Filed 10/24/13 Rubio v. City of Hawthorne CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                          SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




GUSTAVO RUBIO,                                                                B239259

                        Plaintiff and Appellant,                              (Los Angeles Country
                                                                              Super. Ct. No. YC061099)
                              v.

CITY OF HAWTHORNE,

                       Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles Country,
Stuart M. Rice, Judge. Affirmed in part, reversed in part and remanded with directions.
          Corey W. Glave for Plaintiff and Appellant.
          Liebert Cassidy Whitmore, Jeffrey C. Freedman, Adrianna E. Guzman, and
Jennifer K. Palagi for Defendant and Appellant.
                                         ______________________________
       Gustavo Rubio and Virginia Iler, officers in the City of Hawthorne’s Police
Department, sued the city and the police department (together, the city) for violating the
Public Safety Officers Procedural Bill of Rights Act (POBRA, Gov. Code, § 3300 et
seq.).1 The city appeals from the judgment in Rubio’s favor.2 We uphold the trial court’s
finding of POBRA violations, but agree with the city that setting aside Rubio’s
suspension was not a proper remedy absent a showing of actual prejudice.
       Rubio appeals from the court’s findings that his removal from a special weapons
and tactics team (SWAT team) did not constitute a punitive action and that the city’s
violations were not malicious. These findings are not in error. But the court erred in
denying Rubio the opportunity to move for attorney fees under Code of Civil Procedure
section 1021.5.
       We affirm the judgment in part and reverse in part. On remand, the trial court
shall allow Rubio to file a motion for attorney fees.


                      FACTUAL AND PROCEDURAL SUMMARY
       On May 29, 2007, Hawthorne police officers responded to a robbery call at a Best
Buy store. Two suspects were taken into custody. While another officer was questioning
one of the handcuffed suspects, Rubio suddenly grabbed that suspect by the shoulder and
placed his hands around the suspect’s neck. The suspect dropped to the floor.
       Sergeant Catano, who stood nearby, saw Rubio place his hands on the suspect and
walked over to find out what had happened. He asked Rubio whether the suspect had
tried to swallow drugs, and Rubio responded that he had not. Rubio recalled that a few
minutes later Catano pulled him aside in the store, asked him to explain his use of force,
and told him “he wasn’t happy with what he had seen.” Catano did not remember this
particular conversation. Both officers remembered discussing the incident in the store

       1
           Statutory references are to the Government Code unless otherwise indicated.
       2
        The city has dismissed its appeal as to Iler, and our review of the record does not
include her.

                                              2
parking lot. Rubio’s explanation was that the suspect had started talking to his
accomplice, had not responded to verbal commands, and had tried to get around Rubio.
Rubio had grabbed the suspect in an effort to control him. Catano was under the
impression that the suspect had been rendered unconscious because his eyes were
partially closed, but Rubio denied trying to “choke him out.”
       After hearing Rubio’s explanation, Catano decided to write a supervisory
complaint about Rubio’s conduct. He directed Rubio to review the store’s surveillance
video with him and to document his use of force. The two went to the store’s security
office together and repeatedly watched the portion of the video that showed the use-of-
force incident. Catano did not recall asking any questions, but Rubio felt he needed to
explain his actions because Catano said he did not see what Rubio claimed on the tape,
and disapproved of Rubio’s handling of the situation.
       The next day, Catano filed a supervisory complaint against Rubio, claiming the
suspect had been rendered semi-conscious and characterizing Rubio’s use of force as
“unreasonable and not necessary to control” the suspect. In October 2007, following an
internal affairs investigation based on Catano’s complaint, Rubio was served with a
notice of intent to suspend him without pay for 30 days.
       On November 1, 2007, after a Skelly3 prediscipline meeting, the chief of police
issued a notice of suspension. Through his counsel, Rubio immediately appealed the
suspension and requested a hearing before the city’s civil service commission. The next
day, Rubio’s counsel was advised that the commission had a regularly scheduled meeting
set for November 15, but a schedule for Rubio’s hearing would be coordinated after the
commission completed hearing the appeals of two other officers, Vian and Robles, who
also were represented by Rubio’s attorney. On December 18, the attorney inquired
whether Rubio’s appeal “was still being held in abeyance due to the other hearing” and
was advised that the commission “remained adamant” about postponing the appeal.



       3
           Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.

                                              3
       Also in December 2007, Rubio was removed from the SWAT team. The city took
the position that the removal was not a disciplinary action, and that Rubio was not
entitled to notice and an administrative hearing with respect to it.
       The hearing of the Vian and Robles appeals concluded more than a year later, in
April 2009. At that time, Rubio’s attorney again asked when Rubio’s appeal would be
heard, but the hearing was delayed again, this time in order to fill two vacant positions on
the commission. The positions were filled by November 24, 2009. Meanwhile, in early
November, Rubio served the city with notice of a tort claim, and on November 20, 2009,
he filed the complaint in this case.
       In relevant part, the complaint alleged that the city violated POBRA section 3304
in failing to provide Rubio with an administrative appeal for the suspension and removal
from the SWAT team, and in failing to properly notify him of the removal. The
complaint also alleged violations of sections 3303 and 3306.5, on the ground that Rubio
had been denied access to investigative materials. The complaint requested extraordinary
relief prohibiting the police department from taking punitive action against Rubio;
damages, including statutory damages for malicious violations of POBRA under section
3309.5; and attorney fees.
       The commission heard Rubio’s appeal in April and September 2010. It found
Rubio had used excessive force, but reduced his suspension without pay from 30 days to
15 days.
       The case was submitted to the court without live testimony. In its December 2011
statement of decision, the court found that Rubio was denied his right to have his
administrative appeal heard within a reasonable time and that the delay violated the city’s
municipal code. The court also found Catano interrogated Rubio in violation of POBRA
and Rubio did not timely receive essential documents relevant to his administrative
appeal. The court concluded Rubio’s removal from the SWAT team was not punitive,
the POBRA violations were not malicious, and Rubio was not entitled to statutory
damages or attorney fees.


