LANIGAN v. CITY OF LOS ANGELES No. B228686.
199 Cal.App.4th 1020 (2011)
ROBERT LANIGAN, Plaintiff and Respondent, v. CITY OF LOS ANGELES et al., Defendants and Appellants.
Court of Appeals of California, Second District, Division One.
October 4, 2011.
Carmen A. Trutanich , City Attorney, Carlos De La Guerra , Assistant City Attorney, Wayne H. Song and Bruce Monroe , Deputy City Attorneys, for Defendants and Appellants.
Stone Busailah , Michael P. Stone , Muna Busailah and Melanie C. Smith for Plaintiff and Respondent.
The City of Los Angeles (City) appeals a judgment granting a peremptory writ of mandate in favor of Robert Lanigan, a former Los Angeles police officer. The trial court reinstated Lanigan to his employment, finding a settlement of pending disciplinary charges by the City against Lanigan, pursuant to which he agreed to resign if similar misconduct charges were upheld in the future and gave up his right to pursue an administrative appeal, constituted an impermissible waiver of his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA)
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Lanigan's First Disciplinary Charges and Settlement
On April 28, 2006, Officer Lanigan was off duty and wrongly driving his personal vehicle in the carpool lane when a Los Angeles Unified School
Before the BOR hearing commenced, Lanigan's attorney, Randall K. Quan, negotiated a settlement agreement (Agreement) with the LAPD. During the negotiations for the Agreement with the City, Quan stated to Sergeant Raymond Jatkowski, the officer in charge of the LAPD's internal affairs group's disciplinary settlement unit (DSU), that Quan's goal was to prevent Lanigan from appearing before a BOR because Quan believed the board would terminate Lanigan for his conduct. Accordingly, Quan advised Lanigan to sign the Agreement.
Under the Agreement, which had no expiration date, in exchange for the City's reduction of Lanigan's penalty to a 22-day suspension, Lanigan agreed to specific future discipline in the event of additional disciplinary charges being filed against him on the basis of a specific category of future misconduct, and agreed to waive several of his rights under POBRA.
In particular, Lanigan agreed to immediately resign from the LAPD if he "acquires any future complaints, while on and/or off duty, based on actions that occur after signing this Agreement, where he engages in any acts of harassment toward any officer(s) of an outside agency and/or fails to cooperate with any on duty officer(s) of an outside agency ... which are sustained by the Chief of Police." Lanigan agreed to "submit a signed letter of resignation, which [would] be held in abeyance and not executed unless he violates the terms and conditions of this agreement." He confirmed he "[understood] that, should he fail to comply with the terms and conditions of
Lanigan also made promises regarding future remedies, agreeing to forgo legal or administrative remedies, and "explicitly waive[d] all rights and remedies available either under the [L.A. Charter] or state law in order to effectuate this Agreement." He "release[d] and forever discharge[d] the City ... from any and all past, present or future claims, ... [and] damages," including "all claims or damages which he does not know or suspect to exist at the time of ... this Agreement and Lanigan" agreed "[t]his release and discharge shall be a fully binding and complete settlement between the parties to this Agreement."
Furthermore, Lanigan confirmed "that before signing this Agreement, he has consulted with an attorney of his own choosing regarding the release of any such claims that he may have as a result of the alleged acts or omissions of the City" and "has been advised that he has twenty-one (21) days to consider this Agreement and ... seven (7) days after the date on which he signs this Agreement within which to revoke it." Moreover, he agreed that by signing the Agreement he "knowingly and intentionally waives the ... period for consideration ... and the ... revocation period." In the Agreement's last clause, Lanigan confirmed that he "had the opportunity to seek the advice of his ... counsel of choice regarding the terms ..., that those terms are fully understood and voluntarily accepted by each of the parties."
Lanigan signed the Agreement and resignation on February 18, 2008. At the time Lanigan signed the Agreement, Sergeant Jatkowski, who did not pressure or coerce Lanigan to sign the Agreement, did not recall Lanigan "making any statements to the effect that he felt pressured or `under duress' or otherwise had any hesitation at all in signing the Agreement."
2. Lanigan's Second Disciplinary Charge and Resignation Pursuant to the Agreement
On September 14, 2008, Lanigan entered an emergency room seeking treatment for lacerations to his right hand. Due to his behavior at the hospital, Lanigan sustained 10 new misconduct counts as set forth in the September 10, 2009 complaint. The new complaint alleged that Lanigan entered the hospital intoxicated, unnecessarily identified himself as an officer, "terrified" other patients, and exhibited discourteous conduct that caused the hospital
On September 10, 2009, the chief sustained the complaint, processed Lanigan's resignation pursuant to the Agreement, and removed Lanigan from employment.
