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1Hereinafter Petitioner and Plaintiff will be referred to as

Plaintiff; and Respondents and Defendants will be referred to as

Defendants. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MATTHEW P. TONSING,

Petitioner and Plaintiff,

 v.

CITY AND COUNTY OF SAN FRANCISCO, SAN

FRANCISCO POLICE COMMISSION and SAN

FRANCISCO POLICE DEPARTMENT,

Respondents and Defendants. /

No. C 09-01446 CW

ORDER GRANTING IN

PART DEFENDANTS’

MOTION FOR JUDGMENT

ON THE PLEADINGS

Petitioner and Plaintiff Matthew Tonsing brings this action to

recover wages for the period of his March, 2003 through January,

2005 suspension for participation in the November, 2002

“Fajitagate” incident. Respondents and Defendants City and County

of San Francisco, San Francisco Police Commission and San Francisco

Police Department1 move for judgment on the pleadings under Federal

Rule of Civil Procedure 12(c), arguing primarily that Plaintiff

cannot bring this action without first exhausting the

administrative appeals process. Plaintiff opposes the motion. The

matter was heard on September 17, 2009. Having considered oral

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argument and all of the papers submitted by the parties, the Court

grants Defendants’ motion in part. 

BACKGROUND

Plaintiff was employed as a San Francisco police officer from

September 18, 2000 to July 23, 2008. On November 20, 2002,

Plaintiff was involved in an incident which came to be known as

“Fajitagate.” In this incident, three off-duty police officers,

Plaintiff, Alex Fagan, Jr. and David Lee, were accused of attacking

two other men on Union Street in San Francisco early in the morning

of November 20, 2002. The officers allegedly demanded a bag of

steak fajitas carried by one of the victims, then beat the two men

when they refused to turn over the food. On February 28, 2003, the

San Francisco grand jury indicted Plaintiff for misdemeanor and

felony battery and felony assault for his role in the incident. On

March 4, 2003, San Francisco Police Department Chief Prentice E.

Sanders suspended Plaintiff without pay pending a hearing before

the San Francisco Police Commission (PC). 

In April, 2003, Plaintiff waived his right to have a PC trial

within ninety days of the date the charges were filed against him. 

In November, 2004, a jury acquitted Plaintiff of the criminal

charges of misdemeanor and felony battery and deadlocked on the

charge of felony assault. The district attorney has not retried

the case. 

On January 6, 2005, Plaintiff was afforded a return to duty

hearing by the San Francisco Police Department. On January 10,

2005, San Francisco Police Department Chief Heather Fong allowed

Plaintiff to return to work in an administrative position. 

Plaintiff was not paid while suspended from March 4, 2003 to

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January 10, 2005. 

On October 8, 2005, Plaintiff injured himself at work and went

on disability leave. For the following year, Plaintiff received

full pay and benefits under the police department’s disability

policy. 

On November 30, 2006, Plaintiff wrote a letter to Police Chief

Heather Fong demanding reimbursement for his lost pay while

suspended from March 4, 2003 to January 10, 2005. On January 10,

2007, the San Francisco City Attorney responded to Plaintiff that

the back-wages issue must be determined by the PC after it

addresses the disciplinary charges against Plaintiff. The

disciplinary matter was still pending before the PC. A hearing

before the PC was set for June 4, 2007. However, that hearing was

cancelled. The parties do not provide a reason for the

cancellation. From July, 2007 to July, 2008, Plaintiff

intermittently discussed resolution of his disciplinary case with

attorneys for the police department. 

On May 23, 2008, the PC notified Plaintiff that it had

assigned Plaintiff’s disciplinary case to a hearing officer

pursuant to a recently enacted rule which allowed police

disciplinary cases to be heard by hearing officers instead of the

PC. Under the new rule, Plaintiff had fourteen days to consent to

the assignment. Plaintiff did not consent. Thus his case was to

be included on the agenda for the next available PC meeting, when

it would be heard by a single PC member or the entire PC. 

