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Filed 11/23/22 Alley v. Office of Law Enforcement Support CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

ANDREA ALLEY,

Plaintiff and Appellant,

v.

OFFICE OF LAW ENFORCEMENT SUPPORT,

Defendant and Respondent.

C093334

(Super. Ct. No. 

34201700206137CUOEGDS)

Plaintiff Andrea Alley appeals from a judgment entered in favor of her former 

employer, the Office of Law Enforcement Support (OLES) after a bench trial on her 

claim under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 

et seq.).

1

 Alley has failed to establish any error in the trial court’s conclusion that she did 

not prove OLES violated section 3305. Therefore, we will affirm the judgment.

1

 Undesignated statutory references are to the Government Code.
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I. BACKGROUND

A. Statutory Background

Section 3305 is one of three neighboring provisions that concern the rights of 

public safety officers with respect to their personnel files. (See Poole v. Orange County 

Fire Authority (2015) 61 Cal.4th 1378, 1385 (Poole) [describing parallel provisions of 

the Fire Fighters Procedural Bill of Rights Act (§ 3250 et seq.)].) OLES does not 

challenge the trial court’s conclusion that Alley’s employment with OLES made her a 

peace officer within the meaning of these statutes. Section 3305 provides, in pertinent 

part: “No public safety officer shall have any comment adverse to his interest entered in 

his personnel file, or any other file used for any personnel purposes by his employer, 

without the public safety officer having first read and signed the instrument containing 

the adverse comment indicating he is aware of such comment, except that such entry may 

be made if after reading such instrument the public safety officer refuses to sign it.” 

Section 3306 explains that a public safety officer has 30 days “to file a written 

response to any adverse comment entered in his personnel file. Such written response 

shall be attached to, and shall accompany, the adverse comment.” Section 3306.5 

requires an employer to permit an officer “to inspect personnel files that are used or have 

been used to determine that officer’s qualifications for employment, promotion, 

additional compensation, or termination or other disciplinary action.” (§ 3306.5, subd. 

(a).) If, after reviewing the file, “the officer believes that any portion of the material is 

mistakenly or unlawfully placed in the file, the officer may request, in writing, that the 

mistaken or unlawful portion be corrected or deleted.” (Id., subd. (c).) The employer 

must respond to the request in writing, and both the request and the response become part 

of the personnel file. (Id., subds. (c), (d).)

B. Factual Background 

OLES was created by the Legislature in 2015 to serve as a watchdog agency 

within the California Health and Human Services Agency to monitor its internal 
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investigations of employee misconduct taking place at its state psychiatric hospitals and 

developmental centers. (See Welf. & Inst. Code, § 4023.6, subd. (a).) OLES also 

conducts its own investigations. In December 2015, Alley began employment as a 

Supervising Special Investigator II with OLES. Her probationary period was for one 

year. Alley reported directly to the Division Chief, Ken Baird. Baird reported directly to 

an undersecretary of the California Health and Human Services Agency. 

Alley’s job was to supervise the central intake process of complaints. Central 

intake had recurring problems, including failing to obtain all facilities’ daily logs, 

incomplete case opening documents, sending duplicative document requests, and 

communication errors. Baird received complaints about intake from both inside and 

outside of OLES. 

Baird personally noticed management problems in the intake unit. He met with 

Alley several times to address these concerns and her performance. 

At some point, Alley’s assistant began putting documents in a “blue folder” that 

was left in Baird’s office. Baird was frequently out of the office. According to Baird, he 

did not look at the “blue folder,” but it contained documents relating to intake problems. 

Baird did not ask Alley’s assistant to create the “blue folder.” 

In April, Baird assigned another Supervising Special Investigator II to prepare an 

outline for Alley’s evaluation. Baird began forwarding the other supervisor emails 

reflecting Alley’s performance. The emails were sent individually and sporadically over 

a period of time. Ultimately, Baird did not complete an evaluation for Alley. 

