Filed 3/21/18; Certified for publication 4/10/18 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                 DIVISION TWO


MATTHEW SQUIRE et al.,                                    B276887

        Plaintiffs and Appellants,                        (Los Angeles County
                                                          Super. Ct. No. BS156270)
        v.

COUNTY OF LOS ANGELES et al.,

        Defendants and Respondents.



     APPEAL from a judgment of the Superior Court of
Los Angeles County. James C. Chalfant, Judge. Affirmed.

     Hayes & Ortega, Hayes, Ortega & Sanchez, Dennis J.
Hayes, Tracy J. Jones and for Plaintiffs and Appellants.

      Hausman & Sosa, Jeffrey M. Hausman and Larry D.
Stratton for Defendants and Respondents.


                             ____________________
       Appellants Matthew Squire (Squire) and Ernesto Masson
(Masson) (collectively appellants) appeal from the judgment
denying their petition for writ of mandate. They contend the
written reprimands they received from the Los Angeles County
Sheriff’s Department (Department) in September 2014, should be
rescinded because they did not receive notice of proposed
discipline within the one-year statute of limitations period in the
Public Safety Officers Procedural Bill of Rights Act (POBRA)
(Gov. Code, § 3300 et seq.). We disagree and affirm.
             Factual and Procedural Background
The May 2014 Reprimands
       Masson is a lieutenant and Squire a sergeant with the
Department. In connection with the Department’s investigation
of another employee for sexually related misconduct, appellants
each received written reprimands from the Department dated
May 22, 2014 (the May 2014 reprimands). The May 2014
reprimands concerned conduct between “September of 2008 and
continuing through May 31, 2013.”
       Masson’s reprimand stated: “[Y]ou engaged in conduct of a
sexual nature, and/or such conduct that would reasonably be
considered inappropriate for the workplace, by failing to follow up
with an email from a subordinate supervisor which raised
concerns of a LET’s [Law Enforcement Technician] [redacted]
unprofessional and/or inappropriate dress in the workplace.”
       Squire’s reprimand stated: “[Y]ou engaged in conduct of a
sexual nature, and/or such conduct that would reasonably be
considered inappropriate for the workplace, by having knowledge
of a personal relationship between a subordinate supervisor
[redacted] and a LET [redacted] and failing to take appropriate
action.”




                                2
      The May 2014 reprimands each cited a violation of the
Department’s Manual of Policy and Procedure (Manual) section
“3-01/121.30 Policy of Equality – Inappropriate Conduct Toward
Others (Gender).” The reprimands concluded: “You are hereby
reprimanded for your conduct in this incident and advised that
any future violations of a similar nature may result in more
severe discipline.”
      Masson and Squire each refused to sign the May 2014
reprimands, which were never placed in their personnel files.
The Grievance Process
      Under their collective bargaining unit’s Memorandum of
Understanding (MOU), appellants each filed formal grievances.
      Masson’s grievance, filed on May 28, 2014, argued the
underlying e-mail did not raise any concerns regarding the
unnamed officer’s unprofessional and/or inappropriate dress in
the work place, and did not ask him to address any issues.
Masson asked that the status of his violation be changed to
“Unfounded” and that “no written reprimand be issued regarding
this matter.”
      Masson’s “First Level Supervisor” denied his grievance on
June 4, 2014. Masson then submitted his grievance to the
“Second Level Supervisor” on June 9, 2014, and it was deferred to
the “Executive Level.” On July 22, 2014, Chief Jacques A.
La Berge, along with another commanding officer, held a
grievance hearing. In his written decision, Chief La Berge stated
that Masson’s grievance was “DENIED,” and continued:
“However, I agree that the [Policy of Equality] section listed on
the Written Reprimand ‘3-01/121.30 POE – Inappropriate
Conduct toward Others (based on sex)’ inaccurately describes the
offense in question and appropriate findings. . . . I have




