Demurrer in Christopher Desmond vs. Civil Service Board of the City of Fresno / WM| Trellis.Law

On February 16, 2021 a Motion-Secondary was filed involving a dispute between Desmond, Christopher, and City Of Fresno, Civil Service Board Of The City Of Fresno, for 02 Unlimited - Writ of Mandate in the District Court of Fresno County.

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E-FILED
1 HARRY S. STERN, SBN 176854 5/20/2021 12:07 PM
JACOB A. KALINSKI, SBN 233709 Superior Court of California
2 BRIAN P. ROSS, SBN 273991 County of Fresno
GIDIAN R. MELLK, SBN 214404 By: E Alvarado, Deputy
3
RAINS LUCIA STERN ST. PHALLE & SILVER, PC
4 220 Montgomery Street, Suite 1500
San Francisco, CA 94104
5 Tel: 415.341.9341
Fax: 925.609.1690
6 E-mail: JKalinski@RLSlawyers.com
7 GMellk@RLSlawyers.com

8 Attorneys for Petitioner, Christopher Desmond

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF FRESNO
11

12
CHRISTOPHER DESMOND, CASE NO. 21CECGOO462
13
Petitioner, [Assigned to the Honorable Mark Cullers]
14
v. PETITIONER CHRISTOPHER
15 DESMOND’S OPPOSITION TO THE
CITY OF FRESNO’S DEMURRER TO
16
CIVIL SERVICE BOARD OF THE CITY OF PETITIONER’S COMPLAINT FOR
17 FRESNO, DAMAGES

18 Respondent,
Petition filed: February 16, 2021
19 CITY OF FRESNO; DOES 1 – 30, inclusive,
Date: June 2, 2021
20
Real Parties in Time: 1:30 p.m.
21 Interest/Respondents. Dept.: 404

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RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 TABLE OF CONTENTS

4 I. INTRODUCTION .................................................................................................... 6

5 II. STATEMENT OF ALLEGATIONS ........................................................................... 7

6 III. STANDARD OF REVIEW ..................................................................................... 8

7 IV. ARGUMENT ........................................................................................................ 9

8 A. THIS COURT HAS INITIAL JURISDICTION OVER THE POBRA CLAIM. ......... 9
B. THE PETITION ALLEGES A VALID CLAIM FOR A VIOLATION OF
9
GOVERNMENT CODE SECTION 3304(b) ................................................................. 11
10
C. PETITIONER DID NOT WAIVE HIS RIGHT TO CHALLENGE THE FAILURE
11
TO PROVIDE DUE PROCESS ................................................................................... 14
12
D. PETITIONER’S CLAIMS ARE NOT BARRED BY CIVIL CODE SECTION 47 .. 16
13
E. NO STATUTORY IMMUNITIES EXCLUDE THE CITY FROM THE
14
REQUIREMENTS OF POBRA OR THE EXTRAORDINARY RELIEF AUTHORIZED
15
BY STATUTE ........................................................................................................... 18
16
V. CONCLUSION ...................................................................................................... 20
17

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2
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 TABLE OF CONTENTS

2 Cases
3 Alhambra Police Officers Assn. v. City of Alhambra Police Dept. (2003)
4 113 Cal.App.4th 1413 ....................................................................................................... 15, 16
5 Benach v. County of L.A. (1997) 60 Cal.App.4th 637 .......................................................... 18, 19
6 Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795....................................................... 12
7 Bockover v. Perko (1994) 28 Cal.App.4th 479 ........................................................................... 10
8 Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155 .................................. 9, 10, 12, 14, 16

9 Caldwell v. Montoya (1995) 10 Cal.4th 972 ............................................................................... 19

10 Caliber Bodyworks, Inc. v. Sup. Ct. (2005) 134 Cal.App.4th 365.............................................. 12

11 Chevrolet Motor Div. v. New Motor Vehicle Bd. (1983) 146 Cal.App.3d 533........................... 10

12 Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992 ....................................... 19

