BENACH v. COUNTY OF LOS ANGELES (1997)

Francisco Benach (plaintiff) appeals from a judgment against him and in favor of the County of Los Angeles (County), the Los Angeles County Sheriff's Department (the Department), and Kenneth Brazile (Brazile), who was sued individually and as a sergeant of the sheriff's department (sometimes referred to collectively as defendants).

The judgment was entered after defendants' demurrer was sustained without leave to amend.   By this appeal, plaintiff, who is a deputy sheriff employed by the Department, seeks an opportunity to proceed to a trial on the merits of his causes of action against defendants, which arise from defendants' allegedly wrongful suppression and/or spoliation of evidence in connection with disciplinary proceedings brought against him by the Department.   Plaintiff contends that the destruction of portions of taped interviews with his colleagues, the Department's initial failure to provide him with copies of taped interviews, and the deletion from his personnel file of 40 letters of commendation, were designed first to facilitate his termination by the Department and then to make sure that the decision to terminate him was not reversed by the Civil Service Commission.   According to plaintiff, his termination and the suppression and/or spoliation of evidence related thereto were in retaliation for speaking to his superiors about interdepartmental wrongdoing.   Defendants contended in their demurrer that any causes of action based on these alleged facts were barred by governmental immunity, a position with which the trial court agreed.

We, however, hold that because defendants' alleged conduct violated a specific statutory duty owed to plaintiff under the Public Safety Officers Procedural Bill of Rights Act (Gov.Code, § 3300 et seq.), defendants' conduct is not immunized by the general governmental immunity of Government Code section 821.6 for actions by public employees in instituting and/or prosecuting any proceeding, including disciplinary proceedings.   We further hold that plaintiff has alleged facts sufficient to state a cause of action for injunctive relief pursuant to Government Code section 3309.5, as well as for relief pursuant to 42 U.S.C. section 1983 and 1985, and therefore reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND 1

Plaintiff has been a deputy sheriff with the Department since 1973.   In 1993, he was assigned to the Department's Aero Bureau as an observer and as a helicopter pilot.   Helicopter crews normally consist of two members:  an observer and a pilot.   In 1993, Deputy Sheriff Scott Osborne (Osborne) and plaintiff flew a mission together.   Osborne began an argument with plaintiff during the flight, and when they landed he physically assaulted plaintiff.   Plaintiff and Osborne each blamed the other for the incident.   Pending an investigation, plaintiff was suspended but Osborne was not, contrary to Department practice, which, inferably, is to suspend neither or both officers pending an investigation.

During the investigation, Brazile interviewed various witnesses, including plaintiff, Osborne, and others, and, in accordance with Department rules, audio-taped the interviews.   Plaintiff was given a letter of intent to terminate him, but, contrary to established practice, he was not given copies of the audio-taped interviews, and his repeated requests for the same were met with the excuse that they had been lost or misplaced.   Plaintiff was therefore required to attend his Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 (Skelly ) pretermination hearing without the benefit of these materials.   The Department terminated plaintiff on the basis of Osborne's statements.

After the Skelly hearing was decided against him, plaintiff requested a Civil Service Commission (CSC) review.   He continued to request that the Department give him copies of the missing tapes.   On August 5, 1994, the first day of the CSC hearing, plaintiff moved to exclude the testimony of any witnesses, including Osborne, whose taped interviews had been “lost.”   The Department contended the missing tapes were irrelevant.   However, when the Department was informed by the hearing officer that “this was a serious matter,” it took the Department's attorney only 20 minutes to locate the “lost” tapes.   On the way home from the first day of hearing, plaintiff had an opportunity to review the tapes and discovered that a portion of Osborne's interview and of another witness's interview were missing, so he requested the tape or tapes containing these missing portions.   The Department, after more excuses, on August 10, 1994, finally produced one of the original tapes.   Plaintiff had this tape examined by a forensic expert, who, on October 26, 1994, the fifth day of the hearing, testified that it had been deliberately and permanently erased at certain locations.   Meanwhile, defendants continued to give different, inconsistent explanations as to the existence, location and contents of the tapes.

On January 19, 1995, the fifth and final day of the CSC hearing, the Department and its employees introduced false testimony and incomplete and misleading records, and plaintiff learned for the first time that over 40 letters of commendation in his personnel file were missing.   After the matter was submitted for decision, the hearing officer, while avoiding the issue of the missing tapes, on March 21, 1995, recommended that plaintiff receive a 10-day suspension rather than that he be terminated.

While waiting for this recommendation to be reviewed by the CSC, on April 26, 1995, plaintiff presented County with a written claim for the damages and injury he had suffered as a result of the above-noted acts.   His claim was denied on May 10, 1995.   On November 13, 1995, he filed his original complaint in this civil action against defendants.