                               3
determined that the [Manual] findings and Written Reprimand
should be modified and corrected to: 3-01/122.05 Policy of
Equity – Duties of Supervisors and Managers.” Chief
La Berge stated in his written decision that he had spoken to
Masson’s representative on September 16, 2014, and that she
would notify Masson “ahead of the service of the revised Written
Reprimand.” Chief La Berge signed the decision on
September 16, 2014, and it was signed off by the “Sheriff or
Alternate” on October 7, 2014. A formal letter of decision was
sent to Masson by Captain Gregory P. Nelson on October 8, 2014,
which stated that the Department had rendered its decision on
Masson’s grievance, that his grievance was “denied,” and that the
May 2014 reprimand “should be modified and corrected” to state
the appropriate Manual section violated.
      Squire’s grievance, filed on June 4, 2014, argued the
investigation did not support the alleged violation. Squire
requested “that the facts and circumstances of the case be
reconsidered and that the Written Reprimand be revoked, further
that no mention of this be made in grievant’s Performance
Evaluation nor used for any other personnel purpose.” Squire’s
grievance also went through the same three levels, and Chief
La Berge, along with another commanding officer, held a
grievance hearing on the same day as Masson’s hearing, July 22,
2014. As with Masson, Chief La Berge’s written decision stated
that Squire’s grievance was “DENIED,” but the reprimand
“should be modified and corrected to: 3-01/122.05 Policy of
Equity – Duties of Supervisors and Managers.” Chief
La Berge’s written decision likewise stated that he had spoken
with Squire’s representative on September 16, 2014, who would
notify Squire of his decision. Chief La Berge signed the decision




                               4
on September 16, 2014, and it was signed off by the Sheriff or
Alternate on October 20, 2014. Captain Nelson sent a formal
letter of decision to Squire on October 23, 2014, which stated that
the Department had rendered its decision on Squire’s grievance
and that the May 2014 reprimand “shall be corrected. The
original charge of Manual of Policy and Procedures (MPP) section
3-01/121.30, Policy of Equality—Inappropriate Conduct Towards
Others (based on sex), shall be rescinded and replaced with MPP
section 3-01/122.05, Policy of Equality—Duties of Supervisors
and Managers. As a result, your grievance shall be granted in
part.”
The September 2014 Reprimands
       Inexplicably, prior to the formal letters of decision signed
by Captain Nelson, Masson was presented with a written
reprimand on September 25, 2014, that was signed by Chief
La Berge on September 26, 2014, and Squire was presented with
a written reprimand on September 29, 2014, that was signed by
Chief La Berge on October 3, 2014 (the September 2014
reprimands). Masson and Squire also refused to sign the
September 2014 reprimands. The September 2014 reprimands
contained the same date as the May 2014 reprimands (May 22,
2014), and the same file number of IV2335853. The Manual
section violation was changed on each to “3-01/122.05 Policy of
Equity – Duties of Supervisors or Managers.”
       Masson’s reprimand stated: “[Y]ou failed to fulfill your
Department reporting requirements, by not following up with an
email from a subordinate supervisor which raised concerns of an
LET’s [redacted] unprofessional and/or inappropriate dress in the
workplace, and/or failing to immediately contact the
Department’s Intake Specialist Unit.”




                                 5
      Squire’s reprimand stated: “[Y]ou failed to fulfill your
Department mandated reporting requirements, by having
knowledge of a personal relationship between a subordinate
supervisor [redacted] and an LET [redacted] although you did
speak to Sgt. [redacted] about the inappropriate relationship and
the perceptions of other employees, you failed to immediately
contact the Intake Specialist Unit.”
      The September 2014 reprimands contained the same
disciplinary result as the May 2014 reprimands: “You are hereby
reprimanded for your conduct in this incident and advised that
any future violations of a similar nature may result in more
severe discipline.” The September 2014 reprimands were placed
in appellants’ personnel files.
The Writ Petition and Ruling
      Appellants filed a petition for writ of mandate against the
County of Los Angeles and its Board of Supervisors (the County),
seeking an order directing the County to rescind and purge the
September 2014 reprimands from appellants’ records, and
seeking civil penalties. In opposition to the writ petition, the
County submitted the declaration of Captain Nelson, who stated
that the September 2014 reprimands were the result of the
formal grievance process initiated by each appellant and
constituted modifications of the original May 2014 reprimands.
The trial court denied the writ petition in a lengthy tentative
decision, which was adopted as the final decision after oral
argument. The court found the September 2014 reprimands were
modifications of the May 2014 reprimands rather than new
reprimands, that they were the result of appellant’s grievances,
and that they were therefore timely. This appeal followed.




