*1 Dist., B022737. July Second Div. Seven. [No. 1987.] al., DARRYL MOUNGER et Plaintiffs Appellants, GATES, Police, etc., al., DARYL F. as Chief et Defendants Respondents.
Counsel Loew, Marr, for
Robert J. Marr Diane Marchant Loew & Cecil and and Appellants Plaintiffs. Hahn, Merkin, City N. Assistant City Attorney,
James K. Frederick Hotchkiss, City Attorney, Respondents S. for Attorney, and David Deputy and Defendants.
Opinion
JOHNSON, Los Police Protective Darryl Mounger Angeles and the J. leave League an a demurrer without (LAPPL) appeal sustaining from order to the first fifth of action in the second amended amend to causes through violations complaint injunctive declaratory alleged and relief for seeking whether appeal section 3303 of The on question Government Code. his to exhaust Mounger Goverment Code 3309.51 appellant section requires safety any public de part: “(a) states pertinent Section 3309.5 in It shall be unlawful for partment deny guaranteed any safety rights protections to refuse officer chapter. to them this any “(b) brought superior jurisdiction any proceeding The court shall have initial over public safety against safety section. alleged officer violations department for For the reasons set seeking judicial administrative remedies before relief. below, trial court from parties appeal forth we conclude the erred. Since order, as a for petition we will treat the nonappealable purported the trial directing mandate and issue a writ of mandate peremptory writ of leave to amend sustaining court to vacate the order demurrer without one will continue to refer to the parties appel- counts five. We and respondents. lants Proceedings Fact Below
Statement in Mounger, sergeant Plaintiffs their second amended alleged complaint subject the Los Police was the of an Angeles Department, investigation Internal (IAD) Mounger Affairs Division for misconduct. was inter- In by the IAD on three count one rogated separate occasions. certain section 3303 interrogation
claimed violations of occurred his on October violations informed being prior 1984. These included not rank, the interrogation investigation of the or of name and command of the in charge officer informed of the (b),2 being violation subdivision not nature in violation of investigation (c),3 being subdivision not allowed record tape and denied access to of others’ interrogation copies notes, transcribed reports, or of subdivision complaints (f),4 violation advised of being he though might constitutional even charged *5 with a criminal in (g),5 offense violation of and not al- being subdivision any “(c) safety In case superior public department where the court finds that a has violated any provisions of injunctive the chapter, appropriate of this the court shall or other render extraordinary remedy relief to prevent the violation and to violations of a like or simi- future nature, to, order, including, lar restraining granting temporary pre- but not limited the of a liminary, permanent injunction any or prohibiting public safety department taking the from punitive against safety public action the officer.” subsequent statutory All refer to the unless citations Government Code otherwise indicat- ed. 3303, (b) investigation Section provides: public safety subdivision “The under shall officer rank, prior be informed charge ing interrogation to such of the command of the officer in name and officers, interrogation, of the interrogating persons present the and all to be dur other interrogation. the questions safety interrogation All public directed to officer under the by shall be asked through interrogators and no more than two one time.” at 3303, (c) 3Section public safety investigation subdivision “The shall be states: officer under informed of the investigation prior any nature of interrogation.” the to 4Section (f) safety complete interrogation public subdivision reads: “The of a officer may recording be If tape safety recorded. a interrogation, public is made of the officer the shall have access tape any prior any to the proceedings contemplated if further or to fur are interrogation ther subsequent public safety at a time. The shall be entitled to a tran officer copy any by by scribed investigators of stenographer reports *6 Tuller, of
action for and invasion as to Lombardo and Butz conspiracy 3303, filing of (h) provides: “Upon the of a formal written statement 6Section subdivision likely puni to in charges, interrogation are result or whenever an focuses on matters which officer, officer, right any safety to against public request, shall have the tive action at represented by representative present at all times such a of his who be choice The interrogation. subject investigation. representative person the same The shall be a to disclose, subject any punitive for refus representative action required shall not be to nor be to disclose, investigation for ing noncriminal received officer under information from the matters. ...” 7 declaratory pursuant to section Mounger sought In count five both and LAPPL (Code parties in this con Proc.) rights respective determining 1060 and duties of the Civ. leave troversy. sustaining demurrer without in Because we conclude the trial court erred reme respect ground exhausting his administrative Mounger with on the of not to amend five counts and dy, ground respect with four ruling the trial court erred in fortiori on this alleged by LAPPL. 1254 intentional infliction of emotional distress. It further ruled
