Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVBS700480, Kirtland L. Mahlum, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Lackie, Dammeier & McGill, Michael A. McGill, Danielle K. Little, and Russell M. Perry for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Debra L. Bray and Elizabeth T. Arce for Defendants and Respondents.
OPINION
King, J.
I. INTRODUCTION
Plaintiff and appellant Ray Warren, a 21-year police officer with defendant and respondent City of Barstow (the City), was terminated in May 2007 for surreptitiously tape recording a January 17, 2007, meeting between himself and two other police officers. He petitioned the trial court for a writ of mandate, seeking reinstatement to his former position on the ground he had been unlawfully terminated for exercising his right to record the meeting pursuant to the Public Safety Officers Procedural Bill of Rights Act (the POBRA). (Gov. Code, § 3300 et seq.) He claimed the meeting constituted an “interrogation that could lead to punitive action” within the meaning of section 3300; thus, he had a right to record the meeting (§ 3303, subd. (g)), and his recording of the meeting, together with any statements he made during the meeting, could not be used to terminate or discipline him (§ 3309.5, subds. (c), (d)). The trial court denied the petition, based on its factual finding that the meeting was not an interrogation that could lead to punitive action, but an “interrogation... in the normal course of duty...” (§ 3303, subd. (i)), to which the procedural protections of the POBRA did not apply. We affirm, because substantial evidence supports the trial court’s finding that the meeting was not an interrogation that could lead to punitive action, but an interrogation in the normal course of duty.
All further statutory references are to the Government Code, specifically the POBRA, unless otherwise indicated.
II. FACTS AND PROCEDURAL HISTORY
A. Background
Warren was a police officer with defendant and respondent City of Barstow Police Department for approximately 21 years before he was terminated in May 2007. He often acted as the officer in charge in the absence of the watch commander, and was president of the Barstow Police Officers Association. As president, he had been “actively campaigning” for three-day/12-hour shifts for Barstow police officers. In February 2006, he reported an excessive use of force incident involving a sergeant. He was later transferred to work as a school resources officer (SRO) at a local high school, a position he deemed “highly undesirable.”
Warren believes he was transferred to the SRO position in retaliation for reporting the excessive use of force incident and for advocating 12-hour shifts for police officers. The department’s chief of police, Caleb Gibson, authorized the 12-hour shifts following Warren’s transfer. As an SRO, Warren was required to work eight-hour shifts; however, the SRO position was a special assignment that came with an increase in salary. Warren was also expected to alternate working overtime at after-school activities, including football and basketball games, with Officer Cheran Jackson, another SRO who was assigned to the same high school. Warren claimed that Officer Jackson had volunteered to work at all of the after-school events because she wanted the overtime; thus, it was unnecessary for him to share the overtime work with her.
B. The Events Preceding the January 17, 2007, Meeting
In December 2006, shortly before he was transferred to the SRO position, Warren was given a written reprimand for failing to report to work as scheduled on a Sunday and Monday in early December. At the time, Warren was scheduled to work Thursdays through Mondays, with Tuesdays and Wednesdays off. The written reprimand advised him that “[f]urther violations of this nature could result in additional discipline,” and that he had a right to require an administrative appeal of the letter of reprimand.
Warren was also reprimanded for an incident that occurred in early January 2007, just as he was to begin working in his SRO assignment. On Friday, January 5, Warren’s direct supervisor, Sergeant Keith Libby, told Warren not to report to work on Sunday, January 7, as previously scheduled, but to report on Monday, January 8, to begin his new week-long shift. Warren showed up for work anyway on Sunday, and told Sergeant Ramirez that his direct supervisor, Sergeant Libby, did not tell him not to report to work on that day. He also told Sergeant Ramirez that Sergeant Libby had approved his request to take family leave on Monday, January 8. According to Sergeant Libby, neither of Warren’s statements to Sergeant Ramirez were true.
In early January 2007, Lieutenant Rudolph Alcantara spoke with a gate guard at the high school where Warren was working and asked him “how things... were going” and how Warren was performing in his job. The gate guard said the school was unhappy with Warren because they could never locate him when they needed him. He was never in his office and rarely answered his telephone or the school or police radio. Lieutenant Alcantara then spoke with the principal of the high school, who expressed her unhappiness with Warren’s performance and her hope for a replacement.