On December 20, 1995, the CSC adopted the hearing officer's recommendation, and ordered the Department to reinstate plaintiff, but the Department refused to do so, and filed a petition for a writ of administrative mandamus to review the CSC's order.²  That petition was denied, and the Department then filed a notice of appeal from the order denying the petition.³

Meanwhile, the instant civil action was proceeding.   After defendants' demurrers to plaintiff's first three complaints had been sustained with leave to amend, plaintiff filed a third amended complaint (the complaint).   The complaint alleges the facts noted above, and also alleges plaintiff's belief that (1) the erased portions of the tapes vindicated his position and confirmed his version of the events leading up to the incident with Osborne, (2) Brazile intentionally deleted these portions of the tape to assist the Department in its goal to terminate plaintiff and to damage his career and reputation, (3) the destruction of this material evidence did in fact have an adverse impact on plaintiff's case, and (4) the motive behind these efforts to terminate plaintiff and to damage his career and reputation was defendants' desire for retaliation against plaintiff for reporting interdepartmental wrongdoing to Department supervisors (i.e., unauthorized use of a Department helicopter for personal purposes and unauthorized, pirated software installed on Department computer systems, and harassment of plaintiff which included unauthorized entry into his locker and tampering with its contents).   In addition, the complaint alleges that the Department and County, with deliberate indifference (apparently towards employees' due process rights), have followed a policy and practice of tampering with and destroying evidence unfavorable to their cases against officers such as plaintiff whom they seek to discharge, and that this policy and practice applies to both administrative and judicial proceedings.

Plaintiff's complaint alleges that these actions violated his statutory rights under the Public Safety Officers Procedural Bill of Rights Act (the Act) (Gov.Code, §§ 3300 et seq.) ⁴ , his First Amendment rights of free speech, his substantive and procedural due process rights under the Fifth and Fourteenth Amendments to the United States Constitution, and his due process rights under article I, sections 1, 3, and 7, subdivision (a) of the California Constitution.   It alleges that as a result of these violations of his rights, he suffered a 10-day suspension, was forced to hire a lawyer, his career and reputation were damaged, he suffered loss of earnings and earning capacity, and he experienced serious emotional distress.

Defendants' demurrer to the complaint was sustained without leave to amend, on the implicit ground that all causes of action therein were barred by governmental immunity.   Judgment was entered against plaintiff, and this timely appeal followed.

CONTENTIONS ON APPEAL

Plaintiff contends that the trial court's failure to give the specific ground on which it sustained the demurrer without leave to amend is reversible error.   He also contends that his complaint states causes of action for spoliation of evidence and intentional and negligent interference with prospective economic advantage, as well as for a violation of his civil rights pursuant to 42 U.S.C. section 1983.

Defendants contend that plaintiff's state law causes of action are barred by governmental tort immunity pursuant to sections 821.6 and 821.2, and that his federal law claim, while not barred by governmental tort immunity, fails to state facts sufficient to state a claim and, in addition, is barred by the applicable one-year statute of limitations.

DISCUSSION

1. Standard of Review

 This case comes to us on an appeal from the sustaining of a demurrer without leave to amend.   We therefore treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  (Bayley v. Regents of University of California (1997) 57 Cal.App.4th 1314, 1324, 67 Cal.Rptr.2d 707.)   We also consider matters which may be judicially noticed, and give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.  (Ibid.) We examine the factual allegations of the complaint to determine whether they state a cause of action on any available legal theory, regardless of the labels attached by the pleader to any alleged cause of action.  (Ibid.) If they do, then the trial court's order of dismissal must be reversed.⁵  (Ibid.) Even if the complaint does not state a cause of action, we determine whether plaintiff should have been granted leave to amend, and apply an abuse of discretion standard to such determination:  if there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.   The burden is on the plaintiff, however, to demonstrate the manner in which the complaint could be amended to state a viable cause of action.   Such a demonstration may be made to the appellate court in the first instance.  (Ibid.;  Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386, 272 Cal.Rptr. 387.)

2. Plaintiff's State Law Causes of Action, to the Extent They Seek Damages,Are Barred by Governmental Immunity.   However, the Facts Alleged Do Constitute a Viable Cause of Action for Injunctive Relief Pursuant to Government Code Section 3309.5

 Plaintiff contends that his causes of action for spoliation of evidence and for intentional and negligent inference with prospective advantage were viable causes of action.⁶  To the extent these causes of action seek damages, we disagree.   However, we conclude that plaintiff's complaint alleges facts sufficient to state a claim for injunctive relief pursuant to section 3309.5.

