Filed 11/10/14 Godales v. County of Los Angeles CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


VICTOR GODALES,                                                      B251745

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BS139239)
         v.

COUNTY OF LOS ANGELES et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Joanne
O’Donnell, Judge. Affirmed.
         Green & Shinee and Elizabeth J. Gibbons for Plaintiff and Appellant.
         Law Offices of William Balderrama, William Balderrama and Daniel C.
Carmichael, III for Defendants and Respondents.
                                           ______________________
      Los Angeles County Sheriff’s Deputy Victor Godales pleaded no contest to aiding
or abetting a motor vehicle speed contest on a highway. After he was suspended for
20 days based on the underlying criminal conduct, Godales petitioned for writ of mandate
to set aside the disciplinary action on the ground the Los Angeles County Sheriff’s
Department (Department) did not notify him of the proposed discipline within the one-
year limitations period set forth in the Peace Officers’ Bill of Rights Act (POBRA) (Gov.
                           1
Code, § 3304, subd. (d).) The trial court sustained the Department’s demurrer to
Godales’s first amended petition without leave to amend and entered a judgment
                       2
dismissing the petition. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
      After an off-duty collision on May 6, 2010, Deputy Godales was arrested and
charged with driving under the influence of alcohol (Veh. Code, § 23512, subds. (a) &
(b)); and the Department’s Internal Affairs Bureau opened an investigation. On July 29,
2010 Godales pleaded no contest to aiding or abetting a motor vehicle speed contest on a
highway (Veh. Code, § 23109, subd. (b)); the driving under the influence charges were
dismissed. On August 25, 2010 the Internal Affairs Bureau completed its investigation.
On July 29, 2011 Godales was served with a letter of intent to suspend him for 20 days
without pay or benefits. He was suspended on November 29, 2011.
      Godales petitioned for a writ of mandate to rescind the disciplinary action and
reimburse him for back pay and benefits on the ground he had not been informed of the
disciplinary action until one day after the statutory deadline had passed. The Department
demurred to Godales’s first amended petition, arguing POBRA’s one-year limitations
period, which does not begin to run until the Department learns of the alleged
misconduct—here, May 6, 2010—was tolled during the time the criminal investigation


1     Statutory references are to the Government Code unless otherwise indicated.
2      Although the amended petition also named the County of Los Angeles, Sheriff
Lee Baca and various Department personnel as defendants, for ease of reference we refer
only to the Department as the defendant.

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and prosecution were pending (§ 3304, subd. (d)(2)(A))—that is, from May 6, 2010
through July 29, 2010. Accordingly, the Department had one year from July 29, 2010 to
inform Godales of the proposed disciplinary action. The Department then asserted under
Code of Civil Procedure section 12, which generally sets forth the method for calculating
limitations periods, the day on which Godales pleaded no contest (July 29, 2010) was
properly excluded from the calculation. As a result, the Department had until July 29,
2011 to serve its notice of intent, which it did.
       In his opposition Godales agreed the one-year limitations period was tolled until
July 29, 2010, but insisted that day should be included in calculating the 365-day
limitations period. Using Godales’s method for determining the limitations period, the
notice of intent had to be served no later than July 28, 2011 and thus was untimely.
Relying on Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064,
1078-1079 (Breslin), the trial court found Code of Civil Procedure section 12 was
applicable, sustained the Department’s demurrer without leave to amend and thereafter
entered a judgment dismissing Godales’s petition.
                                       DISCUSSION
       1. Standard of Review
       A demurrer tests the legal sufficiency of the factual allegations in a complaint or
petition. We independently review the superior court’s ruling on a demurrer and
determine de novo whether the pleading alleges facts sufficient to state a cause of action
or discloses a complete defense. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th
412, 415; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We assume the
truth of the properly pleaded factual allegations, facts that reasonably can be inferred
from those expressly pleaded and matters of which judicial notice has been taken. (Evans
v. City of Berkeley (2006) 38 Cal.4th 1, 20; Schifando v. City of Los Angeles (2003)
31 Cal.4th 1074, 1081.) We liberally construe the pleading with a view to substantial
justice between the parties. (Code Civ. Proc., § 452; Schifando, at p. 1081.)
       We also review de novo issues of statutory construction. (In re Tobacco II Cases
(2009) 46 Cal.4th 298, 311; People ex rel. Lockyer v. Shamrock Foods Co. (2000)