privacy and control, for train- negligent management, stated a cause of action plaintiffs leave to amend granted and in count seven as to Gates and ing supervision count nine. a minute order the demurrer sustaining from
Appellants appeal v. Schrader (Beazell (1963) without leave to amend which is not appealable. 534, 577, 381 390].) They may only Cal.2d P.2d Cal.Rptr. appeal 59 579 [30 of a demurrer. upon sustaining from a of dismissal based judgment 498, 501, v. 101 fn. 1 (Taylor (1980) State Personnel Board Cal.App.3d [161 in 677].) A of dismissal could not issue Cal.Rptr. judgment properly the instant case without rule because the violating one-final-judgment trial five nine only court had of the counts disposed complaint. 5, (U.S. v. 37 11 (1974) Cal.App.3d Cal.Rptr. Financial Sullivan [112 Rather than dismiss the we treat the appeal, purported appeal as a it petition question public for writ of mandate because presents 777, (see Estate Hearst 781 importance Cal.App.3d [136 Cal.Rptr. for writ of certiorari because petition 821] [treated Witkin, involved question (3d Cal. Procedure ed. public importance]; Writs, 1985) Extraordinary §118, have 753-757); fully pp. parties Sullivan, briefed the propriety of the trial v. ruling (U.S. court’s Financial supra, Cal.App.3d 11); at did not its p. respondent challenge appeal- ability (Poe Diamond 191 Cal.App.3d Cal.Rptr. 1398 [237 Estate 80]; (1979) 88 463 fn. 1 Cal.Rptr. of Hoertkorn 806].) We find the circumstances here issue present us to compel decide (See ed. Olson v. Cory (1983) 35 Cal.3d Witkin, 62-63, P.2d 720]; 9 Cal. (3d 1985) Procedure ed. 86- Appeal, pp. §§ As 88.) we discuss inter alia the issue in this case at protections are matters of statewide they concern because affect the interest in promoting stable employer-employee safety organiza relations tions and assure procedural officers. protections safety for public Sustaining I. The Trial Court Erred the Demurrer Without Leave Amend to the Five First Causes Action on the Ground Had Not Exhausted His Administrative Remedies.
Appellants contend the trial court erred in the exhaustion applying doctrine to alleged violations of section 3303. agree. We *7 In reviewing sufficiency of a a demurrer we complaint against “must ‘treat the demurrer as all admitting material facts properly pleaded, contentions, but not deductions or ... conclusions of fact or law well [as ” consider matters which v. Kirwan judicially (Blank as] noticed.’
1255 718, 311, Serrano 58], quoting 703 P.2d Cal.Rptr. 39 318 Cal.3d (1985) [216 1241, 41 487 P.2d Cal.Rptr. 591 (1971) v. Priest Cal.3d [96 sustained, a demurrer is we determine whether 1187].) A.L.R.3d “When (Ibid.) a of action.” sufficient to constitute cause states facts complaint However, if raised any ground requires must affirm defendants we all the specified whether or the trial court the demurrer sustaining 621, 627 v. State (Gonzales (1977) Cal.App.3d grounds. of California Further, 472d, Proc.) clear 681]; see Code Civ. Cal.Rptr. “[u]nless § [137 demonstrated, judgment is the trial court’s or abuse of discretion error will be affirmed of defendants’ demurrer following sustaining dismissal (Owens Research v. Foundation Ocean on omitted].” [citation for on anoth- 571]; disapproved Cal.Rptr. 18, 29 39 Cal.3d er in Tenzer v. Inc. ground Superscope, 130, 702 P.2d of section In counts three violations through Mounger alleged one short, he Mounger If contends (b), (c), (f), (h). subdivisions (g), relief for injunctive action stated facts sufficient to make out a cause of for they on basis 3309.5 departmental these violations to section pursuant 3303. statutory his under section constitute substantial violations of show the To state a 3309.5 the must plaintiff cause action under section 3300 et (§ seq.). of the safety department provision chapter violated element into We another erroneously imported conclude trial court first exhaust section 3309.5 when it ruled must Mounger section.8 remedies under this might seeking judicial he have before must in all an officer Respondents they state do not contend situations relief under judicial exhaust all prior seeking administrative remedies 3309.5, elected to section but as has rather when an officer such binding remedy an which ends with available administrative proceed arbitration, remedy before pursuing he or she must first exhaust in section We is nothing relief. find no in this contention. There merit administrative reme- 3309.5 which an to exhaust or her requires officer if, case, collective dies in the instant that officer also seeks relief is Such a conclusion upon or other bargaining agreement agreed procedure. “The states: contrary (b) Subdivision plain to the of the section. language required only has opinion We note remedies holding exhaustion of administrative City (Cal. depublished by (See Kelly App.).) Supreme been our Fresno Court. *8 1256 shall jurisdiction any by court have initial over
superior proceeding brought safety safety any officer for against department alleged violations this section of [italics added].”