Meanwhile, on July 23, 2008, before the next available PC meeting,

the Retirement Board granted Plaintiff industrial disability

retirement based on the injury he sustained in October, 2005. At

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the PC meeting on July 30, 2008, the PC removed Plaintiff’s case

from the calendar because it believed that Plaintiff’s recent

retirement stripped it of jurisdiction over the matter. On

September 4, 2008, Plaintiff asked the PC to put his case back on

the hearing calendar so that his back-pay claim could be

adjudicated. On November 4, 2008, the PC notified Plaintiff that

it would not hear his case. 

On January 21, 2009, Plaintiff filed an administrative tort

claim against the City and County of San Francisco, the San

Francisco Police Department and the PC. The claim was rejected on

March 2, 2009. Plaintiff filed this case on March 6, 2009. 

Plaintiff brings the following causes of action: (1) Petition for a

Writ of Mandate, (2) Violation of the Public Safety Officers

Procedural Bill of Rights Act (POBAR), (3) Violation of 42 U.S.C.

§ 1983, (4) Violation of the Fifth and Fourteenth Amendment of the

United States Constitution and Article I, Section 7(a) of the

California Constitution, (5) Breach of Contract, (6) Breach of the

City Charter and (7) Intentional Infliction of Emotional Distress. 

On April 2, 2009, Defendants removed this case to this Court. On

April 27, 2009, the PC offered to return Plaintiff’s case to its

docket and set a hearing to begin on July 31, 2009. Plaintiff now

does not wish to have his case heard by the PC and instead wants to

pursue the instant action. 

LEGAL STANDARD

Rule 12(c) of the Federal Rules of Civil Procedure provides,

“After the pleadings are closed but within such time as not to

delay the trial, any party may move for judgment on the pleadings.” 

Judgment on the pleadings is proper when the moving party clearly

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establishes on the face of the pleadings that no material issue of

fact remains to be resolved and that it is entitled to judgment as

a matter of law. Hal Roach Studios, Inc. v. Richard Feiner & Co.,

Inc., 896 F.2d 1542, 1550 (9th Cir. 1990).

DISCUSSION

I. Timeliness

Defendants argue that Plaintiff’s first, second and third

claims for relief under California Code of Civil Procedure

§ 1094.5, POBAR and 42 U.S.C. § 1983 respectively are untimely. 

Plaintiff’s claims under § 1094.5 and POBAR are subject to a threeyear statute of limitations. Cal. Code Civ. Proc. § 338. The

statute of limitations for § 1983 claims borrows from the most

analogous state statute of limitations; in California, the personal

injury statute of limitations of two years applies. Berg v.

California Horse Racing Bd., 419 F. Supp. 2d 1219, 1225 (E.D. Cal.

2006). 

Defendants assert that Plaintiff’s statute of limitations

began to run either in March, 2003, when Plaintiff was initially

suspended without pay, or in January, 2005, when the police

department reinstated him from leave without a hearing or back pay. 

However, since March, 2003, Plaintiff was either defending himself

against criminal charges or pursuing his claim administratively. 

Under California law, the running of the limitations period is

tolled during the time consumed by an administrative proceeding,

whether that proceeding is a prerequisite to the initiation of a

civil suit or a voluntary procedural mechanism. McDonald v.

Antelope Valley Community College Dist., 45 Cal. 4th 88, 101

(2008). Plaintiff was not pursuing his claim diligently, but he

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was still engaged in the administrative process until November 4,

2008, when the PC notified Plaintiff that it would not hear his

case.

Alternatively, Defendants argue that Plaintiff’s claims are

time-barred under the equitable doctrine of laches. Under the

doctrine of laches, a petition for a writ of administrative mandate

is barred where unreasonable delay is accompanied by prejudice. 

