Preview
1 JAMES A. LASSART(SBN 40913)
ADRIAN G. DRISCOLL(SBN 95468)
2 MURPIIY PARSON IlRADL~Y & I'~~N~Y
88 Kearny Street, lOt~' Floor ELECTRONICALLY
3 San Francisco, CA 94108 F I L E D
Telephone: (415)788-1900 Superior Court of California,
County of San Francisco
4 Facsimile: (415) 393-8087
Email: ~ssart(~~~n~~bf.co~n 06/28/2019
5 Clerk of the Court
BY: DAVID YUEN
Attorneys for Plaintiff Deputy Clerk
6 MICHAEL WIBUNSIN
7 SCOTT C. BURRELL(167779)
THE BURRELL LAW OFFICES
8 1306 Pine Street
Walnut Creek, CA 94596-3629
9 Telephone: (415)806-3019
Facsimile: (925)944-7079
10 Email: scott(ivlawburrell.coin
11 Attorney for Plaintiff
ANGEL LOZANO
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13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
FOR THE COUNTY OF SAN FRANCISCO
IS
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MICHAEL WIBUNSIN and ANGEL CASE NO. CGS-19-576433
17 LOZANO,
SERGEANT MICHAEL k. WIBUNSIN'S
18 Plaintiffs, REPLY IN SUPPORT OF HIS
APPLICATION FOR PRELIMINARY
19 INJUNCTION PURSUANT TO
GOVERNMENT CODE §3309.5
20 CITY AND COUNTY OF SAN
FRANCISCO,SAN FRANCISCO POLICE Date: July 8, 2019
21 COMMISSION,SAN FRANCISCO Time: 1:30 p.m.
DEPARTMENT OF POLICE Dept.: 3U2(Judge Schulman)
22 ACCOUNTABILITY,SAN FRANCISCO
POLICE DEPARTMENT,SAN Date action was filed: June 4, 2019
23 FRANCISCO CHIEF OF POLICE in his Trial Date: Not Set
official capacity, and DOES 1 through 100,
24 inclusive,
25 Defendants.
26
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3457159 -1-
SERGEANT M[CHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINAKY IN.IUNCT(ON
PURSUANT TO GOVERNMENT CODE §3309.5
1 Plaintiff, Sergeant MICHAEL K. WIBiJNSIN, submits his Reply in Support of his
2 Application for Preliminary Injunction pursuant to Government Code Section 3309.5, as follows:
3 A PRELIMINARY INJUNCTION SHOULD ISSUE
4 The City is Sergeant Wibunsin's employer; DPA and SFPD are not. The Public Safety
5 Officers Procedural Bill of Rights ("POBRA") imposes aone-year time limit upon an officer's
6 employer (the City) to give that accused officer notice of proposed disciplinary action. There is
7 only one statute of limitations, and the one-year clock began to run in this case in December 2014
8 when the SFPD's Internal Affairs Division (Administrative)("IAD-Admin") was provided with
9 I the text messages containing offensive language which Sergeant Wibunsin is charged with
10 exchanging with Furminger. SFPD investigated and filed a complaint in April 2015 before the
11 one-year statute expired. Because the City was readily able to fle on time, no claim is made in
l2 that case that tolling was needed with respect to the First Complaint.
13 SFPD later realised Thal its 2015 Complaint was subject to dismissal because it failed to
14 meet the statutory notice requirement of Government Code § 3304(d)(1) as amended in 2009.
l5 (Morgado v. City c~nd County of San Francisco (2017) 13 Ca1.App.Sth 1, 9, fn. 5.) As a result,
iC7 SFPD, with the approval of the Commission, withdrew the Complaint. The matter was thereupon
17 closed by the Commission. Aproperly-drafted complaint could not be re-filed because the statute
18 of limitations had long since expired when SFPD took action to dismiss the matter.
l9 By permitting another City department(DPA)to file and proceed with its November 2018
20 Second Complaint, the Police Commission has eviscerated the defenses guaranteed to Sergeant
21 Wibunsin under POBRA by permitting the City to escape both its own negligence and the bar of
22 the statute of limitations through the fiction that DPA is a separate "public agency" within the
23 meaning of Government Code Section 3304(d)(1) and entitled to its own statute of limitations
24 analysis. This is a plain violation ofPOBRA.
25 The Court should call halt to the unlawful proceedings before the Police Commission until
26 the issues in this matter can be tried. Government Code §3309.5 provides this Court with broad
27 discretion to fashion an appropriate remedy for violations ofPOBRA;in adopting Section 3309.5,
~g the legislature intended to provide police officers immediate access to the Superior Court to
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SERGEANT MICHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF HIS APVL[CATION FOR PRELIMINARY IN.IIJNCTION
PURSUANT 7'O GOVERNMGN'I'CODE §3309.5
1 enforce their POBRA rights. (Williams v. C"ounty ofLos Angeles (1988) 47 Cal. 3r`~ 195, 203-04.)
2 The City cannot rely on Williams to urge that injunctive relief be denied; Williams held that
3 injunctive relief was inappropriate under the specific circumstances of the case (suppression of a
4 police officer's statement] where the officer had already been discharged from the force. In this
5 case, Sergeant Wibunsin is being subjected to punitive action which may lead to his termination
6 and is exercising his right of immediate access to the Superior Court to stop the violation. This is
7 not a situation where he has been discharged and is seeking reinstatement as in Williams.