The history of section 3309.5 shows it legislative designed was specifically remedy to allow an pursue immediately officer the for viola- courts tion rights of these the not be investigation and wait for required after judicial review consideration those violations. Sec- tion Assembly 3309.5 was introduced Bill as 1807 1979. A the report Senate Committee on Judiciary highlighted that the effect of bill would be to provide peace equitable officers relief by them “immediate allowing access to court to enforce their superior under the Act without having to administrative remedies.” Com. pursue (Sen. Judiciary, Analy- on sis of Bill Assem. No. 1807 (1979-1980 Sess.) May Reg. amended 1979.) legal secretary The affairs advised the Governor’s in an office en- rolled bill the bill report purpose of is to allow immediate for police officers instead of them to “exhaust requiring lengthy administra- sec., tive procedures.” (Legal affairs Bill Bill Enrolled Assem. No. Rep., 1807 [July 1979].) The Office of Relations Employee also advised the Governor’s office: “This legislation, PORAC Officers sponsored [Peace Research Association California], jurisdiction would initial al- give leged violations of the Bill of Rights peace for local officers to superior courts; currently, alleged violations must first be heard local law agency Off., enforcement they before are taken to court.” Rel. En- (Emp. rolled Bill Assem. Bill Rep., [July 1979].) No. We it clear think Legislature intended with the passage section 3309.5 to eliminate the requirement peace officers must exhaust their administrative remedies for alleged violations of the act before judicial relief. seeking event,
In any the administrative appeal Mounger elected to was pursue from discipline imposed and not from violation of his procedural rights during the interrogation. The of admin- doctrine of exhaustion istrative remedies if “does not apply remedy (Glendale is inadequate.” Assn., City Employees' v. City Inc. Glendale Cal.3d 513, 540 P.2d The case is unlike Cone Union instant Oil Co. In P.2d that case was plaintiff 464]. precluded from her action maintaining because a strike settlement agree- ment her required grievance exhaust and arbitration in an procedures effort to disputes settle within the scope the contract before pursuing (Id., judicial remedy. contrast, 563.) at p. In claim is Mounger’s *9 3303 not in a collective bar- section statutory rights provided based on gaining agreement.9 to seek right judi- contention waived his
Similarly respondents’ simultaneously 3309.5 he to cial to section when elected pursuant is in section 3309.5 remedy Nothing meritless. his administrative pursue relief for a de- elect seeking officer must between states an alleged relief for seeking judicial proce- action and partmental disciplinary an would officer respondents argue require dural violations. To conclude to a action right departmental to either his or her contract forego 3303. agree to fair under section We statutory rights procedures or her to 3309.5 immediate attention guarantees judicial with section appellants statutory not their the act. We hold officers do waive violations of alleged with choosing contemporaneously under section 3309.5 proceed an them. of the discipline imposed against administrative appeal Appeal II. This Is Not Moot. Code, (Evid. asked notice
Respondents this court take §§ Los (b); 459) subd. of a the Chief memorandum issued regard Police its of a Angeles concerning procedure Department adoption to an ac ing availability allegation of statements regarding prior This court (f). cused officer’sinterview to section subdivision pursuant entitled granted motion. contend this memorandum Respondents Prior Ac “Temporary Availability Procedure of Statements Regarding cused Officer’s Interview” one five. renders moot counts conclude not render We from our it does review of memorandum is the issue its purpose moot in the instant case. The memorandum states “to which conforms to implement a temporary Department procedure (GC) recent Section superior interpretation court of Government Code (f).” (Italics added.) In violations complaint plaintiffs alleged their alone, (b), subsections reason (c), (f). in addition to For this (g), (h) Moreover, respondents’ temporary pro- contention meritless. whether this cedure for would a factual (f) actually subdivision has been implemented argument not the interro respondents apply At oral section 3303 does because contended herring. gations during investigation. occurred a criminal this contention is a red We think First, sustaining a de appellants appealing judgment following are from a dismissal allege complaint violations occurred murrer without leave to amend does not and the Second, investigation alleged solely an subdivision concerned with criminal violations. (h) investiga gives right representative apply an in “an which officer the does not to choose a solely directly tion alleged concerned with criminal activities.” resolved at matter for the trial court to determine to be something any event the procedure In of a stage. implementation temporary pleading change procedure. a lawsuit aimed at permanent cannot render moot Remanded Trial III. This Cause Is Court for *10 Attorneys’ Award Public Consideration of of Fees for Interest. attorneys’ this court award them fees on the
