Filed 10/18/13 Los Angeles Police Protective League v. City of Los Angeles CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LOS ANGELES POLICE PROTECTIVE B247156 LEAGUE, (Los Angeles County Plaintiff and Appellant, Super. Ct. No. BC481380)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael L. Stern, Judge. Reversed with directions.
Silver, Hadden, Silver, Wexler & Levine and Richard A. Levine for Plaintiff and
Appellant.
Carmen A. Trutanich, City Attorney and Paul L. Winnemore, Deputy City
Attorney for Defendants and Respondents.
_______________________________________ The Los Angeles Police Protective League (League) appeals an order of
dismissal entered after the trial court granted a motion for judgment on the pleadings as
to the League‟s complaint for injunctive and declaratory relief. The League‟s complaint
seeks relief from the City of Los Angeles and Chief of Police Charles Beck‟s
(collectively, respondents) practice of establishing minimum penalties to be imposed on
officers found guilty of repeating misconduct. The League contends that its complaint
adequately stated causes of action for injunctive and declaratory relief, and that the
dispute is ripe for adjudication. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The League filed its complaint for injunctive and declaratory relief against
respondents on March 22, 2012. The complaint alleges that the League is “an employee
organization . . . recognized to represent sworn peace officers . . . within the ranks of
police officers, police detectives, sergeants, and lieutenants employed by the
Los Angeles Police Department/City of Los Angeles with regard to all matters
concerning wages, hours and working conditions.” “At all times mentioned herein, the
[League‟s] represented employees were entitled to fair and meaningful administrative
hearings, including pre-disciplinary [] proceedings conducted before the Board of
Rights of the City of Los Angeles arising from proposed disciplinary actions as required
by the Due Process Clauses of the Federal and State Constitutions, Los Angeles Charter
Section 1070 [Charter], the Board of Rights Manual [Manual] and the Government
Code Section 3300 et seq. [Public Safety Officers Procedural Bill of Rights
(POBRA)] . . . . ”
2 “At all times mentioned herein, Charter Section 1070 provided that no permanent
peace officer employed in the Los Angeles Police Department may be subject to
suspension and/or demotion, removed or otherwise separated from employment with the
Police Department except upon a finding of guilty after a full, fair and impartial hearing
before the Board of Rights . . . . ” “Pursuant to Charter Section 1070 (h) members of
the Board of Rights are composed of two (2) officers of the rank of Captain or above
and an individual who is not a member of the Department.” “Pursuant to Charter
Section 1070 (n) the Board of Rights is vested, upon consideration of the evidence
presented during hearing, with the authority to render findings of guilty or not guilty on
each charge alleged by the Department against the accused officer.”
“In the event the Board of Rights finds the accused officer guilty, it „shall
prescribe its penalty‟ for recommendation to the Police Chief and in „prescribing the
penalty, the Board shall look to the nature and gravity of the offense of which the
member has been found guilty and may at its discretion review the departmental
personnel history and record of the member.‟ (Charter Section 1070 (n)(o))”
The complaint further alleges that, within the last two years, respondents have
been imposing “involuntary conditional Official Reprimands” (COR‟s) to penalize
officers found guilty of misconduct, and that these COR‟s “establish[] a predetermined
minimum disciplinary penalty which will be imposed in the event of a future
commission of the same or similar misconduct by the officer.” These COR‟s allegedly
violate the League‟s “represented employees‟ constitutional rights to procedural due
process and contravene[] the protections and purpose of” section 1070 of the Charter
3 and the Manual. Specifically, the imposition of a COR “deprives the subject officer
a full and meaningful opportunity to challenge a subsequent alleged complaint and
penalty at the Board of Rights hearing” and “undermines the objective of procedural
due process . . . by predetermining the penalty of a subsequent offense, rather than
considering all the facts and circumstances . . . before reaching a decision on
a recommended penalty.”
Accordingly, the complaint seeks a declaration that respondents are precluded
from issuing COR‟s, and to enjoin respondents from this practice. Respondents filed
their answer on April 19, 2012, generally denying the allegations in the complaint and
asserting certain affirmative defenses.
On November 7, 2012, respondents filed a motion for judgment on the pleadings
arguing that: (1) the complaint was improperly vague pursuant to Code of Civil
Procedure section 430.10, subdivision (f);1 (2) the dispute was not ripe for adjudication;
(3) the Charter provides due process to officers charged with misconduct; (4) the Police
Department has the right to establish rules “for the consideration of prior discipline;”
(5) the Manual prohibits review of an officer‟s prior penalties until an officer has been
found guilty by the Board; and (6) injunctive relief is not available to the League
because officers have an adequate remedy at law, namely, administrative appeal
1 Code of Civil Procedure, section 430.10, subdivision (f) provides that the court may sustain a demurrer when the pleading is uncertain.
