Brian Larson v. City of Santa Barbara

Case Number

25CV01046

Case Type

Hearing Date / Time

Wed, 06/18/2025 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

For Petitioner Brian Larson: Robert L. Baumann, Ferrone Law Group

                                   

For Respondents City of Santa Barbara and City of Santa Barbara Police Department: Sarah J. Knecht, City Attorney, John S. Doimas, Assistant City Attorney; Paul D. Knothe and Alexandra Clark, Liebert Cassidy & Whitmore.

RULING

1. The demurrer to the first and second counts of the first amended petition for writ of mandate, which seek administrative mandamus pursuant to Code of Civil Procedure section 1094.5, is sustained with leave to amend. Petitioner shall file and serve a second amended petition on or before July 8, 2025.

2. The demurrer to the third count of the FAP for injunctive relief pursuant to Government Code section 3309.5 is overruled.

3. The Hearing on the Petition for Writ of Mandate is set for 10 am on Wednesday 11/19/25.

Background

Petitioner Brian Larson, a former detective for the City of Santa Barbara Police Department (Department), filed his original verified petition for writ of mandate on February 19, 2025. He filed his first amended petition for writ of mandate (FAP) on March 18, 2025.

The FAP alleges that on March 3, 2022, Chief Bernard Melekian learned that Detective Yumaira Kirk had “issues with her supervisor, Petitioner.” (FAP, ¶ 8.) Kirk, following Chief Melekian’s instruction, submitted a formal complaint on March 11, 2022, and petitioner was placed on administrative leave on the same date. (Id., ¶¶ 9-11.)

The Department interviewed petitioner regarding Kirk’s complaint on May 4,

2022. (FAP, ¶ 12.) The City of Santa Barbara (City) engaged outside attorney Kathy Gandara to conduct the investigation, and her report was finalized and submitted to the City and the Department on May 26, 2022. (FAP, ¶ 13.) On June 3, 2022, petitioner received a Memorandum and Notice of Intent to Dismiss (NOID), as well as a copy of Gandara’s report, which formed the basis for the Department’s intended discipline. (Id., ¶ 14.) Petitioner thereafter submitted a request for a Skelly hearing on June 9, 2022, and on June 17, 2022, appealed the NOID via a Skelly hearing. (Id., ¶ 16.) (Note: In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215, the California Supreme Court held that in order to satisfy due process, an agency considering disciplinary action against a public employee must accord the employee certain “preremoval safeguards,” including “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” The Supreme Court's directive gave rise to an administrative procedure known as a Skelly hearing, in which an employee has the opportunity to respond to the charges upon which the proposed discipline is based.) Petitioner alleges that at the Skelly hearing, he presented character and factual letters from the district attorney investigators and made arguments gleaned from police reports in rebuttal to the allegations against him. (Id., ¶¶ 17–18.)

On July 12, 2022, the Department issued a “Skelly Decision and Final Notice of Suspension” which overturned the recommended termination and imposed a suspension instead. (FAP, ¶ 19.)  Petitioner appealed the suspension “by way of a Civil Service Commission (‘CSC’) Hearing, pursuant to the Memorandum of Understanding (‘MOU’) between the City of Santa Barbara Police Officers Association and the City of Santa Barbara.” (Id., ¶¶ 19-20.)

Petitioner alleges that the CSC was prepared to hear his appeal on April 5, 2023, but that a new and additional administrative investigation was initiated against him in February 2023 and before the CSC hearing could proceed. (FAP, ¶ 21.) Petitioner withdrew his appeal because, as he alleges, the new investigation was directly connected to his due process rights to defend himself regarding the investigation which had begun with Kirk’s formal complaint submitted on March 11, 2022. (Ibid.) As a result, petitioner received a “Final Notice of Discipline” from the Department reflecting a suspension without pay from December 3 to December 30, 2022, which he served in full. (Id., ¶ 22.)