In April or early May 2016, Baird met with the California Health and Human 

Services Agency’s Chief of Administrative Services and staff counsel to discuss Alley’s 

performance. Based on his own observations of Alley’s performance and feedback he 

received from others, Baird concluded additional counseling or training would not 

resolve Alley’s performance deficiencies and OLES needed to reject her during 

probation. 
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A California Health and Human Services Agency Staff Services Manager was 

assigned to prepare a written notice of rejection during probation. To provide 

documentation for the rejection notice, Baird searched his Outlook inbox “ ‘for key 

words associated with Andrea Alley’ ” and forwarded them to the Staff Services 

Manager. He also gave the “blue folder” to the Staff Services Manager. During this 

time, Baird moved emails related to Alley into an already-existing Outlook folder 

possibly named “personnel” or “personal” that was used for a wide range of information,

including budget information and personnel requests. The folder had been created by 

Baird in September 2015, prior to Alley’s arrival. 

The notice of rejection was served on Alley on May 12, 2016. The notice detailed

the reasons for Alley’s rejection and also attached almost 140 pages of supporting 

documents. 

In 2017, Alley filed this lawsuit, alleging OLES: (1) violated section 3305; and 

(2) discriminated against her based on age. The trial court granted OLES’s motion for 

summary adjudication of the age discrimination claim. Alley’s section 3305 claim 

proceeded to a bench trial. 

Ultimately, the trial court issued a final statement of decision concluding Alley 

had not established OLES violated section 3305. The court also found Alley failed to 

prove any damages or injuries sustained were caused by the alleged violation. 

Alley filed a timely appeal from the trial court’s entry of judgment. 

II. DISCUSSION

A. Standard of Review

“In reviewing a judgment based upon a statement of decision following a bench 

trial, we review questions of law de novo. [Citation.] We apply a substantial evidence 

standard of review to the trial court’s findings of fact. [Citation.] Under this deferential 

standard of review, findings of fact are liberally construed to support the judgment and 

we consider the evidence in the light most favorable to the prevailing party, drawing all 
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reasonable inferences in support of the findings.” (Thompson v. Asimos (2016) 6 

Cal.App.5th 970, 981.)

B. Poole 

As previously set forth, section 3305 applies to any adverse comment “entered in 

[an officer’s] personnel file, or any other file used for any personnel purposes by his 

employer.” The evidence established Baird never entered any of the documents at issue 

in Alley’s personnel file. Thus, this case turns on the potential applicability of the phrase 

“any other file used for any personnel purposes by his employer.” 

In Poole, supra, 61 Cal.4th 1378, our Supreme Court construed the meaning of the 

phrase “used for any personnel purposes by his or her employer” in the context of section 

3255, which is part of the Firefighters Procedural Bill of Rights Act and is “virtually 

identical” to section 3305. (Poole, supra, pp. 1384, 1386, fn. 2.) At issue in Poole was a 

daily log kept by plaintiff Steve Poole’s supervisor, Captain Culp, regarding each of the 

employees he supervised. (Id. at p. 1382.) Culp used the log as a reference in preparing 

annual reviews and performance evaluations. (Ibid.)

Our Supreme Court explained, “The statutory language referring to a file ‘used for 

any personnel purposes by his or her employer’ might, in isolation, be read broadly 

enough to include Culp’s log, which he used in the performance of his duties as a 

supervisor. But critical to an understanding of section 3255 is its statutory context. 

[Citations.] Reading the statutory language in context convinces us that the Legislature 

did not intend section 3255 to be read so broadly.” (Poole, supra, 61 Cal.4th at p. 1385.) 

Poole explained that section 3256.5—which is the provision of the Firefighters 

Procedural Bill of Rights Act that is functionally identical to section 3306.5—makes 

clear “the Legislature was not concerned with any and all files that might in some sense 

be connected with personnel matters; the Legislature was, rather, specifically concerned 

with ‘personnel files that are used or have been used to determine th[e] firefighter’s 
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qualifications for employment, promotion, additional compensation, or termination or 

other disciplinary action.’ ” (Poole, supra, 61 Cal.4th at pp. 1385-1386.)

Further, the phrase “used for any personnel purposes by his or her employer” 

“should be interpreted to encompass any written or computerized record that, although 

not designated a personnel file, can be used for the same purposes as a file of the sort 

described in section 3256.5—as a record that may be used by the employer to make 

decisions about promotion, discipline, compensation, and the like.” (Poole, supra, 61 

Cal.4th at p. 1386.) The log at issue in Poole offers one illustration of what is not such a 

record: “A supervisor’s log that is used solely to help its creator remember past events 

does not fall within the scope of that definition. Even if a supervisor uses his or her notes 

to help draft performance evaluations and other documents that ultimately are placed in a 

personnel file, the notes themselves are not a file preserved by the employer for use in 

making decisions about the firefighter’s employment status.” (Id. at pp. 1386-1387.) 