13 Gales v. Superior Court (1996) 47 Cal.App.4th 1596 ...................................................... 6, 10, 11

14 Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600 ............................................................ 17
Hahn v. Mirda (2007) 147 Cal.App.4th 740................................................................................. 8
15
Henneberque v. Culver City (1983) 147 Cal.App.3d 250............................................................. 9
16
Kimmel v. Goland (1990) 51 Cal.3d 202 .................................................................................... 17
17
Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532 .............................. 16
18
Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028 .................... 12
19
Lanigan v. City of Los Angeles (2011) 199 Cal.App.4th 1020 ............................................. 15, 16
20
Lovret v. Sefiarth (1972) 22 Cal.App.3d 841.............................................................................. 11
21
Moncharsh v. Heily & Blase (1992) 3 Cal. 4th 1........................................................................ 16
22
Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210 .................................... 13
23
Mounger v. Gates (1987) 193 Cal.App.3d 1248 ................................................................... 10, 11
24
Nat. Auto. & Cas. Co. v. Ind. Acc. Com. (1949) 34 Cal.2d 20 ................................................... 13
25
Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97 ................................................. 12
26
Rodas v. Spiegel (2001) 87 Cal.App.4th 513 .............................................................................. 16
27
Roesch v. De Mota (1944) 24 Cal.2d 563 ................................................................................... 14
28
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RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 Rusheen v. Cohen (2006) 37 Cal.4th 1048 ................................................................................. 17

2 Samaan v. Trustees of the Cal. State University & Colleges (1983) 150 Cal.App.3d 646 ......... 13

3 Shafer v. Los Angeles County Sheriff's Dept. (2003) 106 Cal.App.4th 1388 ................... 6, 11, 16

4 Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 ........................................................................ 19

5 Silberg v. Anderson (1990) 50 Cal. 3d 205 ................................................................................. 17

6 SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902 ........................................................ 8

7 State v. Superior Court (Veta) (1974) 12 Cal.3d 237 ................................................................. 10
Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216............. 8
8
Toal v. Tardiff (2009) 178 Cal.App.4th 1208 ............................................................................. 11
9
Unnamed Physician v. Board of Trustees (2002) 93 Cal.App.4th 607....................................... 10
10
Vollstedt v. City of Stockton (1990) 220 Cal.App.3d 265 ........................................................... 13
11
Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106 ................................... 10, 11, 15, 16
12

13 Federal Cases

14 McCarthy v. Madigan (1992) 503 U.S. 140 ............................................................................... 10

15 Statutes

16 Civil Code section 47(b) ............................................................................................................. 16

17 Code of Civil Procedure section 430.30 ....................................................................................... 8

18 Code of Civil Procedure section 430.41(a)(4) .............................................................................. 8

19 Code of Civil Procedure section 430.70 ....................................................................................... 8

20 Code of Civil Procedure section 1094.5 ..................................................................................... 11

21 Government Code section 814 .................................................................................................... 19
Government Code section 815.2(b) ............................................................................................ 18
22
Government Code section 815.6 ................................................................................................. 20
23
Government Code section 818.2 ........................................................................................... 18, 19
24
Government Code section 820.4 ................................................................................................. 18
25
Government Code section 820.6 ................................................................................................. 18
26
Government Code section 821.6 ................................................................................................. 18
27
Government Code section 3304(b) ...................................................................................... passim
28
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RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 Government Code section 3309.5 ........................................................................................ passim

2 Government Code section 3309.5(a) .......................................................................................... 18

3 Government Code section 3309.5(c) ................................................................................ 9, 15, 16

4 Penal Code section 830.1 .............................................................................................................. 7

5 Other
6 Fresno Municipal Code section 3-283 ................................................................................. passim
7

9
10

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5
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 I. INTRODUCTION

2 Christopher Desmond (“Petitioner”) hereby submits his Opposition to the Demurrer

3 filed by the City of Fresno (“the City”) to the second cause of action in the Verified Petition for

4 Writ of Mandate (“Petition”), which alleges that the City and the Civil Service Board of the

5 City of Fresno (“the Board”) violated the Public Safety Officers Procedural Bill of Rights Act

6 (“POBRA”) by failing to provide Petitioner with an administrative appeal hearing that

7 complied with the requirements of due process.