Following petitioner’s return to work on January 3, 2023, Kirk who was now employed at the Ventura County District Attorney’s Office, submitted a second formal complaint against petitioner on January 5, 2023. (FAP, ¶¶ 23–24.) In this new complaint, Kirk alleged that petitioner had made retaliatory and defamatory statements regarding Kirk and her job performance in response to her initial March 11, 2022, complaint. (Id., ¶ 24.) Petitioner alleges that Kirk’s new complaint “stemmed [from] the reveal” of character/factual letters written on behalf of, and in support of, petitioner, by select district attorney investigators. (Ibid.)

Petitioner was placed on administrative leave on January 12, 2023, pending the outcome of this new investigation. (FAP, ¶ 25.) On February 16, 2023, petitioner was notified that he was the subject of a new internal affairs investigation, and that outside investigator Garon Wyatt had been retained to conduct it. (Id., ¶ 26.) Petitioner alleges that the basis for this investigation was to investigate the claims that he had (a) retaliated against Kirk and (b) gained unauthorized access to Department records which petitioner claimed, “was due to his prior meeting with Chief Melekian and to prepare himself for his new assignment as a patrol sergeant.” (Ibid., capitalizations altered.)

Petitioner was interviewed on April 18, 2023, and again on July 25, 2023, as part of this second administrative investigation. (FAP, ¶¶ 27–28.) On July 11, 2023, he received two separate notices from the City, one indicating the Department’s intent to demote, and another indicating an intent to dismiss, based on the findings from Wyatt’s investigation. (Id., ¶ 29.) The demotion was based on sustained allegations of retaliation and defamation due to the district attorney investigator letters, and the proposed dismissal was based on alleged improper access to confidential files and failure to return department materials. (Ibid.)

Petitioner submitted a dual request to appeal both notices which lead to a pre-disciplinary Skelly hearing on July 27, 2023, and a secondary “super Skelly” hearing before Assistant City Administrator Rene Eyerly on September 18, 2023. (FAP, ¶¶ 30–32.) Petitioner received a Skelly Decision and Final Notice of Dismissal on October 6, 2023. (Id., ¶ 33.)

Petitioner requested arbitration on October 13, 2023, and a CSC hearing took place on April 29, 30, May 1, June 3, and June 4, 2024, during which petitioner presented 53 exhibits and called 10 witnesses, including himself. (FAP, ¶¶ 34, 35.) The CSC upheld the Department’s disciplinary decision to dismiss petitioner, and his employment with the Department was formally terminated on October 6, 2024. (Id., ¶¶ 41-42.)

The FAP filed in this action contains three counts: (1) violation of Government Code section 3304(d)(1); (2) retaliation in violation of Government Code section 3304; and (3) injunctive relief pursuant to Government Code section 3309.5.

Respondents filed their demurrer to the FAP on April 23, 2025, arguing: (1) the FAP is time-barred pursuant to Code of Civil Procedure section 1094.6; (2) the FAP is barred by the doctrine of collateral estoppel; (3) petitioner’s claims under the Public Safety Officers Procedural Bill of Rights Act (POBRA) are barred by his failure to file a government claim; (4) petitioner fails to state a claim under Government Code section 3304, subdivision (d)(1); (5) petitioner fails to state a claim for retaliation; and (6) petitioner cannot state a claim for injunctive relief.  

Petitioner has filed a substantive opposition to the demurrer.

Analysis

A demurrer may be filed in response to a petition for writ of administrative mandate. (Code Civ. Proc., § 1089; Ventura Coastal, LLC v. Occupational Safety and Health Appeals Board (2020) 58 Cal.App.5th 1, 13-14.)

“‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. ... We also consider matters which may be judicially noticed.’ ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768, internal quotation marks and citations omitted.)