Conti v. Board of Civil Service Commissioners, 1 Cal. 3d 351, 362

(1969). Defendants argue that Plaintiff had the right to have his

suspension and back-pay claim adjudicated by the PC in April, 2003,

but that he avoided the adjudication at that time because he did

not want the PC to address whether the Fajitagate incident

constituted grounds for termination of his employment. If the PC

concluded that Plaintiff should be terminated, then he would not be

entitled to back pay. Defendants assert that he waited until now

to pursue his claim because his recent status as a recipient of

disability retirement would not be affected by the PC’s

determination of his discipline. Defendants’ arguments might gain

traction if they can be supported with evidence; but on a motion

for judgment on the pleadings, the Court will not assume facts

outside of the pleadings. It is not clear from the pleadings that

Plaintiff deliberately waited to pursue his back-pay claim until he

went on disability retirement. Further, Defendants have not shown

how any delay thus far has prejudiced them. Therefore, Plaintiff’s

claims are not barred as a matter of law under the equitable

doctrine of laches. 

II. Exhaustion

Defendants argue that Plaintiff must first go through the PC

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hearing process before bringing the instant civil action. However,

on July 30 and November 4, 2008, the PC notified Plaintiff that it

would not consider his claim because it did not have jurisdiction

to hear claims of retired police officers. Weeks after the instant

lawsuit was filed, the PC changed course, and offered to hear his

claim by July 31, 2009. At the hearing on this motion, Defendants

reiterated that the PC was still willing to hear Plaintiff’s claim. 

Defendants cite Redevelopment Agency v. Superior Court, 228

Cal. App. 3d 1487, 1492 (1991), for the proposition that whenever

an agency is required to accept, evaluate and resolve a matter

entrusted to its discretion, a petitioner must obtain an

administrative determination prior to instituting court action. 

While this is generally true, Redevelopment Agency does not address

whether the PC has jurisdiction to hear Plaintiff’s claim now that

he is retired. 

“A civil service commission created by charter has only the

special and limited jurisdiction expressly authorized by the

charter.” Hunter v. Los Angeles County Civil Service Com., 102

Cal. App. 4th 191, 194 (2002). The relevant section of the charter

provides,

If a member of the uniformed ranks of the police and fire

departments is suspended by the chief of the respective

department pending hearing before the police or fire

commission for charges filed against him and subsequently

takes a voluntary leave of absence without pay pending his

trial before the commission, and, if after such trial he is

exonerated of the charges filed against him, the commission

shall order payment of salary to such member for the time

under suspension and may, in its discretion, order payment of

salary to such member for the time on voluntary leave of

absence without pay, and the report of such suspension and

leave of absence without pay shall thereupon be expunged from

the record of service of such member. 

San Francisco Charter § A8.344 (emphasis added). Plaintiff relies

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on Zuniga v. Los Angeles County Civil Service Commission, 137 Cal.

App. 4th 1255, 1259-61 (2006), for the proposition that, because he

is retired, he is no longer subject to the jurisdiction of the PC. 

Therefore, Plaintiff refuses to participate in any administrative

proceeding offered by the PC. In Zuniga, the plaintiff was charged

with grand theft and attempted receipt of stolen property while

employed as a Los Angeles County deputy sheriff. Id. at 1257.

Zuniga was suspended from his position without pay. Id. In April,

2001, Zuniga requested a hearing before the police commission to

challenge the suspension; however, the hearing was stayed pending

the outcome of the criminal proceedings. Id.

Zuniga retired from the department on February 12, 2002; and

on February 25, 2002, the charges against him were dismissed. Id.

A hearing before a hearing officer from the Los Angeles County

Civil Service Commission was held in July, 2002. Id. at 1258. The

hearing officer recommended to the commission that Zuniga receive

full back pay for the suspension period. Id. The Commission,

however, sustained the suspension without pay. The trial court

denied Zuniga’s petition for writ of mandamus and he appealed. The

appellate court noted, “There is no provision in the charter

granting the Commission authority to hear a wage claim brought by a

former civil servant.” Id. at 1259. The court continued, “Zuniga

requested a hearing on the suspension during his employment, but

resigned before the hearing was held.” Id. The court held, “The

commission does not retain jurisdiction over a former employee in

these circumstances.” Id. The court lastly rejected Zuniga’s

argument that his status as an employee when he filed the request

for a hearing allowed the Commission to retain jurisdiction over

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his claim after he retired. Id. at 1261. 

