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MESSING ADAM &
JASMINE LLP
ATTORNEYS AT Law
Gregg McLean Adam, Bar No. 203436
gregg@majlabor.com
Wendi J. Berkowitz, Bar No. 145624
wendi@majlabor.com
MESSING ADAM & JASMINE LLP
235 Montgomery St., Suite 828
San Francisco, California 94104
Telephone: 415.266.1800
Facsimile: 415.266.1128
Attorneys for Petitioner
LAWRENCE KEMPINSKI
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
03/06/2019
Clerk of the Court
BY: EDNALEEN ALEGRE
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
SAN FRANCISCO POLICE OFFICERS’
ASSOCIATION; RICHARD SOARES;
JOSEPH REYES; and LAWRENCE
KEMPINSKI,
Petitioners,
Vv.
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO POLICE
COMMISSION; SAN FRANCISCO CHIEF
OF POLICE: and DOES | through 50,
inclusive,
Respondents.
Case No. CPF-18-516295
PETITIONER LAWRENCE
KEMPINSKI’S OPPOSITION TO
RESPONDENTS’ DEMURRER TO FIRST
AMENDED VERIFIED PETITION
Date: March 21, 2019
Time: 9:30 A.M.
Dept.: 302, Hon. Ethan Schulman
Reservation No.: 01220321-09
Date Action Filed:
Trial Date:
August 15, 2018
None Set
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PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM &
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TABLE OF CONTENTS
Page
T. INTRODUCTION... eseeseessesstessneesneesessnessacsnneensessassnneensssansenaseanecaneeaneeaneenaeeseaneesaenseesaeesseeens 1
TL. LEGAL STANDARD 1... eesceseecstessteeseessneessesscsnneenacensesnicsasesaseeanecsnsennesaeenessneaseasenseessesteeess 2
THT. ARGUMENT 000. cece nes eseeseereceneseseeseaseneeeenssisnaeesacsnssassnseasssessnssissasesacieanseanenessaees 3
A. POBR Permits Kempinski to Raise POBR Violations Directly in Court ................ 3
B. Kempinski Did Not Sacrifice His POBR Claim By Resigning In Lieu Of
Participating Fully In The City’s Improper And Futile Disciplinary Process........... 5
1.
2.
w
4.
IV. CONCLUSION
The Morgado Holding and Kempinski’s Claims .......ccecsseteeseseesereeneneeneenes 5
Kempinski Did Not Waive His Claim By Retiring ..........ccssseseeesseneteeees 6
Either Kempinski’s Retirement Under Duress is Sufficient to Constitute
“Punitive Action” or His Challenge to the Commission’s Flawed Process
is Proper Even Absent Final Punitive Action
Kempinski Need Not Undergo a Futile Process to Obtain Relief................. 9
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TABLE OF AUTHORITIES
Page
CASES
Alameida v. State Personnel Board
(2004) 120 Cal. App.Ath 46 ........cecseeseesseesressesseessesseessessesserssarsscssecsnecsnsssessnetsnetsuessiessees 6, 8,9
Blank v. Kirwan
(1985) 39 Cal.3d 31D. eeeececeesseseeesesseesessesesesnecneessenserssseenecssesscssesneansenssnseresneciecseeiacsseseeanenasaeeseens 2
Breaux v. Agricultural Labor Relations Bd.
C990) 21/7 CallA pp 3d 730 sata ahctalalletittettelabaebledeeedodorstolabobabolnddnietiledtelbetalelaabasledalat 9, 10
CR. v. Tenet Healthcare Corp.
(2009) 169 Cal. App.4th 1094... cccesssesseesseesseesseesseesseteseesseesseesseessessessessesssesssesserssessessnesnecssee 2
Doyle v. City of Chino
(1981) 117 Cal. App.3d 673 ..ccecseseecsesseessesseesesnessessessseseessesesiessessesssssssssssessesersesssees 7,8, 9,10
Haller v. Burbank Cmty. Hosp. Found.
(1983) 149 Cal App.3d 650 ......cecceccessecsesseesecseesecsnecuesecencsreanscarsseseesnesaneessecersseearecanssesseseeeneeereees 2
Jacobs v. State Bd. of Optometry
(1978) 81 Cal-App.3d 1022.
Keithley v. Civil Service Bd.
(1970) 11 Cal App.3d 443 ....ccccesseeseesseesssessessnsssnecssssesssssseeasecsssssacssessnassnssasesnessnessuesseetsees 6,8
Moreno v. Cairns
194220 Cal2d SB irc atatatatatatatatcnatalsodadadatadatatebatehahabshdudedutedatetatelaterahdndededudedafatatebatshchsadndadalatatet 7
Morgado v. City and County of San Francisco
(2017) 13 Cal App.Sth Voces cesses sesseesneessessneessneeseesseesseessissnsssasssessnssnersnesstessies 1,2,5
Mounger vy. Gates
(1987) 193 Cal.App.3d 1248 ....eecsesccssesssesseneeesssecseeecsssecssnsecssiessnesennessuessareccanmesseaeessnses 3,4,5
Ogo Associates v. City of Torrance
(1974) 37 Cal. App.3d 830 ....scscseessesssessresstersressessesesseesseseeseassssesssesssessvessvassverssessseesseesnesseees 10
Sea & Sage Audubon Soc'y, Inc. y. Planning Com.
(1983) 34 Cal.3d 412
Serrano v. Priest
(1971) 5 Cal.3d 584
STATUTES
Government Code section 3303..
section 3309
section 3309.5(c)
section 3309.5(d)(1).
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PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITION1 || OTHER AUTHORITIES
2 || CACI No. 336 (Affirmative Defense — Waiver)... cecsecsssessesessessseeeesensseesssecsnesesseseseeneaeeecaneaneees 7
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suosese'" I] PETITIONER LAWRENCE KEMPINSKT'S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM &
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I INTRODUCTION
This is the second demurrer by the City and County of San Francisco (“City”) to Petitioner
Lawrence Kempinski’s (“Kempinski”) writ petition, stemming from the City’s failure to provide a
legally required appeal from Police Commission (“Commission”) discipline proceedings the City
had initiated, which ultimately forced Kempinski to resign and take an early retirement.
Kempinski’s facts present an issue of first impression that should be resolved in Kempinski’s favor.
It remains true, as with the earlier demurrer, that as the City frames it Kempinski faced an
impossible decision after the Chief resolved to pursue his termination. He could proceed to a
Commission ruling through a futile, procedurally deficient process after which he would have no
adequate appeal (in violation of the Public Safety Officers’ Procedural Bill of Rights Act
(“POBR”)), as the First District Court of Appeal recognized in Morgado v. City and County of San
Francisco (2017) 13 Cal.App.Sth 1). Or he could retire (so that he could retain an income stream
necessary to afford essential medical benefits for himself and his family) before being forced into a
near-immediate unpaid leave as a preface to termination, but in doing so, sacrifice his right to
challenge the deficiencies in the flawed process he opted to sidestep. This is not a legitimate choice,
nor one the law requires him to make. Judge Kahn recognized as much by permitting Kempinski to
allege additional facts to demonstrate the futility and fundamental unfairness of the “process”
afforded to him.