8 ~ Gales v. Superior Court (1996) 47 Cal. App. 4t~' 1596 is also inapposite. In Gales, an
9 ' officer who (unlike Wibunsin) had been subjected to a final disciplinary determination sued for
10 damages under Government Code §3309.5, but not injunctive relief.(Id at 1599.) Gales addressed
I1 the unique question of whether an officer is entitled to sue for damages under Section 3309.5
12 "after the public entity employer has issued its final decision." (Id at 1602.) The case does not
13 apply here nor can it be cited to suggest that Sergeant Wibunsin is not entitled to injunctive relief.
14 Sergeant Wibunsin has never been suspended from duty as a result of the allegations in
15 this case. He remains on duty. (Declaration of Michael Wibunsin.) He is serving the City as a
16 police officer and he is being paid the compensation owed to him for his services. He should not
17 be placed at the risk of being terminated and, worse, loss of his profession as a police officer until
18 the Court decides this case. The City will in no way be prejudiced and its rush to judgment before
19 the Court has a full opportunity to decide the case should be stopped.
2.0 THE CITY DOES NOT ADDRESS THE RES JUDICATA ISSUE
21 One of the bases for preliminary injunctive relief is that, as a matter of law, the bar of res
?~ judicata prohibits the City's relitigation of the charges relating to the text messages after SFPD's
23 First Complaint was voluntarily withdrawn (dismissed) and the ~asc was closed by t}ic
24 ~ Commission. That action was in all respects a dismissal with prejudice as to which res juc~icata
25 attaches.(Boeken v. Phillip Morris USA, Inc. (2010)48 Ca1.4th 788, 793.)
26 The City does not address this issue except to mention in its opposition that DPA's
27 Second Complaint contained an additional charge relating to a text message containing allegedly
28 sexist content. However, that text and all of the text messages in question were in possession of
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SF;R('~RANT' MtCHAFI,K. W[Rl1NSIN'S REPLY IN SUPPpRT OF HIS APPLICATION T'OR PRELIMINARY INJUNCTION
PURSUANT TO GOVERNMTNT CODF.§3309.5
1 DPA and SFPD in December 2014. That is undisputed. The City cannot avoid the bar of res
2 judicata by engaging in piecemeal litigation; that is, the dismissal of the SFPD's First Complaint
3 has resjudicata affect not only as to issues that were actually raised in that pleading but also as to
4 every issue that might have raised in that matter. (Federal Horne Loan Bank ofSan Francisco v.
5 Countrywide Financial Corporation (2013)214 Ca1.App.4th 1520, 1527, 1529.)
6 As a matter of law, the City cannot relitigate charges arising out of the text messaging,
7 meaning that Second Complaint cannot proceed whether brought by DPA, SFPD or any other
8 City department. A preliminary injunction is proper on this issue alone.
9 THE CITY IS SERGEANT WIBUNSIN'S EMPLOYER
10 The City's argument in support of the Police Commission's decision to allow DPA's
11 Second Complaint to proceed is premised on the incorrect notion that its SFPD and its
12 Department of Police Accountability ("DPA") are "separate and distinct public agenc[ies]."
13 (Defendants Opposition at 13:13-14 [bracketed letters substituted for context].) The City is
14 misusing this phraseology to suggest that SFPD and DPA are "public agencies" within the
[L meaning of Government Code § 3304(d)(1) and that, therefore, those City departments may
16 separately calculate the one-year statute of limitations under the POBRA. Defendant's conceptual
17 framework is wrong and must be rejected.
18 POBRA mandates that a police officer's employer has one year to provide a written notice
19 of disciplinary action under Government Code § 3304(d)(1). Again, Sergeant Wibunsin's
20 employer is the City and County of San Francisco.(See, Gales v. Superior Court, supra, at 1602.)
21 disciplinary decision is by "public entity employer"]). Neither SFPD nor DPA are employing
22 agencies; they are merely executive departments of the City which derive their power from the
23 City's Charter. The City Attorney's "Good Government Guide" regarding "Due Process Screens"
24 illustrates the relationship: When the City Attorney assigns different groups of lawyers to
25 separately advise City Commissions and the staffs of City departments appearing before those
26 Commissions, "the City, on both sides of the divide, is still the client ...." (Supplemental
27 Declaration of Adrian G. Driscoll ("Driscoll Supp. Dec."), Exhibit O,Good Government Guide at
28 Section VI.F.S, p. 22.) SFPD and DPA, and the Commission too, are not separate "public
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SERGEANT MICHAEL K. WIE3UNSIN'S REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINARY IN.lUNC1'[ON
PURSUANT TO GOVERNMrNT CODE §3309.5
1 agencies" or employers. They are mere agencies of the only public agency at iss~_~e here, Sergeant
2 Wibunsin's employer—the City.
3 There is only one statute of limitations clock under Section 3304(d)(1) and the City is
4 subject to it. That clock indisputably began to run in December of 2014 when SFPD's Internal
5 Affairs Decision (Administration) and DPA were advised of the text messages. While that statute
6 of limitations clock was running, DPA handed off the entire matter to SFPD in January 2015.~
7 SFPD filed the First Complaint in April 2015, and dismissed it in May 2018. The
8 dismissal meant that the First Complaint, in effect, had never been filed and any tolling resulting
9 t'rom its filing in 2015 was completely negated.(Thomas v. Gilliland(2002)95 Cal. App. 4t~' 427,
10 433.) Because DPA and SFPD are not "separate agencies" for purposes of the City's compliance
11 with the one year statute of limitations, the City's attempt to distinguish the ruling in Thomas v.