                               6
                           DISCUSSION
I. Standard of Review
       Appellants brought their writ petition under Code of Civil
Procedure section 1085. “A writ of traditional mandamus (Code
Civ. Proc., § 1085) may be used to compel the performance of a
duty that is purely ministerial in nature or to correct an abuse of
discretion.” (Khan v. Los Angeles City Employees’ Retirement
System (2010) 187 Cal.App.4th 98, 105–106.) “Mandamus is an
appropriate remedy to compel the exercise of discretion by a
government agency, but does not lie to control the exercise of
discretion unless under the facts, discretion can only be exercised
in one way.” (Ghilotti Construction Co. v. City of Richmond
(1996) 45 Cal.App.4th 897, 904.) The role of the appellate court
in a mandamus proceeding is the same as that of the trial court.
The appellate court considers the record of the agency to
determine whether it abused its discretion, namely, whether its
“decision was arbitrary, capricious, entirely lacking in
evidentiary support, unlawful, or procedurally unfair.” (Khan,
supra, 187 Cal.App.4th at p. 106.) To the extent there are issues
of statutory interpretation, these are reviewed de novo on appeal
where there are no disputed factual issues. (Ibid.)
II. POBRA
       POBRA “sets forth a list of basic rights and protections
which must be afforded all peace officers . . . by the public entities
which employ them.” (Baggett v. Gates (1982) 32 Cal.3d 128,
135.) POBRA balances the public interest in maintaining the
efficiency and integrity of the police force with the officer’s
interest in receiving fair treatment. (Jackson v. City of
Los Angeles (2003) 111 Cal.App.4th 899, 909 (Jackson).) One of
POBRA’s basic protections is the speedy adjudication concerning




                                  7
accusations of misconduct. (Alameida v. State Personnel Bd.
(2004) 120 Cal.App.4th 46, 63.) Speedy adjudication permits
peace officers to prepare a fair defense on the merits and marshal
facts while memories and evidence are still fresh. (Jackson,
supra, at p. 909.)
       To this end, POBRA requires that investigation of a peace
officer’s alleged misconduct be completed within one year of
discovery in order for a public agency to take punitive action
against the officer. Specifically, Government Code section 3304,
subdivision (d)(1) (hereafter section 3304(d)) provides: “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). The public agency shall not be required to impose
the discipline within that one-year period.” (Section 3304(d),
italics added.)
       “[T]he fundamental purpose of this provision is to place a
one-year limitation on investigations of officer misconduct . . . to
ensure that an officer will not be faced with the uncertainty of a
lingering investigation, but will know within one year of the




                                 8
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 (Mays).)
      Following Mays, section 3304(d) was amended effective
January 1, 2010. (Stats. 2009, ch. 494, § 1.) Among other things,
the amendment added the following language: “Letter of Intent
or Notice of Adverse Action articulating the discipline that year.”
“The amendment was enacted to legislatively overrule the
holding of Mays that subdivision (d) of the pre-2010 version of
section 3304 did not require ‘notification of the specific discipline
contemplated by the public agency’ (Mays, supra, 43 Cal.4th at
p. 322), as opposed to merely ‘notice that disciplinary action may
be taken’ (id. at p. 325).” (Neves v. Department of Corrections &
Rehabilitation (2012) 203 Cal.App.4th 61, 68, fn. 3; Earl v. State
Personnel Bd. (2014) 231 Cal.App.4th 459, 465, fn. 5 [Section
3304(d) “was amended in 2010 to abrogate the portion of Mays
holding that the specific discipline to be imposed need not be
included in the notice”].)
III. Analysis1
      A. Notice of Proposed Discipline Was Timely
      The trial court and the parties adopted May 31, 2013, as
the beginning date of the one-year limitations period. Thus,
under section 3304(d) the Department had until May 30, 2014, to
finish its investigation and provide notice to appellants of its
proposed discipline. It is undisputed that within this one-year



1      Because our analysis does not require resort to the
legislative history of section 3304(d), we deny appellant’s request
to take judicial notice of this history.




                                  9
period, the Department’s investigation was completed and the
initial May 2014 reprimands were issued.
       We were initially troubled that it appeared from the record
the Department had simply imposed discipline, rather than
providing notice of proposed discipline, within the one-year
deadline. We therefore asked the parties to provide additional
briefing on the issue of whether the Department had complied
with section 3304(d)’s notice requirement.
       In their supplemental response, appellants did not squarely
address this issue. Rather, they reiterated the arguments made
in their original briefs; namely, that the May 2014 reprimands
did not allege the misconduct upon which discipline was
ultimately based; the May 2014 reprimands were rescinded and
therefore cannot be deemed as complying with section 3304(d);
and it would be contrary to public policy to give effect to the
“falsely and maliciously” backdated September 2014 reprimands.
       In its supplemental response, the County pointed out that
appellants “did not, and apparently still do not question the
adequacy or timeliness of the May 2014 reprimands, aside from
their unsubstantiated claim that the amended reprimands
constituted new discipline.” The County persuasively argued
that appellants have “repeatedly and even insistently waived” the
issue of whether the Department complied with section 3304(d)’s
notice requirement. (See Tisher v. California Horse Racing Bd.
(1991) 231 Cal.App.3d 349, 361 [failure to brief an issue a
waiver]; Franz v. Board of Medical Quality Assurance (1982) 31
Ca1.3d 124, 143 [failure to raise an issue in the trial court a
waiver].)
       Moreover, the County has convinced us that, even if there
was no waiver or forfeiture here, the May 2014 reprimands were




