Filed 8/10/21 Gaines v. City of Los Angeles CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

KEVIN GAINES,

Petitioner and Appellant,

v.

CITY OF LOS ANGELES, et al.,

Respondents.

 B305751

 (Los Angeles County

 Super. Ct. No. BS173813)
2

APPEAL from a judgment of the Superior Court of the 

County of Los Angeles, Mary H. Strobel, Judge. Affirmed.

Stone Busailah, Michael P. Stone, Muna Busailah, and 

Robert Rabe, for Plaintiff and Appellant. 

Micheal N. Feuer, City Attorney, Carlos De La Guerra, 

Managing Senior Assistant City Attorney, and Paul L. 

Winnemore, Deputy City Attorney, for Respondents.

________________________________

Petitioner and appellant Kevin Gaines appeals from a

judgment denying a petition for writ of administrative 

mandamus in favor of respondents, the City of Los Angeles and 

Los Angeles Police Department (LAPD) Chief of Police Charles 

Beck, in this action based on the Public Safety Officers 

Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et 

seq.).

1 The trial court found a criminal investigation of Gaines’ 

conduct was “pending” as of the date that the LAPD assigned a 

case number to the criminal complaint, tolling the one-year 

statute of limitations to bring administrative charges under 

section 3304, subdivision (d)(1).2 On appeal, Gaines contends the 

criminal investigation was not pending until an internal 

memorandum requested consolidation of the investigations and 

tolling of the administrative case. Based on the facts in this case, 

1 All further statutory references are to the Government 

Code unless otherwise stated. 

2 The parties note that Los Angeles City Charter section 

1076 provides a similar limitations period for administrative 

investigations, but that no different analysis is required.
3

we conclude substantial evidence supports the trial court’s 

finding that the criminal investigation was pending under section 

3304, subdivision (d)(1) as of the date that a complaint form 

number was assigned to the criminal matter. Therefore, the 

judgment is affirmed. 

FACTUAL AND PROCEDURAL HISTORY

On April 14, 2014, a citizen filed a complaint with the 

LAPD about the conduct of Gaines and his partner on the 

previous day. The Administrative Investigation Division – South 

Section (AID-South) of LAPD’s Internal Affairs Group initiated 

an administrative investigation that day under the complaint 

form number (CF No.)14-000995. The matter was forwarded to 

LAPD’s 77th Street Area division for adjudication on December 

12, 2014. 

In a letter dated November 14, 2014, the Los Angeles 

County District Attorney’s Office provided the LAPD with a 

memorandum and evidence of criminal misconduct allegations 

against the same officers involving the same incident. The letter 

stated the materials were being forwarded “for investigation by 

your department.” On November 25, 2014, the LAPD initiated

CF No. 14-003455 to address the allegations of criminal 

misconduct. 

Sergeant Peter Harris, who was an investigator in the 

Criminal Investigation Division – South Section (CID South), 

investigated CF No. 14-003455. Certain material was attached to 

the case file, including a video that was not formatted to play on 

his computer. Harris had to obtain the original data from the 

source of the video and convert it to another format in order to 
4

view the video. He interviewed one of the victims of the officers’ 

misconduct on December 22, 2014, as part of the criminal 

investigation.

The LAPD has a reference for “tolling concerns” which 

directs investigating officers as follows: “Prior to tolling an 

investigation, [investigating officers] shall complete an 

[intradepartmental correspondence] to their respective command 

outlining the rationale for tolling. [Investigating officers] shall 

document in their chronological log what investigative steps have 

been taken/delayed justifying the need to extend the statute. 

Tolling the case does not negate the [investigating officer’s] 

responsibility to update the accused officer’s commanding officer 

as required by the Department Manual.” Nine circumstances 

involving tolling are listed on the reverse of the document, one of 

which is a pending criminal investigation. 

On December 31, 2014, LAPD Captain Brian J. Thomas, 

who was the commanding officer of the Criminal Investigation 

Division (CID), sent an intradepartmental correspondence to a 

supervisor in the Internal Affairs Group. Thomas explained the 

initiation of the complaint forms and requested that CF No. 14-

000995 and 14-003455 be consolidated and tolled. He stated that 

the investigation would be bifurcated, with CID-South 

responsible for the criminal investigation and AID-South would 

remain responsible for the administrative investigation. The 

adjudication of administrative investigation under complaint 

form number 14-000995 would be suspended pending completion 

of the criminal investigation under complaint form 14-003455. 