Kempinski’s new allegations in his First Amended Verified Petition (*FAVP”) demonstrate
the Catch-22 engineered by the City. Kempinski was financially compelled to retire on his last day
of paid administrative leave (June 10, 2016), within days after (1) his assigned Commission
Hearing Officer refused to schedule a hearing or allow him to offer any evidence in his defense, (2)
that same Hearing Officer told Kempinski he would recommend termination to the full
Commission, (3) the Acting Chief counseled him to retire, and (4) the City’s lawyer informed him
that he would be placed on unpaid leave and deprived of all City income as of June 11, 2016.
(FAVP 4 1, 25-34.)
The City’s new demurrer to Kempinski’s claim largely rehashes the first — arguing that
Kempinski cannot bring his POBR claim because he retired before the conclusion, with what (we
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say) was its inevitable result, of the deficient (and only) disciplinary appeal process available to him.
The new piece of the City’s argument — that Kempinski should have waged this battle at the time,
instead of retiring — ignores the practical consequence of that suggestion: that had he done so, he
would have been unable to afford necessary medical insurance for himself and his family while he
waited for relief. It strains all credulity that, as the City suggests, Kempinski must court financial
ruin in order to be afforded due process.
As we understand Judge Kahn’s ruling on the City’s initial demurrer, Kempinski was
permitted to amend his petition because if he could offer facts demonstrating the futility of (and lack
of due process in connection with) completing the Commission process, the Court would
substantively entertain his claim. Accordingly, the Court’s main focus at this time should be on
whether the FAVP now adequately and viably establishes that Kempinski’s full engagement in the
Commission process, under the circumstances alleged, would have been futile and a denial of due
process. Because the enhanced allegations adequately establish futility and lack of due process, the
Court should overrule the City’s demurrer in its entirety and permit Kempinski’s claim to proceed.
Il. LEGAL STANDARD
At the demurrer stage, the Court should regard as true all “material facts properly pleaded
and all reasonable inferences which can be drawn therefrom.” (Haller v. Burbank Cmty. Hosp.
Found. (1983) 149 Cal.App.3d 650, 655.) Although the Court need not accept legal conclusions, it
should interpret the Petition by reading it “as a whole and with all its parts in their context” and
must account for information that is the proper subject of judicial notice. (C.R. v. Tenet Healthcare
Corp. (2009) 169 Cal.App.4th 1094, 1102, as modified on denial of reh’g (Feb. 3, 2009).) These are
longstanding rules, also recognized by the California Supreme Court in Blank v. Kirwan (1985) 39
Cal.3d 311, 318 and earlier, in Serrano v. Priest (1971) 5 Cal.3d 584, 591.
As it stood at the time Kempinski retired close to three years ago, and until as recently as
three weeks ago, the City did not provide officers with any appeal from a Commission disciplinary
decision. And while the City argues about the import of the Court of Appeal ruling in Morgado, the
City does not dispute (nor can it) that Morgado is relevant, binding and persuasive authority for the
proposition that the former Commission procedure, without right of appeal of a Commission
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decision, violated officers’ rights under POBR. It follows that an officer who retired under duress
on the last day he was receiving paid leave, principally to maintain income necessary to purchase
essential medical insurance and care, can properly challenge the flawed process that forced him into
this untenable position.
Il. ARGUMENT
A. POBR Permits Kempinski to Raise POBR Violations Directly in Court
POBR grants due process rights to public safety officers, setting a procedural floor below
which employers shall not fall. Failure to provide officers with the procedural safeguards codified
in POBR is subject to direct challenge in court (Gov. Code § 3309.5).
Government Code section 3309.5(c) grants superior courts “initial jurisdiction over any
proceeding brought by anv public safety officer against any public safety department for alleged
violations of this chapter.” (Emphasis added.) And where a violation exists, section 3309.5(d)(1)
requires:
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.
“Nothing in section 3309.5 states an officer must elect between seeking administrative relief for a
departmental disciplinary action and seeking judicial relief for alleged procedural violations.” (See
Mounger y. Gates (1987) 193 Cal.App.3d 1248, 1257.)
The Mounger case, cited by Judge Kahn in ruling on the first demurrer, is instructive. The
plaintiff officer sought relief in court for POBR-violative interrogations by his department’s internal
affairs division, conducted as part of an investigation into the officer’s alleged misconduct. The
POBR violations included pre-interrogation activity as well as circumstances present at the officer’s
interrogations. The complaint also sought declaratory relief from department-wide violations of
officers’ rights during interrogations. The trial court sustained the department’s demurrer (on
relevant counts) because the officer had not exhausted his administrative remedies. In reversing, the
Court of Appeal rejected the department’s argument that officers who elect to proceed through an
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available administrative remedy ending in binding arbitration must exhaust that procedure before
suing in court. (193 Cal.App.3d at 1255.) The legislative history of POBR “shows it was
specifically designed to allow an officer to pursue a remedy immediately in the courts for violation
of these rights ... and not be required to wait for judicial review after administrative consideration of|
those violations.” (/d. at 1256.)
Although this case presents some procedural differences from Mounger, it offers an even
more compelling factual predicate for relief. Unlike in Mounger, where the parties agreed to an
administrative procedure (and the Court held that the officer could not be precluded from suing
because he chose not to proceed to arbitration, the last stage of the administrative remedy), here the
disciplinary procedure — which, again, the City must concede is flawed — is not optional. Kempinski
did not choose the City’s disciplinary procedure: the City Charter imposed it upon him. (See Koski
Dec. Exhs. B and C for a full rendering of the police discipline procedure.) The history behind and
justifications for section 3309.5 — allowing unimpeded access to the courts to vindicate rights
guaranteed under POBR — are strongly implicated under these circumstances, where the City has
subjected Kempinski to an improper, non-consensual remedy.
The City here offers an argument the majority in Mounger rejected — that Kempinski should
have completed the disciplinary process, concluding in a hearing and finding by the Commission, in
order to preserve his legal claim. Although the court in Mounger couched its analysis in
“exhaustion of administrative remedies” language and the City assiduously avoids employing this
terminology, the practical and logical endpoint of the City’s position is that in order to challenge
Commission procedures, the challenger must complete the Commission process. This is an
exhaustion argument in all but name. If we follow the City’s line of argument, the disciplinary
process, including the Commission hearing and finding, is most analogous to the grievance
and arbitration procedure which Mounger opted to forgo, and which the majority excused
him from pursuing. As the dissent explained, the officer
was the subject of an administrative investigation and hearing, during which
Mounger claims the violations occurred, which led to administrative discipline; in
fact, he admitted that the administrative discipline hearing resulted in an official
reprimand .... it is my view that once an officer elects to pursue his administrative
remedies, he must see that process through to its conclusion before seeking judicial
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relief under section 3309.5 He may not, as Mounger attempts to do, cut short the
administrative proceedings by filing an action pursuant to section 3309.5 before
those proceedings have terminated.
(193 Cal.App.3d at 1263.) (Emphasis added). This Court should align with the Mounger majority.
B. Kempinski Did Not Sacrifice His POBR Claim By Resigning In Lieu Of
Participating Fully In The City’s Improper And Futile Disciplinary Process
1. The Morgado Holding and Kempinski’s Claims
It bears repeating that the Court of Appeal in Morgado, supra, found the former Commission
process, which did not provide officers with an administrative appeal from a disciplinary decision
by the Commission, violated POBR. As Morgado instructs, “there may be multiple steps in a
disciplinary process that amount to ‘punitive actions’ triggering the right to appeal.” (13
Cal.App.5th at 10.) Morgado explained that the officer’s ability to appeal from the Chief's
complaint by engaging in the Commission process did not excuse the City’s failure to provide an
appeal from the Commission’s ultimate disciplinary decision. (/d. at 12.)