                               10
for all practical purposes intended discipline. This is so because,
as Captain Nelson established in his declaration, the May 2014
reprimands were never placed in appellants’ personnel files.
Only the September 2014 reprimands were placed in their files.
As the County points out, other provisions of POBRA recognize
that only those documents actually placed in a peace officer’s
personnel file give rise to procedural rights by the officer,
including that an officer must be given an opportunity to sign the
document (Gov. Code, § 3305), and must be given an opportunity
to respond to an adverse comment placed in his or her file (Gov.
Code, § 3306).
       Our conclusion that the May 2014 reprimands in fact
constitute notice of proposed discipline also comports with the
policy behind section 3304(d). At its essence, section 3304(d) is a
statute of limitations for the investigation period. (See Mays,
supra, 43 Ca1.4th at p. 321.) While the 2010 amendment of
section 3304(d) added references to “Notice of Adverse Action”
and “Letter of Intent,” the amendment did not define these new
terms nor specify what they must include, other than an
articulation of the proposed discipline. Nor did the amendment
suggest that the fundamental purpose of section 3304(d) had
changed from a limitations period to a notice provision. The
purpose of notice is to “‘apprise interested parties of the pendency
of the action and afford them an opportunity to present their
objections.’” (California School Employees Assn. v. Livingston
Union School Dist. (2007) 149 Cal.App.4th 391, 399.) This is
precisely what happened here, as discussed next.




                                11
       B. The September 2014 Reprimands Are Not Subject
           to the One-Year Limitations Period
       It is undisputed that both appellants utilized the grievance
and multi-step review procedures of their applicable MOU, which
included grievance hearings for both appellants before the chief
and one other commanding officer.2 As set forth in Captain
Nelson’s formal letters to each appellant and as established in his
declaration, the September 2014 reprimands were a direct result
of the formal grievance process initiated by each appellant.
Indeed, appellants do not suggest the Department would have
any reason to reconsider or modify the May 2014 reprimands had
appellants not filed formal grievances.
       POBRA provides: “Where a predisciplinary response or
grievance procedure is required or utilized, the time for this
response or procedure shall not be governed or limited by this
chapter.” (Gov. Code, § 3304 subd. (e).) It goes without saying
that if a peace officer is not required to initiate a grievance
procedure within the one-year limitations period, the public
employer cannot be required to issue its response to the grievance
within that same year. Thus, the September 2014 reprimands
are not subject to the one-year time frame in section 3304(d). As
a result, the entire theory upon which appellants base their
appeal therefore fails.
       Appellants try to avoid this result by claiming that the
grievance procedures used by them were not “predisciplinary” as



2     Appellants attached the incorrect MOU grievance
provisions to the record, attaching “Appendix C” pertaining to the
District Attorney’s Office, rather than “Appendix B” pertaining to
the Department.




                                12
required by the statute.3 In light of our earlier conclusion that
the May 2014 reprimands constituted notice of intended
discipline, appellants’ grievance procedures were necessarily
predisciplinary.
       C. The September 2014 Reprimands Do Not Constitute
          New Discipline or Allege Different Conduct
       Appellants also try to avoid the result that section 3304(d)
is inapplicable to the September 2014 reprimands by arguing
that the September 2014 reprimands were “new” discipline—i.e.,
they “contained different charges concerning different alleged
misconduct” and therefore “fundamentally change the nature of
the May 2014 reprimands.”
       To support their argument, appellants make a comparison
of the two reprimands. In doing so, appellants’ focus is too
narrow and incomplete or, as the trial court aptly found, a
“mischaracter[ization]” of the reprimands. A careful reading of
Squire’s two reprimands shows that the May 2014 reprimand
accuses him not only of personally engaging in sexual conduct,
but also of “having knowledge of a personal relationship between
a subordinate supervisor [redacted] and a LET [redacted] and
failing to take appropriate action.” (Italics added.) Squire’s
September 2014 reprimand omits the reference to his own
personal sexual conduct, but still accuses him of “having
knowledge of a personal relationship between a subordinate
supervisor [redacted] and an LET [redacted] and fail[ing] to
immediately contact the Intake Specialist Unit.” (Italics added.)