12 Gilliland fails. The Thnma,s rule is a principle that governs the stattate of limitations to which the
13 City is subject; it cannot be circumvented by the artifice of having DPA file the Second
14 Complaint.
15 THE CITY'S STATUTORY TOLLING THEORIES CANNOT SAVE ITS SECOND
COMPLAINT
l6
It is undisputed that SFPD timely filed the First Complaint in Apri12015, over six months
17
before the one year POBRA statute of limitations expired. The City did not need to rely on any of
18
the statutory tolling exceptions set out in Government Code §3304(d)(2). The First Complaint
19
was dismissed three years later in May 2018, because it had been improperly drafted and did not
20
comply with POBRA. If SFPD had not voluntarily dismissed the complaint, Sergeant Wibunsin
21
would have moved for its dismissal. The disciplinary matter involving Sergeant Wibunsin was
22
thereupon terminated in the normal course and could not be refiled because of the POBRA time
23
~ The City Charter sets out the division of authority regarding the investigation of complaints
24 against police officers as between SFPD and DPA. Under Charter §4.136(d) DPA opposed to
SFPD investigates all complaints of police misconduct except for complaints lodged by other
25 member of the Police Department.(Driscoll Dec., Exhibit C.) That is what occurred in this case;
the SFPD's Internal Affairs Division (Criminal)turned all of the text messages in question over to
26 the Police Department's Internal Affairs Division (Administration) in December 2014, SFPD
simultaneously turned the text messages over to DPA. Although both SFPD and DPA
27 immediately commenced investigations, only SFPD was empowered to do so under the Charter
because the complaint had emanated from members ofthe Police Department. In this way,the
28 Charter further allocates responsibility between the two agencies(SFPD and DPA).
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SERUEANT MICHAEL,K. WBUNSIN'S REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINARY INJUNCTION
PURSUANT TO GOVERNMENT CODE §3309.5
1 bar. (The City could have saved its disciplinary complaint against Sergeant Wibunsin by having
2 SFPD dismiss and refile the complaint between the date of its filing in Apri12015 and the date on
3 which the POBRA statute of limitations expired in December of 2015, but did not do so.)
4 In light of the fact that the City was able to timely file a disciplinary complaint against
5 Sergeant Wibunsin, it is not entitled to the benefit of statutory (or common law) tolling; tolling I
6 was unnecessary since SFPD and DPA are both agencies of the City, and the City is effectively
7 arguing that it is entitled to refile its disciplinary complaint against Sergeant Wibunsin long after
8 the statute of limitations had run. By permitting DPA to do so, the Police Commission is rescuing
9 the City from its own negligence (i.e., the improperly drawn First Complaint) and from the
10 POBRA time-bar. However, the Commission's decision has taken away Sergeant Wibunsin's
"basic" POBRA right to a speedy determination of the allegations against him (made in 2014)and
1~ to be free of the uncertainty of a lingering investigation. (Bacilio v. City ofLos Angeles (2018) 28
13 Cal. App. Ott, 717, 724.)
14 AssuiYiing, czrguerac~o, that the City could rely on POBRA's tolling exceptions, the City
15 has not met its burden that they apply here. (See, e.g., Bacilio v. Ciry ofLos Angeles, at 726-27
16 [under POBRA,City has burden of establishing applicability of statutory tolling exceptions].)
17 First of all, the so-called "unavailability" exception under Government Code
18 §3304(d)(2)(E) cannot apply. After commencing its investigation in 2014, DPA did not request
19 information from SFPD about its investigation; it did not even ask for the identity of the officers
20 involved in the text message exchanges. Instead, DPA had handed the matter over to SFPD in
21 January 2015. There is no evidence that DPA did anything to investigate after that, even after
22 receiving an anonymous citizen's complaint in March 2015. DPA's claims that it acted as
23 expeditiously as possible are simply not true.
24 Because SFPD timely filed its First Complaint in April of 2015 there was no need for
25 DPA to carry on a separate investigation. If it had done so it was required to have notified the
26 Chief of Police (and turn the matter over to the Chief when it failed to conclude its investigation
27 within nine months. It did not for the obvious reason that it was not investigating. ("The City does
28 not address this mandatory Charter requirement.)
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SERGEANT M[CHAEL K. W[BUNSIN'S REPLY IN SUPPORT OF H[S APPLICATION FOR PRF,L,tMINARY INJUNCTION
PURSUANT TO GOV ERNMENT CODE §3309.5
1 Atter the statute of limitations had expired—for over a year and ahalf -- DPA suddenly
2 asked the Department to make certain officers (but not Sergeant Wibunsin) available for an
3 interview in June 2017.(By that time, DPA had somehow learned the identity of the officers.)
4 According to DPA, SFPD refused to order its officers to appear for DPA interviews nn the
5 grounds that the City Attorney's office had advised SPFD that doing so would constitute a
6 violation of the preliminary injunction issued in the then-pending Daugherty lawsuit. Whatever
7 the exact content of that advice, it was obviously wrong; nothing in the Daugherty injunction
8 prevented SFPD from making Sergeant Wibunsin available for a DPA interview and Sergeant
9 Wibunsin should not be penalized for the City Attorney's mistake. DPA (who receives advice
10 from the same Deputy City Attorney as the Commission and SFPD) did not question the
11 Department's position or seek relief before the Commission.(Driscoll Dec., Exh. B at 40:7-41:1.)
l2 And DPA was no doubt very willing to accept the plainly wrong advice of the City's Attorney's
13 Office because it supported the very tolling argument made here. After all, DPA did not begin to
14 seek an interview with (or any information about) Sergeant Wibunsin until in or after June 2017,
15 long after the POBRA statute of limitations had expired.