After hearing these complaints, Lieutenant Alcantara began noticing that Warren “tended to linger around the Police Department” after the morning briefing when he was supposed to report to the high school. The lieutenant then spoke with Officer Jackson and learned that Warren had not been working any overtime despite the lieutenant’s instruction that Warren and Officer Jackson were to share in working overtime at the after-school sports events. The lieutenant expressed his disappointment to Officer Jackson that Warren was not sharing the overtime work.
Lieutenant Alcantara then spoke with Warren’s direct supervisor, Sergeant Libby, and suggested that he and Sergeant Libby speak to Warren about his work performance. The lieutenant then learned that Sergeant Libby intended to issue an oral reprimand to Warren for showing up for work on Sunday, January 7, after the sergeant told him not to and for being dishonest with Sergeant Ramirez about the incident.
On January 17, and before meeting with Warren that same day, Sergeant Libby prepared a written document which he titled, “Oral Reprimand (Documentation of Counseling),” which he intended to give to Warren at the meeting. The reprimand did not charge Warren with violating department rules or regulations, but accused him of dishonesty and stated it would be used in his next performance evaluation, then discarded. The reprimand stated that Warren had an opportunity to provide a written rebuttal to the reprimand.
Shortly before meeting with Warren on January 17, Lieutenant Alcantara and Sergeant Libby met with Chief Gibson concerning their intention to speak with Warren concerning his poor work performance at the high school and his dishonesty concerning his January 7 and 8 work schedule. According to Lieutenant Alcantara, his intent in speaking with the chief was to suggest that Warren be counseled concerning his poor work performance and given a chance to improve since he had only recently begun working as an SRO. The chief thanked the lieutenant for apprising him of the situation and allowed the meeting to proceed.
C. The January 17, 2007, Meeting
On Wednesday, January 17, 2007, Warren was ordered to report to the Barstow police station. Warren said he “expected a reprimand and that [he] was going to be interrogated by Lieutenant Alcantara and Sergeant Keith Libby,” in light of his December reprimand and what Jackson had told him concerning Alcantara’s dissatisfaction with him not working overtime.
Around 11:30 a.m., Warren met with Lieutenant Alcantara and Sergeant Libby in the lieutenant’s office. The door was closed, and the lieutenant and sergeant believed the meeting was private. According to the lieutenant, the purpose of the meeting was to “verbally admonish” Warren concerning his “failure to follow direction regarding his work assignment” and to “reinforce the Chief’s decision to assign Officer Warren to the position of SRO.”
Lieutenant Alcantara initiated the meeting. He told Warren he was not surprised that Warren was not sharing overtime with Officer Jackson because, in his opinion, Warren was a “very lazy officer” and, despite Officer Jackson’s willingness to work at all of the after-school events, he expected Warren and Officer Jackson to share the overtime work. The lieutenant also told Warren that he had an obligation to work on the SRO assignment to the best of his ability and to give it “an honest effort.” He then asked Warren whether he had any comments. Warren said he did not feel it was right to have an officer of his seniority level assigned as an SRO. In response, the lieutenant said he was not going to reassign the position because Chief Gibson had assigned it to Warren. Warren said he intended to initiate a grievance against the lieutenant, and the lieutenant told him to “go ahead.”
At that point, the lieutenant turned the meeting over to Sergeant Libby. Sergeant Libby spoke to Warren concerning his failure to follow the sergeant’s January 5 order to not report to work on Sunday, January 7, and his dishonesty with Sergeant Ramirez about the incident. Warren insisted that Sergeant Libby never told him not to report to work that Sunday. The sergeant told Warren this was not true, and handed him a copy of the written “oral reprimand” he had prepared before the meeting. Warren read the reprimand and signed it. He then left the room, saying he was going to speak with Chief Gibson.
After Warren left the room, Lieutenant Alcantara asked Sergeant Libby if he knew that Warren had tape-recorded the conversation. The lieutenant had seen a recording device concealed between Warren’s legs and below his hands as he was sitting in a chair. The sergeant said he did not realize Warren was recording the meeting; he had not seen the recording device; and he believed Warren was not allowed to record the meeting without their consent. The lieutenant wanted to confront Warren about the tape recording. He asked the sergeant to find Warren and return him to the lieutenant’s office.