In this case, Kempinski alleges that the City forced him into a defective disciplinary process
without a POBR-compliant administrative appeal. The procedural flaws, alleged in the FAVP, are
material.
Although the City Charter requires a “fair and impartial trial” on serious discipline cases
(Koski Dec. Exh. B at p. A8.343), the City offered neither to Kempinski. First, the Commission
Hearing Officer, appointed as part of the City’s disciplinary process, told Kempinski he would not
be permitted to offer evidence — that to do so, in essence, was futile because the Hearing Officer
“knew” enough to justify termination. Second, the Hearing Officer refused to even schedule an
evidentiary hearing (presumably because it was a waste of his time) and he would recommend
termination to the full Commission without any hearing or evidence. Contrary to the City’s
characterization, the Hearing Officer made no evidentiary rulings, other than that there would be no
evidence. Third, simultaneously, the Acting Chief recommended that under the circumstances,
Kempinski should retire. And finally, to force Kempinski’s hand, the City told him that his pay
would cease in 10 days. Kempinski knew that he if he lost his income, he would not be able to
afford medical insurance or necessary medical care. (See FAVP {fj 1, 25-34.)
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Ignoring these facts, the City argues that (1) Kempinski had his right to appeal from the
Chief's termination recommendation by availing himself of the Commission process, which he
effectively waived by choosing to retire, and (2) since Kempinski retired instead of pursuing the
process to its conclusion, the Commission did not decide anything and there was no “punitive
action” from which to appeal. The City’s arguments fail for several reasons. First, on waiver:
Kempinski did not freely and without coercion or duress relinquish his position — and thus as a
definitional matter he did not waive his POBR rights. Second, on whether final “punitive action”
handed down by the Commission must precede Kempinski’s legal challenge under POBR: while
distinguishable in some respects, Alameida v. State Personnel Board (2004) 120 Cal.App.4th 46, 54,
the most recent statement on the issue, appears to dispense with this argument:
The Act [POBR] appears to afford protections to peace officers even before any
punitive action is taken by the employer. For example, section 3303 imposes
procedural requirements for interrogations ‘that could lead to punitive action.” We
see nothing to preclude a peace officer from bringing a court proceeding to assert
violations of the Act before being served with a notice of adverse action. (Emphasis
added.)
With a fair process, including a reasonable amount of time to engage in that process, the City’s
argument might prevail. However here, Kempinski could not have effectively protected his rights
by doing anything other than retiring after the City played its trump card — withdrawing his paid
leave within days of denying him the opportunity to present any defense. The City’s suggestion that
Kempinski could have sued and/or pursued a “prompt hearing on that unpaid status and a
Commission hearing on the underlying discipline within 90 days” (Demurrer at 9:6-9), ignores the
impending financial reality imposed by the City, which in turn was driving Kempinski’s decision-
making. Absent the City’s unnecessary and artificial deadline, Kempinski might indeed have had
other choices and in exercising one option over others, might be bound by it. Not so here.
2. Kempinski Did Not Waive His Claim By Retiring
Kempinski’s resignation was not voluntary and thus he waived none of his rights by retiring.
“A coerced resignation [by a police officer] is tantamount to a discharge,” according to Keithley v.
Civil Service Bd. (1970) 11 Cal.App.3d 443, 449 and cases therein cited, thus entitling Kempinski to
an effective appeal procedure. The Keithley court, citing the California Supreme Court in Moreno v.
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Cairns (1942) 20 Cal.2d 531, 534-35, reasoned that “[w]henever a person is severed from his
employment by coercion the severance is effected not by his own will but by the will of a superior.
A person who is forced to resign is thus in the position of one who is discharged, not of one who
exercises his own will to surrender his employment voluntarily.” Kempinski resigned under duress,
making his resignation tantamount to a discharge, which then triggered a right to a POBR-compliant
appeal. The City’s “waiver by retirement” argument (i.e., that Kempinski “retired before the
Commission made any final disciplinary decision”), which assumes voluntary action, must therefore
fail. (See, e.g., CACI No. 336 (Affirmative Defense — Waiver) (requiring Petitioners to “freely and
knowingly give up” their rights before the City can demonstrate waiver).)
We are aware of similar case, where duress and coercion tantamount to a discharge, coupled
with a futile and procedurally deficient disciplinary process, combined to cause a public servant,
under threat of loss of all income, to retire early rather than impoverish himself and leave his family
unable to afford adequate medical insurance or medical care while he pursued his rightful legal
remedies. As with all issues of first impression, absent supporting case law, fundamental fairness
must act as the guiding principle. Under this standard, Kempinski is entitled to his day in court.
3. Either Kempinski’s Retirement Under Duress is Sufficient to Constitute
“Punitive Action” or His Challenge to the Commission’s Flawed Process
is Proper Even Absent Final Punitive Action
The City incorrectly suggests that Doyle v. City of Chino (1981) 117 Cal.App.3d 673
requires this Court to decide that absent final disciplinary decisions after a full hearing by the
Commission, Kempinski’s claim is non-justiciable. The City overextends Doyle's reach,
In Doyle, the former Police Chief (who challenged Chino’s termination decision) refused to
attend his administrative appeal hearing in protest of the City’s denial of his reinstatement pending
the appeal. (/d. at 676-677.) The hearing proceeded without him; the City Council took evidence of
his misconduct at the hearing; and as a result, the Council affirmed his termination. (/d. at 677.)
Doyle filed a petition for administrative mandamus to challenge the Council’s decision reached after
the adjudicatory hearing. The Court rejected Doyle’s argument that he had been entitled to an
administrative appeal before the City Council took punitive action — that is, before the hearing and
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before it affirmed the termination — noting that the right to an administrative appeal arises “once any
decision is taken to discipline an officer.” (Jd. at 679-680.)
Doyle is inapt for the simple reason that the Doyle court did not consider, nor was it asked,
the question of whether a retirement elected under duress in lieu of completing a rigged process
constitutes “punitive action.” If a coerced resignation under Keithley is the functional equivalent of
a discharge, then it should also be considered a punitive action triggering a POBR-compliant appeal.
Kempinski was not provided with any process for appealing any decision of the Commission. The
parties diverge only on the corollary question - whether providing for such an appeal was legally
required: Kempinski says yes because his coerced resignation was equivalent to punitive action,
while the City says no because the Commission took no punitive action.
Doyle and this case also differ procedurally: Doyle was a post-hearing challenge to the
denial of a pre-hearing right.' In that context — that is, after a full hearing — the court denied the
request for relief while simultaneously recognizing that “Doyle and other police officers similarly
situated are hardly without rights prior to the point the department makes a decision on whether or
not to take disciplinary action.” (/d. at 680). The Doyle court continued, a litigant who challenges a
police disciplinary procedure in court in anticipation of (but before finalization of) discipline
invokes “a significant means to stabilize relations at the pre-decisional stage and deter abusive ...
practices.” (/d. at 680). As this language from Doyle makes clear, the courts do indeed recognize
the rights of officers to challenge POBR violations in court, before final discipline is imposed.
Almost a quarter century after Doyle, the Third District Court of Appeal, in Alameida v.