 As noted above, the trial court concluded that plaintiff's causes of action were barred by governmental tort immunity.   Section 821.6 grants immunity to any public employee for damages “caused by his [or her] instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment, even if he [or she] acts maliciously and without probable cause.”   Although section 821.6 primarily has been applied to immunize prosecuting attorneys and similar individuals, the section is not restricted to legally trained personnel but applies to all employees of a public entity (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 756-757, 63 Cal.Rptr.2d 842, 937 P.2d 273 (Asgari );  Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436, 246 Cal.Rptr. 609 (Kemmerer )), including peace officers.  (Asgari, supra, 15 Cal.4th at pp. 756-757, 63 Cal.Rptr.2d 842, 937 P.2d 273;  Randle v. City and County of San Francisco (1986) 186 Cal.App.3d 449, 455, 230 Cal.Rptr. 901 (Randle ).)   Of particular relevance here, section 821.6 immunizes public employees who institute and prosecute administrative disciplinary proceedings against other public employees.  (See, e.g., Kemmerer, supra, 200 Cal.App.3d 1426, 246 Cal.Rptr. 609;  Hardy v. Vial (1957) 48 Cal.2d 577, 311 P.2d 494.)   Thus, the critical inquiry in determining whether there is immunity under section 821.6 is on how the injury allegedly was caused, rather than on by what kind of public employee it allegedly was caused.  (Asgari, supra, 15 Cal.4th at pp. 756-757, 63 Cal.Rptr.2d 842, 937 P.2d 273;  Baughman v. State of California (1995) 38 Cal.App.4th 182, 192, 45 Cal.Rptr.2d 82;  Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1211, 34 Cal.Rptr.2d 319.)

 The immunity accorded by section 821.6 extends to all conduct related to instituting and prosecuting any proceeding, i.e., to (1) conduct taken in instituting and prosecuting a proceeding, (2) conduct essential to the accomplishment of instituting and prosecuting a proceeding, and (3) conduct which, although only incidental and collateral to instituting and prosecuting a proceeding, serves to promote the accomplishment of those principal purposes.  (White v. Towers (1951) 37 Cal.2d 727, 733, 235 P.2d 209;  Whitcombe v. Yolo County (1977) 73 Cal.App.3d 698, 714, 141 Cal.Rptr. 189.)   Thus, because gathering, retaining custody of, disclosure or nondisclosure and use or nonuse of evidence in a prosecution is conduct essential to the accomplishment of instituting and prosecuting a proceeding, as well conduct which serves to promote the institution and prosecution of a proceeding, a public employee who engages in such conduct is immune from liability based on it.  (See, e.g., Randle, supra, 186 Cal.App.3d at pp. 456-457, 230 Cal.Rptr. 901 [prosecutor who allegedly suppressed exculpatory evidence in a prosecution for rape, and investigator who allegedly failed to bring such evidence to prosecutor's attention, were both entitled to immunity under section 821.6].)

 Furthermore, this immunity even applies to conduct which is unlawful.  (See, e.g., Rosenthal v. Vogt (1991) 229 Cal.App.3d 69, 75, 280 Cal.Rptr. 1;  Randle, supra, 186 Cal.App.3d at pp. 456-457, 230 Cal.Rptr. 901.)   The Supreme Court has recently reinforced this strict construction of public official immunity.  “Because of the special needs of government and public service, the Tort Claims Act expressly allows public employees to engage in certain acts and omissions free of suit, even when they might otherwise be liable for causing injury or violating individual rights. ”   (Caldwell v. Montoya (1995) 10 Cal.4th 972, 988, 42 Cal.Rptr.2d 842, 897 P.2d 1320, italics added;  see also Colome v. State Athletic Com. (1996) 47 Cal.App.4th 1444, 1456-1457, 55 Cal.Rptr.2d 300.)   Thus, defendants' alleged conduct of wrongfully failing to disclose evidence to plaintiff, whether temporarily (the “lost” tapes) or permanently (the erased portions of the tape), and of suppressing evidence so that it cannot be considered by the trier of fact (the missing letters of commendation), is, while heinous, conduct subject to immunity, and plaintiff's state law causes of action for spoliation of evidence and for interference with prospective advantage, both of which are premised on such wrongful conduct, normally would be barred by section 821.6.⁷

However, plaintiff contends that because he had a specific statutory right to obtain copies of the tapes of interviews with other persons pursuant to section 3303, subdivision (g), defendants are not entitled to immunity for conduct which violated that statutory right, and hence his spoliation of evidence cause of action is viable.   We agree that he had such a right, and that such right forms the basis of a viable cause of action, albeit not one for damages for spoliation of evidence.

Plaintiff, as a peace officer, is the beneficiary of a specific statutory duty owed to him by defendants.   That duty is found in section 3303, which is part of the Public Safety Officers Procedural Bill of Rights Act (the Act) (§§ 3300 et seq.).⁸  Section 3303 gives a peace officer who is under investigation and being interrogated on matters which could lead to “punitive action” against the officer the right to a copy of the tape of the officer's interrogation, as well as to a copy of the transcription of any notes made by a stenographer and of any reports or complaints made by investigators or other persons, “except those which are deemed by the investigating agency to be confidential.” (§ 3303(g).)   The Act not only gives peace officers these rights;  it also specifically makes it unlawful for any public safety department to deny or refuse such rights. (§ 3309.5(a).)