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24 Cal.4th 415, 432.) In construing statutes “[o]ur fundamental task . . . is to ascertain
the intent of the lawmakers so as to effectuate the purpose of the statute[s]. [Citation.]
We begin by examining the statutory language, giving the words their usual and ordinary
meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant
what they said, and the plain meaning of the language governs. [Citations.] If, however,
the statutory terms are ambiguous, then we may resort to extrinsic sources, including the
ostensible objects to be achieved and the legislative history. [Citation.] In such
circumstances, we ‘“select the construction that comports most closely with the apparent
intent of the Legislature, with a view to promoting rather than defeating the general
purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.”’” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272; accord, People v.
Lawrence (2000) 24 Cal.4th 219, 230.)
       2. Godales Was Timely Notified of the Disciplinary Action
       Section 3304 provides a number of procedural rights for public safety officers who
may be accused of misconduct in the course of their employment. Section 3304,
subdivision (d)(1), establishes a limitations period specifying that “‘no punitive action’
may be imposed upon any public safety officer for alleged misconduct unless the public
agency investigating the allegations ‘complete[s] its investigation and notif[ies] the
public safety officer of its proposed disciplinary action’ within one year of discovery of
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the alleged misconduct.” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 317.)


3      Section 3304, subdivision (d)(1), states, “Except as provided in this subdivision
and subdivision (g), no punitive action, nor denial of promotion on grounds other than
merit, shall be undertaken for any act, omission, or other allegation of misconduct if the
investigation of the allegation is not completed within one year of the public agency’s
discovery by a person authorized to initiate an investigation of the allegation of an act,
omission, or other misconduct. This one-year limitation period shall apply only if the act,
omission, or other misconduct occurred on or after January 1, 1998. In the event that the
public agency determines that discipline may be taken, it shall complete its investigation
and notify the public safety officer of its proposed discipline by a Letter of Intent or
Notice of Adverse Action articulating the discipline that year, except as provided in
paragraph (2) [concerning an act that is also the subject of a criminal investigation or

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Although “[l]imitations statutes ordinarily establish the period in which an action must be
initiated,” “section [3304, subdivision (d)(1),] functions as a limitations period,” on
investigation of “alleged acts or omissions which may lead to punitive actions.” (Id. at
pp. 323, 324.) Section 3304, subdivision (d)(2)(A), provides the limitations period is
tolled during the pendency of any criminal investigation of, or criminal prosecution for,
                                                                      4
the misconduct. (See Breslin, supra, 146 Cal.App.4th at p. 1169.)
       Code of Civil Procedure section 12, setting forth “the ‘ordinary rule of
computation of time’” (Ley v. Dominguez (1931) 212 Cal. 587, 594), provides, “The time
in which any act provided by law is to be done is computed by excluding the first day,
and including the last, unless the last day is a holiday, and then it is also excluded.”
(Code. Civ. Proc., § 12.) As the Ley Court explained, “The gravest considerations of
public order and security require that the method of computing time be definite and
certain. Before a given case will be deemed to come under an exception to the general
rule the intention must be clearly expressed that a different method of computation was
provided for.” (Ley, at pp. 594-595; accord, In re Rodriguez (1964) 60 Cal.2d 822, 825-
826; Latinos Unidos de Napa v. City of Napa (2011) 196 Cal.App.4th 1154, 1161; see
In re Anthony B. (2002) 104 Cal.App.4th 677, 682 [“[a]bsent a compelling reason for a
departure, [Code Civ. Proc., § 12] governs the calculation of all statutorily prescribed
time periods”].)
       Godales contends the trial court erred in applying Code of Civil Procedure
section 12 because section 3304, subdivision (d)(2)(A), unambiguously provides the
limitations period is tolled only while the criminal investigation or prosecution is pending
and does not expressly exclude the day on which tolling ends or refer to Code of Civil


prosecution]. The public agency shall not be required to impose the discipline within that
one-year period.”
4      Section 3304, subdivision (d)(2)(A), states, “If the act, omission, or other
allegation of misconduct is also the subject of a criminal investigation or criminal
prosecution, the time during which the criminal investigation or criminal prosecution is
pending shall toll the one-year time period.”

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Procedure section 12. He argues the criminal investigation and prosecution were no
longer pending on July 29, 2010, the day he pleaded no contest, so it should have been
included in the calculation of the one-year limitations period.
       As a threshold matter, it is unassailable Code of Civil Procedure section 12 applies
to section 3304, subdivision (d)(1), which does not clearly express an intention the
limitations period should be computed in a different manner. (See Ley v. Dominguez,
supra, 212 Cal. at pp. 594-595.) Moreover, the legislative history of POBRA does not
support an argument Code of Civil Procedure section 12 is inapplicable. As the Mays
Court explained, and Godales argues, “in enacting section 3304(d), it is clear that the
Legislature was focused upon preventing a perceived lack of fairness caused by a drawn-
out investigatory process . . . .” (Mays, supra, 43 Cal.4th at p. 324; see ibid. [“[r]elevant
committee reports express concern about the length of disciplinary investigations and
focus upon the need to conclude those investigations in a timely fashion”].)
Nevertheless, whether the last day of the tolling period is included or excluded from the
calculation of the limitations period is not the kind of delay POBRA was intended to
address.
       It is not as clear Code of Civil Procedure section 12 applies to section 3304,
                                             5
subdivision (d)(2)(A)—a tolling provision. However, even without application of Code
of Civil Procedure section 12 to the tolling provision, the notice to Godales was timely.
The Department learned of the alleged misconduct as a result of Godales’s arrest on the
same day as the initiation of the criminal investigation. Tolling thus began at the very
inception of the limitations period. Accordingly, July 29, 2010—the day Godales
pleaded no contest and tolling ceased—must be considered as the functional equivalent of
the day the misconduct was discovered. That day, pursuant to section 3304,
subdivision (d)(1), and Code of Civil Procedure section 12, is not included in the
calculation of the one-year limitations period: In parlance familiar to practitioners and