State Personnel Board, determined that a peace officer can initiate court process for a POBR
violation before the department takes “punitive action,” in the context of whether the superior court,
the State Personnel Board, or both, have jurisdiction over the matter. (Alameida (2004) 120
Cal.App.4th 46.) In Alameida, after an administrative hearing at the SPB, the administrative law
judge proposed to revoke a correctional officer’s discipline because the Department of Corrections’
notice of adverse action was untimely under, and therefore violated, POBR. The SPB adopted the
| Here, Kempinski issues a “pre-hearing” challenge to the process he would have been forced to undergo but
avoided because he retired first. Thus, it is a pre-hearing challenge to the denial of a pre-hearing right.
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ALJ’s decision. The Department filed an administrative writ challenging the SPB’s jurisdiction,
arguing that Superior Court had “initial,” and therefore exclusive, jurisdiction. The Court of Appeal
rejected this argument, concluding that POBR grants “initial” jurisdiction to both SPB and the
courts. In doing so, the court reasoned that POBR allows a peace officer to raise a court challenge
to a POBR violation before “punitive action” is taken.” If the coerced resignation here does not rise
to the level of “punitive action,” Alameida supports Kempinski’s alternative argument, that a pre-
punitive action court challenge is permissible.
The City now concedes that Kempinski is entitled to pre-punitive-action relief (Demurrer at
p. 9), but suggests his time to seek a pre-punitive remedy was in June 2016, before he
resigned/retired, and concludes that his failure to invoke his remedy at that time waived his right to
do so later. No authority, including Doyle, supports this fundamentally unfair application of law to
the facts here. The underlying assumption, that Kempinski could have had the matter filed, heard
and decided within ten days, before he lost all ability to fund medical coverage, is near-fanciful.
Further, if Kempinski was without insurance coverage for just a short period, even if he later won
and was able to recover back pay (the City’s “no harm — no foul” argument), he risked the financial
devastation often befalling those who lack medical coverage. And if he lost, he would have
forfeited his retirement benefits by not retiring before he was terminated. If the City is correct — that
the only way Kempinski could have challenged the admittedly deficient disciplinary process was to
bring an immediate action, risking potential financial devastation after 10 days because of the City’s
heavy-handed withdrawal of pay — “due process” is indeed a hollow concept.
4, Kempinski Need Not Undergo a Futile Process to Obtain Relief
It has long been recognized that when an action is futile, needless and wasted motion is not a
prerequisite to gaining access to the courts. The Sixth District Court of Appeal, in Breaux v.
Agricultural Labor Relations Bd. (1990) 217 Cal.App.3d 730, explains why.
? The Alameida court went on to say that “[o]nce punitive action is taken, the employee can assert violation
of the Act as a defense to discipline in the administrative proceedings, or can seek an adjudication in court.
Nothing in the statute suggests otherwise. The word ‘initial’ in section 3309.5 simply deprives the employer
of defeating court action by arguing the employee has failed to exhaust administrative remedies.”
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Breaux and his co-plaintiffs were required, as a condition of employment, to join the United
Farm Workers union. They filed unfair labor practice charges, claiming that certain required union
dues were used to fund political activities without their consent. Before any evidentiary hearing, the
union and the general counsel of the Board, without petitioners’ approval, entered into a settlement
agreement which the Board then approved. Petitioners sought to overturn the Board’s ruling. In
opposing, the union and the Board argued (among other defenses) that the petitioners had no
standing — which the court likened to unripe claims (and then failure to exhaust administrative
remedies) — because they had not sought internal relief through the union procedures. (217
Cal.App.3d at 741-42.) In discussing why the matter should proceed, the opinion reads:
The new dispute is unquestionably ripe for adjudication. The approved settlement
agreement is properly before us upon the petition of the individuals manifestly
aggrieved by the immediate prospect of being required to abide by an illegal
procedure. And it would have been futile and a waste of time — ‘needless
litigation,’ in the Board’s own phrase — to ask petitioners to wait for specific facts
upon which to challenge the settlement before the very entities (the UFW and the
Board) which negotiated and approved it. (Internal citations omitted.) Beyond the
Board, petitioners’ only legitimate recourse was to the courts. (/d. at 743.)
(Emphasis added.)
Kempinski, like Breaux, faced the “immediate prospect of being required to abide by an
illegal procedure,” and the futility of further engagement with the Commission. He should be
rewarded, not punished, for rejecting pointless activity. (See, e.g., in the context of futility excusing
failure to exhaust administrative remedies, Sea & Sage Audubon Soc'y, Inc. v. Planning Com.
(1983) 34 Cal.3d 412, 418; Jacobs v. State Bd. of Optometry (1978) 81 Cal.App.3d 1022, 1030
[“[Jdle pursuit of administrative remedies is not required.”]; Ogo Associates v. City of Torrance
(1974) 37 Cal.App.3d 830, 834 [petitioners not required to “pump oil from a dry hole”].) As the
court in Doyle, supra, aptly stated, “[t]he ‘opportunity for an administrative appeal necessarily
implies that such a hearing comport with standards of fair play and due process. Obviously, the
‘opportunity’ is a sham if the administrative body is biased, predisposed or otherwise prejudiced.”
(117 Cal.App.3d at 684.)
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PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITION1}|IV. CONCLUSION
2 For all of the foregoing reasons, the Court should overrule the City’s demurrer to
3 || Kempinski’s claim.
4 || Dated: March 6, 2019 MESSING ADAM & JASMINE LLP.
6 By /s/ Wendi J. Berkowitz
7 Gregg McLean Adam
Wendi J. Berkowitz
8 Attorneys for Petitioner
LAWRENCE KEMPINSKI
00065429-I
MESSING ADAM &
JASMINE LLP ll
suosese" Il PETITIONER LAWRENCE KEMPINSKT'S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITION1 PROOF OF SERVICE
2 San Francisco Police Officers’ Association, et al. v. City/County of San Francisco, et al.
Case No. CPF-18-516295
3
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
4
At the time of service, I was over 18 years of age and not a party to this action. Lam
5 || employed in the County of San Francisco, State of California. My business address is 235
Montgomery St., Suite 828, San Francisco, CA 94104.
6
On March 6, 2019, I served true copies of the following document(s) described as
7
PETITIONER LAWRENCE KEMPINSKI’S OPPOSITION TO RESPONDENTS’
8 DEMURRER TO FIRST AMENDED VERIFIED PETITION
9 || on the interested parties in this action as follows:
10 || Dennis J. Herrera Attorneys for Defendant
City Attorney CITY AND COUNTY OF SAN FRANCISCO
11 || Katharine Hobin Porter
Chief Labor Attorney
12 || Trevor J. Koski
Deputy City Attorney
13 || OFFICE OF SAN FRANCISCO CiTy ATTORNEY
DENNIS J. HERRERA
14 || 1390 Market Street, Fifth Floor
San Francisco, CA 94102
15 || Telephone: (415) 554-4244
Facsimile: (415) 554-4248
16 || E-Mail: revor.7.koski@sfcitvatty.org
BY U.S.MAIL: I enclosed the document(s) in a sealed envelope or package addressed to
18 || the persons at the addresses listed above and placed the envelope for collection and mailing,
following our ordinary business practices. I am readily familiar with the practice of Messing
19 || Adam & Jasmine LLP for collecting and processing correspondence for mailing. On the same day
that correspondence is placed for collection and mailing, it is deposited in the ordinary course of
20 || business with the United States Postal Service. in a sealed envelope with postage fully prepaid.