8 The demurrer filed by the City contains one significant flaw that undermines almost all

9 of the arguments contained therein: this Court is granted initial jurisdiction to remedy all

10 violations of POBRA by Government Code section 3309.5. With limited exceptions that do not

11 apply here, this means that an officer does not need to allege POBRA violations during an

12 administrative hearing and that the officer may allege violations of POBRA in a court

13 proceeding after the administrative hearing as long as the officer concurrently challenges the

14 administrative decision through a writ of administrative mandate. This procedure is well-

15 established in the case law (see Gales v. Superior Court (1996) 47 Cal.App.4th 1596 and

16 Shafer v. Los Angeles County Sheriff's Dept. (2003) 106 Cal.App.4th 1388), but the City fails to

17 cite either case or even Government Code section 3309.5; indeed, the City does not even

18 discuss or address this Court’s initial jurisdiction over POBRA violations.

19 Instead, the City relies on numerous cases concerning waiver or the need to bring

20 claims forward in administrative proceedings, almost none of which concern POBRA

21 violations. There simply is no legal support for the City’s contention that Petitioner somehow

22 waived his ability to challenge whether his administrative hearing violated due process,

23 especially when he is permitted by law to bring those claims to this Court utilizing this Court’s

24 initial jurisdiction.

25 The City’s demurrer also suffers from a second fatal flaw. The violations at the heart of

26 this lawsuit, which alleges that the administrative hearing provided to Petitioner failed to

27 comply with the requirements of due process because the Board did not apply the correct

28 standard on penalty, failed to review the evidence, and failed to adequately explain its reason
6
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 for rejecting the decision of the Hearing Officer (Petition, ¶22), were not ripe until the

2 conclusion of the administrative hearing. As such, Petitioner could not have brought these

3 violations to the Board. He thus did not waive his right to challenge whether the hearing

4 complied with due process, and he certainly did not agree to be bound by the Board’s violative

5 acts merely because he selected a hearing which ended before the Board. After all, if the Board

6 had merely performed in accordance with the law, it may not have been necessary to bring the

7 second cause of action.

8 Finally, a careful review of the demurrer reveals a third fundamental flaw: the complete

9 lack of authority supporting any of the City’s legal positions as it relates to this case. The

10 second cause of action alleges a plain violation of the rights provided by POBRA. Yet, in

11 asserting its various defenses and immunities, the City never cites to any case that holds that a

12 City could be immune from a lawsuit to enforce the rights the Government Code guarantees in

13 POBRA. Absent any such authority, the City cannot argue that the second cause of action is

14 barred by the litigation privilege or by any of the statutory immunities cited in the demurrer.

15 As will be set forth herein, the demurrer to the second cause of action must be overruled

16 in its entirety.

17 II. STATEMENT OF ALLEGATIONS

18 Petitioner has been a member of the Fresno Police Department (the “Department”) since

19 1995, and has held his position as a Police Sergeant with the City of Fresno. As a sworn police

20 officer within the meaning of Penal Code section 830.1, he was entitled to the protections of

21 POBRA. (Petition, ¶4.) On January 5, 2019, Petitioner was involved in an incident that led to

22 disciplinary charges being filed against him and the recommendation of a 40-hour suspension.

23 (Id. at ¶¶5-7.) Petitioner thereafter requested an appeal of his suspension pursuant to Fresno

24 Municipal Code section 3-283. (Id. at ¶8.) The parties selected Michael Eagleson to be the

25 hearing officer. (Ibid.) The hearing was then held on August 25, 2020. (Id. at ¶9.)

26 On September 23, 2020, the Hearing Officer issued his Findings of Fact and Decision,

27 concluding that Petitioner’s suspension was excessive punishment and unreasonable, and that

28 the level of suspension was not within the City’s managerial prerogative. Accordingly, the
7
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 Hearing Officer directed the City to reduce its 40-hour suspension to a 10-hour suspension,

2 and to provide Petitioner back pay due in accordance with the award. (Id. at ¶10.) On October

3 12, 2020, and pursuant to Fresno Municipal Code section 3-283, the Board considered the

4 Findings of Fact and Decision of the Hearing Officer, without taking evidence or hearing

5 argument on behalf of either Petitioner or the City. (Id. at ¶11.) The Board rejected the

6 recommendation of the Hearing Officer, voting to suspend Petitioner from his position as a

7 Police Officer without pay for 40 hours. (Ibid.) In so doing, the Board failed to apply the

8 correct standard on penalty, failed to review the evidence, and failed to adequately explain its

9 reason for rejecting the decision of the Hearing Officer, violating Government Code section

10 3304, subdivision (b). (Id. at ¶22.)