A short time later, Warren approached Lieutenant Alcantara in the hallway “with his hand out in front of him holding the same object” the lieutenant had earlier seen him holding “between his legs.” The lieutenant asked Warren to identify the object, and Warren said it was his tape-recorder. The lieutenant then asked Warren and Sergeant Libby to step inside the watch commander’s office. They did so and the lieutenant closed the door. In response to the lieutenant’s questions, Warren admitted he had recorded their earlier conversation in the lieutenant’s office, but claimed he had been holding the recorder in plain view. The lieutenant told Warren that was not true, and that Warren was not allowed to record the conversation without the knowledge of the lieutenant and sergeant. The lieutenant demanded that Warren hand over the recording device, and Warren refused. The lieutenant then left to find Chief Gibson.
Chief Gibson came to the watch commander’s office and, after conferring with Lieutenant Alcantara, ordered Warren to surrender the recording device. The chief explained to Warren that he was authorized to take the device because Warren was now the subject of a criminal investigation for having surreptitiously recorded a conversation without the knowledge or consent of the parties present (Pen. Code, § 632), and would be placed on paid administrative leave. The device was taken from Warren, and several officers accompanied him to the locker room where his locker was searched. Some audiotapes and an HT microphone were seized. Thereafter, Warren was directed to leave the station and not discuss the investigation with anyone other than his attorney.
D. Warren’s Termination and Ensuing Writ Petition
In March 2007, Warren received a notice of intent to dismiss him from his police officer position on the ground he had violated Penal Code section 632 by surreptitiously recording the January 17 meeting. He was terminated in May 2007. Thereafter, he filed an administrative appeal of his termination. He also filed the present writ petition, seeking reinstatement on the ground he was terminated in violation of his right to record the January 17 meeting under the POBRA. In his petition, he argued that the January 17 meeting was an interrogation that could lead to punitive action (Gov. Code, § 3303); hence, he had a right to record the meeting (id., subd. (g)), and any statements he made during the meeting could not be used as grounds to discipline or terminate him (see id., § 3309.5, subd. (d)(1) [authorizing trial court to impose “appropriate” remedies for POBRA violations]).
E. The Trial Court’s Ruling
The trial court denied the petition based on its factual finding that the January 17 meeting was not an interrogation that could lead to punitive action (§ 3303), but an interrogation “in the normal course of duty” (id., subd. (i)). The court framed the issue as whether the meeting was designed “to question or get information” from Warren that could “either affirm suspected improper activity” or otherwise “lead to discipline.” Based on the evidence presented, the court found that the purpose of the meeting was to counsel or “straighten up” Warren, not confirm or elicit information to use in disciplining or terminating him. Accordingly, the court concluded there was no basis under the POBRA to restrain the City from relying upon Warren’s alleged surreptitious recording of the January 17 meeting as grounds to terminate his employment.
III. DISCUSSION
A. Overview of the POBRA
The POBRA provides that: “When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under [certain] conditions” or with certain procedural safeguards. (§ 3303.) These procedural safeguards include, among other things, the right to be informed of the nature of the investigation before being subjected to interrogation (id., subd. (c)), the right to be represented at the interrogation by a representative of the officer’s choice (id., subd. (i)), and the right to bring a recording device and record the interrogation (id., subd. (g); Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492, 497).
The state Supreme Court has described the POBRA as “a labor relations statute that provides procedural protections for police officers during administrative and disciplinary actions initiated by their employers.” (Van Winkle v. County of Ventura, supra, 158 Cal.App.4th at p. 497; Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572-574.) The court has further described the protections of the POBRA as applying “when a peace officer is interrogated in the course of an administrative investigation that might subject the officer to punitive action....” (Pasadena Police Officers Assn. v. City of Pasadena, supra, at p. 574, italics added.) “Punitive action” is statutorily defined as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” (§ 3303)
Not all investigations and interrogations of public safety officers are subject to the POBRA, however. Two exceptions are described in section 3303, subdivision (i). First, the POBRA does not apply “to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer ....” (§ 3303, subd. (i), italics added.) Second, the POBRA does not apply to “an investigation concerned solely and directly with alleged criminal activities.” (Ibid.; Van Winkle v. County of Ventura, supra, 158 Cal.App.4th at p. 497.)