                                              4
       The court issued a writ of mandate ordering the city to adhere to the time frame for
administrative hearings in its municipal code and to develop written policies and
procedures for the timely delivery of information relevant to administrative appeals;
prohibiting the city from imposing the discipline at issue in this appeal; and ordering the
city to restore lost back pay and benefits and permanently remove evidence of the
discipline from Rubio’s personnel file. The judgment ordered plaintiffs to dismiss
another case, Rubio v. City of Hawthorne (Super. Ct., SW Dist., Los Angeles County,
No. YS022551), with prejudice, because the decision in this case rendered it moot.
       The city timely appealed, and Rubio cross-appealed.


                                       DISCUSSION
                                              I
       As a preliminary matter, Rubio argues the city’s appeal is moot because the city
dismissed its appeal as to Iler and chose not to appeal from the judgment in the Vian and
Robles case. (Vian v. City of Hawthorne (Super. Ct., SW Dist., Los Angeles County,
2012, No. YC060661).) All officers were granted substantially similar relief, and the city
filed a return to the writ of mandate issued in the Vian and Robles case. Rubio relies on
the principle that “[a] party who voluntarily complies with the terms of a judgment, or
who satisfies it by voluntary payment or otherwise, impliedly waives the right to appeal
from it.” (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033,
1040.) That principle does not apply since there is no indication the city has filed a return
in this case or that it has complied with the portion of the judgment requiring it to set
aside Rubio’s suspension. Thus, as to Rubio, the city’s appeal is not moot because it
presents an actual controversy for which we can grant effective relief to the city. (See
Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178.)
       In California, a partial appeal from a nonseverable judgment “brings before the
reviewing court all of the nonseverable portions.” (American Enterprise, Inc. v. Van
Winkle (1952) 39 Cal.2d 210, 217.) But “where several persons are affected by a
judgment, the reviewing court will make no determination detrimental to the rights of

                                              5
those who have not been brought into the appeal. As to such persons, the appeal will be
dismissed.” (Id. at p. 218.) Since the city has chosen not to proceed against Iler, this
appeal will not affect her rights. The city’s appeal against Rubio is properly before us.
                                               II
       The city appeals from the court’s findings that Rubio was denied an administrative
hearing in violation of the city’s municipal code and that he was interrogated in violation
of POBRA. It argues the court abused its discretion in setting aside Rubio’s suspension.
In turn, Rubio contends his removal from the SWAT team was a punitive action under
POBRA, and the city’s violations of POBRA were malicious.
       We review issues related to POBRA under the following well-established
standards: The trial court’s factual findings are reviewed for substantial evidence.
(Steinert v. City of Covina (2006) 146 Cal.App.4th 458, 465 (Steinert).) Issues of
statutory interpretation, such as whether POBRA applies to the facts found by the trial
court, are subject to independent review. (Id. at p. 465.) The remedy fashioned by the
trial court is reviewed for abuse of discretion. (City of Los Angeles v. Superior Court
(1997) 57 Cal.App.4th 1506, 1516 (Labio).)
       We decline Rubio’s invitation to find that the record the city filed is inadequate for
review since both parties have filed trial exhibits. We find that each party has presented
the facts in a manner favorable to that party’s position and decline to find that the city’s
presentation of facts is so one-sided as to forfeit its challenge to the sufficiency of the
evidence.
   A. The City’s Appeal
   1. The Delay in Scheduling Rubio’s Administrative Hearing
       The court found the city violated the reasonable time frame set in its municipal
code for holding an administrative hearing, the two-year delay in this case was
unjustified, and Rubio did not waive his right to a timely hearing. The city argues the
claim that the city violated its municipal code was not included in the complaint, Rubio
waived his rights under the municipal code, and the municipal code violation did not
justify setting aside his suspension. The city’s arguments are premised on the incorrect