The request was approved by the Internal Affairs Group on 

January 7, 2015.
5

On June 3, 2015, Sergeant Harris presented the results of 

the criminal investigation to the District Attorney’s Office for 

review in consideration of criminal filing. On July 7, 2015, 

Captain Thomas sent an intradepartmental correspondence to 

the Commanding Officer of the Internal Affairs Group. Captain 

Thomas stated that the administrative and criminal 

investigations “were consolidated and tolled on December 31, 

2014.” The results of the criminal investigation were under 

review by the District Attorney’s Office. He stated that neither 

Sergeant Harris nor any person who had investigated the 

criminal matter were exposed to any compelled statements by the 

accused officers, and therefore, Captain Thomas recommended 

the entire consolidated case could be transferred from CID-South 

to AID-South. AID-South could review the entire case and 

conduct any additional investigation necessary. Adjudication of 

the consolidated case would remain suspended, however, until 

the District Attorney’s Office made a filing decision.

On February 14, 2017, the District Attorney’s Office 

notified the LAPD that criminal charges would not be filed 

against the officers. On June 9, 2017, which was 376 days after 

the investigation of the administrative complaint was opened, 

LAPD served Gaines with a notice of proposed disciplinary 

action. A board of rights hearing was conducted on January 22, 

2018. Gaines was charged with 11 counts of misconduct to which 

he pled not guilty. Captain Thomas did not testify at the 

hearing. Sergeant Harris testified that he investigated CF No. 

14-003455, although he did not testify about the date that he 

received the assignment or began the criminal investigation. The 

board of rights found Gaines guilty of eight counts of misconduct 

and recommended that he be removed from his position as a
6

police officer with the LAPD. On March 8, 2018, Chief Beck 

executed an order removing Gaines from his position as an LAPD 

officer. 

On June 6, 2018, Gaines filed a petition for a writ of 

mandate seeking to set aside the order discharging him from his 

position. On September 17, 2018, he filed the operative amended 

petition for writ of mandate. Among the arguments made, 

Gaines alleged that the administrative investigation was tolled

only from the date of Captain Thomas’ letter on December 31, 

2014, to February 14, 2017, and therefore, the administrative 

investigation had exceeded the one-year statute of limitations for

disciplinary actions set forth in section 3304, subdivision (d). 

Gaines filed an opening brief. He also filed a request to 

take judicial notice of provisions of the Los Angeles Charter and 

Administrative Code, as well as LAPD memorandum concerning 

investigation procedures. 

Respondents filed an opposition on the ground that tolling 

began on November 25, 2014 when the complaint about criminal 

misconduct was received, not on the date that Captain Thomas 

subjectively declared tolling began. Gaines filed a reply, in which 

he raised the argument for the first time that LAPD policy 

required a “tolling request” under the “Professional Standards 

Bureau Tolling Provisions,” which must be approved by a 

supervisor. He argued that Captain Thomas’ December 31, 2014 

tolling request constituted the LAPD’s determination to expend 

resources on a separate investigation into possible criminal 

misconduct.

The trial court held hearings on September 17, 2019, and 

February 6, 2020. The trial court granted the request for judicial 

notice to the extent the exhibits were not already part of the 
7

record. The court found that the LAPD opened the criminal 

investigation on November 25, 2014. The court’s finding was

based on the December 31, 2014 letter and other circumstantial 

evidence, and therefore, tolling began on November 25, 2014. 

The court found the most reasonable interpretation was that the 

criminal investigation was initiated on November 25, 2014, and 

the word “initiated” implied that the criminal investigation was 

opened that date. The parties agreed that the criminal matter 

was assigned a case number on November 25, 2014, which was 

consistent with finding that a criminal investigation was 

“pending.” On November 14, 2014, the District Attorney’s Office 

forwarded a memorandum and evidence for investigation by the 

LAPD. The LAPD received evidence for the criminal case, and it 

was reasonable to infer that a criminal investigation would have 

commenced by November 24, 2014, in response to the memo.

Gaines had argued for the first time in his reply that a 

“tolling request” was required under the LAPD’s “Professional 

Standards Bureau Tolling Provisions” and required to be 

approved by a supervisor, but the argument was not timely 

raised, and there was insufficient evidence that a request for 

tolling under the policy was persuasive evidence of the date that

a criminal investigation began.

As a result of the trial court’s finding concerning the date 

that tolling began, the administrative charges were brought 

within a total of 339 or 340 days after discovery of the 

misconduct, which was within the one-year limitations period. 

The trial court did not find merit to any of Gaines’ remaining 

arguments. The petition was denied.

The trial court entered a judgment denying the petition on 

February 13, 2020. Gaines filed a timely notice of appeal. 
8

DISCUSSION

Standard of Review

“Legal issues involving the interpretation of Government 

Code section 3304 are reviewed de novo. [Citation.] As to factual 

issues, ‘we determine whether the record provides substantial 

evidence supporting the trial court’s factual findings. [Citation.] 