While section 3303, subdivision (g) does not specifically require that the investigating entity must turn over tapes of interviews with persons other than the officer being investigated, it does require that the officer under investigation be given a copy of the transcription of any notes made by a stenographer and of any reports or complaints made by investigators or other persons except those which are deemed by the investigating agency to be confidential.   Because defendants ultimately did turn over the tape of the interview with Osborne, albeit with an erased portion, and ultimately did provide plaintiff with copies of the taped interviews with other witnesses, it appears that defendants did not deem such tapes to be confidential within the meaning of section 3303, subdivision (g), and that defendants also considered the copies of taped interviews to be a species of “report[ ] or complaint [ ] made by investigators or other persons” within the meaning of section 3303, subdivision (g).   In fact, plaintiff specifically alleges that it was the Department's normal practice to turn over copies of all taped interviews to persons under investigation.   Thus, it appears that the Department has interpreted section 3303, subdivision (g)'s requirement that officers under investigation be given copies of any complaints or reports by investigators or other persons to include copies of taped interviews of witnesses.   Given that section 3303, subdivision (g) did not limit its requirements to written, as opposed to taped, reports and complaints, this seems to be a reasonable interpretation.

Because the Act imposes such specific duties on public employees, governmental immunity pursuant to section 821.6 will not apply to shield them from liability for violating them.   For example, in Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 4 Cal.Rptr.2d 203 (Shoemaker ), a former investigator for the Department of Health Services (DHS) sued the DHS for wrongful termination allegedly motivated by his reporting of improper and illegal activities by DHS officials.   The DHS's demurrer was sustained without leave to amend based on DHS's claimed governmental immunity.   The reviewing court reversed, holding that governmental immunity did not apply to the investigator's cause of action based on the “whistle-blower” statute (§ 19683), which specifically allows state employees to sue any person who uses official power to deter such employees from reporting unlawful government activity.   As the reviewing court noted, “Since section 19683 is directed chiefly, if not exclusively, against state employees otherwise protected by section 821.6 immunity, and since its terms may clearly be violated by taking formal disciplinary proceedings against the ‘offended party’ (who in all cases would be a state employee), it is clear to us that the application of section 821.6 immunity to the offending party is totally inconsistent with the design of section 19683.”  (Shoemaker, 2 Cal.App.4th at p. 1425, 4 Cal.Rptr.2d 203;  see also Southern Cal. Rapid Transit Dist. v. Superior Court (Laster) (1994) 30 Cal.App.4th 713, 725-726, 36 Cal.Rptr.2d 665 [holding that immunity under section 820.2 did not apply to bar a wrongful discharge claim by a public employee brought pursuant to another whistle-blower statute, section 12653].)

Although governmental immunity thus does not bar plaintiff's lawsuit, and although he has stated facts sufficient to entitle him to some form of relief, he is not entitled to the relief he has requested, i.e., damages.   While plaintiff may bring an action in superior court for relief (§ 3309.5(b)), the only remedy for any violation of the Act, including a violation of section 3303, subdivision (g), is “appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer.” (§ 3309.5(c).)

 The fact that plaintiff has already sought administrative review of his termination, and has been successful in having his termination overturned does not make his cause of action for violation of the Act moot.   (Gales v. Superior Court (City of Pasadena) (1996) 47 Cal.App.4th 1596, 1602, 55 Cal.Rptr.2d 460.)   He is still entitled to maintain an action pursuant to section 3309.5 for a judicial declaration that his employer violated the Act either in the investigation or grievance proceedings, or both, (ibid.), and to obtain injunctive or extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature.   The trial court has broad discretion to fashion an appropriate remedy under the Act. (Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 203-204, 252 Cal.Rptr. 817, 763 P.2d 480;  City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506, 1516, 67 Cal.Rptr.2d 775.)   Because such injunctive relief may include an injunction prohibiting the Department from taking any punitive action against him (§ 3309.5(c)), and because plaintiff was subjected to a 10 day suspension, perhaps such injunctive or extraordinary relief might include an order that the suspension be expunged from his record.⁹

Thus, we conclude that plaintiff's complaint stated facts sufficient to state a cause of action for a violation of the Act, and therefore he must be given an opportunity to amend his complaint to request the legally available relief for such violation.

3. Plaintiff's Complaint States a Cause of Action Under 42 U.S.C. Section 1983

Title 42, section 1983 of the United States Code provides, in relevant part:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ․, subjects, or causes to be subjected, any citizen of the United States ․ to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress․”   The terms of section 1983 show that there are two elements that are necessary for recovery:  that (1) the defendant has deprived the plaintiff of a right secured by the “Constitution and laws” of the United States, and (2) the defendant deprived plaintiff of such constitutional right “under color of law.”  (Adickes v. Kress & Co. (1970) 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142;  Robbins v. Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683, 38 Cal.Rptr.2d 534.)

 As defendants concede, a cause of action under 42 U.S.C. section 1983 is not barred by state governmental immunities (Martinez v. State of California (1980) 444 U.S. 277, 284 n. 8, 100 S.Ct. 553, 558, 62 L.Ed.2d 481;  Asgari v. City of Los Angeles, supra, 15 Cal.4th at p. 758 n. 11, 63 Cal.Rptr.2d 842, 937 P.2d 273), and thus the holding in Kemmerer, relied upon by the trial court as a basis for sustaining the demurrer to this cause of action, is inapplicable.