                                               6
assumption that the claimed violation of the municipal code was independent of any
claimed POBRA violation.
       POBRA section 3304, subdivision (b) states: “No punitive action . . . shall be
undertaken by any public agency . . . without providing the public safety officer with an
opportunity for administrative appeal.” Under POBRA section 3304.5, “[a]n
administrative appeal instituted by a public safety officer under this chapter shall be
conducted in conformance with rules and procedures adopted by the local public
agency.” For the City of Hawthorne, the rules governing administrative appeals are set
out in its municipal code. Section 2.52.060 of the Hawthorne Municipal Code requires
the city civil service commission to “hold a hearing” on a petition for review of a
disciplinary action “within twenty days after receipt” of such a petition.
       In his complaint, Rubio alleged the city had not afforded him a hearing “within a
reasonable time.” He cited POBRA, but did not cite the municipal code. However,
references to the time frame set forth in the municipal code were made at various times
during the proceeding. In his trial brief, Rubio argued he had been denied a hearing
within a reasonable time, citing POBRA sections 3304, subdivision (b), and 3304.5, as
well as section 2.52.060 of the municipal code. The city had sufficient notice of his
claim that, by failing to schedule a hearing within this time frame, it had failed to conduct
an administrative appeal in conformance with its own rules, a violation of POBRA
section 3304.5.
       The court’s statement of decision does not mention POBRA in its discussion of
the municipal code violation. But the remedy makes clear the court considered the
failure to provide an administrative hearing within a reasonable time to be a violation of
POBRA. The court expressly fashioned relief under POBRA, section 3309.5,
subdivision (d)(1), which applies to violations of “any of the provisions of” POBRA and
allows “appropriate injunctive or other extraordinary relief to remedy the violation and to
prevent future violations of a like or similar nature.” Under that section, the court
ordered the city to adhere to section 2.52.060 of its own municipal code, unless the
appealing officer agrees in writing to a delay of a specified length. This remedy is

                                              7
similar to the written waiver requirement for tolling the one-year investigation period in
POBRA section 3304, subdivision (d)(2)(B). POBRA section 3309.5, subdivision (d)(1)
also authorizes the court to prohibit “the public safety department from taking any
punitive action against the public safety officer.” Accordingly, the court ordered that
Rubio’s suspension be set aside. Thus, although the court referred to the officer’s rights
under the municipal code, those rights were relevant to this case only because they were
incorporated into POBRA by section 3304.5. The penalty provision of section 3309.5,
subdivision (d)(1) was triggered by the violation of POBRA rather than by the violation
of the municipal code.
       The two cases on which the city primarily relies to argue a waiver occurred and
that Rubio’s discipline should not be set aside are largely inapposite because neither
involves violation of a local ordinance that also is a POBRA violation. In Bettencourt v.
City and County of San Francisco (2007) 146 Cal.App.4th 1090 (Bettencourt), a police
department’s regulation set a 60-day time limit for the chief of police to recommend a
disciplinary action. The court held that the city’s failure to comply with this time limit
did not require dismissal of the disciplinary proceeding since the regulation did not
specify any sanction for non-compliance. (Id. at. p. 1102.) The court cited the general
rules that a time limit is “deemed to be directory in the absence of a contrary intent” and
that violation of a directory time limit does not “require the invalidation of the
government action” to which the time limit applies. (Ibid.) The court noted that the
appellant cited no authority requiring the dismissal of disciplinary charges as a sanction
for violation of the time limit set in the department’s regulation. (Ibid.)
       Since the violation in Bettencourt did not occur in the context of an administrative
appeal, POBRA sections 3304, subdivision (b) and 3304.5 did not apply and no argument
was made that the violation of the police department’s regulation was a violation of
POBRA. Here, in contrast, sections 3304 and 3304.5 are at issue, and a violation of their
provisions entitles Rubio to a remedy under section 3309.5, subdivision (d)(1). The trial
court granted Rubio a remedy under POBRA, not under the municipal code, and the


                                              8
question is whether the remedy is justified under the state statute, not under the local
ordinance.
       The city also relies on Mumaw v. City of Glendale (1969) 270 Cal.App.2d 454
(Mumaw). There, a local ordinance specified a jurisdictional time limit for decisions of
the zoning administrator and provided a specific procedure for granting extensions with
an applicant’s approval. (Id. at p. 456.) The applicant’s attorney consented to an
extension in writing, but the consent was dated after the jurisdictional time limit. The
court held that once the time limit expired without a proper extension, jurisdiction could
not be conferred through waiver. (Id. at p. 458.) The city argues that because the time
limit in the municipal code was not jurisdictional, it could be and was in fact waived.
       The city does not address whether POBRA sections 3304, 3304.5, and 3309.5
render the 20-day time limit in the municipal code jurisdictional.
       POBRA section 3304, subdivision (d) places a one-year limitation on internal
investigations of officer misconduct and expressly prohibits taking any punitive action in
violation of this limitation period. That is “to ensure that an officer will not be faced with
the uncertainty of a lingering investigation, but will know within one year of the agency’s
discovery of the officer’s act or omission that it may be necessary for the officer to
respond in the event he or she wishes to defend against possible discipline.” (Mays v.
City of Los Angeles (2008) 43 Cal.4th 313, 322.) In his trial brief, Rubio argued that an
officer’s administrative appeal should be heard in “a reasonably prompt manner” by
analogy with this express limitation on investigations.
       This analogy is misleading. Generally, clear legislative intent is required to deem
a time limit mandatory so as to deprive a decision maker of further jurisdiction.
(California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th
1133, 1147–1148.) While POBRA section 3304, subdivision (d) creates a one-year
limitation period for completing investigations and expressly prohibits filing charges in
violation of that period, no express prohibition of untimely administrative hearings is
included in sections 3304, 3304.5, and 3309.5. Were such prohibition to be read into
those sections by analogy with the limitation period in section 3304, subdivision (d), it