The envelope was placed in the mail at San Francisco, California.
BY ELECTRONIC SERVICE: I electronically served the document(s) described above
22 || via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the
File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order
23 || establishing the case website and authorizing service of documents.
24 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, Executed on March 6, 2019 at San Francisco, California.
25
26
27
28
MESSING ADAM &
TASMINE LLP
ATTORNEYS AT LAW
00067636-1
Preview
MESSING ADAM & JASMINE LLP ATTORNEYS AT Law Gregg McLean Adam, Bar No. 203436 gregg@majlabor.com Wendi J. Berkowitz, Bar No. 145624 wendi@majlabor.com MESSING ADAM & JASMINE LLP 235 Montgomery St., Suite 828 San Francisco, California 94104 Telephone: 415.266.1800 Facsimile: 415.266.1128 Attorneys for Petitioner LAWRENCE KEMPINSKI ELECTRONICALLY FILED Superior Court of California, County of San Francisco 03/06/2019 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION SAN FRANCISCO POLICE OFFICERS’ ASSOCIATION; RICHARD SOARES; JOSEPH REYES; and LAWRENCE KEMPINSKI, Petitioners, Vv. CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO POLICE COMMISSION; SAN FRANCISCO CHIEF OF POLICE: and DOES | through 50, inclusive, Respondents. Case No. CPF-18-516295 PETITIONER LAWRENCE KEMPINSKI’S OPPOSITION TO RESPONDENTS’ DEMURRER TO FIRST AMENDED VERIFIED PETITION Date: March 21, 2019 Time: 9:30 A.M. Dept.: 302, Hon. Ethan Schulman Reservation No.: 01220321-09 Date Action Filed: Trial Date: August 15, 2018 None Set 1 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law TABLE OF CONTENTS Page T. INTRODUCTION... eseeseessesstessneesneesessnessacsnneensessassnneensssansenaseanecaneeaneeaneenaeeseaneesaenseesaeesseeens 1 TL. LEGAL STANDARD 1... eesceseecstessteeseessneessesscsnneenacensesnicsasesaseeanecsnsennesaeenessneaseasenseessesteeess 2 THT. ARGUMENT 000. cece nes eseeseereceneseseeseaseneeeenssisnaeesacsnssassnseasssessnssissasesacieanseanenessaees 3 A. POBR Permits Kempinski to Raise POBR Violations Directly in Court ................ 3 B. Kempinski Did Not Sacrifice His POBR Claim By Resigning In Lieu Of Participating Fully In The City’s Improper And Futile Disciplinary Process........... 5 1. 2. w 4. IV. CONCLUSION The Morgado Holding and Kempinski’s Claims .......ccecsseteeseseesereeneneeneenes 5 Kempinski Did Not Waive His Claim By Retiring ..........ccssseseeesseneteeees 6 Either Kempinski’s Retirement Under Duress is Sufficient to Constitute “Punitive Action” or His Challenge to the Commission’s Flawed Process is Proper Even Absent Final Punitive Action Kempinski Need Not Undergo a Futile Process to Obtain Relief................. 9 i PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law TABLE OF AUTHORITIES Page CASES Alameida v. State Personnel Board (2004) 120 Cal. App.Ath 46 ........cecseeseesseesressesseessesseessessesserssarsscssecsnecsnsssessnetsnetsuessiessees 6, 8,9 Blank v. Kirwan (1985) 39 Cal.3d 31D. eeeececeesseseeesesseesessesesesnecneessenserssseenecssesscssesneansenssnseresneciecseeiacsseseeanenasaeeseens 2 Breaux v. Agricultural Labor Relations Bd. C990) 21/7 CallA pp 3d 730 sata ahctalalletittettelabaebledeeedodorstolabobabolnddnietiledtelbetalelaabasledalat 9, 10 CR. v. Tenet Healthcare Corp. (2009) 169 Cal. App.4th 1094... cccesssesseesseesseesseesseesseteseesseesseesseessessessessesssesssesserssessessnesnecssee 2 Doyle v. City of Chino (1981) 117 Cal. App.3d 673 ..ccecseseecsesseessesseesesnessessessseseessesesiessessesssssssssssessesersesssees 7,8, 9,10 Haller v. Burbank Cmty. Hosp. Found. (1983) 149 Cal App.3d 650 ......cecceccessecsesseesecseesecsnecuesecencsreanscarsseseesnesaneessecersseearecanssesseseeeneeereees 2 Jacobs v. State Bd. of Optometry (1978) 81 Cal-App.3d 1022. Keithley v. Civil Service Bd. (1970) 11 Cal App.3d 443 ....ccccesseeseesseesssessessnsssnecssssesssssseeasecsssssacssessnassnssasesnessnessuesseetsees 6,8 Moreno v. Cairns 194220 Cal2d SB irc atatatatatatatatcnatalsodadadatadatatebatehahabshdudedutedatetatelaterahdndededudedafatatebatshchsadndadalatatet 7 Morgado v. City and County of San Francisco (2017) 13 Cal App.Sth Voces cesses sesseesneessessneessneeseesseesseessissnsssasssessnssnersnesstessies 1,2,5 Mounger vy. Gates (1987) 193 Cal.App.3d 1248 ....eecsesccssesssesseneeesssecseeecsssecssnsecssiessnesennessuessareccanmesseaeessnses 3,4,5 Ogo Associates v. City of Torrance (1974) 37 Cal. App.3d 830 ....scscseessesssessresstersressessesesseesseseeseassssesssesssessvessvassverssessseesseesnesseees 10 Sea & Sage Audubon Soc'y, Inc. y. Planning Com. (1983) 34 Cal.3d 412 Serrano v. Priest (1971) 5 Cal.3d 584 STATUTES Government Code section 3303.. section 3309 section 3309.5(c) section 3309.5(d)(1). ii PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITION1 || OTHER AUTHORITIES 2 || CACI No. 336 (Affirmative Defense — Waiver)... cecsecsssessesessessseeeesensseesssecsnesesseseseeneaeeecaneaneees 7 MESSING ADAM & JASMINE LLP iii suosese'" I] PETITIONER LAWRENCE KEMPINSKT'S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law I INTRODUCTION This is the second demurrer by the City and County of San Francisco (“City”) to Petitioner Lawrence Kempinski’s (“Kempinski”) writ petition, stemming from the City’s failure to provide a legally required appeal from Police Commission (“Commission”) discipline proceedings the City had initiated, which ultimately forced Kempinski to resign and take an early retirement. Kempinski’s facts present an issue of first impression that should be resolved in Kempinski’s favor. It remains true, as with the earlier demurrer, that as the City frames it Kempinski faced an impossible decision after the Chief resolved to pursue his termination. He could proceed to a Commission ruling through a futile, procedurally deficient process after which he would have no adequate appeal (in violation of the Public Safety Officers’ Procedural Bill of Rights Act (“POBR”)), as the First District Court of Appeal recognized in Morgado v. City and County of San Francisco (2017) 13 Cal.App.Sth 1). Or he could retire (so that he could retain an income stream necessary to afford essential medical benefits for himself and his family) before being forced into a near-immediate unpaid leave as a preface to termination, but in doing so, sacrifice his right to challenge the deficiencies in the flawed process he opted to sidestep. This is not a legitimate choice, nor one the law requires him to make. Judge Kahn recognized as much by permitting Kempinski to allege additional facts to demonstrate the futility and fundamental unfairness of the “process” afforded to him. Kempinski’s new allegations in his First Amended Verified Petition (*FAVP”) demonstrate the Catch-22 engineered by the City. Kempinski was financially compelled to retire on his last day of paid administrative leave (June 10, 2016), within days after (1) his assigned Commission Hearing Officer refused to schedule a hearing or allow him to offer any evidence in his defense, (2) that same Hearing Officer told Kempinski he would recommend termination to the full Commission, (3) the Acting Chief counseled him to retire, and (4) the City’s lawyer informed him that he would be placed on unpaid leave and deprived of all City income as of June 11, 2016. (FAVP 4 1, 25-34.) The City’s new demurrer to Kempinski’s claim largely rehashes the first — arguing that Kempinski cannot bring his POBR claim because he retired before the conclusion, with what (we 1 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law say) was its inevitable result, of the deficient (and only) disciplinary appeal process available to him. The new piece of the City’s argument — that Kempinski should have waged this battle at the time, instead of retiring — ignores the practical consequence of that suggestion: that had he done so, he would have been unable to afford necessary medical insurance for himself and his family while he waited for relief. It strains all credulity that, as the City suggests, Kempinski must court financial ruin in order to be afforded due process. As we understand Judge Kahn’s ruling on the City’s initial demurrer, Kempinski was permitted to amend his petition because if he could offer facts demonstrating the futility of (and lack of due process in connection with) completing the Commission process, the Court would substantively entertain his claim. Accordingly, the Court’s main focus at this time should be on whether the FAVP now adequately and viably establishes that Kempinski’s full engagement in the Commission process, under the circumstances alleged, would have been futile and a denial of due process. Because the enhanced allegations adequately establish futility and lack of due process, the Court should overrule the City’s demurrer in its entirety and permit Kempinski’s claim to proceed. Il. LEGAL STANDARD At the demurrer stage, the Court should regard as true all “material facts properly pleaded and all reasonable inferences which can be drawn therefrom.” (Haller v. Burbank Cmty. Hosp. Found. (1983) 149 Cal.App.3d 650, 655.) Although the Court need not accept legal conclusions, it should interpret the Petition by reading it “as a whole and with all its parts in their context” and must account for information that is the proper subject of judicial notice. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1102, as modified on denial of reh’g (Feb. 3, 2009).) These are longstanding rules, also recognized by the California Supreme Court in Blank v. Kirwan (1985) 39 Cal.3d 311, 318 and earlier, in Serrano v. Priest (1971) 5 Cal.3d 584, 591. As it stood at the time Kempinski retired close to three years ago, and until as recently as three weeks ago, the City did not provide officers with any appeal from a Commission disciplinary decision. And while the City argues about the import of the Court of Appeal ruling in Morgado, the City does not dispute (nor can it) that Morgado is relevant, binding and persuasive authority for the proposition that the former Commission procedure, without right of appeal of a Commission 2 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law decision, violated officers’ rights under POBR. It follows that an officer who retired under duress on the last day he was receiving paid leave, principally to maintain income necessary to purchase essential medical insurance and care, can properly challenge the flawed process that forced him into this untenable position. Il. ARGUMENT A. POBR Permits Kempinski to Raise POBR Violations Directly in Court POBR grants due process rights to public safety officers, setting a procedural floor below which employers shall not fall. Failure to provide officers with the procedural safeguards codified in POBR is subject to direct challenge in court (Gov. Code § 3309.5). Government Code section 3309.5(c) grants superior courts “initial jurisdiction over any proceeding brought by anv public safety officer against any public safety department for alleged violations of this chapter.” (Emphasis added.) And where a violation exists, section 3309.5(d)(1) requires: 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. “Nothing in section 3309.5 states an officer must elect between seeking administrative relief for a departmental disciplinary action and seeking judicial relief for alleged procedural violations.” (See Mounger y. Gates (1987) 193 Cal.App.3d 1248, 1257.) The Mounger case, cited by Judge Kahn in ruling on the first demurrer, is instructive. The plaintiff officer sought relief in court for POBR-violative interrogations by his department’s internal affairs division, conducted as part of an investigation into the officer’s alleged misconduct. The POBR violations included pre-interrogation activity as well as circumstances present at the officer’s interrogations. The complaint also sought declaratory relief from department-wide violations of officers’ rights during interrogations. The trial court sustained the department’s demurrer (on relevant counts) because the officer had not exhausted his administrative remedies. In reversing, the Court of Appeal rejected the department’s argument that officers who elect to proceed through an 3 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law available administrative remedy ending in binding arbitration must exhaust that procedure before suing in court. (193 Cal.App.3d at 1255.) The legislative history of POBR “shows it was specifically designed to allow an officer to pursue a remedy immediately in the courts for violation of these rights ... and not be required to wait for judicial review after administrative consideration of| those violations.” (/d. at 1256.) Although this case presents some procedural differences from Mounger, it offers an even more compelling factual predicate for relief. Unlike in Mounger, where the parties agreed to an administrative procedure (and the Court held that the officer could not be precluded from suing because he chose not to proceed to arbitration, the last stage of the administrative remedy), here the disciplinary procedure — which, again, the City must concede is flawed — is not optional. Kempinski did not choose the City’s disciplinary procedure: the City Charter imposed it upon him. (See Koski Dec. Exhs. B and C for a full rendering of the police discipline procedure.) The history behind and justifications for section 3309.5 — allowing unimpeded access to the courts to vindicate rights guaranteed under POBR — are strongly implicated under these circumstances, where the City has subjected Kempinski to an improper, non-consensual remedy. The City here offers an argument the majority in Mounger rejected — that Kempinski should have completed the disciplinary process, concluding in a hearing and finding by the Commission, in order to preserve his legal claim. Although the court in Mounger couched its analysis in “exhaustion of administrative remedies” language and the City assiduously avoids employing this terminology, the practical and logical endpoint of the City’s position is that in order to challenge Commission procedures, the challenger must complete the Commission process. This is an exhaustion argument in all but name. If we follow the City’s line of argument, the disciplinary process, including the Commission hearing and finding, is most analogous to the grievance and arbitration procedure which Mounger opted to forgo, and which the majority excused him from pursuing. As the dissent explained, the officer was the subject of an administrative investigation and hearing, during which Mounger claims the violations occurred, which led to administrative discipline; in fact, he admitted that the administrative discipline hearing resulted in an official reprimand .... it is my view that once an officer elects to pursue his administrative remedies, he must see that process through to its conclusion before seeking judicial 4 PETITIONER LAWRENCE KEMPINSKI'S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law relief under section 3309.5 He may not, as Mounger attempts to do, cut short the administrative proceedings by filing an action pursuant to section 3309.5 before those proceedings have terminated. (193 Cal.App.3d at 1263.) (Emphasis added). This Court should align with the Mounger majority. B. Kempinski Did Not Sacrifice His POBR Claim By Resigning In Lieu Of Participating Fully In The City’s Improper And Futile Disciplinary Process 1. The Morgado Holding and Kempinski’s Claims It bears repeating that the Court of Appeal in Morgado, supra, found the former Commission process, which did not provide officers with an administrative appeal from a disciplinary decision by the Commission, violated POBR. As Morgado instructs, “there may be multiple steps in a disciplinary process that amount to ‘punitive actions’ triggering the right to appeal.” (13 Cal.App.5th at 10.) Morgado explained that the officer’s ability to appeal from the Chief's complaint by engaging in the Commission process did not excuse the City’s failure to provide an appeal from the Commission’s ultimate disciplinary decision. (/d. at 12.) In this case, Kempinski alleges that the City forced him into a defective disciplinary process without a POBR-compliant administrative appeal. The procedural flaws, alleged in the FAVP, are material. Although the City Charter requires a “fair and impartial trial” on serious discipline cases (Koski Dec. Exh. B at p. A8.343), the City offered neither to Kempinski. First, the Commission Hearing Officer, appointed as part of the City’s disciplinary process, told Kempinski he would not be permitted to offer evidence — that to do so, in essence, was futile because the Hearing Officer “knew” enough to justify termination. Second, the Hearing Officer refused to even schedule an evidentiary hearing (presumably because it was a waste of his time) and he would recommend termination to the full Commission without any hearing or evidence. Contrary to the City’s characterization, the Hearing Officer made no evidentiary rulings, other than that there would be no evidence. Third, simultaneously, the Acting Chief recommended that under the circumstances, Kempinski should retire. And finally, to force Kempinski’s hand, the City told him that his pay would cease in 10 days. Kempinski knew that he if he lost his income, he would not be able to afford medical insurance or necessary medical care. (See FAVP {fj 1, 25-34.) 