However, defendants contend that the demurrer nonetheless properly was sustained to plaintiff's federal civil rights cause of action, because plaintiff has failed to allege the violation of any federal civil rights.   Plaintiff, in contrast, contends he alleged facts establishing that his rights to free speech and to due process were violated by defendants' conduct.

a. Plaintiff's First Amendment Rights 

 “The First Amendment protects speech by public employees that touches on matters of public concern.  [Citations.]   The government as an employer has broader powers respecting its employees' speech than the government as sovereign has respecting the speech of citizens.  [Citations.]   Nevertheless, a government agency may not discharge an employee [or engage in any other retaliatory action ¹⁰ ] on a basis that infringes that employee's constitutionally protected interest in free speech.  [Citations.]  [¶] In determining whether a discharge [or other retaliation] impermissibly infringed upon the employee's First Amendment rights, the threshold question is whether the employee's speech related to a matter of public concern.  [Citations.]   This question is ‘determined by the content, form and context of a given statement, as revealed by the whole record.’  [Citation.]   In applying this test, courts have routinely treated speech which criticizes the substantive operations of the governmental agency as a matter of public concern.  [Citations.][ ¹¹ ]  [¶] The importance of informing the citizenry of the workings of government underlies the special protection given by the courts to speech by public employees which concerns the public business.   As the Supreme Court explained in Waters v. Churchill, supra, ‘[g]overnment employees are often in the best position to know what ails the agencies for which they work;  public debate may gain much from their informed opinions.’  [Citations.]  [¶] If it is determined that speech, which an employee alleged caused his termination, did concern matters of public concern, the court must then ‘balance ․ the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, [in] promoting the efficiency of the public services it performs through its employees.’  [Citation.]   In applying this test, the court must consider facts concerning ‘the manner, time and place of the employee's expression ․ the context in which the dispute arose․  [Citations.]  ․ [And] whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise.’  [Citations.]  [¶] The concern for disruptive speech has been recognized as far less where, as here, an employee ‘decides to express his views privately rather than publicly.’  [Citations.]  [¶] The third inquiry is whether the termination or other adverse employment action was taken in retaliation for the speech.  [Citations.]”  (Southern Cal. Rapid Transit Dist. v. Superior Court (Laster), supra, 30 Cal.App.4th at pp. 727-729, 36 Cal.Rptr.2d 665.)

 Here, plaintiff's complaint alleges that he spoke to his superiors about interdepartmental wrongdoing.   Use of government property for personal purposes, particularly an item as expensive to operate and replace in the event of misadventure as a helicopter, is a matter of sufficient public concern to support a cause of action based on First Amendment rights at the demurrer stage, not merely a matter of “personal interest” as defendants contend.   So, too, given current concerns about computer security and maintaining efficient operating systems, the installation of unauthorized software on government computers, is a matter of sufficient public concern to support a cause of action based on First Amendment rights at the demurrer stage.   Plaintiff's complaint also alleges that he was retaliated against as a result of this speech.¹²  The complaint thus alleges sufficient facts to support a cause of action under 42 U.S.C. section 1983, based on violation of plaintiff's First Amendment rights.

b. Plaintiff's Due Process Rights

Defendants concede that plaintiff has a constitutionally-protected property interest in his employment, given the civil service system under which he is employed.   However, they claim the Constitution (presumably referring to the federal constitution) only protects citizens from deprivations of property interests which are accomplished “without due process of law.”   They contend that plaintiff never alleged that the established procedures were inadequate, but only that defendants failed to comply with them, and that a cause of action based on such facts must be addressed under state, not federal, law, given that 42 U.S.C. section 1983 imposes liability for rights protected by the Constitution, not for violations of duties of care arising out of tort law.   Defendants' argument is artful, but ultimately unconvincing.

 The right to due process before one is deprived of a constitutionally-protected interest, e.g., a property right, is a right protected by the Fifth and Fourteenth Amendments (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 285-286, 58 Cal.Rptr.2d 721), and thus the violation of one's due process rights during a hearing to deprive one of such rights can form the basis for a claim under 42 U.S.C. section 1983.   At the very least, due process requires that an administrative agency comply with the statutory limitations on its authority.  (Cafeteria Workers v. McElroy (1961) 367 U.S. 886, 896-897, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230;  People v. Ramirez (1979) 25 Cal.3d 260, 269, 158 Cal.Rptr. 316, 599 P.2d 622;  Mohilef v. Janovici, supra, 51 Cal.App.4th at p. 286, 58 Cal.Rptr.2d 721;  Gibson v. Superior Court (The People) (1982) 135 Cal.App.3d 774, 780-781, 185 Cal.Rptr. 741.)   The Legislature, by adopting the Act, has made it clear that public safety officers such as plaintiff may not be subjected to punitive action without being afforded certain procedural protections, all of which clearly are directly related “to the important due process value of promoting accuracy and reasonable predictability in governmental decision making when individuals are subject to deprivatory action.”  (People v. Ramirez, supra, 25 Cal.3d at p. 267, 158 Cal.Rptr. 316, 599 P.2d 622.)   Defendants' failure to comply with these procedural requirements did, in fact, give plaintiff a state law cause of action for injunctive relief under section 3309.5.   However, that does not preclude plaintiff from also using such failure to comply with these procedural requirements as the basis of a cause of action for violation of his federal civil rights.   Therefore, we conclude that plaintiff alleged sufficient facts to support a cause of action under 42 U.S.C. section 1983, based on violation of plaintiff's Fifth and Fourteenth Amendment rights.¹³