Plaintiff’s case is similar to Zuniga. The parties have not

pointed to any provision of the Charter that grants the PC

authority to hear a wage claim brought by a former member of the

San Francisco Police Department. Since his disability retirement

on July 23, 2008, Plaintiff is no longer a member of the police

department subject to the PC’s jurisdiction. “In short, the

Commission only has authority to address matters involving a member

of the civil service, and a person who has retired is no longer a

member of the civil service.” County of Los Angeles Department of

Health Services v. Civil Service Commission of the County of Los

Angeles, 2009 WL 4881700, at *6 (Cal. App.); see Zuniga, 137 Cal.

App. 4th at 1259-61. Plaintiff’s claim now becomes a “wage claim

brought by a former civil servant.” Zuniga, 137 Cal. App. 4th at

1259 (emphasis added). Therefore, Plaintiff may not exhaust his

claim through the administrative process, and the Court cannot

require him to do so now. 

III. First Cause of Action: Relief Under § 1094.5

Defendants argue that the relief Plaintiff seeks is not proper

under § 1094.5. Plaintiff seeks “an Order directing Respondents

and Defendants to rescind his unpaid suspension and restore any pay

and benefits lost as a result of his suspension.” Comp. ¶ 34. 

Section 1094.5(f) provides:

The court shall enter judgment either commanding respondent to

set aside the order or decision, or denying the writ. Where

the judgment commands that the order or decision be set aside,

it may order the reconsideration of the case in the light of

the court’s opinion and judgment and may order respondent to

take such further action as is specially enjoined upon it by

law, but the judgment shall not limit or control in any way

the discretion legally vested in the respondent.

 

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Rescinding Plaintiff’s unpaid suspension and ordering back pay

would require the Court to determine whether Plaintiff’s conduct

warranted a suspension. Nowhere does the statute allow the Court

to make findings and determinations in the first instance, before

an administrative body has done so. Therefore, Plaintiff is not

entitled to this type of relief under § 1094.5. 

However, Plaintiff may be entitled under § 1094.5 to a remand

for an administrative hearing if he can prove that Defendants’

delay in providing him a hearing before the PC effectively amounted

to an improper denial of his claim when he took disability

retirement. Therefore, the Court denies Defendants’ motion to

dismiss Plaintiff’s first cause of action.

IV. Second Cause of Action: POBAR

Government Code § 3304(b) requires Defendants to provide

Plaintiff with an administrative appeal of his suspension. That

section specifically states, 

No punitive action, nor denial of promotion on grounds other

than merit, shall be undertaken by any public agency against

any public safety officer who has successfully completed the

probationary period that may be required by his or her

employing agency without providing the public safety officer

with an opportunity for administrative appeal. 

Section 3304(b) “does not provide for an automatic administrative

appeal, but merely requires that an opportunity for such an appeal

be provided. . . . [T]he procedural details for implementing the

provisions for an administrative appeal are to be formulated by the

local agency.” Browning v. Block, 175 Cal. App. 3d 423, 429

(1985). Defendants argue that, because the City Charter and police

department’s general orders establish an administrative review

scheme that provides the right to appeal, as required by § 3304(b),

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Plaintiff’s claim fails. However, Plaintiff alleges that

Defendants denied him the opportunity to utilize those procedures. 

Plaintiff seems to allege that he sought administrative review and

that Defendants delayed hearing his claims during the three and

one-half year period between when Plaintiff was reinstated as a

police officer and his disability retirement. Plaintiff’s

allegation that he was thus deprived of an opportunity to appeal

his suspension is sufficient to support a POBAR claim. Again,

however, the remedy would be to order a hearing. 