(1)       Respondents’ Statute of Limitations Argument

1. The Parties’ Contentions

Respondents argue that the entire FAP is barred by the statute of limitations set forth in Code of Civil Procedure section 1094.6, subdivision (b). (Demurrer, p. 8.) This statute provides that a petition for administrative mandamus shall be filed “not later than the 90th day following the date on which the decision becomes

final.” (§ 1094.6, subd. (b).)

According to respondents, the FAP alleges that CSC conducted a hearing and delivered its final decision upholding the termination of Petitioner’s employment at its meeting on August 20, 2024. (Demurrer, p. 8, citing FAP, ¶¶ 40-41.) As such, respondents argue, the deadline to file a petition seeking judicial review of the CSC’s decision expired on November 18, 2024, thereby rendering the original petition in this case, filed on February 19, 2025, untimely. (Demurrer, p. 8.)

Petitioner, meanwhile, argues that while the original petition “was improperly brought under Code of Civil Procedure § 1085, but timely filed within that statutory period, the Court should exercise its discretion in treating the petition as if it had been properly and timely filed under Code of Civil Procedure § 1094.5.” (Opposition, p. 9, capitalization altered.) Petitioner further asserts that should the Court decline to exercise its discretion, petitioner should be relieved of the 90-day statute of limitations due to excusable neglect. (Opposition, p. 10.)

2. Analysis

A petition for mandamus review of most adjudicatory decisions of a local agency (other than a school district), or any commission, board, office, or agent thereof, brought under Code of Civil Procedure section 1094.5 must be filed no later than 90 days following the date the decision becomes final. (Code Civ. Proc., § 1094.6, subds. (a), (b).) The 90-day deadline applies to decisions “suspending, demoting, or dismissing an officer or employee, revoking [or] denying an application for a permit, license, or other entitlement, imposing a civil or administrative penalty, fine, charge, or cost, or denying an application for any retirement benefit or allowance.” (§ 1094.6, subd. (e).)

Trial courts have no jurisdiction to entertain a section 1094.5 petition filed beyond the 90-day deadline. (Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 576, 578; Liang v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2004) 124 Cal.App.4th 775, 777-778.)

As set forth above, petitioner concedes that the original petition was “improperly brought under Code of Civil Procedure section 1085.” (Opposition, p. 9.) The FAP was revised to state that the first two counts are made pursuant to Code of Civil Procedure section 1094.5. (FAP, p. 1.)

Petitioner also states in his opposition that “[r]espondents delivered their decision to sustain the discipline to dismiss petitioner on August 20, 2024, triggering the statute of limitations.” (Opposition, p. 10, capitalization altered.) For this reason, the first two counts of the petition brought pursuant to section 1094.5 appear to be time-barred, and respondents’ demurrer to these two counts is therefore sustained. 

However, the demurrer is sustained with leave to amend because the allegations of the FAP do not foreclose the possibility that the CSC decision was anything but “final” on August 20, 2024. The section 1094.6 90-day period runs from the date the decision is “final.” (Code Civ. Proc., § 1094.6, subd. (b).) Subdivision (b) of section 1094.6 sets forth the manner in which finality is determined:

“If there is no provision for reconsideration of the decision, or for a written decision or written findings supporting the decision, in any applicable provision of any statute, charter, or rule, for the purposes of this section, the decision is final on the date it is announced. If the decision is not announced at the close of the hearing, the date, time, and place of the announcement of the decision shall be announced at the hearing. If there is a provision for reconsideration, the decision is final for purposes of this section upon the expiration of the period during which such reconsideration can be sought; provided, that if reconsideration is sought pursuant to any such provision the decision is final for the purposes of this section on the date that reconsideration is rejected. If there is a provision for a written decision or written findings, the decision is final for purposes of this section upon the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the party seeking the writ. Subdivision (a) of Section 1013 does not apply to extend the time, following deposit in the mail of the decision or findings, within which a petition shall be filed.”