11 III. STANDARD OF REVIEW

12 A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v.

13 Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the

14 allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power

15 (2006) 144 Cal.App.4th 1216, 1228.) “A demurrer tests the pleadings alone and not the

16 evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face

17 of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue

18 involved in a demurrer hearing is whether the complaint, as it stands, unconnected with

19 extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747, quoting

20 SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) 1

21 ///

22 ///

24 1
Although the Court cannot overrule the demurrer for a failure to meet and confer in good faith
pursuant to Code of Civil Procedure section 430.41, subdivision (a)(4), it is apparent that the
25
City failed to meet its statutory obligations. As set forth in the Declaration of Demurring Party
26 in Support of Automatic Extension, the City’s Opposition was initially due on March 25, 2021.
However, the City did not undertake any efforts to meet and confer with Petitioner until the
27 City sent a letter to Petitioner on March 23, 2021. Accordingly, no good faith attempt to meet
and confer more than 5 days before the deadline was undertaken, and the attachment provides
28 no explanation for this failure. (See Petitioner’s RJN, Exh. A.)
8
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 IV. ARGUMENT

2 A. THIS COURT HAS INITIAL JURISDICTION OVER THE POBRA

3 CLAIM.

4 Numerous arguments raised by the City fail to take into account one simple legal

5 principle: this Court has initial jurisdiction of claims for violations of POBRA, and therefore

6 Petitioner’s claim is not subsumed into his claim for administrative mandamus and he was not

7 required to raise an objection to the procedure at the administrative hearing itself. Instead,

8 Petitioner was permitted to pursue his administrative appeal and reserve any challenges

9 regarding violations of POBRA for a later suit brought before this Court.

10 Government Code section 3309.5, subdivision (c) states: “The superior court shall have

11 initial jurisdiction over any proceeding brought by any public safety officer against any public

12 safety department for alleged violations of this chapter.” The plain language of this section is

13 clear, and it grants this Court “initial” jurisdiction over claims regarding the violation of

14 POBRA, including Government Code section 3304, subdivision (b). 2 Yet, despite the clear

15 relevance of this statute to the City’s demurrer, the City fails to cite it or any case discussing it.

16 When those cases that actually discuss Section 3309.5 are analyzed, moreover, it is

17 clear that the City’s arguments that Petitioner’s claim lacks merit because “Petitioner has not

18 alleged that he made any objection during his administrative appeal” (Demurrer, p. 8:21-9:21)

19 and that Petitioner’s claim should have been brought under administrative mandamus (id. at

20 9:23-11:4) both fail.

21 First, contrary to the City’s contention, Petitioner was not required to object to the due

22 process violations of his hearing at the time, even independent of this Court’s initial jurisdiction

23 of the POBRA violations. As held in Brown v. City of Los Angeles (2002) 102 Cal.App.4th

24 155, 175, a party does not need to exhaust administrative remedies when arguing that the

25 procedures do not comply with due process:

26
2
27 In addition, it is well-settled that the rights guaranteed by POBRA, including the right
provided by Section 3304(b), may be enforced through a traditional writ of mandamus, as was
28 alleged here. (See Henneberque v. Culver City (1983) 147 Cal.App.3d 250, 253-255.)
9
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 “‘A party is not required to exhaust the available administrative remedies
when those administrative procedures are the very source of the asserted
2 injury. [Citation.] This rule is merely another facet of the inadequate
administrative remedy exception to the exhaustion rule.’” (Unnamed
3
Physician v. Board of Trustees (2002) 93 Cal.App.4th 607, 621.) A
4 remedy is not adequate if it does not square with the requirements of due
process. (Id., at p. 620; see also Bockover v. Perko (1994) 28
5 Cal.App.4th 479, 486.)
6 (Brown, supra, 102 Cal.App.4th at 168; see also State v. Superior Court (Veta) (1974) 12
7 Cal.3d 237, 250; Chevrolet Motor Div. v. New Motor Vehicle Bd. (1983) 146 Cal.App.3d 533,
8 539; McCarthy v. Madigan (1992) 503 U.S. 140, 147-48.) For the same reason, Petitioner was
9 not required to exhaust his administrative remedies as to the failure of the Board to apply the
10 correct standard on penalty, the failure to review the evidence, and the failure to adequately
11 explain the Board’s reason for rejecting the decision of the Hearing Officer. Indeed, these
12 violations did not ripen until after the Board acted, and therefore Petitioner could not have
13 objected at the time.
14 Second, because the Court has initial jurisdiction, Petitioner did not need to allege a due
15 process violation during the administrative hearing, and he is not limited to only administrative
16 mandamus. Instead, peace officers protected by POBRA are permitted to bring concurrent
17 actions for administrative mandamus while also alleging violations of POBRA pursuant to
18 Government Code section 3309.5. As the Court of Appeal summarized in analyzing case law
19 going back over thirty years:
20 In Mounger v. Gates (1987) 193 Cal.App.3d 1248, 1256 (Mounger) the
court stated that section 3309.5 was “specifically designed to allow an
21
officer to pursue a remedy immediately in the courts for violation of [the
22 Act] during the investigation and not be required to wait for judicial
review after administrative consideration of those violations.” The court
23 in Mounger held that section 3309.5 authorized Mounger to pursue
simultaneously his judicial relief under section 3309.5 and his
24 administrative appeal from any discipline imposed. (Mounger, supra,
193 Cal.App.3d at pp. 1256–1257; see Zazueta v. County of San Benito
25
(1995) 38 Cal.App.4th 106, 113 [participation in arbitration waived
26 rights under section 3309.5, but distinguishing Mounger].)

27 In Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 1602 (Gales),
the court stated, “What Mounger does not tell us is whether a police
28 officer is entitled—after the public entity employer has issued its final
10
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 decision—to file an action under section 3309.5.” The court concluded
that “an officer is entitled to file a section 3309.5 action after his or her
2 public entity employer has issued its final administrative decision.”
(Ibid.)
3

4 The court in Gales noted that a section 3309.5 proceeding deals with
whether a public entity employer violated an officer’s rights under the
5 Act, while a Code of Civil Procedure section 1094.5 mandamus action
calls for a determination of the validity of the final administrative
6 decision made by the public entity employer. (Gales, supra, 47
Cal.App.4th at pp. 1602–1603.) Under Gales, if there has been a final
7
administrative decision, the officer may file an action pursuant to section
8 3309.5 only if the officer has filed or files concurrently a Code of Civil
Procedure section 1094.5 mandamus petition challenging the
9 administrative decision. (Gales, at pp. 1602–1603.)

10 (Shafer v. Los Angeles County Sheriff's Dept. (2003) 106 Cal.App.4th 1388, 1397-1398.) Here,
11 Petitioner has met the requirements outlined in Shafer: he has filed concurrently with the
12 second cause of action his claim for administrative mandamus pursuant to Code of Civil
13 Procedure section 1094.5 challenging the administrative decision. Therefore, this Court has
14 initial jurisdiction to consider the POBRA violations.
15 The City does not cite Mounger, Gales, or Shafer in its demurrer. Indeed, in arguing
16 that the second cause of action is not proper, the City has only cited one case that concerned
17 POBRA: Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106. (See Demurrer, p.
18 9:13.) However, Zazueta does not establish that Petitioner was required to object to the

19 administrative hearing in order to bring a claim based on Section 3309.5 or that Petitioner is

20 limited to only administrative mandate. Instead, as with Toal v. Tardiff (2009) 178

21 Cal.App.4th 1208 and Lovret v. Sefiarth (1972) 22 Cal.App.3d 841, it merely imposes limits

22 for review of issues determined in binding arbitration, which is not at issue here.

