Filed 10/2/09 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APP

Filed 10/2/09 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR ANDREW BUESA et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent. B212854 (Los Angeles County Super. Ct. No. BC378215) APPEAL from a judgment of the Superior Court of Los Angeles County, Elihu M. Berle, Judge. Affirmed. Law Office of David W. Allor and David W. Allor for Plaintiffs and Appellants. Rockard J. Delgadillo and Carmen Trutanich, City Attorneys, and Paul L. Winnemore, Deputy City Attorney for Defendant and Respondent. _________________________ 2 This is an appeal from a judgment on the pleadings in an action against the City of Los Angeles (City)1 brought by two former Los Angeles police officers, Andrew Buesa and Michael Cardenas. Plaintiffs seek damages for a violation of their rights under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq. (POBRA)).2 The gravamen vegas hotels of their complaint is that a perjured declaration submitted by the City deprived them of their statute of limitations defense in an administrative mandamus proceeding over their discharges. The issue is whether they may maintain this as a separate action, or whether under the doctrine of collateral estoppel it is barred by the final judgment denying their petition for administrative mandamus. We conclude that plaintiffs‟ action under POBRA is barred because it constitutes an impermissible collateral attack on the mandate judgment. FACTUAL vegas hotels AND PROCEDURAL SUMMARY Since this matter is on appeal from a judgment on the pleadings, we take our factual summary from the allegations of the second amended complaint, which is the charging pleading. On February 2, 2002, plaintiffs participated in the arrest of a suspect following a car and foot chase. The same day, the Los Angeles vegas hotels Police Department (LAPD) learned of alleged acts of misconduct by plaintiffs arising from that arrest. The next day, Sergeant Joe Losorelli, of the LAPD Internal Affairs Group, was assigned to investigate the alleged misconduct. On August 15, 2002, Losorelli met with a deputy district attorney in the Los Angeles County District Attorney‟s Office for the purpose of seeking a determination whether criminal charges should be filed against plaintiffs based on the February 2002 incident. vegas hotels Losorelli met with the deputy district attorney again on October 2, 2002, at which time he provided a copy of his investigation and witness statements. 1 Police Chief William vegas hotels J. Bratton was a named defendant in the original complaint, but he was deleted in the second amended complaint, vegas hotels the charging pleading. He is not a party to this appeal. 2 Statutory references are to the Government Code unless otherwise indicated. 3 According to plaintiffs, vegas hotels the district attorney‟s office opened its criminal investigation against plaintiffs that day. POBRA provides a one-year statute of limitations for bringing of police vegas hotels misconduct charges. The time runs from discovery of the misconduct. (§ 3304, subd. (d).) Section 3304, subdivision (d)(1) tolls the limitations period while a criminal vegas hotels investigation or prosecution is pending. On December 2, 2002, Losorelli asked LAPD superiors to toll the statute of limitations against plaintiffs because of the pending criminal investigation. He asked that the period be tolled from his August 15, 2002 meeting with the district attorney‟s office until the conclusion of the criminal investigation. The criminal vegas hotels investigation was terminated on February 11, 2003, when the deputy district attorney in charge of the case elected not to seek a grand jury indictment. Personnel complaints against plaintiffs were filed at the Los Angeles Police Commission on August 3, 2003, alleging misconduct arising from the February 2002 arrest. They were served the next day. On August 3, 2004, a board of rights found plaintiffs guilty of misconduct and recommended that they be discharged. On September 29, 2004, the chief of police adopted vegas hotels the recommendation that plaintiffs be terminated for failure to report the use of force against a suspect. The chief signed orders removing them from employment, effective that day. Plaintiffs vegas hotels filed a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) on December 14, 2004 seeking vegas hotels review of their terminations. They alleged that Losorelli vegas hotels furnished a false declaration regarding tolling, which was used by defendant in responding to the petition. Allegedly, Losorelli knew that pursuant to a policy of LAPD and the district attorney‟s office, only the latter was authorized to open a criminal vegas hotels investigation against sworn personnel. According to the complaint, the district attorney‟s office opened the criminal investigation against plaintiffs on October 2, 2002. Plaintiffs allege: “Sergeant Losorelli knowingly and intentionally