Applying the substantial evidence test on appeal, we may not 

reweigh the evidence, but consider that evidence in the light most 

favorable to the trial court, indulging in every reasonable 

inference in favor of the trial court’s findings and resolving all 

conflicts in its favor. [Citations.]” (Richardson v. City and 

County of San Francisco Police Com. (2013) 214 Cal.App.4th 671, 

692.)

Tolling

It is undisputed that administrative charges were brought 

against Gaines more than one year after the LAPD discovered 

misconduct, but that the one-year statute of limitations was 

tolled during the time that the criminal investigation was 

pending. Gaines contends that as a matter of law, the criminal 

investigation was not pending until Thomas sent an 

intradepartmental correspondence requesting consolidation and 

tolling of the administrative matter. We conclude substantial 

evidence supports the trial court’s finding that the criminal 

investigation was opened and pending as of November 25, 2014, 
9

when the case reference number was assigned to the criminal 

misconduct allegations.

Under section 3304, subdivision (d)(1), no punitive action 

may be taken against a public safety officer for any allegation of 

misconduct unless the investigation is completed within one year 

of the public agency’s discovery by a person authorized to initiate 

an investigation of the allegation, subject to certain statutory 

exceptions. (§ 3304, subd. (d)(1).)3

One exception is provided in section 3304, subdivision 

(d)(2)(A), as follows: “If the act, omission, or other allegation of 

misconduct is also the subject of a criminal investigation or 

criminal prosecution, the time during which the criminal 

investigation or criminal prosecution is pending shall toll the oneyear time period.” (§ 3304, subd. (d)(2)(A).) “The act requires the 

tolling of the one-year statute of limitations while a criminal 

investigation is pending if the misconduct is the subject of that 

investigation. [Citations.]” (Breslin v. City and County of San 

Francisco (2007) 146 Cal.App.4th 1064, 1078.)

In Richardson v. City and County of San Francisco Police 

Com. (2013) 214 Cal.App.4th 671, the appellate court found 

substantial evidence supported a determination by the 

administrative agency and the trial court that the criminal 

investigation in that case was “pending” for purposes of section 

3 Section 3304, subdivision (d)(1), states in relevant part, 

“no punitive action . . . shall be undertaken for any act, omission, 

or other allegation of misconduct if the investigation of the 

allegation is not completed within one year of the public agency’s 

discovery by a person authorized to initiate an investigation of 

the allegation of an act, omission, or other misconduct.” (§ 3304, 

subd. (d)(1).)
10

3304, subdivision (d)(2)(A), as of the date that the police 

department’s investigative division received a citizen’s complaint 

from the management control division and opened a criminal

investigation. (Id. at p. 674–675, 693–695.)

“A criminal investigation is no longer pending when a final 

determination not to prosecute and to close the criminal 

investigation is made. Interim decisions short of a final 

determination will not stop the tolling.” (Bacilio v. City of Los 

Angeles (2018) 28 Cal.App.5th 717, 723–725.)

It is clear from the statutory language that the statute of 

limitations for bringing administrative charges is tolled during 

the time that a criminal investigation is “pending.” The trial 

court’s finding that the criminal investigation in this case was 

pending as of November 25, 2014, is supported by substantial 

evidence. The District Attorney’s Office delivered a cover letter 

dated November 14, 2014, with materials alleging criminal 

misconduct against Gaines, which triggered the criminal 

investigation. It is undisputed that the complaint form number 

to address the allegations of criminal misconduct was assigned on 

November 25, 2014. Harris reviewed evidence that he received 

with the assignment and he conducted an interview for the 

investigation in December 2014, prior to the memorandum 

prepared by Thomas. The trial court’s finding that the date a 

complaint form number is assigned to address criminal 

misconduct allegations is the date that the criminal investigation 

was opened and pending ensures a practical and workable 

standard for LAPD investigators to follow. 

Gaines contends the date that the criminal investigation 

became “pending” and tolling of the administrative matter began, 

as a matter of law, was the date that Thomas requested 
11

consolidation of the cases. We disagree. Thomas requested 

consolidation of two existing matters, which supports that the 

criminal investigation already existed. In fact, the investigator 

assigned to the criminal matter had already begun investigating

the criminal misconduct allegations before Thomas sent the 

memorandum. Under the statutory provisions, the statute of 

limitations is automatically tolled while a criminal investigation 

is pending; no request to toll the administrative investigation is 

required. If a criminal investigation were opened and completed 

without a tolling memorandum, there would be no tolling of the 

statute of limitations for the administrative charges under 

Gaines’ interpretation, which is clearly not the intent of the 

statute. We conclude substantial evidence supports the trial 

court’s findings on the statute of limitations, and as a result, the 

charges against Gaines were timely.

DISPOSITION

The judgment is affirmed. Respondents Charles Beck and 

the City of Los Angeles are awarded their costs on appeal.

MOOR, J.

We concur:

 BAKER, Acting P.J. KIM, J.