16 In fact, Sergeant Wibunsin was never "unavailable" for a DPA interview; DPA never
l7 asked him for one until 2018. Under the Charter, although SFPD has a duty to require officers
18 comply with DPA orders to appear for interviews, all City departments and employees (including
19 Sergeant Wibunsin) have an independent duty to provide "prompt and full cooperation" when
20 ' requested by DPA. Under the Charter, employees are required to "promptly produce all records
21 and information requested by DPA."(Driscoll Dec., Exhibit C, Charter §4.136(j).) Further, SFPD
22 General Order 2.04 requires all officers to "cooperate fully" with DPA and provide their "full
23 assistance." (Driscoll Supp. Dec., Exh. P, General Order 2.04.I.A and II.D.) This was DPA's
24 position before the Police Commission.(Driscoll Dec., Exh. G, DPA Brief at 7:23-25.) Moreover,
25 Sergeant Wibunsin was represented by counsel in the Daugherty action and, DPA could have (but
26 did not) ask for an interview through his counsel.
27 For the same reasons, the City is not entitled to tolling under Government Code as Section
28 3304(d)(2)(D), the so-called multiple officer exception. This exception only allows a "reasonable
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SERGEANT MICHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINARY INJUNCTION
PURSUANT TO GOV ERNMEN"T CODE §3309.5
1 extension" of the statutory period if the City shows that such was required. It is self-evident that
2 no extension was required because the City timely filed the First Complaint. In this case, DPA
3 had possession of and reviewed the text messages in question not later than January 2015.
4 (Driscoll Dec., Exhibit C, Marion Declaration at ¶4-8.) Thus, the volume of the text messages is
5 irrelevant and DPA could have consulted a "subject matter expert"(whatever that means) about
6 the texts at any time.
7 Parra v. City and County ofSan Francisco (2006) 144 Cal. App. 4t"977 does not apply in
K the circumstances of this case. In Parra, SFPD never filed a disciplinary complaint. DPA (then
9 known as OCC) had immediately commenced an investigation upon receipt of a citizen's
10 complaint of misconduct and the issue was whether DPA had a basis to claim a reasonable
11 extension of the one year period of limitations because multiple officers were involved and SFPD
12 declined to provide OCC with documents it requested nut of concern that it might compromise an
13 ongoing criminal investigation. (Id at 983-84.) The Court held that OCC was entitled to an
14 extension and that the extension was reasonable because, "the potential of misconduct, wide
15 ranging as it was, could not be investigated in isolation, especially as the issues in question
16 involved how and when various officers failed to act..." (Id at 96-97.) Unlike Pars, the alleged
17 misconduct here was not complex; it only involved the exchange of text messages between
18 Sergeant Wibunsin and former Sergeant Furminger.
19 Finally, even if statutory tolling applied, it would (at most) extend only between June
20 2017 (when DPA first asked SFPD to make officers available) and May 2, 2018, when the First
21 Complaint was dismissed. DPA should receive no credit for the period preceding Tune 2017
22 because it was not investigating. By June 2017, the statute of limitations had long since expired
23 and, thus, even with statutory tolling, DPA's Second Complaint is untimely.
24 CONCLUSION
25 For the reasons set out above and in his Opening Brief, Sergeant Wibunsin requests
26 issuance of a preliminary injunction enjoining defendants from proceeding with DPA's Second
27 Complaint and their disciplinary trial thereon pending entry of a final judgement in this case or
28 further Order of this Court.
SERGEANT M[CHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF H[S APPLICATION FOR PRELIMINARY fN.fIJNC"PION
PURSUANT TO GOV ERNMEN'T CODE §3309.5
1
Dated: June 28, 2019 MURPHY PEARSON BRADLEY & FEENEY
2
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By:
4 JAMES A. L SSART
ADRIAN G. DRISCOLL
5 Attorneys for Plaintiff
MICHAEL WIBUNSIN
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SLRGH;AN"f MICHAI~L,K. WII3UNSIN'S REPLY IN SUPPORTOF HIS APPLICATION FOR PRELIMINARY INJUNC"l'fON
PURSUANT'TO GOVERNMENT CODE §3309.5
1 CERTIFICATE OF SCRVICI;
2 I,Jennifer Cuellar, declare:
3 I am over the age of eighteen years, and am not a party to or interested in the within
4 titled cause. My business address is 88 Kearny Street, 10th Floor, San Francisco, California
5 108.
On June 28,2019, I served the following documents)on the parties in the within action:
7 SERGEANT MICHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF HIS
APPLICATION FOR PRELIMINARY INJUNCTION PURSUANT TO
8 GOVERNMENT CODE §3309.5
q
Y VIA HAND DELIVERY: The above-descriUed documents) will be placed in a sealed
10 _ envelo e which will he hand-delivered on this same date, addressed as listed below.