4 hearings before the Board of Rights.2 Via the motion, respondents asked the court to
take judicial notice of section 1070 of the Charter and the Manual.
The League filed an opposition arguing that: (1) the complaint was not vague;
(2) the alleged dispute was ripe for review; (3) it is irrelevant that the Board of Right‟s
procedures comply with procedural due process because the complaint alleges that
COR‟s violate those procedures; and (4) injunctive relief is proper because there is no
adequate administrative remedy available to the League. No reply was filed.
The court did not take judicial notice of the Charter or Manual, and granted the
motion as follows: “The motion is granted on the First Cause of Action for Injunctive
Relief. Injunctive relief is an equitable remedy and not a cause of action in California.
[Citation.] The motion is granted as to the Second Cause of Action for Declaratory
Relief. The pleading as presented is vague as to which statutes are relied upon. On
what relief may be granted in the present factual context. [Citations.] Moreover, the
controversy is not ripe for adjudication since no plaintiff was injured here. [Citation.]
For that matter, an autonomous administrative body has the right to make its own rules.
2 Respondents‟ motion for judgment on the pleadings purported to “demur” to the complaint pursuant to Code of Civil Procedure, section 430.10 on the grounds that (1) the court had no jurisdiction of the subject of the alleged cause s of action; (2) the League did not have the legal capacity to sue; (3) the complaint did not state facts sufficient to constitute a cause of action; and (4) the pleading was uncertain. However, a defendant may only move for judgment on the pleadings on the following grounds: (i) “[t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint,” and (ii) “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code of Civ. Proc., § 438, subd. (c)(1)(B).) As the motion did not argue that the court lacked subject matter jurisdiction, the motion, in essence, only challenged the complaint‟s attempt to state a cause of action.
5 Finally, the Court does not find that the due rights [sic] of any person have been
violated.” The case was dismissed and the League timely appealed.
CONTENTIONS
The League contends that the complaint adequately stated causes of action for
injunctive and declaratory relief based on the allegations that respondents‟ issuance of
COR‟s establishing minimum penalties for repeated misconduct conflicts with the
Charter, Manual, POBRA and the due process clauses of the federal and state
constitutions.
DISCUSSION
1. Standard of Review
“The standard of review for a motion for judgment on the pleadings is the same
as that for a general demurrer: We treat the pleadings as admitting all of the material
facts properly pleaded, but not any contentions, deductions or conclusions of fact or law
contained therein. We may also consider matters subject to judicial notice. We review
the complaint de novo to determine whether it alleges facts sufficient to state a cause of
action under any theory. [Citation.]” (Dunn v. County of Santa Barbara (2006)
135 Cal.App.4th 1281, 1298.) When a demurrer is sustained without leave to amend,
we review the decision to deny leave to amend to determine “whether there is
a reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion” in denying leave to amend. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) The burden of proving a reasonable possibility of curing the defect
“is squarely on the plaintiff.” (Ibid.)
6 2. The Trial Court’s Order
The trial court granted the motion for judgment on the pleadings on five separate
grounds: (1) injunctive relief is a remedy, not a cause of action; (2) the complaint was
“vague as to which statutes are relied upon;” (3) the controversy was not ripe because
the League had not been injured; (4) “an autonomous administrative body has the right
to make its own rules;” and (5) the League‟s members‟ due process rights had not been
violated.
The League contends that each of these bases was inadequate, and respondents
concede that (1) a cause of action for injunctive relief may be properly predicated on
a declaratory relief cause of action; (2) “vagueness” is not a valid ground for granting
a motion for judgment on the pleading; (3) it is irrelevant that “an autonomous
administrative body has the right to make its own rules” because the complaint does not
challenge the Police Department‟s authority to establish rules, but rather respondents‟
actions that allegedly violate those rules; and (4) that the League‟s members‟ due
process rights have not been violated is not dispositive because the League also alleges
that its members‟ rights under the Charter, Manual and POBRA were violated. 3
However, respondents contend that the motion was properly granted because the
declaratory relief cause of action does not allege specific facts showing that the
controversy is ripe for review. Respondents also make the additional arguments that the
injunctive relief cause of action does not allege facts showing that the League is
3 Respondents expressly concede the first argument, and implicitly concede the second, third and fourth arguments by failing to address them.
7 threatened with an “irreparable injury,” and the League has not shown that it could cure
the complaint‟s defects through amendment.