                                              9
would in effect deprive an officer of an administrative appeal under POBRA if the local
agency holds an untimely hearing. (See Edwards v. Steele (1979) 25 Cal.3d 406, 410 [to
hold time limit for administrative decision mandatory and jurisdictional would deprive
“the aggrieved party of his appeal through no fault of his own”].) We conclude that
POBRA does not render the time limit in the city’s municipal code jurisdictional.
       If the 20-day time limit is not jurisdictional under POBRA, then, under Mumaw,
supra, 270 Cal.App.2d 454, it is subject to waiver. It is undisputed that no express
written waiver like the one in Mumaw occurred in this case. The city argues Rubio
waived the time limit by acquiescing and contributing to the delay. As the trial court
noted, the city cites no authority that acquiescence constitutes a waiver of an officer’s
right to have a timely hearing, whether under the municipal code or under POBRA. A
point not supported by adequate argument or authority may be deemed forfeited. (Nelson
v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)
       The city assumes that acquiescence always constitutes waiver, and that an attorney
may always waive the client’s rights. But that is not always the case. (See, e.g., People
v. Edwards (1991) 54 Cal.3d 787, 813 [right to jury trial not waived by acquiescence].)
Moreover, the city fails to distinguish waiver in the narrow sense of an intentional
relinquishment of a known right, from forfeiture or loss of a right due to failure to
perform a required act. (See Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 314–
315.) There is no evidence of waiver in the narrower sense, as the record does not
establish that Rubio knew of the 20-day time limit and intentionally waived it, whether
expressly or through acquiescence. Since the city appears to use waiver in the narrower
sense, its argument is unsupported by evidence.
       We also decline to find forfeiture under the circumstances, especially since the
city does not clearly make that argument. The evidence shows that when Rubio’s
attorney was advised that Rubio’s hearing would not be scheduled until after the Vian
and Robles appeals were heard, he assumed the appeal was held in abeyance. The
attorney did not demand that the city comply with the 20-day time limit in the municipal
code, even though he occasionally asked about the status of the appeal. The record

                                             10
indicates the commission could schedule more than one hearing at a time. Because
Rubio’s attorney also represented Vian and Robles, it is unclear whether it would have
been practical or reasonable to hear all appeals within the 20-day time frame.
       Even were we to assume that the failure to demand a hearing within 20 days
forfeited the specific time limit, it did not forfeit Rubio’s right to have a hearing within a
reasonable time. (See, e.g., Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1329–1331
[administrative appeal process established under memorandum of understanding between
police union and department subject to scrutiny under section 3304 due process
protections].) The record shows the Vian and Robles appeals took an inordinately long
time due to scheduling problems. Hardly any of those problems were caused by Rubio’s
attorney, who complained to the city about the delays. Thus, while the attorney may have
acquiesced in postponing Rubio’s hearing until the conclusion of the Vian and Robles
appeals, we cannot say that he acquiesced or substantially contributed to the protracted
hearing of those appeals. At their end, the attorney asked about scheduling Rubio’s
appeal, but the city did not do so until it filled two vacant seats on the commission. The
record shows the commission could have heard the appeal with only three or four
members. The additional delay was, therefore, unjustified.
       We conclude that the delay in holding a hearing on Rubio’s appeal violated
POBRA sections 3304 and 3304.5, and entitled Rubio to a remedy under section 3309.5.
However, the delay did not automatically invalidate the civil service commission’s
decision to uphold the suspension after eventually holding a hearing.
   2. Interrogation
       The trial court found that Sergeant Catano’s repeated questioning of Rubio
immediately after the use-of-force incident constituted an interrogation for purposes of
POBRA section 3303, subdivision (i). That section provides that “whenever an
interrogation focuses on matters that are likely to result in punitive action against any
public safety officer, that officer, at his or her request, shall have the right to be
represented by a representative of his or her choice who may be present at all times
during the interrogation. . . . [¶] This section shall not apply to any interrogation of a

                                               11
public safety officer in the normal course of duty, counseling, instruction, or informal
verbal admonishment by, or other routine or unplanned contact with, a supervisor or any
other public safety officer . . . .” (§ 3303, subd. (i).) The city argues Catano’s
questioning of Rubio fell under the exception for routine contacts in the normal course of
duty. We disagree.
       In Labio, supra, 57 Cal.App.4th 1506, the court held that an interrogation did not
fall under the exception for routine contacts where, at the time it occurred, the officer’s
supervisor already knew the officer was subject to discipline for unauthorized use of a
police car and failure to stop at the scene of a fatal accident. (Id. at pp. 1510, 1514.) In
contrast, in Steinert, supra,146 Cal.App.4th 458, an officer was thought to have
misidentifed the reason for conducting a criminal history search prompted by a victim’s
vandalism report by treating it as training instead of identifying it by the crime report
number. (Id. at p. 460.) This was considered a minor procedural error, and the officer’s
supervisor discussed the problem with the officer. During the conversation with her
supervisor, the officer denied disclosing confidential information she obtained from the
search to the victim. Her statement turned out to be false, and she eventually was
terminated. (Id. at p. 461.) The court held the protections of POBRA section 3303 did
not apply because at the time the supervisor talked to the officer, he did not suspect her of
misconduct and did not intend to punish her. (Id. at p. 466.)
       Here, the court credited Rubio’s recollection that Catano questioned him about the
use-of-force incident four separate times shortly after the incident. The city claims there
were only three conversations because the store surveillance videos do not corroborate
Rubio’s recollection that Catano pulled him aside from other officers in the store to talk
about his use of force. Whether there were three or four conversations, however, is not
determinative. The court concluded that the first questioning—whether Rubio believed
the suspect had swallowed drugs—was a routine inquiry, after which Catano began
investigating Rubio for improper use of force. The court also concluded that Catano had
decided to write a supervisory complaint about the use of force before the two watched
the surveillance video together.