4. Plaintiff's Civil Rights Cause of Action Is Not Barred By the Statute of Limitations

 The statute of limitations for plaintiff's 42 U.S.C. section 1983 action is one year.  (City of Huntington Park v. Superior Court (Flores) (1995) 34 Cal.App.4th 1293, 1297, 41 Cal.Rptr.2d 68;  Code Civ. Proc., § 340(3).)   Plaintiff's original complaint was filed November 13, 1995.   Defendants point out that plaintiff's first amended complaint clearly alleged he was injured before October 26, 1994, e.g., the first amended complaint alleged that defendants engaged in conduct intended to suppress evidence, conspired to injure him, and sought to deprive him of his civil rights “sometime prior to October 26, 1994.”   Furthermore, plaintiff's allegations show that he was on notice of defendants' alleged wrongful conduct no later than October 26, 1994, when his expert testified that the erasures of portions of the tapes were deliberate.   Thus, they contend, his original complaint was filed more than one year after he knew of his injury.

 However, plaintiff points to the fact that his complaint alleges that he did not learn until January 19, 1995, the last day of the CSC hearing, that 40 letters of commendation had been removed from his personnel file.   Plaintiff contends that this additional act of suppressing evidence brings his cause of action within the one-year statute of limitations.   We agree.  “If the complaint alleges wrongful conduct commencing at a time now barred by the statute of limitations, but continuing until a date not barred, there is no ground for a general demurrer based on the statute of limitations.   I.e., the later acts support the cause of action, although damages resulting from the earlier acts are not recoverable.  [Citation.]”  (Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 1997) ¶ 7:54.1, p. 7-24;  italics added.)   Furthermore, it is not the date on which such last act occurred which controls whether the cause of action has been brought within the statute of limitations.   Rather, it is the date on which the plaintiff discovered that such act has occurred which controls.   (Wyatt v. Union Mortg. Co. (1979) 24 Cal.3d 773, 788, 157 Cal.Rptr. 392, 598 P.2d 45;  Aaroe v. First American Title Ins. Co. (1990) 222 Cal.App.3d 124, 128-129, 271 Cal.Rptr. 434.)

 In addition, it appears that plaintiff has alleged facts sufficient to state a cause of action for conspiracy to violate his civil right to due process pursuant to 42 U.S.C. section 1985.   The complaint alleges that defendants embarked on a course of tampering with and destroying evidence unfavorable to their administrative and judicial cases against plaintiff for the purpose of making sure his employment would be terminated in retaliation for his complaints about misuse of government property.   It is inferable that the act of removing letters of commendation from plaintiff's personnel file was part of this course of conduct.   When the facts alleged show a civil conspiracy, under both California and federal law, the statute of limitations does not begin to run on any part of a plaintiff's claims until the last overt act pursuant to the conspiracy has been completed.  (Wyatt v. Union Mortgage Co., supra, 24 Cal.3d 773, 786, 157 Cal.Rptr. 392, 598 P.2d 45 [in an action by borrowers against a mortgage loan broker and other related defendants in which liability was premised on the theory of civil conspiracy through a breach of duties owed to plaintiff during the negotiation of a mortgage loan, the last overt act was defendants' collection a few weeks before trial of the final payment of the loan];  Gibson v. United States (9th Cir.1987) 781 F.2d 1334, 1340, cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979.)   This is because statutes of limitations have, as their general purpose, to provide repose and protect persons against the burden of having to defend against stale claims.   So long as a person continues to commit wrongful acts in furtherance of a conspiracy to harm another, he or she can neither claim unfair prejudice at the filing of a claim against him or her nor disturbance of any justifiable repose built on the passage of time.  (Ibid.) Thus, the complaint not only allege facts sufficient to state a cause of action for conspiracy to violate civil rights;  it also states facts showing that the statute of limitations on such a cause of action has not run.

DISPOSITION

The judgment is reversed.   The trial court is directed to allow plaintiff leave to amend to accurately denominate his causes of action as causes of action pursuant to Government Code section 3309.5, 42 U.S.C. section 1983, and 42 U.S.C. section 1985, and to request the appropriate relief therefore.   Plaintiff is awarded his costs on appeal.