11
Attorney For Defendants
12 Jonathan Yank
office ofthe City Attorney
13 1 Dr Carlton B Goodlett Pl, Ste 234, San
Francisco, CA 94102-4604
14
15
16 I declare under penalty of perjury under the laws ofthe State of(:alifornia that the
ing is a truc and correct statement and that this Cer''`' "" "","
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SHKGEAN'T MICHAEL K. WIBUNSIN'S REPLY IN SUPPOR'TO~ H1S APPLlCAT10N FOR PRELIMINARY INJUNC'T'ION
PURSUANT TO GOVERNMENT CODC §3309.5
Preview
1 JAMES A. LASSART(SBN 40913) ADRIAN G. DRISCOLL(SBN 95468) 2 MURPIIY PARSON IlRADL~Y & I'~~N~Y 88 Kearny Street, lOt~' Floor ELECTRONICALLY 3 San Francisco, CA 94108 F I L E D Telephone: (415)788-1900 Superior Court of California, County of San Francisco 4 Facsimile: (415) 393-8087 Email: ~ssart(~~~n~~bf.co~n 06/28/2019 5 Clerk of the Court BY: DAVID YUEN Attorneys for Plaintiff Deputy Clerk 6 MICHAEL WIBUNSIN 7 SCOTT C. BURRELL(167779) THE BURRELL LAW OFFICES 8 1306 Pine Street Walnut Creek, CA 94596-3629 9 Telephone: (415)806-3019 Facsimile: (925)944-7079 10 Email: scott(ivlawburrell.coin 11 Attorney for Plaintiff ANGEL LOZANO 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SAN FRANCISCO IS 16 MICHAEL WIBUNSIN and ANGEL CASE NO. CGS-19-576433 17 LOZANO, SERGEANT MICHAEL k. WIBUNSIN'S 18 Plaintiffs, REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINARY 19 INJUNCTION PURSUANT TO GOVERNMENT CODE §3309.5 20 CITY AND COUNTY OF SAN FRANCISCO,SAN FRANCISCO POLICE Date: July 8, 2019 21 COMMISSION,SAN FRANCISCO Time: 1:30 p.m. DEPARTMENT OF POLICE Dept.: 3U2(Judge Schulman) 22 ACCOUNTABILITY,SAN FRANCISCO POLICE DEPARTMENT,SAN Date action was filed: June 4, 2019 23 FRANCISCO CHIEF OF POLICE in his Trial Date: Not Set official capacity, and DOES 1 through 100, 24 inclusive, 25 Defendants. 26 /// 27 /// 28 3457159 -1- SERGEANT M[CHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINAKY IN.IUNCT(ON PURSUANT TO GOVERNMENT CODE §3309.5 1 Plaintiff, Sergeant MICHAEL K. WIBiJNSIN, submits his Reply in Support of his 2 Application for Preliminary Injunction pursuant to Government Code Section 3309.5, as follows: 3 A PRELIMINARY INJUNCTION SHOULD ISSUE 4 The City is Sergeant Wibunsin's employer; DPA and SFPD are not. The Public Safety 5 Officers Procedural Bill of Rights ("POBRA") imposes aone-year time limit upon an officer's 6 employer (the City) to give that accused officer notice of proposed disciplinary action. There is 7 only one statute of limitations, and the one-year clock began to run in this case in December 2014 8 when the SFPD's Internal Affairs Division (Administrative)("IAD-Admin") was provided with 9 I the text messages containing offensive language which Sergeant Wibunsin is charged with 10 exchanging with Furminger. SFPD investigated and filed a complaint in April 2015 before the 11 one-year statute expired. Because the City was readily able to fle on time, no claim is made in l2 that case that tolling was needed with respect to the First Complaint. 13 SFPD later realised Thal its 2015 Complaint was subject to dismissal because it failed to 14 meet the statutory notice requirement of Government Code § 3304(d)(1) as amended in 2009. l5 (Morgado v. City c~nd County of San Francisco (2017) 13 Ca1.App.Sth 1, 9, fn. 5.) As a result, iC7 SFPD, with the approval of the Commission, withdrew the Complaint. The matter was thereupon 17 closed by the Commission. Aproperly-drafted complaint could not be re-filed because the statute 18 of limitations had long since expired when SFPD took action to dismiss the matter. l9 By permitting another City department(DPA)to file and proceed with its November 2018 20 Second Complaint, the Police Commission has eviscerated the defenses guaranteed to Sergeant 21 Wibunsin under POBRA by permitting the City to escape both its own negligence and the bar of 22 the statute of limitations through the fiction that DPA is a separate "public agency" within the 23 meaning of Government Code Section 3304(d)(1) and entitled to its own statute of limitations 24 analysis. This is a plain violation ofPOBRA. 25 The Court should call halt to the unlawful proceedings before the Police Commission until 26 the issues in this matter can be tried. Government Code §3309.5 provides this Court with broad 27 discretion to fashion an appropriate remedy for violations ofPOBRA;in adopting Section 3309.5, ~g the legislature intended to provide police officers immediate access to the Superior Court to - 2- SERGEANT MICHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF HIS APVL[CATION FOR PRELIMINARY IN.IIJNCTION PURSUANT 7'O GOVERNMGN'I'CODE §3309.5 1 enforce their POBRA rights. (Williams v. C"ounty ofLos Angeles (1988) 47 Cal. 3r`~ 195, 203-04.) 2 The City cannot rely on Williams to urge that injunctive relief be denied; Williams held that 3 injunctive relief was inappropriate under the specific circumstances of the case (suppression of a 4 police officer's statement] where the officer had already been discharged from the force. In this 5 case, Sergeant Wibunsin is being subjected to punitive action which may lead to his termination 6 and is exercising his right of immediate access to the Superior Court to stop the violation. This is 7 not a situation where he has been discharged and is seeking reinstatement as in Williams. 8 ~ Gales v. Superior Court (1996) 47 Cal. App. 4t~' 1596 is also inapposite. In Gales, an 9 ' officer who (unlike Wibunsin) had been subjected to a final disciplinary determination sued for 10 damages under Government Code §3309.5, but not injunctive relief.