                                              12
       The court’s conclusion that Catano started investigating Rubio for use of force at
the earliest after the first conversation and at the latest before the two officers watched
the store surveillance video is supported by substantial evidence. Catano saw the use-of-
force incident and testified that “what I observed, the level of force used was, in my
opinion, unreasonable and unnecessary to control what the subject was doing.” As far as
he could tell, from his vantage point in the store, the suspect was not resisting. Arguably
from the very beginning Catano believed Rubio’s actions unjustified unless the suspect
had tried to swallowed drugs. Once Rubio confirmed no drugs were involved, Catano’s
belief the suspect’s actions did not justify the level of force used solidified. Rubio’s
subsequent explanations did not change that belief. Certainly by the time he decided to
write a supervisory complaint, Catano was convinced Rubio had used unreasonable force.
       The city argues Catano did not question Rubio during the subsequent watching of
the surveillance video. But an interrogation need not be conducted through express
questioning if words or actions are “reasonably likely to elicit an incriminating response.”
(Rhode Island v. Innis (1980) 446 U.S. 291, 300–301.) Catano made Rubio repeatedly
watch the surveillance video in his presence, and Rubio testified he felt he needed to
explain his actions in light of Catano’s stated disapproval of them. Since Catano’s
actions and words were reasonably likely to, and did, cause Rubio to talk about his
actions during the incident at a time when Catano already had decided Rubio had
engaged in misconduct, an interrogation occurred, and Rubio was entitled to the
protections of POBRA section 3303.
   3. Remedy
       As we have discussed, when any provision of POBRA is violated, section 3309.5,
subdivision (d)(1) allows the trial court to “render 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.” The trial court has
broad discretion in fashioning a remedy under POBRA section 3309.5, but “the relief

                                              13
rendered must be ‘appropriate[.]’” (Williams v. City of Los Angeles (1988) 47 Cal.3d
195, 204.) A remedy is not appropriate when the officer whose right was violated was
not prejudiced by the violation and the remedy is unlikely to deter future violations of
POBRA. (Id. at p. 204.)
       The only remedy the city challenges is the prohibition against taking any punitive
action against Rubio as a result of the use-of-force incident, which in effect, vacated his
suspension. Rubio contends the city has waived that challenge because the remedy was
ordered for all POBRA violations, and the city has not appealed the court’s finding of
violations of POBRA, section 3303, subdivision (g), based on the untimely delivery of
documents relevant to Rubio’s administrative appeal.
       The remedy portion of the statement of decision is somewhat unclear. The court
initially states that the two-year delay and other POBRA violations compel relief under
section 3309.5. It then orders relief in separate counts, some of which include additional
findings: “1. The City of Hawthorne shall adhere to its ordinance which requires a
hearing within 20 days . . . .” [¶] 2. The City of Hawthorne must develop written policies
and procedures to ensure that all documents, transcripts, recordings and other information
necessary for the officer to prepare for the administrative appeal are provided in a timely
manner . . . . In these cases, the plaintiffs were not unduly prejudiced by not receiving
certain documents, recordings and transcripts until and in the midst of their
administrative hearings. However, there is always some prejudice associated with late
discovery and this practice must not continue. [¶] 3. The responsibility for the two year
delay in scheduling the administrative hearings is solely that of the defendant, City of
Hawthorne. It is not reasonable that Officers Rubio and Iler’s personnel status, their
future with the department as well as the opportunities for advancement were held in
limbo for this two year period. [¶] 4. Therefore, the court further orders that the
defendants are prohibited from taking any punitive action against Officers Rubio and Iler
as a result of the conduct which gave rise to the subject discipline . . . .”
       The order of relief does not indicate that setting aside the discipline was a remedy
for all POBRA violations. Paragraph 3, the antecedent of paragraph 4, in which the

                                               14
discipline was effectively ordered set aside, makes findings only about the two-year
delay, suggesting that the discipline was set aside solely due to the delay. But even
assuming that setting aside the discipline was a total remedy for all POBRA violations,
Rubio has not shown any of the POBRA violations prejudiced his administrative appeal
so as to justify that remedy.
       The court specifically found Rubio was not “unduly prejudiced” by the untimely
delivery of necessary documents. Rubio has not appealed that finding or shown any
actual prejudice from this violation. The court made no prejudice finding with regard to
Catano’s interrogations of Rubio on the day of the incident, and Rubio makes no showing
of prejudice in that regard. There also is no showing that the delay in holding a hearing
prejudiced his administrative appeal. Rubio argues only that “the lead investigators . . .
could not recall key witness information and statements due to memory loss over the
three years it took for Rubio to be provided” a hearing. He cites to several pages in the
testimony of Lieutenant Swain, without providing any information about the significance
of that testimony. The materiality of the investigator’s failure to recall when he received
the store surveillance video or Catano’s complaint, or the exact content of conversations
he had with various officers after the incident is not immediately apparent from the
portions of the testimony cited by Rubio.
       Setting aside the suspension serves no rational purpose without a showing that
Rubio’s administrative appeal was prejudiced by the delay. It would be speculative to
assume that if the commission had held a hearing sooner, it would have vacated the
suspension. Since the suspension was upheld, Rubio was not placed in any worse
position by the delay. The only relief he obtained was the reduction of the length of the
suspension from 30 to 15 days. Had the commission heard the case sooner, he
presumably would have been entitled to collect back pay based on the 15-day reduction
sooner. Setting aside the entire suspension under the circumstances is excessive.
       That section 3309.5, subdivision (d)(1) allows the court to enjoin a punitive action
does not mean such a remedy is appropriate in every case. As we have explained, the
delay in hearing an appeal cannot be analogized to a delay in completing an investigation