Our Supreme Court noted Culp was not the employer and he did not have the authority to 

take adverse disciplinary actions: “Culp’s comments thus could adversely affect plaintiff 

only if and when they were placed in a personnel file or in some other form to which the 

employer—that is, those who had the authority to discipline plaintiff—had access.” (Id. 

at p. 1387.) The court further explained that “[c]ases applying similar statutes are 

consistent with this conclusion. They have held that a document containing adverse 

comments may come within the disclosure requirement even if not formally entered into 

the official personnel file, if the document was either (1) maintained in such a manner 

that it would be available to those making personnel decisions in the future, or (2) was 

actually used by the employer in making a personnel decision, or both.” (Ibid.)
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C. Alley Did Not Establish a Violation of Section 3305

The trial court explained Alley argued the email subfolder maintained by Baird 

and the “blue folder” constitute files subject to section 3305.

2

 On appeal, Alley argues 

the supporting documentation for her rejection letter was contained “in at least one ‘file 

used for any personnel purposes’ by OLES.” The trial court found this supporting 

documentation was provided by Baird and others. Alley does not discuss or cite any 

particular document among those that were attached to the notice of rejection. 

1. The Trial Court Did Not Require Alley to Prove Intent or Purpose

The trial court explained the documents attached to the rejection letter “related to 

the operations of the intake unit and the frustration that employees and shareholders had 

with how cases were handled in the intake unit. Although most of these documents are 

critical of the intake unit and a few critical of [Alley], none of these documents were 

prepared for personnel purposes or prepared for the purpose of taking adverse 

employment action against [Alley]. The vast majority of the emails involved process 

problems in intake and criticism was not restricted to [Alley]. . . . The nature of the 

2

 On appeal, Alley argues the trial court overlooked “the file assembled by” the other 

supervising special investigator to evaluate Alley’s performance and contends there was 

no dispute this file was also used as support for rejecting her. Alley does not provide a 

citation indicating she raised the issue to the trial court. She did not object to the 

proposed statement of decision’s characterization of the issues she raised. “The parties 

must call the court’s attention to issues they deem relevant.” (North Coast Business Park 

v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28.) In particular, “ ‘[a] party is 

not permitted to change his position and adopt a new and different theory on appeal. To 

permit him to do so would not only be unfair to the trial court, but manifestly unjust to 

the opposing party.’ ” (Id. at p. 29.) Here, there was no finding that the emails 

forwarded to the other supervising special investigator were used to support Alley’s 

rejection notice. The citations she provides suggest there was overlap between these 

emails and what was attached to the rejection notice, but do not support the idea this was 

because the supervising special investigator forwarded them. Nonetheless, as we will 

discuss, even if the issue was not forfeited, Alley has not demonstrated the trial court 

erred in concluding she did not establish a violation of section 3305.
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comments contained in these documents are designed to either bring attention to process 

issues in the intake unit or suggestions on improving the process and procedures in 

handling the intake of reports. There is no evidence that any entries that can be construed 

as ‘adverse’ to [Alley] were made with the intent or purpose that the comment would be 

used for ‘personnel’ purposes. The ‘adverse’ comments appear to have been made for 

the purpose of improving the intake process.” Alley incorrectly asserts that the trial court 

required her to prove intent or purpose. The trial court made a factual finding that was 

relevant to its analysis. In County of Riverside v. Superior Court (2002) 27 Cal.4th 793, 

802 our Supreme Court concluded that a background investigation file was a “file used 

for any personnel purposes” under section 3305 after explaining that the file’s “very 

purpose” was to “ ‘ “serve as a basis for affecting the status of the employee’s 

employment.” ’ ” It was thus relevant to the trial court’s analysis in this proceeding that 

the files at issue lacked the same purpose.

2. The Trial Court Did Not Misread the Evidence

Alley argues the court misread the evidence in the record. First, Alley challenges 

the trial court’s statements that: (1) according to her assistant, her assistant never 

discussed the contents of the “blue folder” with Baird; and (2) Baird did not review the 

contents of the “blue folder.” We find no error. The trial court asked Alley’s assistant if 

she ever discussed the file with Baird: “In other words, this is the file. Please keep this 

for communications. This involves intake material. Keep this. There was no discussion 

about the creation of the file itself.” Alley’s assistant agreed there had been no 

discussion. As to whether Baird reviewed the contents of the “blue folder,” Alley cites 

no evidence clarifying whether Baird opened the actual folder as opposed to reading the 

emails it contained when they were emailed to him or hearing about the issues verbally 

from Alley’s assistant. 

