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Court of Appeal, Second District, Division 4, California.

John D. WILLIAMS, Plaintiff and Respondent, v. CITY OF LOS ANGELES, et al., Defendants and Appellants.

No. B025875.

Decided: February 17, 1988

James K. Hahn, City Atty., Frederick N. Merkin, Senior Asst. City Atty., and Dorothy Berry, Deputy City Atty., Los Angeles, for defendants and appellants. Stone & Healy, and Mary Ann Healy, Los Angeles, for plaintiff and respondent.

The appellants—the City of Los Angeles, The Board of Police Commissioners, the Los Angeles Police Department and the Chief of Police—appeal a writ of mandate granted by the superior court reinstating a discharged police officer, subject to further disciplinary proceedings.

Officer Williams was a member of the Los Angeles Police Department, assigned to 77th Street Vice Unit, and a partner of Officer Michael Lybarger.1  On March 26, 1980, Williams, along with Lybarger and another officer from the 77th Street Vice Unit, was interrogated by the Police Department's Internal Affairs Division about the unit's handling of bookmaking arrests.   The investigation disclosed that as a matter of routine, the vice unit sought the cooperation of bookmakers in staging arrests.   Before planning a raid on a bookmaking operation, members of the vice unit would contact the bookie and inform him that it was time that an arrest was made at his location.   A date for the arrest would be agreed on and the bookie would then either pay or trick an individual with no prior bookmaking arrests into being present at the prearranged time.   Since the arrestee had no prior convictions, the resulting fine would be considerably lower and the vice unit would agree to leave the bookie unmolested for another three to six months.   For its part, the vice unit could sustain a high rate of arrests and convictions in spite of the elaborate precautions bookmakers normally take, as the bookie would agree to cooperate in manufacturing and preserving incriminating evidence.   No monetary or other reward was given to the officers.

The issues in this case derive from the handling of the interrogation of Officer Williams by the internal affairs division.   Under Government Code section 3303, subdivision (e),2 a police officer who fails to respond to questions calling for self-incrimination may be subject to punitive action and dismissed for insubordination.   Although answers compelled in this fashion may be used as evidence in an administrative proceeding, they cannot be used against the officer in a subsequent criminal prosecution.  (Lefkowitz v. Turley (1973) 414 U.S. 70, 79, 94 S.Ct. 316, 323, 38 L.Ed.2d 274, 283.)   Furthermore, Government Code section 3303, subdivision (g) states:

“If prior to or during the interrogation of a public safety officer it is deemed that he may be charged with a criminal offense, he shall be immediately informed of his constitutional rights.”

The California Supreme Court has construed this provision to mean not only must the officer be given his Miranda rights, but also that he be informed that any statement made under threat of insubordination cannot be used against him criminally.  (Lybarger v. City of Los Angeles, supra, 40 Cal.3d at p. 829, 221 Cal.Rptr. 529, 710 P.2d 329.)

It is uncontested that the internal affairs investigators stated to Officer Williams that refusal to answer their questions would subject him to discipline and result in his dismissal.   They did not inform him that his statements could therefore not be used against him in a criminal proceeding.   Nor did they read him his other Miranda rights.   In spite of this failure to inform him that his statements were protected, Officer Williams freely admitted his participation in the prearranged arrests.   At his Board of Rights hearing, he was found guilty of 27 counts of improper arrest, improper imprisonment and preparation of false arrest reports, and was dismissed from the force.

Following his discharge, Williams filed a petition for a writ of mandate in superior court seeking his reinstatement.   In 1986, this petition was amended to state as a ground the failure of the internal affairs investigators to inform him that his admissions could not be used against him in a criminal proceeding.   The superior court granted the petition, ordered Officer Williams reinstated, and prohibited the introduction of his statements at any future disciplinary proceedings.   Appellants, representing the Police Department and City of Los Angeles, appeal.


 Officer Williams bases his position primarily on Lybarger v. City of Los Angeles, supra, 40 Cal.3d 822, 221 Cal.Rptr. 529, 710 P.2d 329, the California Supreme Court's decision involving his partner, Officer Michael Lybarger.   In that case the court noted:

“As a matter of constitutional law, it is well established that a public employee has no absolute right to refuse to answer potentially incriminating questions posed by his employer.   Instead, his self-incrimination rights are deemed adequately protected by precluding any use of his statements at a subsequent criminal proceeding.  [Citations.]