Appellants request only10 (Code Proc.).11 1021.5 Civ. This section autho- pursuant to section losing attorneys’ rizes the trial the fees to the compel party pay court (1) the in of an when action results the enforcement prevailing party impor- interest; right public (2) tant the the or a class affecting general public large decision; necessity of will benefit from the the and persons significantly (3) financial burden of enforcement make the and private appropriate; award in (4) justice recovery. the interests of the fees should not be of the out paid (Los v. Angeles City Police Protective Los 188 League Angeles, supra, of In 1021.5, Cal.App.3d 6; at case the p. Proc.) Code Civ. the instant trial § did court not consider this matter. We concluded in Los v. Angeles City Protective League Police Los of
Angeles (1985) 1150-1151 Cal.App.3d Cal.Rptr. an 890] appellate court is in seldom a to make the determination position complete attorneys’ whether fees 1021.5. In should be awarded under section Los Angeles Police City Protective v. League Angeles, supra, Los of 6-7, 11, decided, however, at Cal.App.3d pages we the court does appellate not have totally to defer to the trial court’s resolution four elements of the standard in section 1021.5 when the work in a legal pub- resulted lished court determined appellate opinion. In that case we the appellate 10Appellants appropriately request attorney legal performed do not an fee work award for in the trial appellants they court. The relief sought and the issues raised the trial court would not have warranted a fee award under section 1021.5. But the trial court when sus tained the grounds appellants demurrer for failure to exhaust administrative remedies —or on remedy had elected an legal appellate created issues at the level which —it justify lawyers’ could an phase (For award for the proceedings. efforts that of the dis distinction, Angeles City cussion of this League Angeles see Los Police Protective Los (1986) Cal.Rptr. 697].) (Code motion, Proc.) 11Section1021.5 Civ. “Upon states as follows: a court award at torneys’ party fees against to a opposing parties successful one more or action which has resulted in important right affecting (a) the enforcement of an sig interest if: benefit, nificant pecuniary nonpecuninary, general whether pub has been on the conferred large lic or a persons, (b) class of necessity private and financial enforcement burden of are such appropriate, as to make (c) jus the award such and fees should in the interest of entities, paid recovery, any. tice be out of the if respect involving public With to actions applies of, entities, against, section allowances but not in favor no claim and shall be required to be filed therefor.” action has a (1) legal to decide whether the is well situated
court often legal right, it an important on the law because enforces significant impact benefit on a substantial significant that confers a whether decision (Id., 8-9.) citizenry. at pp. segment satisfied first two elements We conclude have appellants first, has concluded our Court 1021.5 standard. As to Supreme section Bill of Safety the Public Officers Procedural protections the rights decisions “are matters of statewide concern” and appellate Act Rights are act more effective make the important principles which announce 32 Cal.3d (Baggett an award. v. Gates sufficiently justify important Safety The Public 649 P.2d 143 [185 the “basic (§§ 3300-3311) specifies Procedural Bill Act Rights Officers *11 3301) (see afforded all officers which must be protections peace and rights § It is of the minimum catalogue entities them. a employ the which public necessary employer- secure stable (§ 3310) Legislature the deems rights Gates, at p. 135.) v. 32 Cal.3d (§ 3301).” (Baggett relations employee supra, First, officers we find it furthers the interest to allow swift public rights. their Our judicial alleged review violations of basic procedural Gates, in 143 concluded Baggett Court v. Cal.3d at supra, page Supreme Bill Safety Procedural in the Public Officers rights protections the sufficiently “are concern” and thus are Act matters of statewide Rights safety clear public an Our decision makes it justify award. important seeking before officers do not have exhaust their administrative remedies Moreover, it holds for of section 3303. judicial alleged violations in administrative actions challenge disciplinary officers can departmental for simultaneously procedural while remedies proceedings pursuing Thus, important the in this enforce embodied decision rulings violations. the interest. affecting criteria, benefits not the second of 1021.5 this decision As to the section This in safety group but also all officers in the state. only Mounger that, large Supreme But represents beyond itself class of persons. in from a decision Baggett, citizenry observed as a benefits Court whole employer- which serves stable purpose like this the legislative promoting Gates, v. (See Baggett relations public safety organizations. employee p. 143.) 32 Cal.3d at supra, attorney fee issue the trial court occasion to reach the