3. Lanigan's Petition for Peremptory Writ of Mandate
On December 7, 2009, Lanigan filed a petition for writ of mandate to obtain judicial review of the LAPD's decision. Lanigan argued that the Agreement was unenforceable because (1) it purported to waive statutory rights under POBRA enacted for a public purpose and was therefore contrary to law and public policy, and (2) the Agreement was procedurally and substantively unconscionable. Lanigan's petition sought a peremptory writ commanding the City to reinstate him in good standing, award full back pay, and remove the record of misconduct charges and proposed penalties, or alternatively, to remand the case to the City with an order for a BOR hearing.
Lanigan argued that pursuant to Civil Code section 3513,
In response, the City alleged that the petition should be denied because the Agreement did not contain an invalid waiver of POBRA rights, relying on County of Riverside v. Superior Court (2002) 27 Cal.4th 793, 804 [118 Cal.Rptr.2d 167, 42 P.3d 1034] (Madrigal), where the court held POBRA was subject to a limited waiver. The City distinguished Farahani on the basis that
In reply, Lanigan contended that Farahani, supra, 175 Cal.App.4th 1486 was controlling because both POBRA and the Education Code are laws established for a public purpose and were subject to the ban on waivers of such rights under Civil Code section 3513. Lanigan also argued that the Madrigal, supra, 27 Cal.4th 793 decision was limited to its facts and did not encompass an indefinite waiver of the right to appeal disciplinary action that had not yet occurred. Finally, Lanigan argued that the Agreement was not enforceable because it was not made with sufficient awareness of the likely consequences.
The trial court granted Lanigan's petition, reasoning that Lanigan's situation was indistinguishable from Farahani, supra, 175 Cal.App.4th 1486 and held that the Agreement was unenforceable and void. As a result of its ruling, the court did not reach the issues of whether the Agreement was signed involuntarily and whether the Agreement was unconscionable. The court issued a writ ordering the City to set aside its acceptance of Lanigan's resignation, reinstate him to his position as an officer in good standing, and take further action as enjoined by law.
The City contends that (1) the Agreement's waiver of POBRA rights is valid, (2) the Agreement's release of all claims is enforceable because it was not the product of fraud, mistake, undue influence, or duress, and (3) the Agreement is not unconscionable. Lanigan contends the Agreement is unenforceable because POBRA rights are not waivable; the release is not enforceable because the Agreement is invalid as a matter of law; and it is unconscionable based on the parties' unequal bargaining positions and because the Agreement improperly gave the chief unfettered discretion to terminate him if the condition were triggered. We find that the Agreement is enforceable, and reverse.
I. Standard of Review
"Section 1094.5 of the Code of Civil Procedure provides the basic framework by which an aggrieved party to an administrative proceeding may seek judicial review of any final order or decision rendered by a state or local agency." (Bixby v. Pierno (1971) 4 Cal.3d 130, 137 [93 Cal.Rptr. 234, 481 P.2d 242], fn. omitted.) Section 1094.5, subdivision (a) applies to review of "any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer." Administrative mandamus is properly employed when a hearing is required by law, even if the hearing is not held. (Civil Service Com. v. Velez (1993) 14 Cal.App.4th 115, 118 [17 Cal.Rptr.2d 490].)
The validity of a final administrative decision of a public entity employer, including the LAPD, is reviewable by a petition for administrative mandamus under Code of Civil Procedure section 1094.5. (See Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 1603 [55 Cal.Rptr.2d 460] [holding Pasadena police officer was required to file mandamus petition pursuant to Code Civ. Proc., § 1094.5 to challenge final administrative decision to demote him]; Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 382 [67 Cal.Rptr.3d 218].) Under administrative mandamus, we exercise our independent judgment as to questions of law, and apply the substantial evidence test to questions of fact. (Moore, at p. 380; Bixby v. Pierno, supra, 4 Cal.3d at p. 137.)
II. A Waiver of POBRA's Protections Is Permissible in the Context of a Settlement of a Pending Disciplinary Action
The officer in Madrigal, supra, 27 Cal.4th 793 obtained employment with the County of Riverside as a lateral placement when his prior employer, the City of Perris, discontinued its police department and contracted with the county for law enforcement within its boundaries. (Id. at p. 796.) In connection with his change in employment, the officer waived his right to view his background report prepared by the county; this release expired after one year. Madrigal also signed a document entitled "Waiver of Background Investigation Prior to Hire," in which he acknowledged that his employment with the
Madrigal, supra, 27 Cal.4th 793 reasoned the officer's waiver of POBRA was permissible because it was (1) limited to the officer's background investigation files, and (2) concerned an officer who was on probationary status. (27 Cal.4th at p. 806.) "[A] waiver of this kind raises a different issue [than a blanket waiver]. Section 1031 requires peace officers to meet certain `minimum standards' including being `of good moral character, as determined by a thorough background investigation.' (Id., subd. (d).) If the minimum standards are to have any real meaning, a candidate has to meet the standards prior to becoming a peace officer. In other words, a law enforcement agency cannot first grant peace officer status to a civilian, including full peace officer powers, and then conduct its background investigation. Therefore, we think a waiver of this kind should only be sought in the case of an officer, like Madrigal, who is already a peace officer at the time of the waiver and is merely applying to transfer from one agency to another...." (Ibid.)