“Similarly, appellant had no statutory right to remain silent.  Section 3303, subdivision (e), expressly provides that an officer who refuses to respond to questions or submit to interrogation is subject to punitive action by his employer.”  (Lybarger v. City of Los Angeles, supra, 40 Cal.3d at p. 827, 221 Cal.Rptr. 529, 710 P.2d 329.)

As the court observed, however, Government Code section 3303, subdivision (g) requires an officer to be informed of his constitutional rights if it is deemed that he may be charged with a criminal offense.   As a criminal investigation was pending in the case of the vice officers, the court concluded that Officer Lybarger should have been told:  “that although he had the right to remain silent and not incriminate himself, (1) his silence could be deemed insubordination, leading to administrative discipline, and (2) any statement made under the compulsion of the threat of such discipline could not be used against him in any subsequent criminal proceeding.  [Citations.]”  (Lybarger v. City of Los Angeles, supra, 40 Cal.3d at p. 829, 221 Cal.Rptr. 529, 710 P.2d 329.)

Officer Lybarger was not so informed and on advice of counsel refused to answer any questions.   He was then charged with insubordination and dismissed from the police force.   The Court reversed the trial court's denial of his petition for writ of mandate, however, concluding that:  “had appellant understood that his statements during the administrative interview could not be used against him in a criminal proceeding, he might well have elected to cooperate rather than remain silent.”  (Lybarger v. City of Los Angeles, supra, 40 Cal.3d at pp. 829–830, 221 Cal.Rptr. 529, 710 P.2d 329.)

Officer Williams' position in this case is subtly different from Officer Lybarger's.   Unlike Officer Lybarger, who presumably remained silent out of fear of criminal self-incrimination, Officer Williams freely admitted his role in the staged arrests.   It is impossible to say therefore—as can be said of Officer Lybarger—that if he had been advised of his rights he might have cooperate more fully.   Clearly, the failure to advise Officer Williams of his rights did not induce him to commit insubordination and remain silent, as in Officer Lybarger's case.

Appellants argue that Officer Williams' only alternative to answering as he did was to be dismissed for insubordination.   Put another way, if Officer Williams had been given his rights, his options still would have been only to answer as he did, or be discharged for insubordination.   Since the result is the same whether Officer Williams was read his rights or not, appellants argue that no harm resulted from the failure to warn and thus his reinstatement as ordered by the superior court is inappropriate.

The ability of the superior court to remedy violations of an officer's rights is governed by Government Code section 3309.5.   Subdivision (a) of this section states:  “It shall be unlawful for any public safety department to deny or refuse to any local public safety officer the rights and protections guaranteed to them by this chapter.”

Subdivision (c) provides:  “In any case where the superior court finds that a local public safety department has violated any of the provision of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, ․”

The appellants concede that Officer Williams' rights were violated in this case.   The superior court therefore may grant relief to remedy the violation and to prevent similar violations in the future.   Considering that Officer Williams' choices were to confess involvement in the arrest arranging scheme and be discharged for wrongdoing, or to remain silent and be dismissed for insubordination, we are not sure that he has suffered any harm which can be remedied.3  This case differs from Officer Lybarger's in that since Officer Lybarger chose not to speak to the authorities, it is possible to entertain the belief that if had he done so, he might have exonerated himself.   Such an assumption cannot be made here.   All that can be said is that it is theoretically possible that if Officer Williams had chosen his other option and remained silent, he might not have been disciplined.   But since this decision is solely within the power of appellants, and as a practical matter appears quite unlikely, we can accept their assertion that Officer Williams would have been fired for insubordination.   Since Officer Williams would have been terminated from the police force no matter what option he chose, even if he had been given his rights, the remedy of reinstatement is not required to make the respondent whole.