                                             15
since POBRA expressly prohibits the imposition of discipline in the latter case but says
nothing about its validity in the former. A number of cases on which Rubio relies are
premised on violations of the one-year limitation period for completing investigations in
section 3304, subdivision (d). (See Breslin v. City and County of San Francisco (2007)
146 Cal.App.4th 1064; Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46;
Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899.) These cases are inapposite
because the delay in this case does not automatically invalidate the administrative
proceeding.
       Rubio also relies on cases where improper interrogations resulted in prejudice. In
Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, an officer was terminated for
insubordination for refusing to answer questions during an investigation. (Id. at pp. 825–
826.) The Supreme Court held the termination should be set aside because the officer
was harmed by the failure to advise him that his statements could not be used against him
in a criminal proceeding. Had he been so advised, “he might well have elected to
cooperate rather than remain silent.” (Id. at pp. 828–829.) In Hanna v. City of Los
Angeles (1989) 212 Cal.App.3d 363, the investigation of a probationary officer for
threatening a store clerk with a gun was rushed to completion before the officer obtained
tenure. His statements were ordered suppressed because both their content and the
investigators’ version of them were found to have been affected by the rushed
investigation. (Id. at pp. 374–375.) The officer in Labio, supra, 57 Cal.App.4th 1506, in
addition to other counts, was specifically charged with making “false and misleading
statements” during an improper interrogation, and those statements were ordered
suppressed. (Id. at p. 1511.) In Perez v. City of Los Angeles (2008) 167 Cal.App.4th
118, all statements about an incident that came to light during an improper interrogation
were ordered suppressed. (Id. at p. 124.)
       Rubio’s reliance on these cases is misplaced. In all of them, the officers were
actually prejudiced by an improper interrogation. Rubio has not shown that he was
disciplined for or because of anything he said or did not say on the day of the use-of-


                                            16
force incident. Nor has he shown how a proper interrogation would have changed the
result of the investigation.
       The court abused its discretion in setting aside Rubio’s suspension absent evidence
of prejudice. The portions of the judgment and writ prohibiting this discipline, awarding
back pay and benefits, and ordering the city to remove all records of it from the personnel
file are, therefore, reversed as to Rubio.
   B. Rubio’s Cross-Appeal
       Rubio argues the trial court erred in finding that his removal from the SWAT team
was not a punitive action, and that the city did not maliciously violate POBRA.
   1. Punitive Action
       According to Rubio, he was entitled to a 30-day written notice and an opportunity
to administratively appeal his removal from the SWAT team. These POBRA protections
are available when an officer is subject to “discipline” or “punitive action.” (§ 3304,
subd. (b) & (f).) Punitive action is “any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or transfer for purposes of
punishment.” (§ 3303.) Except for a transfer, all actions listed in POBRA section 3303
are “per se punitive,” in the sense that the agency’s motivation for taking them is
irrelevant. (Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 996.)
       Rubio argues that his removal from the SWAT team caused a reduction in his
salary, which was a punitive action per se. But it is undisputed that his salary was
unaffected, and he lost only the opportunity to receive additional income from overtime
for mandatory SWAT team training and participation in SWAT team operations. Rubio
cites no authority that loss of overtime is a reduction in salary under POBRA. The cases
on which he relies involve the loss of “special pay,” where officers were removed from
special assignments that had increased their base salary. (See McManigal v. City of Seal
Beach (1985) 166 Cal.App.3d 975, 978, 980 [officer lost “hazard pay” as result of
reassignment from motorcycle to patrol car duty]; Giuffre v. Sparks, supra, 76
Cal.App.4th at pp. 1325, 1327 [county conceded on appeal that five-percent salary
decrease rendered removal from SWAT team punitive].) These cases do not hold that the