Since did not have criteria of section we do not have evidence us on the third and fourth before instance, on expended 1021.5. For we not know how much appellants do burden required their and thus do size of financial not know the appeal enforcement of the issues involved Nor do pursue private appeal. benefits, monetary any, we have information as to the if which will accrue to appellant Angeles League, Los Police Protective appellant however, observe, they we can will be rather small. We although speculate attorney merely that neither for an fee award because appellant ineligible most of the is a union which have absorbed all or protective league in Los Protective (See Angeles of this discussion Police expenses appeal. Thus, 16-17.) at League City Angeles, supra, Los pp. we remand this cause to the trial court to determine whether appellants and, met, 1021.5 if to set satisfy required final two elements section attorney fees on the of this amount of appropriate appellants’ case.
Disposition We deem the for writ of mandate. Let a purported appeal petition writ mandate court peremptory commanding superior issue to vacate 2, 1986, its July order of an place thereafter enter thereof order denying defendants’ demurrer to counts one five and determine whether appellants should awarded fees. to receive appellate Appellants their on costs appeal. J.,
Thompson, concurred. *12 LILLIE, P. respectfully J. I dissent. I would dismiss the purported appeal because order, the minute order sustaining demurrer is and nonappealable I Further, would decline to to make this order reviewable mandamus. I agree with the of the trial ruling court the demurrer for Moun- sustaining ger’s failure to exhaust his deny administrative remedies and would relief.
I Appeal Dismissal of Plaintiffs from minute appeal order demurrer of all sustaining named City defendants to counts 1 5 of the second amended complaint. The minute order is Only a of nonappealable. judgment dismissal entered on order sustaining demurrer is v. (Taylor State Personnel appealable Bd. 498, 501, (1980) 101 Cal.App.3d fn. 1 677]); no such Cal.Rptr. judg- [161 case, ment was entered in the instant and for good reason. The minute order disposed only of five counts of a nine-count complaint of which four counts against the demurring defendants are still in the trial court. The pending court’s only be ruling could and properly was embodied in a minute order final pending judgment the action. Any entered on such an judgment order would not be a final judgment from which would be prema-
1261 5, 11 Cal.Rptr. 37 (1974) Cal.App.3d v. Sullivan ture. Financial (U.S. [112 588, 589 15 (1971) Cal.App.3d Loan Assn. v. Ventura Sav. & McMillin 18]; (Vasquez in an action. judgment can but one There 359].) Cal.Rptr. [93 964, 796, 800, 484 P.2d 806 Cal.Rptr. 4 Cal.3d (1971) v. Court Superior [94 697, Court 20 Cal.2d (1942) v. Superior Bank America 513]; 53 A.L.R.3d of 617, 618 P.2d 5 Cal.2d (1936) Mather v. Mather 357]; 701 P.2d [55 [128 Co., 742, 745 220 Cal. (1934) O. Ltd. Vally De v. Kendall de 1174]; Vally Thus, accept appellate that to majority I with the agree P.2d [32 rule the one judgment violence to in this do jurisdiction proceeding consider- immediate appellate piecemeal disposition which precludes However, cause. of the entire adjudication to the final rulings prior ation here, this we should salvage circumstances I cannot under the agree, for writ of mandate. it as a treating proceeding defective appeal readily as a available method Many authorities view this innovation to exercise its power this court’s jurisdiction, uphold review assuming (Schultz reviewable mandamus to make orders nonappealable discretion 768, 160 788 University (1984) v. Regents Cal.App.3d [206 California 48 v. Farm Mut. Auto Ins. Co. 910]; Branham State Cal.Rptr. v. Aetna 304]; Ready Clovis Mix Co. Cal.Rptr. Cal.App.3d [121 they but 820]), Lines Freight Cal.App.3d Cal.Rptr. in “unusual circum except all that we should not exercise that agree power 843, 673 v. (Olson Cory (1983) stances.” 35 Cal.3d Sullivan, As stated 720]; 12). P.2d U.S. Financial supra, Financial, treatment, be shown in U.S. such circumstances should justify for writ of man- to indicate the of a enough propriety petition “compelling Otherwise, would 12.) instance. . . .” (P. practice date the first final rule. judgment obliterate the one and, on the state showing