V. Third Cause of Action: § 1983

Plaintiff’s third cause of action is brought under 42 U.S.C.

§ 1983 for the deprivation of his property rights in employment

without due process as a result of the alleged customs, practices

and policies of Defendants. Section 1983 "provides a cause of

action for the ‘deprivation of any rights, privileges, or

immunities secured by the Constitution and laws’ of the United

States." Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990)

(quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

substantive rights, but merely provides a method for vindicating

federal rights elsewhere conferred. Graham v. Connor, 490 U.S.

386, 393-94 (1989). 

Municipalities cannot be held vicariously liable under § 1983

for the actions of their employees. Monell v. Dept. of Social

Services of the City of N.Y., 436 U.S. 658, 691 (1978). “Instead,

it is when execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Id. at 694. 

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To impose liability on a government entity, a plaintiff must

show that “the municipality itself causes the constitutional

violation through ‘execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy.’” Ulrich v. City &

County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (quoting

Monell, 436 U.S. at 694)). 

Plaintiff may establish that an individual who committed a

constitutional tort was an official with “final policy-making

authority” and that the challenged action itself thus constituted

an act of official governmental policy. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 480-81 (1986). In Pembaur, the Supreme

Court held that a single decision by a municipal policymaker may be

sufficient to trigger § 1983 liability under Monell, even though

the decision is not intended to govern future situations. See 475

U.S. at 480-81; Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir.

1992). There must, however, be evidence of a conscious,

affirmative choice. Municipal liability under § 1983 attaches only

where “a deliberate choice to follow a course of action is made

from among various alternatives by the official or officials

responsible for establishing final policy with respect to the

subject matter in question.” Pembaur, 475 U.S. at 483-84

(plurality opinion). Whether a particular official has final

policy-making authority is a question of state law. See Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). 

Pursuant to the city charter, the PC is the final policymaking authority regarding discipline of police officers. 

Defendants argue that Plaintiff has not identified a specific

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custom, practice or policy that allegedly denied him due process

before his property rights in employment and employment benefits

were taken. Defendants argue that the only action denying

Plaintiff a hearing was a letter written on November 25, 2008 by

the Secretary of the PC. Defendants argue that this letter

constitutes a decision by the secretary of the PC and not the PC

itself. However, this letter does not stand in isolation. On July

30, 2008, at a PC meeting, the PC concluded that it had no

jurisdiction over Plaintiff’s claim. The PC later confirmed this

position in a letter dated August 7, 2008. On September 4, 2008,

Plaintiff again requested that the PC put his case back on the

hearing calendar so that his back-pay claim could be adjudicated. 

However, on November 4, 2008, the PC notified Plaintiff that it

would still not hear his case. The November 25, 2008 letter

appears to be merely a confirmation of the PC’s second denial. 

Therefore, the PC’s decision not to hear Plaintiff’s claim

constitutes a decision by an official with policy-making authority

for purposes of liability under § 1983. 

If Plaintiff is alleging, and can prove, that Defendants

caused a delay in his PC hearing that amounted to a denial of a

hearing when the PC lost jurisdiction due to his disability

retirement, he may be able to make out a civil rights claim for

deprivation of property without due process. The remedy, again,

would be to order a due process hearing, along with any damages

caused by the delay. Accordingly, the Court denies Defendants’

motion to dismiss the § 1983 claim. 

VI. Fourth Cause of Action: Constitutional Claims

The Court grants Defendants’ motion to dismiss Plaintiff’s

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2Plaintiff’s reliance on Walker v. Northern San Diego Hospital

District, 135 Cal. App. 3d 896 (1982), is misplaced. 

14

fourth cause of action because, in Plaintiff’s opposition brief, he

indicated that he will voluntarily withdraw this cause of action. 

VII. Fifth Cause of Action: Breach of Employment Contract

The California “Supreme Court has made it clear that civil

service employees cannot state a cause of action for breach of

contract or breach of the covenant of good faith and fair dealing. 