                                             17
loss of opportunity to work additional hours at the same rate of pay constitutes a
reduction in salary.
       In contrast, in Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836
(Benach), the transfer of a deputy sheriff from the sheriff’s department Aero Bureau at
the Long Beach Airport was deemed not punitive. (Id. at p. 840.) In his new position as
a detective, the pilot retained the same rank and rate of pay, but was not eligible for flight
duties. (Id. at pp. 842, 844.) He claimed he lost compensation because he was not
eligible for overtime, but the court rejected that claim because he had not shown he was
entitled to overtime. (Id. at p. 844, fn. 4.) Similarly, here, Rubio acknowledged that
overtime hours, though recurrent, are not guaranteed.
       Rubio also argues his removal from the SWAT team was a punitive action because
it was a transfer for purposes of punishment. (§ 3303.) He was removed from the team
in December 2007, after he already had been suspended for 30 days. He was told that,
due to the sustained use-of-force allegations, he “would be a liability on the team.” The
team was advised that Rubio’s removal was “in the best interest of the team.” That
Rubio was transferred out of the SWAT team due to the sustained allegations of
misconduct does not mean that the transfer was for purposes of punishment. The city
made no such representation, and the reasons it gave for the removal indicate Rubio was
removed to protect the team rather than to punish Rubio.
       Courts have distinguished transfers “intended to punish for a deficiency in
performance” from those “intended to compensate for deficient performance.” (Benach,
supra, 149 Cal.App.4th at p. 844–845, citing Orange County Employees Assn. v. County
of Orange (1988) 205 Cal.App.3d 1289.) In Orange County Employees Assn. v. County
of Orange, a director of a juvenile center for boys was transferred to the position of
director of juvenile court services without any loss of pay. (Id. at p. 1291.) There was
evidence that such transfers were routine but also that there were concerns about
deficiencies in the director’s performance. (Id. at p. 1293–1294.) The trial court ruled,
and the appellate court agreed, that the transfer of a person to a position where the


                                              18
deficiency either will not matter or will be compensated for is not necessarily punitive.
(Id. at pp. 1294–1295.)
       In Benach, a deputy sheriff was transferred after an investigation of his co-
workers’ complaints against him did not result in a finding of misconduct. (Benach,
supra, 149 Cal.App.4th at p. 842.) Relying on Orange County Employees Assn. v.
County of Orange, supra, 205 Cal.App.3d 1289, the court in Benach held that the transfer
was not punitive because his supervisor legitimately concluded the deputy sheriff’s
presence at the Aero Bureau “was not conducive to a cooperative, productive working
relationship with approximately 30 other members of that bureau’s personnel, and
exercised his supervisorial discretion to make a change to address that unique
circumstance to best serve the Department’s needs.” (Id. at p. 845.)
       Rubio seeks to distinguish Benach on the ground that it did not involve an
investigation resulting in a sustained allegation of misconduct and imposition of
discipline, such as the suspension in this case, only to be followed by an additional
punitive action—here, the removal from the SWAT team. We disagree. The gist of the
Benach decision is that there was a valid administrative reason for transferring the deputy
sheriff. Similarly here, Rubio’s removal from the SWAT team was based on a valid
reason—that he was a perceived liability to the team due to the sustained use-of-force
charge in his file.
       Baggett v. Gates (1982) 32 Cal.3d 128 also is instructive. There, officers working
in a firearms and explosives unit were investigated for drinking on duty, shooting pellet
and BB rifles inside police premises and into the streets, and mishandling explosives.
(Id. at p. 132.) Some of the allegations were not substantiated, others were time-barred,
and no formal charges could be brought against the officers. (Id. at p. 133.) The officers
were nevertheless reassigned to lower-paying positions outside the firearms and
explosives unit. (Ibid.) The Supreme Court found the reduction of pay to be per se
punitive and observed that “‘looking through form to substance,’ it is evident that
plaintiffs’ reassignments came about because of their alleged improper prior conduct.”
(Id. at p. 141.)

                                             19
       Here, Rubio’s removal from the SWAT team was not intended as punishment
since he already had been punished. There is no evidence that the chief of police ordered
the removal. Rather, the decision was made by the SWAT team commander for reasons
having to do with protecting the city from liability rather than to impose additional
discipline on Rubio. In other words, his administrative transfer, without reduction of pay
grade or rank, was made to protect arrestees from excessive force and the city from
liability. The removal from the SWAT team did not deprive Rubio of POBRA
protections since he already had appealed the use-of-force charges. Had the charges been
overturned on appeal to the civil service commission, all evidence of them would have
been removed from his file, and he could presumably have reapplied to the SWAT team.
       We conclude that Rubio’s removal from the SWAT team was not a punitive action
entitling him to additional protections under POBRA.
   2. Malice
       Rubio argues he is entitled to a statutory penalty and attorneys fees under POBRA
section 3309.5, subdivision (e) because the city’s violations were malicious and
intentional. We agree with the trial court that he has not made the requisite showing of
malice.
       In the case of a malicious violation of POBRA “with the intent to injure” an
officer, the officer is entitled to “a civil penalty” of up to $25,000 for each violation and
reasonable attorney fees. (§ 3309.5, subd. (e).) Section 3309.5 does not define malice.
Civil Code section 3294 provides for punitive damages if malice is proven by clear and
convincing evidence. (§ 3294, subd. (a).) It defines malice as “conduct which is
intended by the defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the rights or safety
of others.” (§ 3294, subd. (c)(1).) The legislative history of the penalty in section 3309.5
suggests that the Legislature contemplated a statutory penalty similar to the punitive or
exemplary damages for malice provided for in Civil Code section 3294. (See Sen. Com.
on Judiciary, Analysis of Sen. Bill No. 1516 (2001-2002 Reg. Sess.), Apr. 16, 2002.)