Alley also challenges the trial court’s statement that the documents attached to the 

rejection notice “were not generated or retained for personnel action purposes but for the 
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purpose of managing and improving an internal operation of OLES and addressing 

performance issues on the part of [Alley].” Alley argues this statement was a 

contradiction because addressing performance issues is a personnel action. To support 

this assertion, she cites authorities discussing performance evaluations. (E.g., Poole, 

supra, 61 Cal.4th at p. 1383 [noting plaintiff had opportunity to review all of his 

performance evaluations, which were placed in personnel file]; Miller v. Chico Unified 

School Dist. (1979) 24 Cal.3d 703, 717 [discussing annual evaluations]; Versaci v. 

Superior Court (2005) 127 Cal.App.4th 805, 819 [discussing employee performance 

evaluations].) Here, a performance evaluation was never drafted. Further, the trial 

court’s reasoning was clear in context. The court found the documents were not 

generated for the purpose of making a personnel decision but for improving operations. 

The court continued, “There is no evidence that Chief Baird maintained either the ‘blue 

folder’ or the Outlook subfolder for a personnel related purpose. The fact that Chief 

Baird tasked [another Supervising Special Investigator] with preparing Plaintiff’s 

probationary review report suggests that these documents were not retained or ‘entered’ 

into a file for the purpose of taking employment action but were used for the appropriate 

purpose of drafting a performance evaluation as permitted under Poole.” Alley argues 

these comments misinterpreted Poole. We are unpersuaded. The record supports the 

trial court’s conclusion that the files were akin to the log in Poole. The fact Baird did not 

use the contents of either file to draft a performance review and delegated the task of 

drafting an outline to another supervisor does not alter that conclusion. 

3. The Trial Court Properly Applied the Relevant Case Law

Alley argues the trial court misconstrued the relevant authorities regarding what is 

needed to trigger protection under section 3305. We disagree. The court found 

significant that the documents themselves were not sufficient to be used to make a 

personnel decision. Indeed, the evidence did not establish that the decision to reject 

Alley was made based on any of these documents. Rather, the documents were 
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eventually forwarded along to be used after the decision had been made as supporting 

documents for the notice of rejection. Alley argues OLES was required to show her these 

documents before the notice of rejection could be prepared. However, she failed to 

establish that before they were attached to the notice of rejection, any challenged 

document was part of or itself a “file used for any personnel purposes.” (§ 3305.) At 

most, the documents were used in a manner analogous to the log in Poole and did not 

qualify for protection under section 3305.

Alley has identified no authority construing section 3305 or another similar statute 

as broadly as she applies it here. The trial court observed that “[a]ll of the cases cited by 

Plaintiff involve situations where the agency or employer had a clearly define[d] 

organizational structure where personnel and human resources are handled by someone 

other than the supervisor.” Alley argues, unhelpfully, that none of these authorities 

suggest these facts are dispositive. The trial court did not say they were. Thus, the

court’s statement was not erroneous. Further, the court’s ruling was consistent with 

Poole. In it, our Supreme Court made clear that section 3305 should not be applied to 

“any and all files that might in some sense be connected with personnel matters.” (Poole, 

supra, 61 Cal.4th at p. 1385.) The trial court’s determination was based on the fact the 

documents were not maintained with a reasonable expectation that they would be used 

for personnel purposes. Section 3305 includes any record that “may be used by the 

employer to make decisions about promotion, discipline, compensation, and the like.” 

(Poole, supra, at p. 1386.) Alley has failed to demonstrate the trial court erred in

determining the challenged documents were not such a record, and she did not prove 

OLES violated section 3305. In light of this conclusion, we need not address Alley’s 

arguments pertaining to the court’s conclusion that, even if she had established a 

violation of section 3305, she failed to prove any damages or injuries sustained were 

related to the violation. 
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III. DISPOSITION

The judgment is affirmed. Respondent Office of Law Enforcement Support shall 

recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

 

RENNER, J.

We concur:

/S/

 

DUARTE, Acting P. J.

/S/

 

EARL, J.