I here no of unusual circumstances perceive record, by invoking this court jurisdiction should decline assume *13 Texaco, 100 (1979) extraordinary writ v. Inc. process. (DeGrandchamp 424, its rationalizes 899].) majority 437 The Cal.App.3d Cal.Rptr. [160 by the for an of the issue raised justification appellate immediate resolution of by trial court’s it as “a ruling construing question presenting Estate 781 Hearst 67 importance,” citing (1977) Cal.App.3d [136 of records. Both 821], which involved access to certain court Cal.Rptr. true, by majority, have parties briefed issue and it is as asserted order did not of the minute “respondent challenge appealability” [the] may not may involved. But that is a fact that me. Respondents troubles but, have of found weighed question appealability having use of way concerning be we have no of views premature, knowing their here to be of mandamus in these circumstances. I the issue Nor do believe consideration such as to “public importance” appellate warrant immediate 1262 of the entire cause. adjudication to final ruling prior trial court’s
of the remedy by Further, there no adequate a situation which this is not and a are of the trial court disposed counts remaining When the appeal. case, on appeal. all issues can then be resolved in the final entered judgment nine counts each of which rests contains complaint The second amended all,” virtually names all defendants and demurring “common to facts on I find in the hearings. nothing series of administrative out of the same arises the resolution of the justifying, compelling, here let alone circumstances of the writ such by way process appeals of mandamus. Employment issue this, for the issuance of the extraordinary grounds of showing as absent mandate, review countenancing as discouraged appellate writ of should causes and resulting piecemeal disposition orders nonappealable shoddy practice. fostering appellate
II of Administrative Remedies Exhaustion administrative remedies requires party The doctrine of exhaustion of administrative before to the courts for resorting use all available procedures 533, 538 (McHugh (1973) relief. v. Santa Cruz 33 County Cal.App.3d administrative 149].) requires The exhaustion remedies Cal.Rptr. [109 not but also merely procedures, initiation of prescribed their requires awaiting them to their conclusion pursuing appropriate (Wilkinson final outcome before intervention. seeking Norcal Mutual Ins. Co. 313-314 (1979) Cal.App.3d Cal.Rptr. [159 jurisdictional The failure to remedies is a defect exhaust administrative Airlines, (Miller which bars action. v. United Inc. court Barnes v. State Bd. Cal.App.3d 684]; Equaliza- tion Cal.Rptr. 742].) While it is true that had allege Mounger did exhausted plaintiff administrative remedies and the of the does not show that he complaint face had, In it cannot be denied did not. oral on appellants argument that he demurrer, conceded, on the as recited the trial court hearing appellants order, in its minute with a grievance “that there was an official reprimand thus, follow”; found, procedure to 1-5 must await admin- the court “counts istrative remedies Code being exhausted” and “Insofar [Government section 3303 et without em- seq.] prevent injunctive proceed *14 waived, on the barking administrative demurrer to 1st route has been through 5th The of sec- purpose counts are sustained leave.” without [vie] 3309.5, be, Code, tion in the may majority Government well as asserted opinion, “to allow officers instead of immediate relief for police ” my in but procedures,’ administrative lengthy to ‘exhaust them
requiring exhaus- view, the rule change requiring not in all instances the statute does in manner engaged administrative If the officer no police remedies. tion of violations alleged to redress for in obtain procedure the administrative 3300 et (§ seq., Bill Act Rights Officers Procedural Safety Public in- and, remedy, any sought administrative without Code) pursuing Gov. instance, i.e., I initially, might the courts in the first relief from junctive 3309.5, have “initial court would superior that under section agree violations. How- alleged for the proceeding brought” over jurisdiction ever, “initially” injunctive seek is not our case. did not Mounger subject investiga- of an administrative for the violations. He was the alleged occurred, the violations which claims hearing, during Mounger tion and fact, he admitted that the adminis- led to administrative discipline; which a grievance and there was reprimand trative resulted an official hearing after the injunctive did not seek relief until Mounger to follow. procedure a officer may may police Section 3309.5 or not authorize official reprimand. to the initially apply administrative bypass procedures altogether relief, my pursue court for but it is view that once an officer elects remedies, to its conclusion he must see that process not, 3309.5. He seeking judicial before relief under section do, by an action filing cut short the administrative attempts proceedings section have terminated. proceedings 3309.5 before those pursuant long-estab- enactments should not be construed to overthrow Legislative clearly made to appear lished of law unless such a intention is principles (Tos Mayfair by either declaration express by necessary implication. 