This same general principle of law applies to civil service and

noncivil service public employees alike.” Kim v. Regents of the

University of California, 80 Cal. App. 4th 160, 164 (2000). Here,

Defendants cannot be held liable for breach of contract because

Plaintiff’s employment relationship is statutory, not contractual.2

Therefore, the Court grants Defendants’ motion to dismiss the fifth

cause of action for breach of the employment contract. The

dismissal is with prejudice.

VIII. Sixth Cause of Action: Breach of the City Charter

Plaintiff cannot bring a cause of action for a breach of the

city charter. Plaintiff’s reliance on Read v. City of Lynwood,

173, Cal. App. 3d 437 (1985), is misplaced. In Read, a city

employee fired under procedures contrary to a city ordinance was

permitted to sue for the tort of wrongful discharge. Read did not

discuss any right the employee might have to sue for contractual

breach of the city charter. Therefore, the Court dismisses with

prejudice Plaintiff’s sixth cause of action for breach of the city

charter.

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IX. Seventh Cause of Action: Intentional Infliction of Emotional

Distress

Plaintiff claims he has suffered mental injuries as a result

of his treatment by Defendants. To state such a claim, a plaintiff

must plead (1) extreme and outrageous conduct by the defendant with

the intention of causing, or reckless disregard of the probability

of causing, emotional distress; (2) that the plaintiff suffered

severe or extreme emotional distress; and (3) that the plaintiff’s

injuries were actually or proximately caused by the defendant’s

outrageous conduct. Berkley v. Dowds, 152 Cal. App. 4th 518, 533

(2007). The conduct must be so extreme as to "exceed all bounds of

that usually tolerated in a civilized community." Unterberger v.

Red Bull N. America, Inc., 162 Cal. App. 4th 414, 423 (2008)

(citations omitted). The distress must be so severe that "no

reasonable [person] in a civilized society should be expected to

endure it." Fletcher v. W. Nat’l Life Ins. Co., 10 Cal. App. 3d

376, 397 (1970). Plaintiff does not cite any case to support his

argument that Defendants’ conduct was so extreme as to “exceed all

bounds of that usually tolerated in a civilized community.” 

Therefore, Plaintiff fails to state this claim against any

Defendant. Plaintiff’s IIED claim against Defendants is dismissed

with leave to amend.

CONCLUSION

For the foregoing reasons, the Court grants in part

Defendants’ motion for judgment on the pleadings. The Court will

enter judgment on the pleadings on Plaintiff’s fourth cause of

action for “constitutional claims,” fifth cause of action for

breach of the employment contract and sixth cause of action for

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breach of the city charter. The Court does not grant leave to

amend these claims because amendment would be futile. The Court

dismisses with leave to amend Plaintiff’s seventh cause of action

for intentional infliction of emotional distress. Plaintiff’s

first cause of action under § 1094.5, second cause of action under

POBAR and third cause of action under § 1983 may proceed. The

Court notes that the remedy for each of these would be to order a

due process hearing. Defendants have offered to provide such a

hearing voluntarily. It would seem most efficient for the parties

to participate in such a hearing. If necessary, they could then

litigate whether the hearing was sufficient under Section 1094.5,

POBAR and Section 1983 and Plaintiff could seek damages for the

delay if he could prove it was caused by Defendants. 

Plaintiff may file and serve an amended complaint within

fourteen days from the date of this order, if he can truthfully

allege additional acts committed by Defendants that would amount to

intentional infliction of emotional distress under California case

law. If Plaintiff fails to file an amended complaint, judgment

will be entered against him on the seventh cause of action as well. 

Defendants shall respond to any amended complaint fourteen days

after it is filed. Any motion to dismiss shall be taken under

submission and decided on the papers. A further case management

conference will be held on April 27, 2010 at 2:00 p.m. 

IT IS SO ORDERED.

Dated: 01/22/10 

CLAUDIA WILKEN

United States District Judge

Case 3:09-cv-01446-RS Document 27 Filed 01/22/10 Page 16 of 16