The superior court has initial jurisdiction over any proceedings brought by a public safety officer against a public safety department for alleged violations of the POBRA. (§ 3309.5, subd. (c).) If the court finds that a public safety department has violated the POBRA, it “shall render appropriate injunctive or other extraordinary relief to remedy the violation... including... prohibiting the public safety department from taking any punitive action against the public safety officer.” (Id., subd. (d)(1).)
B. Standard of Review and Conclusions
The dispositive question before the trial court was whether the January 17 meeting was an interrogation “that could lead to punitive action” (§ 3303) against Warren, or an interrogation “in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor...” (id., subd. (i)). The trial court expressly found that the meeting was not an interrogation that could lead to punitive action, but an interrogation “in the normal course of duty” (ibid.), specifically to counsel or admonish Warren concerning his poor work performance and his dishonesty concerning his January 7 and 8 work schedule.
We review the trial court’s factual finding for substantial evidence. (Steinert v. City of Covina (2006) 146 Cal.App.4th 458, 462, 465 (Steinert).) Our power as an appellate court “begins and ends” with the determination whether “there is substantial evidence, contradicted or uncontradicted,” to support the trial court’s finding. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) For the reasons explained below, we conclude that substantial evidence supports the trial court’s finding.
We are therefore bound by the trial court’s finding. And from that finding, it necessarily follows that the procedural safeguards of the POBRA did not apply to the January 17 meeting as a matter of law. (Steinert, supra, 146 Cal.App.4th at p. 465.) Specifically, Warren did not have a right to record the meeting (§ 3303, subd. (g)), and the POBRA did not prohibit the City from terminating him based on his alleged surreptitious recording of the meeting. Warren’s writ petition to suppress the City’s introduction, for purposes of his administrative appeal, of evidence that he surreptitiously recorded the meeting was therefore properly denied. We emphasize that the only issue before the trial court was whether the January 17 meeting was an interrogation “that could lead to punitive action” (§ 3303) and, therefore, whether the procedural safeguards of the POBRA applied to the meeting.
C. Analysis
As indicated, the sole question presented on this appeal is whether substantial evidence supports the trial court’s factual finding that the January 17 meeting was not an interrogation “that could lead to punitive action” within the meaning of section 3303, but an interrogation “in the normal course of duty” to which the procedural protections of the POBRA did not apply. (§ 3303, subd. (i).) Warren argues that, based on the evidence, the trial court “had no reasonable choice” other than to conclude that the meeting was an interrogation “that could lead to punitive action.” (§ 3303.) He claims the trial court erred “as a matter of fact and law” in finding that the meeting fell within the “normal course of duty” exception. (Id., subd. (i).) We disagree with Warren’s view of the evidence and the law.
The evidence shows that, before the January 17 meeting, Lieutenant Alcantara had become concerned about Warren’s poor work performance as an SRO. In early January, the lieutenant spoke with a gate guard and the principal of the high school where Warren worked and learned they were dissatisfied with Warren’s work performance because he could not be located when they needed him. The lieutenant then learned that Warren was not sharing overtime work with Officer Jackson, despite the lieutenant’s instruction that both officers were to share the overtime work.
Next, after speaking with Sergeant Libby, the lieutenant learned that Warren had been untruthful with Sergeant Ramirez concerning his January 7 and 8 work schedule. The lieutenant and sergeant then sought and obtained Chief Gibson’s permission to meet with Warren for the purpose of counseling and admonishing him concerning his poor work performance and his dishonesty concerning the January 7 and 8 incident.
During the meeting, Lieutenant Alcantara admonished Warren concerning his poor work performance, and urged him to give his SRO assignment an “honest effort.” Sergeant Libby then confronted Warren about his untruthful statements to Sergeant Ramirez concerning his January 7 and 8 work schedule. Near the end of the meeting, the sergeant handed Warren the “oral reprimand,” which he had prepared in writing before the meeting, and which documented Warren’s dishonesty concerning his January 7 and 8 work schedule.
Most significantly, substantial evidence shows that neither Lieutenant Alcantara nor Sergeant Libby questioned Warren during the meeting for the purpose of confirming or eliciting any information to use in taking punitive action against him, including terminating him. Indeed, neither the lieutenant nor the sergeant elicited any information from Warren that they did not already have before the meeting. Instead, the officers admonished and essentially lectured Warren concerning what they already knew about his work performance and his dishonesty. As the trial court put it, the meeting was an attempt to “straighten [Warren] up”; it was not an attempt to confirm or find information to use in taking punitive action against him.