5 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law Ignoring these facts, the City argues that (1) Kempinski had his right to appeal from the Chief's termination recommendation by availing himself of the Commission process, which he effectively waived by choosing to retire, and (2) since Kempinski retired instead of pursuing the process to its conclusion, the Commission did not decide anything and there was no “punitive action” from which to appeal. The City’s arguments fail for several reasons. First, on waiver: Kempinski did not freely and without coercion or duress relinquish his position — and thus as a definitional matter he did not waive his POBR rights. Second, on whether final “punitive action” handed down by the Commission must precede Kempinski’s legal challenge under POBR: while distinguishable in some respects, Alameida v. State Personnel Board (2004) 120 Cal.App.4th 46, 54, the most recent statement on the issue, appears to dispense with this argument: The Act [POBR] appears to afford protections to peace officers even before any punitive action is taken by the employer. For example, section 3303 imposes procedural requirements for interrogations ‘that could lead to punitive action.” We see nothing to preclude a peace officer from bringing a court proceeding to assert violations of the Act before being served with a notice of adverse action. (Emphasis added.) With a fair process, including a reasonable amount of time to engage in that process, the City’s argument might prevail. However here, Kempinski could not have effectively protected his rights by doing anything other than retiring after the City played its trump card — withdrawing his paid leave within days of denying him the opportunity to present any defense. The City’s suggestion that Kempinski could have sued and/or pursued a “prompt hearing on that unpaid status and a Commission hearing on the underlying discipline within 90 days” (Demurrer at 9:6-9), ignores the impending financial reality imposed by the City, which in turn was driving Kempinski’s decision- making. Absent the City’s unnecessary and artificial deadline, Kempinski might indeed have had other choices and in exercising one option over others, might be bound by it. Not so here. 2. Kempinski Did Not Waive His Claim By Retiring Kempinski’s resignation was not voluntary and thus he waived none of his rights by retiring. “A coerced resignation [by a police officer] is tantamount to a discharge,” according to Keithley v. Civil Service Bd. (1970) 11 Cal.App.3d 443, 449 and cases therein cited, thus entitling Kempinski to an effective appeal procedure. The Keithley court, citing the California Supreme Court in Moreno v. 6 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law Cairns (1942) 20 Cal.2d 531, 534-35, reasoned that “[w]henever a person is severed from his employment by coercion the severance is effected not by his own will but by the will of a superior. A person who is forced to resign is thus in the position of one who is discharged, not of one who exercises his own will to surrender his employment voluntarily.” Kempinski resigned under duress, making his resignation tantamount to a discharge, which then triggered a right to a POBR-compliant appeal. The City’s “waiver by retirement” argument (i.e., that Kempinski “retired before the Commission made any final disciplinary decision”), which assumes voluntary action, must therefore fail. (See, e.g., CACI No. 336 (Affirmative Defense — Waiver) (requiring Petitioners to “freely and knowingly give up” their rights before the City can demonstrate waiver).) We are aware of similar case, where duress and coercion tantamount to a discharge, coupled with a futile and procedurally deficient disciplinary process, combined to cause a public servant, under threat of loss of all income, to retire early rather than impoverish himself and leave his family unable to afford adequate medical insurance or medical care while he pursued his rightful legal remedies. As with all issues of first impression, absent supporting case law, fundamental fairness must act as the guiding principle. Under this standard, Kempinski is entitled to his day in court. 3. Either Kempinski’s Retirement Under Duress is Sufficient to Constitute “Punitive Action” or His Challenge to the Commission’s Flawed Process is Proper Even Absent Final Punitive Action The City incorrectly suggests that Doyle v. City of Chino (1981) 117 Cal.App.3d 673 requires this Court to decide that absent final disciplinary decisions after a full hearing by the Commission, Kempinski’s claim is non-justiciable. The City overextends Doyle's reach, In Doyle, the former Police Chief (who challenged Chino’s termination decision) refused to attend his administrative appeal hearing in protest of the City’s denial of his reinstatement pending the appeal. (/d. at 676-677.) The hearing proceeded without him; the City Council took evidence of his misconduct at the hearing; and as a result, the Council affirmed his termination. (/d. at 677.) Doyle filed a petition for administrative mandamus to challenge the Council’s decision reached after the adjudicatory hearing. The Court rejected Doyle’s argument that he had been entitled to an administrative appeal before the City Council took punitive action — that is, before the hearing and 7 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law before it affirmed the termination — noting that the right to an administrative appeal arises “once any decision is taken to discipline an officer.” (Jd. at 679-680.) Doyle is inapt for the simple reason that the Doyle court did not consider, nor was it asked, the question of whether a retirement elected under duress in lieu of completing a rigged process constitutes “punitive action.” If a coerced resignation under Keithley is the functional equivalent of a discharge, then it should also be considered a punitive action triggering a POBR-compliant appeal. Kempinski was not provided with any process for appealing any decision of the Commission. The parties diverge only on the corollary question - whether providing for such an appeal was legally required: Kempinski says yes because his coerced resignation was equivalent to punitive action, while the City says no because the Commission took no punitive action. Doyle and this case also differ procedurally: Doyle was a post-hearing challenge to the denial of a pre-hearing right.' In that context — that is, after a full hearing — the court denied the request for relief while simultaneously recognizing that “Doyle and other police officers similarly situated are hardly without rights prior to the point the department makes a decision on whether or not to take disciplinary action.” (/d. at 680). The Doyle court continued, a litigant who challenges a police disciplinary procedure in court in anticipation of (but before finalization of) discipline invokes “a significant means to stabilize relations at the pre-decisional stage and deter abusive ... practices.” (/d. at 680). As this language from Doyle makes clear, the courts do indeed recognize the rights of officers to challenge POBR violations in court, before final discipline is imposed. Almost a quarter century after Doyle, the Third District Court of Appeal, in Alameida v. State Personnel Board, determined that a peace officer can initiate court process for a POBR violation before the department takes “punitive action,” in the context of whether the superior court, the State Personnel Board, or both, have jurisdiction over the matter. (Alameida (2004) 120 Cal.App.4th 46.) In Alameida, after an administrative hearing at the SPB, the administrative law judge proposed to revoke a correctional officer’s discipline because the Department of Corrections’ notice of adverse action was untimely under, and therefore violated, POBR. The SPB adopted the | Here, Kempinski issues a “pre-hearing” challenge to the process he would have been forced to undergo but avoided because he retired first. Thus, it is a pre-hearing challenge to the denial of a pre-hearing right. 