Further, in making a final decision, the local agency must provide notice to the party that the time within which judicial review must be sought is governed by section 1094.6. (Code Civ. Proc., § 1094.6, subd. (f).)

Petitioner is given leave to amend to allege additional facts, if any, showing why his petition seeking relief pursuant to Code of Civil Procedure section 1094.5 is timely under subdivision (b) of section 1094.6.

Meanwhile, petitioner’s request that he be relieved of the 90-day statute due to excusable neglect is unfounded. While petitioner does not specifically tether his request for relief to Code of Civil Procedure section 473, or any other statute for that matter, it is well settled that section 473 does not offer relief from mandatory deadlines deemed jurisdictional in nature. (Maynard v. Brandon (2005) 36 Cal.4th 364, 372, citing Estate of Simmons (1914) 168 Cal. 390, 396.) Further, the case law  which petitioner cites in support of his request relief, Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, is inapplicable here. In Zamora, the plaintiff’s attorney prepared an offer to compromise under Code of Civil Procedure section 998, but erroneously typed the word “against” instead of the phrase “in favor of.” As such, the offer was to settle for a judgment against the plaintiff in a certain amount rather than in favor of the plaintiff. The defendant quickly accepted the offer and judgment was entered. The plaintiff sought and obtained discretionary relief under section 473, subdivision (b). The relief in Zamora was given in connection with a drafting error in a settlement agreement and not with respect to the failure to comply with a jurisdictional filing deadline.

Inasmuch as the statute of limitations defense raised by respondents may be dispositive of the first two counts seeking relief under section 1094.5, the Court does not at this time address respondents’ remaining arguments in the demurrer as they relate to these claims.

With respect to the third count, for injunctive relief pursuant to Government Code section 3309.5, respondents fail to explain why this claim is likewise time-barred. A public safety health officer may file a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5, challenging the result of the administrative hearing, and concurrently file a separate action under section 3309.5. (Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 1603.) The former is a petition for administrative mandamus while the latter is one for regular mandamus pursuant to Code of Civil Procedure section 1085. (Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 253-254.)

Moreover, for traditional mandamus cases under Code of Civil Procedure section 1085 or administrative mandamus cases not covered by section 1094.6, if the statutory scheme authorizing judicial review by writ petition does not itself set forth a limitations period, the appropriate period is determined by the nature of the underlying right or obligation the mandamus proceeding seeks to enforce. (Kao v. California Dept. of Corrections & Rehabilitation (2016) 244 Cal.App.4th 1326, 1332-1334 [traditional mandamus proceeding to require Department of Corrections to process disciplinary appeal governed by Code Civ. Proc. § 338, subd. (a), liability created by statute, and not by judicially created 60-day rule applied to nonstatutory writ petitions filed in appellate courts].)

Respondents fail to show why the third count of the FAP seeking mandamus pursuant to Government Code section 3309.5 is time-barred. Respondents’ demurrer to this count on such grounds is therefore overruled.

(2)       Respondents’ Demurrer to the Third Count (Gov. Code § 3309.5)

The third count of the FAP seeks relief pursuant to Government Code section 3309.5. This statute sets forth the remedies available to a public safety officer for a violation of one or more POBRA provisions.

POBRA “ ‘sets forth a list of basic rights and protections which must be afforded all peace officers [citation] by the public entities which employ them. It is a catalogue of the minimum rights [citation] the Legislature deems necessary to secure stable employer-employee relations [citation].’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 320.) “The various procedural protections provided by POBRA ‘balance the public interest in maintaining the efficiency and integrity of the police force with the police officer's interest in receiving fair treatment.’ ” (Ibid.)