Warren requests that this court take judicial notice of deposition testimony taken from Sergeant Libby on July 28, 2008 and February 4, 2009, in connection with Warren’s administrative appeal and after the trial court issued its ruling denying Warren’s writ petition. Warren claims the sergeant’s posttrial deposition testimony shows he perjured himself in his declaration in opposition to Warren’s writ petition, when he declared he “did not ask Officer Warren any questions” during the January 17 meeting. The City opposes the request, and in the event this court grants the request, asks that this court also take judicial notice of an enhanced transcription of the January 17 meeting, which shows Sergeant Libby asked very few questions of Warren during the meeting, and that none of the sergeant’s questions were designed to elicit information for the purpose of taking punitive action against Warren. The original transcription of the meeting that was presented to the trial court is largely unintelligible. It is also notable that Warren took the depositions of Sergeant Libby and Lieutenant Alcantara in connection with his writ petition, and transcripts of those depositions were presented to the trial court. Warren does not argue, however, that Sergeant Libby’s earlier deposition shows he perjured himself in his declaration or later deposition.
It is also notable that nothing Warren said during the meeting was used as grounds to discipline or terminate him. Warren was ostensibly terminated based on his alleged act of recording the meeting without the knowledge or consent of either Lieutenant Alcantara or Sergeant Libby. And, to the extent Warren was or may have been terminated for his dishonesty with Sergeant Ramirez concerning his January 7 and 8 work schedule, all of the facts concerning that incident were known to Sergeant Libby before the meeting.
Warren argues that the officers’ undisputed intention to issue the written “oral reprimand” to him during the meeting unequivocally demonstrates that the meeting was an interrogation for purposes of taking punitive action against him. (§ 3303.) Not so. Although Warren had a right to review the reprimand before it was placed in his personnel file (§ 3305) and respond to it in writing (§ 3306), its issuance to Warren during the meeting did not convert the meeting into an interrogation of Warren for purposes of taking future punitive action against him. Indeed, “not every action taken by a law enforcement agency in reviewing, evaluating or commenting upon the performance of one of its peace officers constitutes punitive action. For example, a routine performance evaluation would not constitute punitive action, even though it contained negative comments. [Citation.]... ‘“[T]he Legislature has obviously drawn a distinction between ‘punitive action’ and adverse comments entered in a personnel file. As to the former, an administrative appeal is mandated (Gov. Code, § 3304, subd. (b)), but as to the latter, the officer merely has the right to notice and to respond (Gov. Code, §§ 3305, 3306.)” [Citation.]’ [Citation.]” (Otto v. Los Angeles Unified School Dist. (2001)89 Cal.App.4th 985, 996.)
Warren principally relies on City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506 (Labio) to support his argument that the January 17 meeting was an interrogation that could lead to punitive action against him. As we explain, however, Labio is distinguishable because it involved an officer who was clearly subjected to an interrogation that could have led to punitive action against him. That is not the case here.
Officer Labio was on duty as a Los Angeles airport police officer on a night in January 1996, when a fatal traffic accident occurred on Imperial Highway. Shortly after the accident, the watch commander and another officer stopped at a nearby donut shop, where the owner told them that he had seen a male Filipino officer drive past the accident scene in a marked police vehicle and, without stopping, proceed to another nearby donut shop. The watch commander checked the deployment log and discovered that Labio was the only Filipino officer on duty that night. Upon further investigation, the watch commander learned that Labio did not have permission to use a police vehicle that night, and an employee of the donut shop where Labio had allegedly stopped confirmed that a male Filipino had been there around the time of the accident. The watch commander called Labio to his office and questioned him concerning his whereabouts that night, his use of a police vehicle, and the route he had taken. (Labio, supra, 57 Cal.App.4th at pp. 1509-1510.)
Labio was terminated based on allegations he used a police vehicle without authorization, failed to stop at the scene of an accident, and made an unauthorized detour to a donut shop. (Labio, supra, 57 Cal.App.4th at p. 1511.) At the time he questioned Labio, the watch commander knew that Labio’s failure to stop at the scene of an accident, if determined to be true, could lead to disciplinary action against him. The watch commander also knew that the incident would have to be referred to internal affairs. And, following his interrogation of Labio, the watch commander filed a personnel complaint with internal affairs. (Id. at pp. 1510-1511.)