459].) “Unless Packing Co. Cal.App.3d Cal.Rptr. to alter the common expressly statutes should not be provided, interpreted law, rules. and should be with common law construed so as to avoid conflict decisions, A statute will be of common law light construed [Citations.] an intention to “‘clearly unless its discloses language unequivocally from, alter, or a depart concerning particu- the common-law rule abrogate lar matter.. . .” subject There is presumption [Citations.]’ [Citation.] not, Re- statute does the common law. implication, repeal [Citation.] basis for only there is no rational peal implication recognized where v. Zikorus two laws.” harmonizing potentially conflicting (People of section language The 3309.5 does not exhaustion of administra- expressly doctrine of abrogate of initial grant tive remedies. The between the statute’s apparent conflict hand, law and the common jurisdiction to the court on the one superior other, may be on the requirement of exhaustion of administrative remedies court has exclusive reconciled the statute to mean that a construing section initial Government Code jurisdiction over under disputes arising for relief directly 3300 et when a to the court seq. only officer police applies *15 for the resolution proceedings administrative initiated having without first disputes. of such event, that, failure Mounger’s concludes
The majority opinion action present not bar remedies does administrative exhaust available “the administrative that remedy inadequate his administrative because discipline imposed” was from the to pursue elected his procedural for the “violation of redress action he seeks whereas in deter- a valid consideration This is not interrogation.” of administrative the doctrine of exhaustion mining the applicability all issues remedy may not resolve “Even where the administrative remedies. the exhaustion doctrine by a plaintiff, precise requested provide of a com- it facilitates the development favor ‘because is still viewed with and promotes expertise that draws on administrative record plete sifting serve as a efficiency.’ preliminary It can [Citation.] a record providing the relevant evidence [citation], unearthing process (Yamaha Court Superior Motor Corp. review.” which the court 28, 1987, and the opinion August Petitions for a were denied rehearing Lillie, J., opinion P. was of was modified to read as above. printed should be petition granted. notes any complaints made to or made or persons, or except by agency other those investigating which are the to deemed be confidential. No reports may notes or which are be in deemed to be confidential entered personnel the safety officer’s interrogated right file. being The officer shall have bring recording his own record aspects interrogation.” device and and all 5Section (g) prior subdivision “If interrogation states: to or of a safety offense, officer it is charged deemed that he with a criminal he shall be immedi ately informed rights.” of his constitutional of subdi- in violation representative present to have opportunity lowed the vision (h).6 interrogated he on October In two was Mounger alleged count (b), at time in violation of subdivision two one by interrogators more than notes, in or reports complaints of transcribed copies was denied access exercising his right and was after (f), interrogated of subdivision violation remain silent. on November alleged again interrogated in count three he was Mounger 8, 1984, at one in violation of subdivi- by interrogators more than two time his remain under interrogated exercising right after silent sion was (b), in and was denied access to (g), copies violation of subdivision compulsion notes, or other investigators persons reports complaints of transcribed of subdivision (f). violation rout- Department In LAPPL7 Los Police alleged Angeles count four even inely interrogated officers to be (g) violated subsection compelling their and them though they denying had invoked constitutional (f) on the basis access to materials enumerated subdivision copies relief in declaratory count confidentiality. sought and LAPPL through five were five. Defendants demurred on counts one ground Mounger. moot as to to counts The without to amend trial court sustained the demurrer leave had he argument five on had agreed one through ground Mounger At the on demurrer hearing exhausted administrative remedies. five, no entirely making one the trial court sustained it to counts those alleged by Mounger alleged between distinction counts by Mounger alleged LAPPL. The court no distinction between counts made six stated causes alleged by eight and those LAPPL. It ruled counts