23 Accordingly, Petitioner was not required to first assert his claims at the administrative

24 hearing, and he is not limited to only administrative mandamus. The demurrer on this ground

25 must therefore be overruled.

26 B. THE PETITION ALLEGES A VALID CLAIM FOR A VIOLATION OF

27 GOVERNMENT CODE SECTION 3304(b)
28 Government Code section 3304, subdivision (b) provides that Petitioner is entitled to an
11
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 administrative appeal of punitive action. However, contrary to the City’s suggestions, it is not

2 enough to merely provide any administrative appeal; the hearing must comply with due

3 process. As noted by the Court of Appeal in Binkley v. City of Long Beach (1993) 16

4 Cal.App.4th 1795, 1807, “[t]he adequacy of the appeal procedure afforded must be measured

5 according to constitutional due process principles.” Procedural due process requires providing

6 numerous procedural safeguards, including: “At a minimum…: written notice of the grounds

7 for the disciplinary measures; disclosure of the evidence supporting the disciplinary grounds;
the right to present witnesses and to confront adverse witnesses; the right to be represented by
8
counsel; a fair and impartial decisionmaker; and a written statement from the fact finder listing
9
the evidence relied upon and the reasons for the determination made.” (Brown, supra, 102
10
Cal.App.4th at 175.)
11
The City argues that the procedure utilized by the Department in this case complied
12
with Government Code section 3304, subdivision (b) because Petitioner was given the
13
opportunity for an administrative appeal. However, the City ignores the fact that the
14
administrative appeal required by Section 3304(b) must provide due process, and the second
15
cause of action alleges that the hearing provided by the Department did not meet the minimum
16
requirements of due process.
17
The second cause of action lists multiple shortcomings of the administrative hearing and
18
the process utilized by the Board here: the Board failed to apply the correct standard on
19
penalty, failed to review the evidence, and failed to adequately explain its reason for rejecting
20
the decision of the Hearing Officer (Petition, ¶22); and the process in Fresno Municipal Code
21
section 3-283 does not require the Board to take evidence or hear argument in its review of the
22
Hearing Officer’s decision. (Petition, ¶23.) As is plain from the allegations, Paragraph 22 is an
23
as-applied challenge, while Paragraph 23 is a facial challenge to the process itself. 3
24

25 3
Notably, the demurrer to the second cause of action cannot be sustained if the Court
26 determines that either the as-applied or facial challenge is valid. Demurrers do not lie as to only
parts of causes of action, where some valid claim is alleged. (See Poizner v. Fremont General
27 Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action
to be sustained.”]; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th
28 1028, 1046; Caliber Bodyworks, Inc. v. Sup. Ct. (2005) 134 Cal.App.4th 365, 384-85
12
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 Based on the procedure set forth in Section 3-283, the Board is the final decision-

2 maker. However, Section 3-283 specifies that the Board cannot take evidence and cannot

3 hear argument from either side. The Board, then, without taking additional evidence or

4 permitting argument, is thereafter permitted to alter or reject the Hearing Officer’s decision.

5 This violates the fundamental precept of due process that “the one who decides must hear.”

6 (Vollstedt v. City of Stockton (1990) 220 Cal.App.3d 265, 275.) As the Vollstedt court

7 explained, “If the one who determines the facts which underlie the order has not considered

8 evidence or argument, it is manifest that the hearing has not been given.” (Id.)

9 There are two limited exceptions to this general rule. First, an independent review of

10 the evidence is not necessary if a reviewing body merely adopts the recommendation of the

11 hearing officer who heard the evidence. However, if the Board changes the decision, then it

12 must undertake a review of the evidence. (See Nat. Auto. & Cas. Co. v. Ind. Acc. Com. (1949)

13 34 Cal.2d 20, 30.) Second, a full review of the evidence is not required; rather, “an

14 independent study is adequate, we held, if the decisionmaker ‘reviewed the record to a

15 sufficient extent to enable him to make an informed judgment.’” (Vollstedt, supra, 220

16 Cal.App.3d at 276, quoting Samaan v. Trustees of the Cal. State University & Colleges

17 (1983) 150 Cal.App.3d 646, 661.)