The appellate court in Labio agreed with the trial court’s conclusion that the watch commander’s interrogation “could only be characterized as part of an investigation of Officer Labio for sanctionable conduct” (§ 3303), and not “routine or unplanned contact within the normal course of duty (id., subd. (i); Labio, supra, 57 Cal.App.4th at pp. 1513-1514). Thus, the court in Labio affirmed the trial court’s ruling that Labio’s statements during the interrogation could not be used against him in the City’s case-in-chief at the administrative hearing to review Labio’s termination. (Labio, supra, at pp. 1511, 1516-1517.)
Labio is distinguishable from the present case because here, substantial evidence supports the trial court’s conclusion that the January 17 meeting with Warren was not intended to elicit, and did not elicit, information that could lead to punitive action against Warren. (§ 3303.) Instead, the evidence showed that the purpose of the meeting was to counsel and admonish Warren concerning his poor work performance and dishonesty. (Id., subd. (i).) In Labio, there was no evidence that the watch commander’s interrogation of Labio was for the purpose of counseling or admonishing him concerning his actions on the night of the fatal traffic accident. Instead, the evidence showed that the interrogation was intended to confirm or elicit information from Labio that could be used to take punitive action against him.
The present case is similar to Steinert, supra, 146 Cal.App.4th 458. There, Officer Stephanie Steinert of the Covina Police Department was terminated for disclosing the confidential criminal records of an individual named Robert Tirado to Wendy Roff, a crime victim who reported to Steinert that Tirado had committed vandalism. (Id. at p. 461.) In obtaining Tirado’s criminal records from the database, Steinert designated her records search as being for training purposes. The use of criminal records for training purposes was prohibited by the Covina Police Department and California Department of Justice policy. During a routine audit of criminal records searches, a Department of Justice employee discovered Steiner’s “training” designation, and informed the police department. (Id. at p. 460.)
Thereafter, the support services manager for the police department discovered that Steinert had made the “training” designation and taken a vandalism report around the time she conducted the records search. Although the vandalism report taken from the victim Roff did not mention Tirado by name, the report and Tirado’s rap sheet suggested there was a connection between Roff and Tirado. The support services manager relayed this information to Steinert’s commanding officer, Sergeant Curley. (Steinert, supra, 146Cal.App.4th at pp. 460-461.)
Later that day, Curley called Steinert into his office and questioned her about the records search. Steinert told Curley that Roff had mentioned Tirado in reporting the vandalism to her and that was why she had accessed Tirado’s criminal records. Curley instructed Steinert to be sure to include names such as Tirado’s as “mentioned persons” in her crime reports, and to use a case number when searching criminal records rather than designating the searches as being for training purposes. Steinert received the instructions well. Curley then asked Steinert whether she had disclosed any of Tirado’s confidential information to Roff. Steinert replied that she had not. Curley was required to audit two crime reports each week, and later decided to audit Roff’s crime report as one of his routine audits. He contacted Roff and discovered that Steinert had disclosed confidential information about Tirado to Roff. Curley then initiated an internal affairs investigation of Steinert that ultimately led to her dismissal. (Steinert, supra, 146Cal.App.4th at p. 461.)
The Steinert court concluded that substantial evidence supported the trial court’s conclusion that Curley’s interrogation of Steinert was not an interrogation that could lead to punitive action, but “a routine interrogation in the normal course of duty, counseling, or informal verbal admonishment, such that no violation of her [POBRA] rights occurred[.]” (Steinert, supra, 146 Cal.App.4th at pp. 461-463.) The court emphasized that, at the time Curley questioned Steinert, he believed she had made a “simple error” and his questioning of her was not “‘likely to result to any punitive action’” against her. (Id. at p. 464.) Furthermore, the internal affairs investigation of Steinert focused on her act of lying to Curley about not having disclosed Tirado’s confidential information to Roff, not on the information available to Curley at the time he questioned Steinert about her search of Tirado’s criminal records. (Id. at p. 465.)