(Id at 1599.) Gales addressed I1 the unique question of whether an officer is entitled to sue for damages under Section 3309.5 12 "after the public entity employer has issued its final decision." (Id at 1602.) The case does not 13 apply here nor can it be cited to suggest that Sergeant Wibunsin is not entitled to injunctive relief. 14 Sergeant Wibunsin has never been suspended from duty as a result of the allegations in 15 this case. He remains on duty. (Declaration of Michael Wibunsin.) He is serving the City as a 16 police officer and he is being paid the compensation owed to him for his services. He should not 17 be placed at the risk of being terminated and, worse, loss of his profession as a police officer until 18 the Court decides this case. The City will in no way be prejudiced and its rush to judgment before 19 the Court has a full opportunity to decide the case should be stopped. 2.0 THE CITY DOES NOT ADDRESS THE RES JUDICATA ISSUE 21 One of the bases for preliminary injunctive relief is that, as a matter of law, the bar of res ?~ judicata prohibits the City's relitigation of the charges relating to the text messages after SFPD's 23 First Complaint was voluntarily withdrawn (dismissed) and the ~asc was closed by t}ic 24 ~ Commission. That action was in all respects a dismissal with prejudice as to which res juc~icata 25 attaches.(Boeken v. Phillip Morris USA, Inc. (2010)48 Ca1.4th 788, 793.) 26 The City does not address this issue except to mention in its opposition that DPA's 27 Second Complaint contained an additional charge relating to a text message containing allegedly 28 sexist content. However, that text and all of the text messages in question were in possession of - 3- SF;R('~RANT' MtCHAFI,K. W[Rl1NSIN'S REPLY IN SUPPpRT OF HIS APPLICATION T'OR PRELIMINARY INJUNCTION PURSUANT TO GOVERNMTNT CODF.§3309.5 1 DPA and SFPD in December 2014. That is undisputed. The City cannot avoid the bar of res 2 judicata by engaging in piecemeal litigation; that is, the dismissal of the SFPD's First Complaint 3 has resjudicata affect not only as to issues that were actually raised in that pleading but also as to 4 every issue that might have raised in that matter. (Federal Horne Loan Bank ofSan Francisco v. 5 Countrywide Financial Corporation (2013)214 Ca1.App.4th 1520, 1527, 1529.) 6 As a matter of law, the City cannot relitigate charges arising out of the text messaging, 7 meaning that Second Complaint cannot proceed whether brought by DPA, SFPD or any other 8 City department. A preliminary injunction is proper on this issue alone. 9 THE CITY IS SERGEANT WIBUNSIN'S EMPLOYER 10 The City's argument in support of the Police Commission's decision to allow DPA's 11 Second Complaint to proceed is premised on the incorrect notion that its SFPD and its 12 Department of Police Accountability ("DPA") are "separate and distinct public agenc[ies]." 13 (Defendants Opposition at 13:13-14 [bracketed letters substituted for context].) The City is 14 misusing this phraseology to suggest that SFPD and DPA are "public agencies" within the [L meaning of Government Code § 3304(d)(1) and that, therefore, those City departments may 16 separately calculate the one-year statute of limitations under the POBRA. Defendant's conceptual 17 framework is wrong and must be rejected. 18 POBRA mandates that a police officer's employer has one year to provide a written notice 19 of disciplinary action under Government Code § 3304(d)(1). Again, Sergeant Wibunsin's 20 employer is the City and County of San Francisco.(See, Gales v. Superior Court, supra, at 1602.) 21 disciplinary decision is by "public entity employer"]). Neither SFPD nor DPA are employing 22 agencies; they are merely executive departments of the City which derive their power from the 23 City's Charter. The City Attorney's "Good Government Guide" regarding "Due Process Screens" 24 illustrates the relationship: When the City Attorney assigns different groups of lawyers to 25 separately advise City Commissions and the staffs of City departments appearing before those 26 Commissions, "the City, on both sides of the divide, is still the client ...." (Supplemental 27 Declaration of Adrian G. Driscoll ("Driscoll Supp. Dec."), Exhibit O,Good Government Guide at 28 Section VI.F.S, p. 22.) SFPD and DPA, and the Commission too, are not separate "public - 4- SERGEANT MICHAEL K. WIE3UNSIN'S REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINARY IN.lUNC1'[ON PURSUANT TO GOVERNMrNT CODE §3309.5 1 agencies" or employers. They are mere agencies of the only public agency at iss~_~e here, Sergeant 2 Wibunsin's employer—the City. 3 There is only one statute of limitations clock under Section 3304(d)(1) and the City is 4 subject to it. That clock indisputably began to run in December of 2014 when SFPD's Internal 5 Affairs Decision (Administration) and DPA were advised of the text messages. While that statute 6 of limitations clock was running, DPA handed off the entire matter to SFPD in January 2015.~ 7 SFPD filed the First Complaint in April 2015, and dismissed it in May 2018. The 8 dismissal meant that the First Complaint, in effect, had never been filed and any tolling resulting 9 t'rom its filing in 2015 was completely negated.(Thomas v. Gilliland(2002)95 Cal. App. 4t~' 427, 10 433.) Because DPA and SFPD are not "separate agencies" for purposes of the City's compliance 11 with the one year statute of limitations, the City's attempt to distinguish the ruling in Thomas v. 12 Gilliland fails. The Thnma,s rule is a principle that governs the stattate of limitations to which the 13 City is subject; it cannot be circumvented by the artifice of having DPA file the Second 14 Complaint. 