                                              20
       Malice may be proven directly by evidence of hatred or ill will or indirectly
through inferences. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 66.) To
have evidentiary value, inferences must be reasonable and ‘““cannot be based upon
suspicion, imagination, speculation, surmise, conjecture or guesswork.”’” (Shandralina
G. v. Homonchuk (2007) 147 Cal.App.4th 395, 411.)
       Rubio argues that since there is no explanation why the POBRA violations in this
case occurred, they must have occurred because of the city’s desire to win the
disciplinary case against him at all costs. He relies on inferences from the violations
themselves and on an e-mail sent by the city manager after the conclusion of the Vian and
Robles appeals. In that e-mail, the city manager expressed his disappointment in the
close decisions in those use-of-force appeals (overturning one officer’s discipline for
excessive force by a 3-2 vote and affirming the other’s, also by a 3-2 vote). His stated
intent was to talk to the commissioners to get their feedback about what the city needed
to do differently in presenting such cases to the commission. The city manager intended
to talk to one commissioner who, at some of the hearings, appeared to be biased in favor
of the officers. The city manager also contemplated proposing to the city council that
officer appeals be heard by an external commission.
       The city manager’s e-mail lists all the actions he intended to take. It does not state
or imply he would go to the length of stacking the commission in the city’s favor so that
no officer would win again, as Rubio suggests. Nor is there evidence supporting such an
inference. While the city manager apparently felt strongly that at least two
commissioners had incorrectly voted against discipline in the Vian and Robles appeals,
there is no showing that those commissioners remained on the commission or that their
continued presence was the reason for delaying Rubio’s appeal until a full commission
was composed.
       Rubio’s inference that POBRA violations were intentional also is speculative. He
claims a wide range of violations occurred not only in his case but also in the cases of
Iler, Vian, and Robles. That the city repeatedly delayed appeals or failed to timely
produce documents supports the court’s conclusion that it did not have proper policies

                                             21
and procedures in place. Additionally, since the city manager’s e-mail followed the
resolution of the Vian and Robles appeals, it cannot be used to explain why violations
occurred in those officers’ cases or why violations occurred in Rubio’s case up until the
end of those officers’ appeals.
       The showing of malice is insufficient to establish entitlement to statutory damages
or attorney fees under POBRA section 3309.5, subdivision (e).
                                             III
       Rubio argues he should have been allowed to bring a motion for attorney fees
under the private attorney general statute, Code of Civil Procedure section 1021.5. He
contends the trial court incorrectly ruled he did not meet the requirements of that section
because his success conferred no significant benefit on the general public or a large class
of people, the primary interest he sought to vindicate in this case was his own, and the
financial burden for vindicating his own rights was not extraordinary.
       Code of Civil Procedure section 1021.5 provides for attorney fees “in any action
which has resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on
the general public or a large class of persons, (b) the necessity and financial burden of
private enforcement, or of enforcement by one public entity against another public entity,
are such as to make the award appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.” Issues of statutory construction and other
issues of law implicated in the determination of whether these criteria are satisfied are
subject to independent review. (Robinson v. City of Chowchilla (2011) 202 Cal.App.4th
382, 391.)
       As noted in Riverside Sheriff’s Assn. v. County of Riverside (2007) 152
Cal.App.4th 414, a number of courts have allowed recovery of fees under section 1021.5
in POBRA actions. (Id. at p. 421, citing cases.) Specifically, it is well established that
POBRA protects important rights and affords a benefit not only to police officers, but to
the general public. (See Robinson v. City of Chowchilla, supra, 202 Cal.App.4th at
pp. 393–401; Riverside Sheriff’s Assn. v. County of Riverside at p. 421.) The trial court

                                             22
erred in concluding that only Rubio and other Hawthorne police officers, but not the
general public or a large class of people, would benefit from enforcing POBRA in this
case.
        There is no evidence that public enforcement of these rights was available, nor did
the trial court rule that it was. As to the financial burden of private enforcement, the trial
court was required to compare Rubio’s reasonably expected financial benefits with his
actual litigation costs. (See Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1215
[fee award proper unless reasonably expected financial benefits substantially exceed
actual litigation costs].) The court’s denial of fees was premature since Rubio had not yet
made a motion for attorney fees and had offered nothing in that regard, other than a claim
in his post-trial brief that the financial burden would be substantial in comparison to the
expected recovery. That Rubio sought to vindicate his own financial interests is not
determinative, particularly since we have concluded he is not entitled to have his
suspension set aside. (See Robinson v. City of Chowchilla, supra, 202 Cal.App.4th at
p. 400–401, and cases cited.)
        The trial court should allow Rubio to file a proper motion for attorney fees under
Civil Code section 1021.5 after judgment is entered on remand. On the evidence before
it at the time of the motion, the court should perform a proper cost-benefit analysis to
decide whether to award him attorney fees and in what amount. (See Conservatorship of
Whitley, supra, 50 Cal.4th at p. 1215; Collins v. City of Los Angeles (2012) 205
Cal.App.4th 140, 154–155; Robinson v. City of Chowchilla, supra, 202 Cal.App.4th 382,
402.)




                                              23
                                     DISPOSITION
       We reverse the individual remedies provided Rubio with regard to his suspension,
and the premature denial of attorney fees under Civil Code section 1021.5. In all other
respects, the judgment is affirmed. The case is remanded to the trial court for further
proceedings consistent with this opinion.
       The parties are to bear their own costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EPSTEIN, P. J.
We concur:




       MANELLA, J.




       SUZUKAWA, J.




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