FOOTNOTES

1.   These facts are taken from the third amended complaint (the complaint).   Because this appeal arises from the sustaining of a demurrer without leave to amend, the court treats as true the material facts alleged in the complaint (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497, 57 Cal.Rptr.2d 406), as well as any facts which may be implied or inferred from those expressly alleged (County of Los Angeles v. Farmers Ins. Exchange (1982) 132 Cal.App.3d 77, 83, 182 Cal.Rptr. 879), and then considers de novo whether such facts state a cause of action.   (Hernandez v. City of Pomona, supra, 49 Cal.App.4th at p. 1497, 57 Cal.Rptr.2d 406.)

2.   Because there could be a delay for as long as three years from the filing of such a petition until a hearing on the petition, plaintiff filed a motion to compel the Department to reinstate him pending the hearing on the petition.   The Department filed a motion to stay reinstatement.   The trial court ordered that plaintiff immediately be reinstated to the position of helicopter pilot pending the hearing.   The Department did not reinstate plaintiff, but instead required him to submit to a psychological examination as a precondition of reinstatement.   After various related skirmishes, the Department was held in contempt, sanctioned $1,000, and ordered to reinstate plaintiff without requiring a psychological examination.   As of September 9, 1996, the Department was still refusing to reinstate plaintiff, and still seeking to force him to submit to a psychological examination.

3.   The superior court judgment affirming the CSC's decision, which judgment was filed November 7, 1996, is currently the subject of a pending appeal by the Department and a cross-appeal by plaintiff, in Los Angeles County Sheriff's Department v. Civil Service Com. B107637.

4.   All further section references will be to the Government Code except as otherwise noted.

5.   Plaintiff contends that the trial court's failure to specify the grounds upon which the defendants' demurrer was sustained is reversible error in and of itself.   Assuming for the sake of argument that the trial court failed to specify the grounds (a debatable assumption, given that it is readily apparent from its order that the demurrer was sustained on the ground of governmental immunity pursuant to section 821.6), this is not reversible error.   Plaintiff misreads Crowley v. Katleman (1994) 8 Cal.4th 666, 34 Cal.Rptr.2d 386, 881 P.2d 1083.   The court in Crowley did not reverse the judgment because the trial court failed to state the grounds upon which it sustained the demurrer;  it reversed the judgment because it concluded the complaint stated a viable cause of action.

6.   Plaintiff apparently has abandoned any claim that his other causes of action should not have been sustained without leave to amend.

7.   Although no case specifically holds that a claim for spoliation of evidence is barred by section 821.6, plaintiff's cause of action for spoliation substantively is no different than the intentional suppression of evidence in Randle, supra, 186 Cal.App.3d at pp. 456-457, 230 Cal.Rptr. 901:  the refusal to turn over evidence, based on a misrepresentation it no longer exists, the intentional erasure of portions of a tape, and/or the removal of documents from a personnel file can all be equally well-described as suppression of evidence instead of spoliation of evidence.

8.   The Act provides that the “rights and protections provided to peace officers under this chapter constitute a matter of statewide concern,” and makes it clear that the Act, which gives peace officers certain standard rights related to their employment, are designed to promote “the maintenance of stable employer-employee relations[ ] between public safety employees and their employers.” (§ 3301.)

9.   Of course, if plaintiff raised the issue of the violation of his statutory rights in the CSC's review of the Department's action or in the writ proceeding by which the CSC's decision was reviewed, any resulting judicial determination that there was or was not a violation of the Act might well be binding in this action.  (See Gales v. Superior Court (City of Pasadena ), supra, 47 Cal.App.4th at p. 1603, 55 Cal.Rptr.2d 460.)

10.   An employee's First Amendment rights may be violated by retaliatory acts of less severity than dismissal.   As one court so aptly put it, “ ‘[E]ven an act of retaliation as trivial as failing to hold a birthday party for a public employee ․ when intended to punish her for exercising her free speech rights,’ ” is a violation.  (Rutan v. Republican Party of Illinois (1990) 497 U.S. 62, 75 n. 8, 110 S.Ct. 2729, 2737 n. 8, 111 L.Ed.2d 52;  Kirchmann v. Lake Elsinore Unified School Dist. (1997) 57 Cal.App.4th 595, 613, 67 Cal.Rptr.2d 268.)  “The significant point is that the sanction comes in retaliation for the speech.   If the speech is protected, any sanction, whatever its severity, is prohibited.”  (Kirchmann v. Lake Elsinore Unified School Dist., supra, 57 Cal.App.4th at pp. 613-614, 67 Cal.Rptr.2d 268.)Here, therefore, the allegations of retaliatory acts of suspending only plaintiff and not Osborne, contrary to Department policy, of concealing and destroying evidence, and of offering false testimony, all motivated by dislike of plaintiff's reporting of interdepartmental wrongdoing, support a cause of action for violation of plaintiff's First Amendment rights.