The superior court is not limited, however, to remedies which simply render an individual officer whole.   The Legislature specifically provided that the superior court might order relief “to prevent future violations of a like or similar nature.”   It is important to remember that failure to give an officer his rights is unlawful under Government Code section 3309.5, subdivision (a).   The remedy most certain to deter such unlawful behavior in the future is to nullify the resulting interrogation.   We note that the court in granting Officer Williams' petition expressly permitted further disciplinary action to be taken against him, excluding only the statements he made to the internal affairs investigators and the tainted evidence.   Since these statements were obtained by means the Legislature has characterized as unlawful, a remedy that forbids their use against the interrogated officer is appropriately calculated to prevent future unlawful behavior.   While a court is not required as a matter of law to fashion such a remedy, conversely we cannot say that as a matter of law a court is required not to.   The Legislature left the fashioning of an appropriate remedy to the discretion of the superior court and we cannot say that discretion was abused here.

Appellants cite People v. Rawlings (1974) 42 Cal.App.3d 952, 956, 117 Cal.Rptr. 651, for the proposition that:  “[w]here a statute ․ does not specifically provide that evidence shall be excluded for failure to comply with said statute and there are no constitutional issues involved ․ such evidence is not inadmissible.”

We agree with the proposition stated.   This, however, does not limit the legislatively granted discretion of the court to order such evidence excluded as a way of deterring future violations of officers' rights.   Moreover, we see nothing in the trial court's order preventing appellants from commencing the investigation of Officer Williams afresh (this time advising him of his rights) and again compelling him to answer under threat of administrative discipline.   As Officer Williams, once reinstated, can again be made to choose between confession and insubordination, we see no abuse of discretion in the trial court's determination that the unlawfully obtained statements cannot be used against him.   As the trial court's order is fully supportable based on the above reasoning, we need not address appellants' contention that the trial court erred on other grounds given for its decision.


 Appellants further argue, however, that Officer Williams' petition for writ of mandate is barred by the statute of limitations.   While the petition itself was filed within three months after the officer's dismissal in February of 1981, it was not until 1986 that it was amended to state as a ground the failure of the internal affairs investigators to advise Officer Williams of his rights.   Appellants argue that this claim does not relate back to the original filing of the petition and that the amended cause of action is therefore barred by the limitations period.

Amendments to pleadings stating different legal theories or different causes of actions relate back to the initial filing of the pleading—and thus avoid being barred by the statute of limitations—as long as the amendment seeks recovery on “the same general set of facts” as in the original pleading.   (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934, 136 Cal.Rptr. 269, 559 P.2d 624.)   What constitutes “the same general set of facts” has been liberally interpreted, allowing parties to have their cases decided on the merits.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488–489, 173 Cal.Rptr. 418.)   Thus, in Garret v. Crown Coach Corp. (1968) 259 Cal.App.2d 647, 66 Cal.Rptr. 590, this court held that where plaintiff had initially sued a school district for negligent maintenance of a school bus, plaintiff's amended complaint holding the manufacturer liable for the negligent design of the bus arose out of the same general set of facts and related back to the filing of the original complaint for the purposes of the statute of limitations.   Even though the facts necessary to prove negligent design are entirely different from those relating to the original count of negligent maintenance, this court held that the amended claim resulted from the same accident and thus arose out of the same general set of facts.   Similarly, in Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 86 Cal.Rptr. 465, 468 P.2d 825, the Supreme Court ruled that where plaintiff initially sued two police officers for the intentional killing of her husband, the addition of a cause of action against the City for negligent employment arose out of the same general set of facts.

The instant case is legally indistinguishable from those above.   Here, Officer Williams originally petitioned for reinstatement on the ground that appellants failed to provide him with a letter of transmittal, and that the evidence at his Board of Rights hearing was insufficient.   His amended petition added as a ground the failure of the internal affairs investigators to advise him of his rights.   Both petitions arise out of the same general set of facts—the officer's termination for misconduct—and seek the same relief.   Accordingly, the amended petition is not barred by the statute of limitations.

The order is affirmed.



1.   Cf. Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 221 Cal.Rptr. 529, 710 P.2d 329, infra.

2.   Government Code section 3303, subdivision (e) states:  “The public safety officer under interrogation shall not be subjected to offensive language or threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.”

3.   Respondent argued to the trial court that Officer Williams could have resigned with charges pending.   Indeed, he could have.   The principal consequence of this, however—his termination from the police force—would have been the same.

ROTHMAN, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

McCLOSKY, Acting P.J., and GEORGE, J., concur.

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