The officer later sought to set aside the discipline on the grounds of, among other things, violations of POBRA. (Alhambra Police Officers Assn., supra, 113 Cal.App.4th at p. 1419.) The court refused to set aside the officer's discipline. "[The police officer] avoided the risk of a more severe penalty— dismissal—by settling and accepting lesser discipline. He may not, through an action under [POBRA], avoid the discipline to which he consented." (Id. at p. 1421; see also Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106 113 [44 Cal.Rptr.2d 678] (Zazueta) [officer who agreed to arbitration of disciplinary proceedings may not obtain judicial review through petition for writ of mandate]; Stermer v. Board of Dental Examiners (2002) 95 Cal.App.4th 128, 133-134 [115 Cal.Rptr.2d 294] (Stermer).)
In Zazueta, supra, 38 Cal.App.4th 106, a sheriff engaged in sexual harassment and was terminated. The county's termination notice advised him that he could either appeal to the board of supervisors, or submit to an arbitration pursuant to a memorandum of understanding (MOU) between the county and the sheriff's department. (Id. at p. 109.) The sheriff elected to submit the matter to arbitration, and in the arbitration proceedings contended the sheriff's department had violated POBRA during its investigation of him. The arbitrator upheld the sheriff's termination, and he sought writ review in the superior court to overturn the arbitration findings pursuant to an exception in the MOU, and contended that the narrow circumstances permitting review of an arbitrated termination was a contract of adhesion. (38 Cal.App.4th at pp. 109-111.) Zazueta denied relief, finding that the sheriff elected not to pursue his administrative remedies by appealing to the board of supervisors. "[P]etitioner chose the forum in which to resolve his dispute with the County. Had he wished to submit resolution of his statutory rights to judicial review, he could have done so." (Id. at pp. 111-112.) Further, Zazueta found that the sheriff waived any deficiencies in the MOU by failing to raise them in the arbitration. (Ibid.)
Second, the undisputed facts show that Lanigan's waiver was knowingly made with sufficient knowledge of the relevant circumstances and likely consequences. Lanigan was aware that if he did not sign the Agreement, he
III. The Agreement Was Not the Product of Fraud, Mistake, Undue Influence, or Duress
Here, Lanigan cannot establish he had no reasonable alternative to signing the Agreement. Although he contends he signed the Agreement under fear of losing his career and livelihood, Lanigan could have exercised his right to appear before a BOR. Although Quan believed Lanigan would have been terminated had he appeared before the BOR, Lanigan's termination was not a certainty. Under these circumstances, he cannot show duress. Further, Lanigan acknowledged in signing the Agreement he had "twenty-one (21) days to consider this Agreement" and "seven (7) days after the date on which he sign[ed] ... within which to revoke it." By signing the Agreement, he "knowingly and intentionally waive[d] the ... period for consideration ... and the ... revocation period." Lanigan signed the Agreement after five days and did not revoke it within the seven-day period.
IV. The Agreement Is Not Unconscionable
A. Lack of Procedural Unconscionability
Here, the Agreement was not procedurally unconscionable because it was not adhesive, oppressive, or a surprise to Lanigan. Lanigan's attorney had the
B. Lack of Substantive Unconscionability
The Agreement was not unfairly one sided. The Agreement protected, rather than cost, Lanigan's job. Through the Agreement, Lanigan gained full protection by eliminating the possibility of immediate termination before a BOR. This gain for Lanigan constituted a corresponding cost for the City, which at that time gave up the opportunity to proceed administratively against an accused officer. By the time Lanigan filed his petition, he had already received the full benefit of the bargain, namely, he had retained his job for several more years and had the opportunity, through his own conduct, to avoid triggering the LAPD's discretionary power to terminate him for future misconduct.
The judgment granting the writ of mandate is reversed. The superior court is directed to set aside its judgment of August 24, 2010, holding that the settlement agreement was unenforceable and void under Farahani, supra, 175 Cal.App.4th 1486, and enter a new and different judgment in favor of the City of Los Angeles, holding that the settlement agreement is valid and enforceable and denying the petition for writ of mandate. Appellants are to recover costs on appeal.
Mallano, P. J., and Rothschild, J., concurred.
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