3. Declaratory Relief
Code of Civil Procedure, section 1060 authorizes “[a]ny person . . . who desires
a declaration of his or her rights or duties with respect to another . . . in cases of actual
controversy relating to the legal rights and duties of the respective parties, [to] bring an
original action . . . for a declaration of his or her rights and duties . . . . ” (Code Civ.
Proc., § 1060, italics added.) “The „actual controversy‟ referred to in this statute is one
which admits of definitive and conclusive relief by judgment within the field of judicial
administration, as distinguished from an advisory opinion upon a particular or
hypothetical state of facts.” (Selby Realty Co. v. City of San Buenaventura (1973)
10 Cal.3d 110, 117.)
The League contends that the complaint adequately alleges an “actual
controversy” based on the stated conflict between the issuance of COR‟s and the Board
of Rights‟ duty to independently determine the punishment to be imposed on an officer
found guilty of misconduct. However, respondents contend that the complaint does not
state an “actual controversy” because the conflict is not “ripe” without specific
allegations showing that an officer‟s due process rights were violated by the imposition
of a minimum penalty. Respondents further argue that the Board of Rights would never
impose a minimum penalty established by a COR precisely because doing so would
violate the Charter and Manual.
8 a. Lack of Specific Facts Showing Individual Violations Have Occurred
“ „The “actual controversy” language in Code of Civil Procedure section 1060
encompasses a probable future controversy relating to the legal rights and duties of the
parties. [Citation.] [However,] [f]or a probable future controversy to constitute an
“actual controversy,” [] the probable future controversy must be ripe. [Citations.]
A “controversy is „ripe‟ when it has reached, but has not passed, the point that the facts
have sufficiently congealed to permit an intelligent and useful decision to be made.”
[Citation.] . . . [Citation.]‟ ” (County of San Diego v. State of California (2008)
164 Cal.App.4th 580, 606.)
“A two-pronged test is used to determine the ripeness of a controversy:
(1) whether the dispute is sufficiently concrete so that declaratory relief is appropriate;
and (2) whether the parties will suffer hardship if judicial consideration is withheld.
[Citation.] „Under the first prong, the courts will decline to adjudicate a dispute if []the
abstract posture of [the] proceeding makes it difficult to evaluate . . . the issues
[citation], if the court is asked to speculate on the resolution of hypothetical situations
[citation], or if the case presents a “contrived inquiry [citation].” Under the second
prong, the courts will not intervene merely to settle a difference of opinion; there must
be an imminent and significant hardship inherent in further delay.‟ [Citation.]” (City of
Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 64.)
Here, respondents contend that the controversy is not sufficiently concrete and
that there is no “imminent” hardship because the allegations in the complaint are too
9 general and fail to allege specific facts showing that any officer has been subjected to
a minimum penalty. Even if this controversy were not sufficiently concrete without
such allegations, leave to amend should have been granted because the League argues
that it could allege such facts.
Furthermore, declaratory relief does not require that a plaintiff establish an injury
prior to seeking relief. The primary purpose of declaratory relief is to settle an actual
controversy before it has ripened into a violation of an obligation or a breach of duty.
(Rimington v. General Accident Group of Ins. Cos. (1962) 205 Cal.App.2d 394; Roberts
v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604.) “ „Another purpose is to
liquidate doubts with respect to uncertainties or controversies which might otherwise
result in subsequent litigation . . . . ‟ [Citation.]” (Venice Town Council, Inc. v. City of
Los Angeles (1996) 47 Cal.App.4th 1547, 1566.) Accordingly, the League was not
required to show that minimum penalties have been imposed on its members.
Furthermore, although the trial court cannot issue an “advisory opinion upon
a . . . hypothetical set of facts,” such an exercise is not required here. If the court were
to resolve the League‟s claims, the court would have to interpret the provisions at issue
in the Charter, Manual, POBRA, and the federal and state constitutions to determine
whether they conflict with respondents‟ imposition of minimum penalties. The issue
could be resolved without resort to a hypothetical set of facts as it involves a pure legal
question of statute and contract interpretation.
In addition, the League is not challenging any specific decision or order by the
Board of Rights or Chief of Police such that the complaint need allege the details of
10 a particular penalty imposed on any individual officer. Instead, the League seeks to
address respondents‟ policy of issuing COR‟s in violation of the Board of Rights
process. “[D]eclaratory relief has been held to be the proper remedy when it is alleged
an agency has a policy of ignoring or violating applicable laws. [Citation.]” (Venice
Town Council, Inc. v. City of Los Angeles, supra, 47 Cal.App.4th at p. 1566.)