11.   (See, e.g., Waters v. Churchill (1994) 511 U.S. 661, 673-674, [114 S.Ct. 1878, 1887, 128 L.Ed.2d 686, 698-699] [summary judgment in favor of public hospital improperly granted, where a conversation for which nurse was terminated allegedly included some statements criticizing a hospital policy which the nurse believed threatened patient care, and the evidence did not establish whether those statements or others, not of public concern, led to the termination];  Pickering v. Board of Education (1968) 391 U.S. 563, 572-573, 88 S.Ct. 1731, 1736-1737, 20 L.Ed.2d 811, 819 [teacher could not be terminated for writing letters concerning school funding];  Patrick v. Miller (10th Cir.1992) 953 F.2d 1240, 1247 [summary judgment properly denied where city finance director alleged termination for opposing discriminatory employment practices];  Vasbinder v. Ambach (2d Cir.1991) 926 F.2d 1333, 1339-1340 [state educational employee's alleged termination for contacting the FBI about possible fraud by a contractor actionable];  Manhattan Beach Police Officers v. Manhattan Beach (9th Cir.1989) 881 F.2d 816, 818-819 [summary judgment properly denied where police officers alleged denial of promotions for criticizing inadequate police department staffing];  McKinley v. City of Eloy (9th Cir.1983) 705 F.2d 1110, 1114-1115 [valid claim was stated under 42 U.S.C. § 1983 by probationary police officer who alleged sanction for critical statements about pay for police officers and relationship of city and police union].)

12.   Defendants suggest that the mere loss of an opportunity to present impeaching evidence does not invade plaintiff's First Amendment rights, because he had an opportunity to comment on the absence of such evidence at the administrative and judicial hearings.   Defendants have focused on the wrong issue.   The retaliation consisted of not the loss of the opportunity to present the evidence, but (1) the suspension of plaintiff alone, when normal Department policy is alleged to be the suspension of both or neither combatant in a physical altercation pending investigation, and (2) the concealment of and ultimate destruction of, evidence related to the charges against plaintiff.   The fact that plaintiff could point to these alleged wrongs at his hearing did not in any way negate their alleged retaliatory nature.Defendants also contend that plaintiff was required to show that his speech was a substantial or motivating factor in the adverse employment action.   We disagree.   First, this is a judgment following a demurrer, not a motion for summary judgment.   Plaintiff was not required to “show” anything;  he merely was required to allege facts.   Defendants also complain that plaintiff did not allege any facts establishing a causal connection between any exercise of free speech and his discharge.   Not so.   The allegations of the complaint clearly establish the connection between plaintiff's reporting internal wrongdoing to his supervisors and the retaliation described above, which resulted in his discharge, albeit he was subsequently ordered reinstated.

13.   We note that the same facts which support plaintiff's 42 U.S.C. section 1983 cause of action based on violation of his federal due process rights also would seem to support plaintiff's cause of action for violation of his due process rights under article I, section 7 of the California Constitution.  Article I, section 7 of California's Constitution provides protection of citizens' due process rights which is, generally speaking, co-extensive with the protection provided by the federal constitution (Kruger v. Wells Fargo Bank (1974) 11 Cal.3d 352, 366-367, 113 Cal.Rptr. 449, 521 P.2d 441), and the federal and state constitutional due process provisions have been held to have the same scope and purpose.  (Sandrini Brothers v. Voss (1992) 7 Cal.App.4th 1398, 1405, fn. 2, 9 Cal.Rptr.2d 763;  Russell v. Carleson (1973) 36 Cal.App.3d 334, 342, 111 Cal.Rptr. 497.)Furthermore, such a cause of action arguably is not barred by governmental immunity.  (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 804-805, 185 Cal.Rptr. 758.)   However, plaintiff made no argument on appeal that this particular cause of action should have survived defendants' demurrer, and there is a conflict in the case law as to whether or not such a constitutional cause of action would support an award of damages.  (Compare Ibid. [a constitutional right (the right to vote) contained in a self-executing provision of the state Constitution does supports a cause of action for damages];  Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 851-853, 182 Cal.Rptr. 813 [state constitutional rights to free speech and press support cause of action for damages];  Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829-832, 134 Cal.Rptr. 839 [state constitutional right to privacy supports cause of action for damages];  with Bradley v. Medical Bd. of California (1997) 56 Cal.App.4th 445, 462-463, 65 Cal.Rptr.2d 483 [state constitutional right to due process does not support cause of action for damages];  Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476, 53 Cal.Rptr.2d 671 [state constitutional right to due process does not support cause of action for damages];  Gates v. Superior Court (Hirata) (1995) 32 Cal.App.4th 481, 523-525, 38 Cal.Rptr.2d 489 [state constitutional right to equal protection does not support a cause of action for damages, but see dissent by Grignon, J.];  Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1237, 271 Cal.Rptr. 72 [state constitutional right to safe schools does not support a cause of action for damages];  Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1453-1457, 249 Cal.Rptr. 688 [same].)Therefore, because plaintiff did not argue that the demurrer was improperly sustained as to his cause of action for violation of his state constitutional due process rights, and because it is not obvious that such a cause of action would be proper, our disposition does not require the trial court to allow plaintiff leave to amend to restate a cause of action based on his state constitutional due process rights.

CROSKEY, Acting Presiding Justice.

ALDRICH and ARANDA*, JJ., concur.