testified falsely that his investigation against plaintiffs was considered a criminal investigation from the beginning (as of February 2, 2002). Sergeant Losorelli knowingly and intentionally testified falsely that he first presented the case against plaintiffs to [the deputy district vegas hotels 4 attorney] vegas hotels for possible criminal filing at a July 31, 2002 meeting, when this meeting actually took place on August 15, 2002.” Allegedly, with knowledge that the August 3, 2003 personnel complaints against plaintiffs were time-barred, Losorelli presented a false declaration in the mandamus action “with the intent of fraudulently extending the tolling period for criminal investigations” authorized by section vegas hotels 3304, subdivision (d) “and with the malicious intent to deprive plaintiffs of their rights,” and further employment with the LAPD. According to plaintiffs, they discovered Losorelli‟s wrongful conduct on July 25, 2007, after the administrative mandamus proceeding was concluded. They do not explain the circumstances vegas hotels of that discovery. vegas hotels Plaintiffs‟ petition for writ of administrative mandate was denied by the trial court. The court found the weight of evidence at the administrative hearing supported the decision to terminate plaintiffs. It identified the application of the POBRA statute of limitations as “the main legal issue in the case.” The court noted that both sides had submitted documentary evidence and declarations on the limitations issue, and that no objection to this evidence was made by either side. The trial court found: vegas hotels “The disciplinary action against the petitioners is not barred by the limitations provision of the POBR” because of the tolling provision in section 3304, subdivision (d)(1). The court stated that charges were served on plaintiffs 18 months and two days after the alleged misconduct. It found: “The alleged misconduct was the subject of a criminal investigation that commenced on or before July 31, 2002, when an LAPD investigator met with the District Attorney regarding the matter, and which did not end until February 11, 2003, when the District Attorney decided not to ask the grand jury for an indictment because of the lack of evidence. The one-year limitation period was therefore tolled for six months and eleven days. The investigation was therefore completed and notice of charges were served upon the petitioner[s] within the 5 twelve month period required by section vegas hotels 3304(d).” No appeal vegas hotels was filed from the denial of the petition for administrative mandate and that order is now final.3 Plaintiffs vegas hotels filed their original complaint in this separate action seeking reinstatement on September 27, 2007. They filed a first amended complaint which was the subject of a successful motion for judgment on the pleadings. The motion was granted with leave to amend. Plaintiffs‟ second amended complaint dropped the claim for reinstatement, and, instead sought damages against the City for violation of POBRA. City responded with a new motion for judgment on the pleadings. vegas hotels At the first hearing on the motion, the trial court requested vegas hotels additional briefing on whether perjury in a prior proceeding may be the basis for a collateral attack on the judgment. After supplemental briefing on that issue, a second hearing was held. The court found: “The gravamen of this lawsuit is an action under Government Code section 3309.5, but it‟s based upon plaintiffs‟ claim for perjury in the underlying action in the mandamus proceeding.” The court observed that the weight of California authority is that perjury is not a basis for collateral attack vegas hotels on a judgment. It found “that since the gravamen of the complaint in this case is perjury in a prior proceeding and further based upon the principles of law that perjury in a prior proceeding, which is intrinsic fraud, is not grounds for collateral attack, the court is going to grant the motion for judgment on the pleadings.” Judgment was entered in favor of City. This appeal followed. DISCUSSION “The standard of review for a motion for judgment vegas hotels 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 3 Plaintiffs sued their former attorney for malpractice for promising, but failing, to appeal the denial of the writ petition. We are not informed of the outcome of that action. 6 action under any theory. [Citation.]” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.) The issue presented vegas hotels is whether the action for damages under POBRA is barred by the final judgment following denial of plaintiffs‟ vegas hotels petition for writ of administrative mandate vegas hotels pursuant to Code of Civil Procedure section 1094.5. Plaintiffs argue they are not collaterally attacking the mandate judgment, which is final, and therefore the doctrines of finality of judgments and collateral estoppel do not apply. vegas hotels Their theory is that thei