Mays v. City of LA 12/15/06 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B188527

Case Date: 03/14/2007

Preview:Filed 12/15/06

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

JON MAYS, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

B188527 (Los Angeles County Super. Ct. No. BS090169)

APPEAL from an order of the Superior Court of Los Angeles County, Dzintra Janavs, Judge. Reversed. Diane Marchant for Plaintiff and Appellant. Rockard J. Delgadillo, Los Angeles City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney for Defendants and Respondents.

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III C.

I. INTRODUCTION

John Mays, a police sergeant, appeals a judgment denying his Code of Civil Procedure section 1085 mandate petition seeking an order compelling defendants, City of Los Angeles and Chief of Police William Bratton, to set aside an official written reprimand. We hold plaintiff was not given timely notice of any "proposed disciplinary action" within one year of the discovery of his alleged misconduct as required by Government Code1 section 3304, subdivision (d) of the Public Safety Officers Procedural Bill of Rights Act (the act). Thus, we conclude the written reprimand must be removed from plaintiff's personnel file.

II. BACKGROUND

Plaintiff filed his mandate petition on May 24, 2004. The petition alleged plaintiff was charged and reprimanded by Chief Bratton on February 3, 2003. The mandate petition further alleged that, at the time the reprimand was imposed, it violated state law because: the Los Angeles Police Department (the department) received information concerning the misconduct on August 8, 2001; on August 12, 2002, the department mailed a personnel complaint notifying plaintiff that he was to be demoted based on the information discovered on August 8, 2001; on February 3, 2003, the department conceded the charges were too old to be the basis for a demotion; but Chief Bratton nevertheless issued a reprimand on February 4, 2003. Plaintiff requested the reprimand be removed from his personnel file and attorney fees be awarded pursuant to section 3309.5.

1 All further statutory references are to the Government Code unless otherwise indicated. 2

In conjunction with the hearing on the mandate petition, the parties submitted documents and evidence which established the following. On July 26, 2001, plaintiff submitted a report to the City of Torrance Police Department stating that his personal car had been burglarized at his residence. On July 23, 2002, Captain Julie Nelson signed a "Los Angeles Police Department Complaint Form." The July 23, 2002, administrative complaint alleged: "On July 26, 2001, [plaintiff] discovered that his private vehicle had been burglarized while parked in the driveway at his residence in the City of Torrance. [Plaintiff] went to the Torrance Police Department and filed a report at the front desk on July 26, 2001 at 0900 hours, DR No. 01-10909. On July 26, 2001, at 1030 hours, plaintiff telephoned Harbor Day Watch Commander, Lieutenant I Diane Burns, . . . and reported the theft of his Los Angeles Police Identification Card, a personally owned firearm and other items including a personnel complaint investigation package, CF NO. 01-1476. [

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