5       “If a limitation provision is tolled, it means the period in which one is required to
act is suspended, that is, it does not run during the tolling period.” (Parra v. City and
County of San Francisco (2006) 144 Cal.App.4th 977, 993, fn. 10.)

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judges in our criminal courts, it was “day zero of 365.” (See generally Barsamyan v.
Appellate Division of Superior Court (2008) 44 Cal.4th 960, 968; People v. Superior
Court (Alexander) (1995) 31 Cal.App.4th 1119, 1126, fn. 5.) July 29, 2011 was,
therefore, the 365th day; and the notice of intent was timely served on Godales. The
Breslin court reached the same result on analogous facts although it did not explain its
rationale. (See Breslin, supra, 146 Cal.App.4th at p. 1079 [applying Code Civ. Proc.,
§ 12 “the one-year statute of limitations did not begin to run until February 11, 1999, the
day after” the criminal investigation formally ended and officers had been notified].)
       A different approach based on guidance from the Supreme Court in Woods v.
Young (1991) 53 Cal.3d 315 yields the same result: “Tolling may be analogized to a
clock that is stopped and then restarted. Whatever period of time that remained when the
clock is stopped is available when the clock is restarted, that is, when the tolling period
has ended.” (Id. at p. 326, fn. 3.) On the day the clock stopped, essentially there were
366 days left because of the exclusion of the first day from the limitations calculation.
Consequently, on the day the clock restarted—July 29, 2010—there were 366 days
remaining—until July 29, 2011.
       Ganahl v. Soher (1884) 2 Cal.Unrep. 415 (Ganahl), relied upon by Godales, does
not compel a different conclusion. Ganahl involved Code of Civil Procedure
section 328, which excluded (as it does now) from the limitations period the time during
which a person otherwise entitled to commence certain real property actions is under the
age of majority. The question was when the plaintiff reached legal age, a surprisingly
difficult issue with subsequent cases coming to different conclusions for 100 years until
the Supreme Court’s decision in In re Harris (1993) 5 Cal.4th 813 (Harris). As the
Harris Court explained, whether a person attained a certain age on his or her birthday, or
the preceding day, “would be easily answered” if it were not a legal question, because
“the common, everyday method of age calculation holds” that a person attains that age on
“his or her corresponding birthday. Nevertheless, the common law rule for calculating a
person’s age has always been that one reaches a given age at the earliest moment of the
day before their anniversary of birth.” (Id. at p. 844.) The Harris Court held the

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Legislature had abrogated the common law rule in favor of the “birthday rule” when it
enacted former Civil Code section 26 providing, “‘The periods specified in [former Civil
Code section 25 stating male minors are under 21 years of age and female minors are
under 18 years of age] must be calculated from the first minute of the day on which
persons are born to the same minute of the corresponding day completing the period of
minority.’” (Harris, at p. 844.) Although the Ganahl Court did not mention the common
law rule when it applied former Civil Code section 26 to the facts at issue, its holding was
consistent with rejection of the common law rule. (See Harris, at p. 846.) Having
determined the date of which the plaintiff attained the age of majority, without any
further discussion the Ganahl Court then held that date should be included in calculating
the governing five-year limitations period. Ganahl, involving the specific issue of age
calculation, is not binding in this entirely different context, nor is it instructive because it
was concerned with a different statute and common law history.
       Godales also relies on several cases in which the day a criminal investigation was
completed was included in the limitations calculation under POBRA. (See Richardson v.
City and County of San Francisco Police Com. (2013) 214 Cal.App.4th 671, 693;
Crawford v. City of Los Angeles (2009) 175 Cal.App.4th 249, 252-254; Parra v. City and
County of San Francisco (2006) 144 Cal.App.4th 977, 993.) However, whether that
one day was included or excluded from the calculation was not outcome determinative in
any of those cases; and none analyzes the issue. (See People v. Jennings (2010)
50 Cal.4th 616, 684 [“‘cases are not authority for propositions not considered’”].)
                                       DISPOSITION
       The judgment is affirmed. The defendants are to recover their costs on appeal.



                                                    PERLUSS, P. J.

       We concur:


              WOODS, J.                             ZELON, J.


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