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Paterson v. City of Los Angeles (Cal. Ct. App. - June 16, 2009)

By Shaun Martin

As I read this opinion, which (on the merits) seems right to me, I was hoping that someone would say exactly what Justice Mosk says in his brief (two-paragraph) concurrence.

An officer with the LAPD calls in sick. A lieutenant with the LAPD believes he's faking it, and abusing sick leave (apparently, you've actually got to be sick in order to get the leave), so instructs a sergeant to check it out by going to the officer's home. The sergeant arrives and, yep, the "sick" officer's not even at home. The officer's kid gives the sergeant the officer's cell phone number, and the sergeant reaches the allegedly sick officer. At which point the sergeant essentially says: "I'm just calling to make sure you're really sick in bed at home," and the officer says "Yes," to which the sergeant basically says: "Liar. I'm at your house right now." And, indeed, the officer wasn't at his house (though was allegedly "sick" elsewhere). At which point they try to discipline the officer and his wife, who's also an officer with the LAPD and who also said her husband was sick at home.

For reasons that are unclear to me, but irrelevant, no discipline gets imposed against either officer. Who then promptly sue the LAPD for allegedly violating the Public Safety Officer's Bill of Rights, seeking a civil penalty of $25,000 for each violation of the Act, punitive damages, compensatory damages for common law claims, etc.

The City gets summary judgment below, but I agree with the majority opinion, which is authored by Justice Armstrong, that the trial court's basis for this grant was wrong. Yes, the tort claims don't work, but the City's argument that there's no statutory claim based upon the mere fact that the discipline against the officers was eventually reversed does not insulate them from liability under the Act. Nor does the City's alternative (new) argument on appeal that there's immunity under the Act because the sergeant was just "checking on the safety of the officer." That's not what was going on, and we all know it. Plus, this is a summary judgment motion, so we gotta resolve inferences in favor of the nonmoving party. In short, no dice for the arguments you raised in favor of granting summary judgment.

But when I read the opinion, I have to tell you that my overall reaction was that the officers are lucky to have avoided discipline, and surely shouldn't be able to sue under the Act. You mean to tell me the LAPD can't even conduct a simply check on whether it's officer's lying or abusing sick time without going through the whole big rigamarole of complying with the Act? Which requires that you tell 'em about the investigation beforehand, usually conduct any interrogation during duty hours, etc. etc. You're just making a phone call, for goodness sake. Seems to me like that's totally fine, especially when -- as here -- it seems that your suspicions are entirely well-founded. To say, in advance: "Pursuant to the Act, this is to notify you that we're investigating to see if you are really sick, and are currently located at your house. Are you sick at your house?" would defeat the whole purpose of going to the house in the first place, since at that point, anyone would know to make up a different lie.

Which is where Justice Mosk's concurrence comes in. He doesn't say what I say, of course (as I'm far too crude and unsophisticated), but he does go out of his way to say -- and I appreciated it -- that "not every 'sick check' qualifies as the type of investigation or interrogation that would make applicable the rights under Government Code section 3303." and "whether there was a violation in this case, and, if so, what the appropriate remedy should be are matters to be determined by the trial court." A sentiment with which I wholly agree.

Why the rest of the panel didn't sign onto these two paragraphs I don't know. I would have. And I would have, for whatever that's worth (which I recognize is nothing).

Full post as published by California Appellate Report on June 16, 2009 (boomark / email).