[ing] into his
‘inbox’ to read [the] August 11, 2022 memorandum,” explaining
the delay shows “he deemed it relatively unimportant.” The
record contains no good cause for Captain Lecrivain’s failure to
review the memo on or about August 11, 2022.
Nor does the law support his delay. “[W]hen allegations of
officer misconduct are raised, it is essential that [a law
enforcement] department conduct a prompt, thorough, and fair
investigation. Nothing can more swiftly destroy the community’s
confidence in its police force than its perception that concerns
raised about an officer’s honesty or integrity will go unheeded or
will lead only to a superficial investigation.” (Pasadena Police
Officers Assn. v. City of Pasadena, supra, 51 Cal.3d at p. 568.)
Given his role as the only person in his unit who could initiate a
disciplinary investigation, Captain Lecrivain was not free to
passively await final results or conclusions from his subordinates
and thereby extend the statute of limitations.
The County’s own request for IAB investigation form may
have played a role in its erroneous conclusion Section 3304(d)(1)
began to run on August 22, 2022. The form appears to use the
16
“[d]ate a Sergeant, or above, became aware of an act, omission, or
other misconduct” to trigger the limitations period. (Italics
added.) This is inconsistent with the language of Section
3304(d)(1), which depends on “discovery,” a legal term of art that
embraces, but is not limited to, actual knowledge of wrongful
conduct. Rather than the date of a Sergeant’s “aware[ness],” the
relevant date is when a person authorized to initiate an
investigation discovered, or through the use of reasonable
diligence should have discovered, the allegation of misconduct.
(Pedro, supra, 229 Cal.App.4th at p. 106.) This would not be
apparent to a person relying solely on the form to determine the
“One Year Statute Date.”
B. The County’s Evidence Code Arguments Are
Unpersuasive
The County makes two arguments under the Evidence
Code. First, that the IAB Report on its investigation into
Occhipinti’s crash cannot be a party admission under
section 1222; and second, that section 664 shields Captain
Lecrivain from any inference that his delay in obtaining
information about the crash was unreasonable. We disagree.
1. The IAB Report
The trial court relied in part on the IAB Report and its
attachments, including witness interviews, in reaching its
conclusion Captain Lecrivain failed to act with diligence. It did so
on the theory that the IAB Report was admissible hearsay as a
party admission under Evidence Code section 1222.
Evidence Code section 1222 exempts from the hearsay rule
statements “made by a person authorized by the party to make a
statement or statements for him concerning the subject matter of
17
the statement” and there is evidence to support that person’s
authority. (Id., subd. (a).)
The County does not dispute it authorized the IAB Report’s
authors to prepare it. Instead, it argues Captain Lecrivain did
not authorize it, and “[b]ecause the only issue is Captain
Lecrivain’s state of knowledge, he would be the only possible
‘principal’ for purposes of authorizing an admission.”
We reject the County’s premise. The County is the party,
not Captain Lecrivain, and the issue is whether Captain
Lecrivain, as the County’s designated agent for investigating
Occhipinti’s misconduct, knew, or should have known, of such
misconduct on or before August 22, 2022.
Our substantial evidence analysis above relies on only one
fact of Captain Lecrivain’s actual knowledge: that he knew before
CFMB conducted its mechanical inspection that Occhipinti
crashed his vehicle and offered an inherently suspicious
explanation for it. Captain Lecrivain’s own declaration provides
this fact. All other operative facts relate to the investigation into
the circumstances of the crash, including more detail on its
initiation and when it yielded information contradicting
Occhipinti’s explanation. These facts were wholly within the
scope of the IAB Report entitled “Investigative Summary.” The
County therefore fails to show error in the trial court’s decision to
bind the County to the statements in the report.
2. Evidence Code Section 664
The trial court relied in part on the lapse of time between
when Captain Lecrivain ordered or authorized the mechanical
inspection and when he received the results of that inspection to
conclude he did not act with reasonable diligence in investigating
Occhipinti’s misconduct.
18
Evidence Code section 664 creates a presumption “that
official duty has been regularly performed.” (Ibid.) The County
cites two cases in support of the proposition that “[t]his
presumption is not rebutted by the mere passage of time.” Those
cases are inapplicable. In neither case was the time it took to
perform an official duty material to the regularity of its
performance.
The first case is Spitze v. Zolin (1996) 48 Cal.App.4th 1920
(Spitze). In that case, Spitze was arrested for driving under the
influence and challenged the consequent suspension of her
driving privileges. The basis for her challenge was that the
laboratory that determined her blood alcohol concentration did
not report its determination until 32 days after her arrest,
instead of the statutory 15 days. (Id. at p. 1925.) Relying on
Evidence Code section 664, the Court of Appeal found the delay
did not “[u]nder the[] circumstances,” rebut the presumption that
the test was regularly performed. (Spitze, supra, 48 Cal.App.4th
at p. 1934, italics added.) In short, the brief delay had no bearing
on the accuracy of the test and therefore did not affect the
presumption that it was accurate.
The second case is Williams v. Bergin (1897) 116 Cal. 56. In
that case, a contractor performed street work in San Francisco in
1892. The city superintendent promptly accepted the work but
did not assess the defendant for it until three years later. The
defendant argued the contractor was barred from attempting to
collect because it could have demanded the superintendent issue
the assessment earlier. (Id. at p. 60.) The court held that any
delay on the part of the superintendent was not a per se bar to
the contractor’s right to payment because there was “no
presumption that any delay in [the superintendent’s]
performance was unreasonable.” (Id. at p. 61.)
19
Here, Section 3304(d)(1) made the time for Captain
Lecrivain to conduct and complete his investigation material. A
delay in issuing the Letter of Intent within the one-year statute
of limitations is not some collateral issue; it is the point of the
statute. To hold that the fact of undue delay in performing an
investigation cannot support a finding of undue delay in acting on
the wrongs uncovered thereby would eviscerate the statute.
DISPOSITION
The judgment is affirmed. Occhipinti is entitled to his costs
on appeal.
RICHARDSON, J.
WE CONCUR:
CHAVEZ, Acting P. J.
GOORVITCH, J.
20