The court in Steinert distinguished Labio, supra, 57 Cal.App.4th 1506 on the basis that the watch commander in Labio was armed with a plethora of information concerning Labio’s potential misconduct at the time he questioned him. (Steinert, supra, 146 Cal.App.4th at pp. 465-466.) In contrast, at the time Curley questioned Steinert, he had no intention of taking any punitive action against her or of confirming or obtaining any information to support taking punitive action against her. Thus, the court concluded that substantial evidence supported the trial court’s conclusion that Curley’s interrogation of Steinert “was a remedial interaction and not the attempt to tighten the metaphorical noose around an investigated officer’s neck that Steinert posits.” (Id. at p. 466.)
The court in Steinert, quoting Labio, pointed out that, “Section 3303, subdivision (i) is designed ‘to avoid claims that almost any communication is elevated to an “investigation.”’ [Citation.]” (Steinert, supra, 146 Cal.App.4th at p. 466, quoting Labio, supra, 57 Cal.App.4th at p. 1514.) That observation is particularly appropriate here. Substantial evidence supports the trial court’s finding that the January 17 meeting fell within the “normal course of duty” exception described in section 3303, subdivision (i), and was not an interrogation for purposes of taking punitive action, within the meaning of section 3303.
Lastly, Warren argues that a recent case, Paterson v. City of Los Angeles (2009) 174 Cal.App.4th 1393 (Paterson), “provides addition[al] guidance on the interplay between routine questions and interrogations” and supports his claim that the January 17 meeting was a section 3303 interrogation for purposes of taking punitive action. In Paterson, husband and wife police officers sued the City of Los Angeles for violating their POBRA rights in connection with an investigation of the husband’s suspected abuse of his sick time. The husband called in sick one day while his wife was on leave after giving birth to a child. A lieutenant suspected that the husband was abusing his sick time and sent a sergeant to the couple’s home to conduct a “sick check.” Armed with a tape-recorder, the sergeant spoke to the couple’s older son, who said his parents were not at home and gave the sergeant his father’s cell phone number. The sergeant called the cell number and recorded his conversations with both officers. Both officers falsely stated that they were at home. An investigation ensued, and the officers were temporarily suspended.
The couple sued the City for violating their POBRA rights in connection with the sergeant’s investigation. The trial court entered summary judgment in favor of the City, because the couple were later exonerated, reinstated and given back pay for the period of their suspension. The Paterson court held that the couple’s exoneration did not “nullify” the alleged POBRA violation, and remanded the matter to the trial court with directions to determine whether the “sick check” constituted an interrogation that could lead to punitive action (§ 3303), or an interrogation “in the normal course of duty...” (id., subd. (i)). The court reasoned that the facts of the case were more like those of Labio than Steinert because, like the watch commander in Labio, the sergeant “suspected wrongdoing” before he questioned the couple. Thus, the facts supported an inference that the sergeant’s questioning of the couple was an interrogation that could lead to punitive action.
Paterson does not assist Warren’s argument, however, for two reasons. First, the procedural posture of Paterson differs from the present case. The trial court in Paterson did not make a factual finding concerning the nature of the sergeant’s investigation. Here, the trial court expressly found that the January 17 meeting was not an interrogation “that could lead to punitive action” (§ 3303) but an interrogation “in the normal course of duty...” (id., subd. (i)), and substantial evidence supports that finding. Second, unlike the sergeant in Paterson, neither Lieutenant Alcantara nor Sergeant Libby questioned Warren for the purpose of confirming or eliciting information from him that could lead to punitive action against him.
IV. DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: Hollenhorst, Acting P.J., Richli, J.
Warren’s request is denied. “Reviewing courts generally do not take judicial notice of evidence not presented to the trial court,” absent exceptional circumstances. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Here, there are no exceptional circumstances that would justify taking judicial notice of the sergeant’s deposition testimony. (Cf. Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 [exceptional circumstances lie, for example, when subsequent events have rendered appellate issues moot].) It is therefore unnecessary to consider the City’s alternative request. And even if we were to grant both parties’ requests, the proffered evidence shows the sergeant did not “perjure” himself in his declaration or substantially misrepresent what occurred during the January 17 meeting. The enhanced transcription of the meeting shows that the sergeant asked Warren only one or two questions concerning his January 7 and 8 work schedule. He did not ask Warren questions designed to elicit information that may have led to punitive action against him. And in his posttrial deposition, he explained that, when he signed his declaration stating he did not ask any questions of Warren, he meant he did not ask any “interrogating” questions, that is, any questions designed “to gather facts for later discipline.”