15 THE CITY'S STATUTORY TOLLING THEORIES CANNOT SAVE ITS SECOND COMPLAINT l6 It is undisputed that SFPD timely filed the First Complaint in Apri12015, over six months 17 before the one year POBRA statute of limitations expired. The City did not need to rely on any of 18 the statutory tolling exceptions set out in Government Code §3304(d)(2). The First Complaint 19 was dismissed three years later in May 2018, because it had been improperly drafted and did not 20 comply with POBRA. If SFPD had not voluntarily dismissed the complaint, Sergeant Wibunsin 21 would have moved for its dismissal. The disciplinary matter involving Sergeant Wibunsin was 22 thereupon terminated in the normal course and could not be refiled because of the POBRA time 23 ~ The City Charter sets out the division of authority regarding the investigation of complaints 24 against police officers as between SFPD and DPA. Under Charter §4.136(d) DPA opposed to SFPD investigates all complaints of police misconduct except for complaints lodged by other 25 member of the Police Department.(Driscoll Dec., Exhibit C.) That is what occurred in this case; the SFPD's Internal Affairs Division (Criminal)turned all of the text messages in question over to 26 the Police Department's Internal Affairs Division (Administration) in December 2014, SFPD simultaneously turned the text messages over to DPA. Although both SFPD and DPA 27 immediately commenced investigations, only SFPD was empowered to do so under the Charter because the complaint had emanated from members ofthe Police Department. In this way,the 28 Charter further allocates responsibility between the two agencies(SFPD and DPA). - 5- SERUEANT MICHAEL,K. WBUNSIN'S REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINARY INJUNCTION PURSUANT TO GOVERNMENT CODE §3309.5 1 bar. (The City could have saved its disciplinary complaint against Sergeant Wibunsin by having 2 SFPD dismiss and refile the complaint between the date of its filing in Apri12015 and the date on 3 which the POBRA statute of limitations expired in December of 2015, but did not do so.) 4 In light of the fact that the City was able to timely file a disciplinary complaint against 5 Sergeant Wibunsin, it is not entitled to the benefit of statutory (or common law) tolling; tolling I 6 was unnecessary since SFPD and DPA are both agencies of the City, and the City is effectively 7 arguing that it is entitled to refile its disciplinary complaint against Sergeant Wibunsin long after 8 the statute of limitations had run. By permitting DPA to do so, the Police Commission is rescuing 9 the City from its own negligence (i.e., the improperly drawn First Complaint) and from the 10 POBRA time-bar. However, the Commission's decision has taken away Sergeant Wibunsin's "basic" POBRA right to a speedy determination of the allegations against him (made in 2014)and 1~ to be free of the uncertainty of a lingering investigation. (Bacilio v. City ofLos Angeles (2018) 28 13 Cal. App. Ott, 717, 724.) 14 AssuiYiing, czrguerac~o, that the City could rely on POBRA's tolling exceptions, the City 15 has not met its burden that they apply here. (See, e.g., Bacilio v. Ciry ofLos Angeles, at 726-27 16 [under POBRA,City has burden of establishing applicability of statutory tolling exceptions].) 17 First of all, the so-called "unavailability" exception under Government Code 18 §3304(d)(2)(E) cannot apply. After commencing its investigation in 2014, DPA did not request 19 information from SFPD about its investigation; it did not even ask for the identity of the officers 20 involved in the text message exchanges. Instead, DPA had handed the matter over to SFPD in 21 January 2015. There is no evidence that DPA did anything to investigate after that, even after 22 receiving an anonymous citizen's complaint in March 2015. DPA's claims that it acted as 23 expeditiously as possible are simply not true. 24 Because SFPD timely filed its First Complaint in April of 2015 there was no need for 25 DPA to carry on a separate investigation. If it had done so it was required to have notified the 26 Chief of Police (and turn the matter over to the Chief when it failed to conclude its investigation 27 within nine months. It did not for the obvious reason that it was not investigating. ("The City does 28 not address this mandatory Charter requirement.) -6- SERGEANT M[CHAEL K. W[BUNSIN'S REPLY IN SUPPORT OF H[S APPLICATION FOR PRF,L,tMINARY INJUNCTION PURSUANT TO GOV ERNMENT CODE §3309.5 1 Atter the statute of limitations had expired—for over a year and ahalf -- DPA suddenly 2 asked the Department to make certain officers (but not Sergeant Wibunsin) available for an 3 interview in June 2017.(By that time, DPA had somehow learned the identity of the officers.) 4 According to DPA, SFPD refused to order its officers to appear for DPA interviews nn the 5 grounds that the City Attorney's office had advised SPFD that doing so would constitute a 6 violation of the preliminary injunction issued in the then-pending Daugherty lawsuit. Whatever 7 the exact content of that advice, it was obviously wrong; nothing in the Daugherty injunction 8 prevented SFPD from making Sergeant Wibunsin available for a DPA interview and Sergeant 9 Wibunsin should not be penalized for the City Attorney's mistake. DPA (who receives advice 10 from the same Deputy City Attorney as the Commission and SFPD) did not question the 11 Department's position or seek relief before the Commission.