8 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law ALJ’s decision. The Department filed an administrative writ challenging the SPB’s jurisdiction, arguing that Superior Court had “initial,” and therefore exclusive, jurisdiction. The Court of Appeal rejected this argument, concluding that POBR grants “initial” jurisdiction to both SPB and the courts. In doing so, the court reasoned that POBR allows a peace officer to raise a court challenge to a POBR violation before “punitive action” is taken.” If the coerced resignation here does not rise to the level of “punitive action,” Alameida supports Kempinski’s alternative argument, that a pre- punitive action court challenge is permissible. The City now concedes that Kempinski is entitled to pre-punitive-action relief (Demurrer at p. 9), but suggests his time to seek a pre-punitive remedy was in June 2016, before he resigned/retired, and concludes that his failure to invoke his remedy at that time waived his right to do so later. No authority, including Doyle, supports this fundamentally unfair application of law to the facts here. The underlying assumption, that Kempinski could have had the matter filed, heard and decided within ten days, before he lost all ability to fund medical coverage, is near-fanciful. Further, if Kempinski was without insurance coverage for just a short period, even if he later won and was able to recover back pay (the City’s “no harm — no foul” argument), he risked the financial devastation often befalling those who lack medical coverage. And if he lost, he would have forfeited his retirement benefits by not retiring before he was terminated. If the City is correct — that the only way Kempinski could have challenged the admittedly deficient disciplinary process was to bring an immediate action, risking potential financial devastation after 10 days because of the City’s heavy-handed withdrawal of pay — “due process” is indeed a hollow concept. 4, Kempinski Need Not Undergo a Futile Process to Obtain Relief It has long been recognized that when an action is futile, needless and wasted motion is not a prerequisite to gaining access to the courts. The Sixth District Court of Appeal, in Breaux v. Agricultural Labor Relations Bd. (1990) 217 Cal.App.3d 730, explains why. ? The Alameida court went on to say that “[o]nce punitive action is taken, the employee can assert violation of the Act as a defense to discipline in the administrative proceedings, or can seek an adjudication in court. Nothing in the statute suggests otherwise. The word ‘initial’ in section 3309.5 simply deprives the employer of defeating court action by arguing the employee has failed to exhaust administrative remedies.” 9 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITIONMESSING ADAM & JASMINE LLP ATTORNEYS AT Law Breaux and his co-plaintiffs were required, as a condition of employment, to join the United Farm Workers union. They filed unfair labor practice charges, claiming that certain required union dues were used to fund political activities without their consent. Before any evidentiary hearing, the union and the general counsel of the Board, without petitioners’ approval, entered into a settlement agreement which the Board then approved. Petitioners sought to overturn the Board’s ruling. In opposing, the union and the Board argued (among other defenses) that the petitioners had no standing — which the court likened to unripe claims (and then failure to exhaust administrative remedies) — because they had not sought internal relief through the union procedures. (217 Cal.App.3d at 741-42.) In discussing why the matter should proceed, the opinion reads: The new dispute is unquestionably ripe for adjudication. The approved settlement agreement is properly before us upon the petition of the individuals manifestly aggrieved by the immediate prospect of being required to abide by an illegal procedure. And it would have been futile and a waste of time — ‘needless litigation,’ in the Board’s own phrase — to ask petitioners to wait for specific facts upon which to challenge the settlement before the very entities (the UFW and the Board) which negotiated and approved it. (Internal citations omitted.) Beyond the Board, petitioners’ only legitimate recourse was to the courts. (/d. at 743.) (Emphasis added.) Kempinski, like Breaux, faced the “immediate prospect of being required to abide by an illegal procedure,” and the futility of further engagement with the Commission. He should be rewarded, not punished, for rejecting pointless activity. (See, e.g., in the context of futility excusing failure to exhaust administrative remedies, Sea & Sage Audubon Soc'y, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 418; Jacobs v. State Bd. of Optometry (1978) 81 Cal.App.3d 1022, 1030 [“[Jdle pursuit of administrative remedies is not required.”]; Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834 [petitioners not required to “pump oil from a dry hole”].) As the court in Doyle, supra, aptly stated, “[t]he ‘opportunity for an administrative appeal necessarily implies that such a hearing comport with standards of fair play and due process. Obviously, the ‘opportunity’ is a sham if the administrative body is biased, predisposed or otherwise prejudiced.” (117 Cal.App.3d at 684.) Hl Hit Ml 10 PETITIONER LAWRENCE KEMPINSKI’S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITION1}|IV. CONCLUSION 2 For all of the foregoing reasons, the Court should overrule the City’s demurrer to 3 || Kempinski’s claim. 4 || Dated: March 6, 2019 MESSING ADAM & JASMINE LLP. 6 By /s/ Wendi J. Berkowitz 7 Gregg McLean Adam Wendi J. Berkowitz 8 Attorneys for Petitioner LAWRENCE KEMPINSKI 00065429-I MESSING ADAM & JASMINE LLP ll suosese" Il PETITIONER LAWRENCE KEMPINSKT'S OPP. TO DEMURRER TO FIRST AMENDED VERIFIED PETITION1 PROOF OF SERVICE 2 San Francisco Police Officers’ Association, et al. v. City/County of San Francisco, et al. Case No. CPF-18-516295 3 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 4 At the time of service, I was over 18 years of age and not a party to this action. Lam 5 || employed in the County of San Francisco, State of California. My business address is 235 Montgomery St., Suite 828, San Francisco, CA 94104. 6 On March 6, 2019, I served true copies of the following document(s) described as 7 PETITIONER LAWRENCE KEMPINSKI’S OPPOSITION TO RESPONDENTS’ 8 DEMURRER TO FIRST AMENDED VERIFIED PETITION 9 || on the interested parties in this action as follows: 10 || Dennis J. Herrera Attorneys for Defendant City Attorney CITY AND COUNTY OF SAN FRANCISCO 11 || Katharine Hobin Porter Chief Labor Attorney 12 || Trevor J. Koski Deputy City Attorney 13 || OFFICE OF SAN FRANCISCO CiTy ATTORNEY DENNIS J. HERRERA 14 || 1390 Market Street, Fifth Floor San Francisco, CA 94102 15 || Telephone: (415) 554-4244 Facsimile: (415) 554-4248 16 || E-Mail: revor.7.koski@sfcitvatty.org BY U.S.MAIL: I enclosed the document(s) in a sealed envelope or package addressed to 18 || the persons at the addresses listed above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Messing 19 || Adam & Jasmine LLP for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of 20 || business with the United States Postal Service. in a sealed envelope with postage fully prepaid. The envelope was placed in the mail at San Francisco, California. BY ELECTRONIC SERVICE: I electronically served the document(s) described above 22 || via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order 23 || establishing the case website and authorizing service of documents. 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, Executed on March 6, 2019 at San Francisco, California. 25 26 27 28 MESSING ADAM & TASMINE LLP ATTORNEYS AT LAW 00067636-1