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ANDERSON v. CITY OF LOS ANGELES
TERESA ANDERSON, Plaintiff and Respondent,
v.
CITY OF LOS ANGELES et al., Defendants and Appellants.
No. B222441.
Court of Appeals of California, Second District, Division Seven.
Filed March 30, 2011.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTSJACKSON, J. INTRODUCTIONDefendants, the City of Los Angeles and William J. Bratton, the former Chief of Police of the Los Angeles Police Department, appeal from the judgment granting the petition for writ of mandate filed by plaintiff Teresa Anderson (Anderson) and issuing a peremptory writ of mandate, commanding defendants to vacate the Board of Rights decision terminating Anderson's employment as a police officer, to calculate the amount of compensation she lost as a result of that decision and to pay her that amount. We affirm.1 FACTUAL AND PROCEDURAL BACKGROUND2
Around September 10, 2008, Anderson, a sergeant with the Los Angeles Police Department (Department), received notice that she was being charged with misconduct. On January 21, 22 and 23, 2009, the Board of Rights, the Department's administrative tribunal, held a hearing on the complaint against Anderson.3 At the commencement of the hearing, the Chairman of the Board of Rights, Captain Joseph Curreri, read each count to Anderson before taking her plea. Count 1 of the complaint alleged that "[o]n several occasions between June 2001 and February 2003, [Anderson] knowingly violated Departmental policy when [she] neglected to request compensation after working overtime." Count 2 alleged that "on several occasions between June 2001 and February 2003, [Anderson] neglected to report misconduct after witnessing unidentified sworn officers discourage subordinates from submitting requests for overtime compensation." The third and final count alleged that around September 10, 2007, while on duty, Anderson "made a false statement during a deposition when [she] stated that Department employees were aware that [she] violated Department Policies and Procedures involving the Fair Labor Standards Act." Anderson pleaded guilty to count 1 and not guilty to counts 2 and 3.
1. On October 26, 2010, defendants filed a request asking this court to take judicial notice of various official city documents, as well as complaints in two pending federal matters, none of which were before the trial court. We take judicial notice of the existence of these documents (Evid. Code, §§ 452, 459) but do not rely on them in rendering our decision. (Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1173, fn. 11.)
2. In their briefs, defendants take great pains to emphasize the sizable sums of money they have had to pay and may have to pay as a result of lawsuits filed against them, alleging violations of the overtime provisions of the Fair Labor Standards Act. These extraneous facts have no relevance to this appeal.
3. The complaint is not part of the appellate record.
4. The overtime provisions of the FLSA apply to the Los Angeles Police Department. (29 U.S.C. § 203, subd. (e)(2)(C).)
5. Also introduced into evidence were a notice from the Chief of Police dated March 28, 2003 regarding employees' compliance with the FLSA, a notice from the Chief of Police dated June 29, 2005 regarding the obligation of all employees to ensure compliance with the FLSA and acknowledgements signed by Anderson confirming her receipt of the March 28, 2003 and June 29, 2005 notices.
The March 28, 2003 notice emphasized that the Department could "incur enormous liability for violating the FLSA" and that it would "take action against any employee who knowingly engages in a violation of the rules designed to help the Department comply with FLSA." The notice specified that with the exception of court appearances and emergencies, "sworn employees at the rank of Lieutenant and below (including those with supervisory responsibilities)" could not work overtime without prior authorization. In addition, work could not be performed outside scheduled work hours "without promptly submitting an overtime report." The notice also stated that "[e]mployees must not begin work prior to the start of their work schedule or watch to prepare for roll call or any other Department business unless directed to do so by their commanding officer or immediate supervisor." Most significantly, the notice informed employees that "[a]ny knowing violation of the foregoing rules, or any other knowing violation of the FLSA, by any employee, regardless of rank, title or position is misconduct and will result in disciplinary action, up to and including termination."
The June 29, 2005 notice states in no uncertain terms: "To account for all hours (or fractions of hours) worked by all employees, all time worked, whether pre-approved or not, shall be documented. . . . Failure to do so is serious misconduct. Failure to request overtime compensation for any overtime worked, whether pre-approved or not, is also serious misconduct."
Since count 1 alleges that Anderson's purported misconduct occurred between June 2001 and February 2003, the notices dated March 28, 2003 and June 29, 2005, as well as the acknowledgements signed by Anderson have no relevance to that count.
6. The question whether the City ultimately is responsible to pay Anderson for unauthorized overtime under the FLSA is not before us.
7. After oral argument, defendants filed a request for leave to file a post-oral argument letter brief, along with a supplemental request for judicial notice. We granted both requests on March 15, 2011, and gave Anderson permission to file a responsive letter brief.
In their supplemental request for judicial notice, defendants asked us to judicially notice specific sections of the Department's 1999, 2001 and 2002 Manuals. Defendants maintained that these particular Manual sections define misconduct and set forth the circumstances under which an employee may be charged with misconduct and thus are essential to an understanding of Order 20. Although we granted defendants' supplemental request for judicial notice, we emphasize that we only judicially notice the existence of the Manual sections. We do not consider or rely upon the provisions in rendering our decision on appeal.
A reviewing court is not the forum in which to make up for deficiencies in evidentiary proof at the administrative level or in the trial court. (People v. Jacinto (2010) 49 Cal.4th 263, 272, fn. 5.) We are charged with the responsibility of reviewing the correctness of the trial court's judgment at the time it was rendered. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) If, as defendants maintain, these Manual sections were essential to an understanding of Order 20, defendants should have introduced them into evidence at Anderson's Board of Rights hearing. Because defendants failed to do so, they were not part of the administrative record before the trial court at the time it ruled on Anderson's petition for writ of mandate. We therefore do not consider the documents in rendering our decision on appeal. (Bardales v. Duarte (2010) 181 Cal.App.4th 1262, 1267, fn. 2.)
None of defendants' additional arguments warrants reversal of the judgment.
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