(Driscoll Dec., Exh. B at 40:7-41:1.) l2 And DPA was no doubt very willing to accept the plainly wrong advice of the City's Attorney's 13 Office because it supported the very tolling argument made here. After all, DPA did not begin to 14 seek an interview with (or any information about) Sergeant Wibunsin until in or after June 2017, 15 long after the POBRA statute of limitations had expired. 16 In fact, Sergeant Wibunsin was never "unavailable" for a DPA interview; DPA never l7 asked him for one until 2018. Under the Charter, although SFPD has a duty to require officers 18 comply with DPA orders to appear for interviews, all City departments and employees (including 19 Sergeant Wibunsin) have an independent duty to provide "prompt and full cooperation" when 20 ' requested by DPA. Under the Charter, employees are required to "promptly produce all records 21 and information requested by DPA."(Driscoll Dec., Exhibit C, Charter §4.136(j).) Further, SFPD 22 General Order 2.04 requires all officers to "cooperate fully" with DPA and provide their "full 23 assistance." (Driscoll Supp. Dec., Exh. P, General Order 2.04.I.A and II.D.) This was DPA's 24 position before the Police Commission.(Driscoll Dec., Exh. G, DPA Brief at 7:23-25.) Moreover, 25 Sergeant Wibunsin was represented by counsel in the Daugherty action and, DPA could have (but 26 did not) ask for an interview through his counsel. 27 For the same reasons, the City is not entitled to tolling under Government Code as Section 28 3304(d)(2)(D), the so-called multiple officer exception. This exception only allows a "reasonable - 7- SERGEANT MICHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINARY INJUNCTION PURSUANT TO GOV ERNMEN"T CODE §3309.5 1 extension" of the statutory period if the City shows that such was required. It is self-evident that 2 no extension was required because the City timely filed the First Complaint. In this case, DPA 3 had possession of and reviewed the text messages in question not later than January 2015. 4 (Driscoll Dec., Exhibit C, Marion Declaration at ¶4-8.) Thus, the volume of the text messages is 5 irrelevant and DPA could have consulted a "subject matter expert"(whatever that means) about 6 the texts at any time. 7 Parra v. City and County ofSan Francisco (2006) 144 Cal. App. 4t"977 does not apply in K the circumstances of this case. In Parra, SFPD never filed a disciplinary complaint. DPA (then 9 known as OCC) had immediately commenced an investigation upon receipt of a citizen's 10 complaint of misconduct and the issue was whether DPA had a basis to claim a reasonable 11 extension of the one year period of limitations because multiple officers were involved and SFPD 12 declined to provide OCC with documents it requested nut of concern that it might compromise an 13 ongoing criminal investigation. (Id at 983-84.) The Court held that OCC was entitled to an 14 extension and that the extension was reasonable because, "the potential of misconduct, wide 15 ranging as it was, could not be investigated in isolation, especially as the issues in question 16 involved how and when various officers failed to act..." (Id at 96-97.) Unlike Pars, the alleged 17 misconduct here was not complex; it only involved the exchange of text messages between 18 Sergeant Wibunsin and former Sergeant Furminger. 19 Finally, even if statutory tolling applied, it would (at most) extend only between June 20 2017 (when DPA first asked SFPD to make officers available) and May 2, 2018, when the First 21 Complaint was dismissed. DPA should receive no credit for the period preceding Tune 2017 22 because it was not investigating. By June 2017, the statute of limitations had long since expired 23 and, thus, even with statutory tolling, DPA's Second Complaint is untimely. 24 CONCLUSION 25 For the reasons set out above and in his Opening Brief, Sergeant Wibunsin requests 26 issuance of a preliminary injunction enjoining defendants from proceeding with DPA's Second 27 Complaint and their disciplinary trial thereon pending entry of a final judgement in this case or 28 further Order of this Court. SERGEANT M[CHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF H[S APPLICATION FOR PRELIMINARY fN.fIJNC"PION PURSUANT TO GOV ERNMEN'T CODE §3309.5 1 Dated: June 28, 2019 MURPHY PEARSON BRADLEY & FEENEY 2 3 By: 4 JAMES A. L SSART ADRIAN G. DRISCOLL 5 Attorneys for Plaintiff MICHAEL WIBUNSIN 6 7 ~~ lU 11 12 l3 14 15 1G 17 18 ~ ) 20 21 22 23 24 25 26 27 ~g -9- SLRGH;AN"f MICHAI~L,K. WII3UNSIN'S REPLY IN SUPPORTOF HIS APPLICATION FOR PRELIMINARY INJUNC"l'fON PURSUANT'TO GOVERNMENT CODE §3309.5 1 CERTIFICATE OF SCRVICI; 2 I,Jennifer Cuellar, declare: 3 I am over the age of eighteen years, and am not a party to or interested in the within 4 titled cause. My business address is 88 Kearny Street, 10th Floor, San Francisco, California 5 108. On June 28,2019, I served the following documents)on the parties in the within action: 7 SERGEANT MICHAEL K. WIBUNSIN'S REPLY IN SUPPORT OF HIS APPLICATION FOR PRELIMINARY INJUNCTION PURSUANT TO 8 GOVERNMENT CODE §3309.5 q Y VIA HAND DELIVERY: The above-descriUed documents) will be placed in a sealed 10 _ envelo e which will he hand-delivered on this same date, addressed as listed below. 11 Attorney For Defendants 12 Jonathan Yank office ofthe City Attorney 13 1 Dr Carlton B Goodlett Pl, Ste 234, San Francisco, CA 94102-4604 14 15 16 I declare under penalty of perjury under the laws ofthe State of(:alifornia that the ing is a truc and correct statement and that this Cer''`' "" ""," 17 18 C 19 ~p ~~ 22 23 24 25 26 27 ~g - 10- SHKGEAN'T MICHAEL K. WIBUNSIN'S REPLY IN SUPPOR'TO~ H1S APPLlCAT10N FOR PRELIMINARY INJUNC'T'ION PURSUANT TO GOVERNMENT CODC §3309.5