POBRA “secures for peace officers—when off duty and not in uniform—the right to engage, or to refrain from engaging, in political activity (§ 3302); it protects against punitive action or denial of promotion for the exercise of procedural rights granted under its own terms or under an existing grievance procedure (§ 3304, subd. (a)); it provides that no adverse comment be entered in an officer's personnel file until after the officer has been given an opportunity to read and sign the comment (§ 3305); it mandates that when an adverse comment is entered in a personnel file, the officer shall have 30 days to file a written response to be attached to the adverse comment in the file (§ 3306); and it protects against compelled disclosure, except in limited circumstances, of an officer's financial status (§ 3308).” (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572.)

Subdivision (d)(1) of section 3309.5 provides that “[i]n any case where the superior court finds that a public safety department has violated any of the provisions of this chapter, the court shall 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.”

Respondents argue that the third count is barred because petitioner failed to submit  a claim pursuant to the Government Claims Act. Section 905 of the Government Claims Act provides that, with certain specified exceptions, “all claims for money or damages against local public entities” must be presented in accordance with the claim presentation statutes. Compliance with the Government Claims Act is required when the recovery of money and damages are the “principal focus” of the action and the primary relief sought thereby. (Lozada v. City & County of San Francisco (2006) 145 Cal.App.4th 1139, 1170.) Before a cause of action may be stated, a plaintiff must allege either compliance with this procedure or circumstances excusing compliance. (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.)

Respondents contend that petitioner was required to submit a government claim  because his “primary aim is to recover monetary damages for the loss of his employment.” (Demurrer, p. 10.) In doing so, they request that the Court take judicial notice of petitioner’s federal action filed against respondents and other individual defendants seeking monetary damages, including general and special damages. While the Court takes judicial notice of the federal pleadings, it does not take such notice of the truth of the matters contained therein. A court may judicially notice the “[r]ecords of ... any court of this state.” (Evid. Code, § 452, subd. (d).) A court cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7.)

Petitioner, meanwhile, asserts that respondents’ argument fails “because the money damages sought are merely incidental to [his] claim for injunctive relief.” (Opposition, p. 13, capitalization altered.)

The court in Lozada, supra, 145 Cal.App.4th 1139 did not conclude that all POBRA violation claims fall within the Government Claims Act. To the contrary, the court recognized that the relief sought by public safety officers alleging violations of their POBRA rights can vary greatly, and whether the Government Claims Act applies depends entirely on the action’s primary purpose. In Lozada the court explained that an officer’s writ petition seeking primarily reinstatement of employment or similar declaratory relief, and backpay as a form of incidental damages, will not be subject to the Government Claims Act. (Id., at p. 1166.) On the other hand, a lawsuit that primarily focuses on recovering actual damages and civil penalties, with ancillary claims for injunctive and declaratory relief, would be covered by the Government Claims Act. (Ibid.)

The Court finds that the petition does not, on its face, demonstrate that petitioner’s primary focus is to recover actual damages and civil penalties as opposed to rescinding the discipline which was imposed upon him. (FAP, p. 9.) The demurrer to the third count on the basis that petitioner has failed to allege compliance with the Government Claims Act is therefore overruled.

Respondents also argue that the third count for injunctive relief under section 3309.5 fails because it does not allege facts sufficient to demonstrate a substantive violation of POBRA. (Demurrer, p. 14.) The Court disagrees.

Petitioner has alleged two separate violations of Government Code section 3304, which is part of POBRA, as well as facts supporting his allegations. (FAP, ¶¶ 2, 3, 18, 19.) Reading the FAP as a whole, the Court finds the allegations are sufficient to state a claim under section 3309.5. Respondents’ reliance upon Shouse v. County of Riverside (2022) 84 Cal.App.5th 1080 is misplaced. In Shouse, at p. 1088, it was held that mere rumors of a police officer’s sexual relationships were not a sufficient basis to trigger a duty to investigate misconduct. Here, by contrast, petitioner alleges facts showing that Chief Melekian was actually presented with the information petitioner obtained by allegedly improper means which he – Chief Melekian – then used to reach his decision imposing discipline. The demurrer to the third count on the basis it fails to allege sufficient facts is overruled.