18 The Petition alleges that the hearing process failed to meet these requirements, as

19 reflected in the Ordinance itself. The Board is only required to review the hearing officer’s

20 findings of fact and recommendation, but it is not required to undertake any independent

21 review of the record even if it disagrees with the recommendation.

22 In addition, the Petition alleges that the hearing before the Board failed to comply

23 with due process because the Board failed to apply the correct standard on penalty and failed

24 to adequately explain its reason for rejecting the decision of the Hearing Officer. The

25 demurrer never actually addresses any of these deficiencies, and therefore the City has

26 waived any argument that these failures to do not constitute failures of due process, as

27 alleged. (See Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215

28 [“Contentions are waived when a party fails to support them with reasoned argument and
13
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1 citations to authority.”].) Nevertheless, it is clear that both application of the correct standard

2 and an explanation are required by due process. An officer must be provided with an

3 independent appeal of his discipline and penalty, and the Board cannot merely dismiss its

4 independent review by acceding to the discretion of the Chief of Police. Similarly, Brown

5 requires an adequate written explanation, which is alleged to be absent here.

6 For the above reasons, the second cause of action adequately alleges that the process

7 utilized by the Department did not comply with due process.

8 C. PETITIONER DID NOT WAIVE HIS RIGHT TO CHALLENGE THE

9 FAILURE TO PROVIDE DUE PROCESS

10 “Waiver is the intentional relinquishment of a known right after knowledge of the

11 facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572.) The City contends that, by opting for a

12 hearing pursuant to Municipal Code section 3-283, Petitioner has waived any challenge to those

13 proceedings themselves. (Demurrer, p. 7:22-8:20.) However, the City’s argument fails for two

14 separate and independent reasons.

15 First, as noted above, the second cause of action alleges in part that the Board’s decision

16 and process violated due process. Those violations include applying the improper standard of

17 review and its failure to review the evidence. (See Petition, ¶22.) These violations were not

18 mandated by the procedure in Section 3-283, and therefore Petitioner could not be said to have

19 waived his right to challenge these failures by selecting this form of hearing, because those

20 violations were not yet ripe. In addition, if the Board had merely adopted the recommendation

21 of the hearing officer, there may not have been a due process violation. Thus, it cannot be said

22 that merely agreeing to the procedure in Section 3-283 is a knowing relinquishment of a known

23 right, especially where the violations that were allegedly waived had not yet even occurred.

24 Second, the City’s argument fails because it has not cited any authority that an

25 agreement to a certain hearing procedure can constitute a waiver of the right to allege a cause

26 of action based on Government Code section 3309.5. As the City notes, it is clear that an

27 officer may waive POBRA rights in certain situations. However, none of those cases can be

28 extended to find a waiver here. For example, in Lanigan v. City of Los Angeles (2011) 199
14
RAINS LUCIA STERN
OPPOSITION TO DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE
ST. PHALLE & SILVER. PC
1 Cal.App.4th 1020, a police officer, as part of a settlement of pending disciplinary charges,

2 agreed to resign and waive an administrative appeal “if similar misconduct charges were

Case Info

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Cullers, Mark Track Judge’s New Case

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Document Filed Date

May 20, 2021

Case Filing Date

February 16, 2021

County

Parties

City of Fresno Respondent
Civil Service Board of the City of Fresno Respondent
Civil Service Board of the City of Fresno Respondent
Desmond, Christopher Petitioner
Desmond, Christopher Petitioner
Harry Stern Attorney
Gidian Mellk Attorneys for Plaintiffs
Jacob Kalinski Attorneys for Plaintiffs
Brian Ross Attorneys for Plaintiffs
James Beatty Attorney
Joseph Rubin Attorney
Douglas Sloan Attorneys for Defendants
Wiley Driskill Attorney
Tina Griffin Attorneys for Defendants
James Sanchez Attorneys for Defendants

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Motion-Secondary: Christopher Desmond vs. Civil Service Board of the City of Fresno / WM

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