3     Appellants’ argument that the County raises this statutory
issue for the first time on appeal is without merit. Our review of
the record shows that the County presented this issue below by a
“Notice of Errata Re Opposition Brief,” filed on May 11, 2016.




                                13
In other words, both reprimands concern the same underlying
conduct of failing to report someone else’s misconduct. Indeed,
the record shows that Squire had a consistent understanding of
the charges brought against him. His second level reviewer
wrote: “The grievant challenged the charge against him of not
taking appropriate supervisory action regarding a possible equity
violation that was sexual in nature. . . . [¶] . . . [¶]
. . . Lt. Squire said he did not notify his supervisor or the Intake
Office at Equity because he felt he met the requirement in this
case by counseling [redacted].”
        Masson’s May 2014 reprimand accuses him not only of
personally engaging in sexual conduct, but also of “failing to
follow up with an email from a subordinate supervisor which
raised concerns of a LET’s [redacted] unprofessional and/or
inappropriate dress in the workplace.” (Italics added.) Likewise,
Masson’s September 2014 reprimand omits the reference to his
own personal sexual conduct and accuses him of “not following up
with an email from a subordinate supervisor which raised
concerns of an LET’s [redacted] unprofessional and/or
inappropriate dress in the workplace, and/or failing to
immediately contact the Department’s Intake Specialist Unit.”
(Italics added.) Again, the two reprimands address the same
underlying conduct.
        It is true that the September 2014 reprimands identify
violations of different Manual sections than the May 2014
reprimands. It is also true that appellants did not request in
their formal grievances that any changes be made to the Manual
sections asserted. But contrary to appellants’ position, this does
not remove the September 2014 reprimands from the grievance
process. The different Manual sections identified by Chief




                                14
La Berge were more accurate in light of the omission of
allegations of appellants’ own sexual misconduct. While the May
2014 reprimands referred to “Inappropriate Conduct Toward
Others (Gender),” the September 2014 reprimands more correctly
referred to “Duties of Supervisors or Managers.” Appellants
point to nothing in their MOU that would preclude the
Department from making a more accurate finding in written
reprimands issued after a grievance hearing.
      Most importantly, the September 2014 reprimands did not
increase or change the level of discipline. The discipline imposed
on appellants remained exactly the same; namely, a written
reprimand. Thus, there is no merit to appellants’ contention that
the September 2014 reprimands constituted “new” discipline.
      Appellants’ writ petition was properly denied.
      D. Civil Penalties and Sanctions
      Appellants request that in the event we find the existence
of a POBRA violation and reverse the judgment, we should award
each of them a $25,000 civil penalty under Government Code
section 3309.5, subdivision (e) for the Department having
“maliciously” violated POBRA. Because we do not find any
POBRA violation, we do not address this request.4
      The County likewise requests that sanctions be imposed
against appellants under Government Code section 3309.5,
subdivision (d)(2) for “filing a bad faith or frivolous action” on
appeal. Appellants are correct that the County did not seek such


4     We note that appellants incorrectly state the trial court
“never reached the issue of awarding Section 3309.5 penalties.”
The trial court expressly found there was no malicious
backdating of the September 2014 reprimands because “they bear
proper signature dates.”




                               15
sanctions below. We decline to order an award of sanctions for
the filing of this appeal.
                           DISPOSITION
       The judgment denying the petition for writ of mandate is
affirmed. The County is entitled to recover its costs on appeal.




                              __________________________, J.
                              ASHMANN-GERST
We concur:



____________________, P. J.
LUI



____________________, J.
HOFFSTADT




                                16
Filed 4/10/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO


MATTHEW SQUIRE et al.,                     B276887

       Plaintiffs and Appellants,          (Los Angeles County
                                           Super. Ct. No. BS156270)
       v.
                                           ORDER CERTIFYING
COUNTY OF LOS ANGELES et al.,              OPINION FOR PUBLICATION

       Defendants and Respondents.




THE COURT:*

      The opinion in the above-entitled matter filed on March 21,
2018, was not certified for publication in the Official Reports.

      For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.




*      LUI, P. J., ASHMANN-GERST, J., HOFFSTADTJ.