“[J]udicial economy strongly favors the use of declaratory relief to avoid a multiplicity
of actions to challenge the City‟s . . . alleged policies. [Citations.]” (Ibid.) The
League‟s complaint alleges that respondents‟ imposition of COR‟s establishing
mandatory minimum penalties is a recurring problem. “As against the piecemeal
review of similar issues by individual challenges,” challenging the overarching policy
through the present action for declaratory relief would be “singularly economical.”
(Id., at p. 1567.)
Furthermore, a reasonable inference can be drawn from the complaint that
minimum penalties will be imposed on officers who repeat misconduct based on the
authority of respondents − the Chief of Police and the City − over the Board of Rights,
and the complaint‟s allegation that the minimum penalties are “establish[ed],” not
suggested or recommended. Accordingly, we conclude that the complaint has
adequately alleged facts showing an imminent hardship and the existence of an “actual
controversy” between the parties.
b. Lack of Conflict Between Respondents and the Board of Rights
Respondents also contend that the complaint does not allege facts showing that
their issuance of COR‟s “has any effect upon, or violates the rights and procedures
11 afforded to the League‟s members” because, under the Charter and Manual, the Board
of Rights is not allowed to consider COR‟s “in determining a penalty recommendation
upon finding an officer guilty of misconduct.” By this argument, respondents concede
that the Board of Rights may not impose mandatory minimum penalties without
violating the League‟s members‟ rights.
Respondents appear to be attempting to moot any “actual controversy” and
thereby dispose of the declaratory relief claim through this concession. There are
multiple reasons why they may not do so. First, respondents may not raise this
argument for the first time on appeal. (In re Marriage of Arceneaux (1990)
51 Cal.3d 1130, 1138.) Second, respondents‟ argument defies common sense.
According to the complaint‟s allegations, the Chief of Police and the City have been
“establish[ing]” minimum penalties which “predetermine[] minimum disciplinary
penalt[ies]” for officers found guilty of repeating misconduct. Respondents‟ claim that
the Board of Rights − which, according to the complaint, consists primarily of officers
subordinate to the Chief of Police and employed by the City − could and would simply
ignore these orders based on the Board of Rights‟ own contrary interpretation of the
Charter‟s and Manual‟s provisions is unlikely. Respondents‟ argument also suggests
the unlikely conclusion that the Chief of Police and the City are issuing orders for
penalties with the understanding that they cannot be enforced.
Lastly, it is unclear why respondents filed an answer denying all of the
complaint‟s allegations if all parties agree that the imposition of these minimum
penalties is not permitted by the Charter and Manual.
12 4. Injunctive Relief
Respondents acknowledge that a request for injunctive relief may be properly
predicated on another cause of action. Here, as explained above, the underlying cause
of action for declaratory relief was adequately alleged. However, respondents still
contend that the complaint did not state a cause of action for injunctive relief because
there was no irreparable injury alleged. “[I]n order to obtain injunctive relief the
plaintiff must ordinarily show that the defendant‟s wrongful acts threaten to cause
irreparable injuries, ones that cannot be adequately compensated in damages.
[Citation.]” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352.)
Respondents argue that the complaint did not allege facts showing an irreparable
injury because the League did not exhaust its administrative remedies. Specifically,
respondents argue that the League‟s members may opt for a hearing before the Board of
Rights where they will have the opportunity of challenging the imposition of any unfair
penalties. This argument relies on circular logic. The complaint alleges that the
League‟s members are being denied the procedural safeguards provided for by the
Charter and Manual with respect to a Board of Rights hearing. Therefore, respondents‟
argument that the League‟s members must rely on the Board of Rights‟ process to
address their grievance here ignores the complaint‟s allegations.
Respondents also argue that the League‟s members have an adequate legal
remedy available to them because any individual officer may challenge a penalty
recommendation by the Board of Rights by filing a petition for writ of administrative
mandate. However, here, the complaint‟s purpose is not to reverse the Board of Rights‟
13 penalty recommendation as to any particular officer. This action is designed to address
the broader problem of respondents‟ policy of establishing minimum penalties in
violation of the League‟s members‟ rights. A writ for administrative mandate in any
one particular case would not reach respondents‟ issuance of COR‟s, and therefore,
would not provide an adequate remedy of law to the League‟s claims here. (Knoff v.
City and County of San Francisco (1969) 1 Cal.App.3d 184, 199 [holding that the trial
court correctly determined that the petitioner taxpayers did not have a precedent remedy
in the form of appealing assessments to the Board of Equalization where petitioners did
not seek judicial relief from any specific assessment but rather to bring about correction
of wholesale deficiencies in the assessment process].)
14 DISPOSITION
The judgment is reversed. The trial court is ordered to vacate its order granting
the motion for judgment on the pleadings and enter a new order denying the motion for
judgment on the pleadings. The League shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
KITCHING, J.