Judge: Curtis A. Kin, Case: 21STCP01067, Date: 2024-02-20 Tentative Ruling

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.

Petitioners
Chaar, Inc. and 7-Eleven, Inc. move for an order staying the Decision issued
with respect to the nuisance abatement action concerning a 7-Eleven market.

I.       Factual Background

            Petitioner Chaar, Inc. (“Chaar”) operates the 7-Eleven market located at
6701 W. Santa Monica Boulevard in Los Angeles (“Market”) as a franchisee. (Pet.
¶ 1.) Petitioner 7-Eleven, Inc. is the franchisor. (Pet. ¶ 2.) Petitioners
Chaar, Inc. and 7-Eleven, Inc. (collectively, “7-Eleven”) are co-licensees on
the Type 20 (beer and wine) license issued by the California Department of
Alcoholic Beverage Control (“ABC”) issued to the Market. (Pet. ¶¶ 1, 2.)

            The Market is a tenant in a one-story commercial
building. (City Ex. 13 at 272.) The other tenants of the building are a donut
shop and a laundromat. Prior to the administrative
decision at issue, the Market operated 24 hours daily. (Pet. ¶ 12; City Ex. 13
at 272.) The donut shop operates 5:00 a.m. to 5:00 p.m. on Monday through
Friday and 6:00 a.m. to 2:00 p.m. on Saturday and Sunday. (City Ex. 13 at 272.)
The laundromat operates 6:00 a.m. to 10:00 p.m. daily. (City Ex. 13 at 272.) The
adjacent property to the west is a three-story LGBT youth and senior housing
building. (City Ex. 13 at 273;
City Ex. 7 at 135.) The adjacent property to the east and across Las Palmas
Avenue is a seven-story residential apartment building known as AVA Hollywood. (City
Ex. 13 at 273, 294.)

            On May 29, 2020, respondent City of Los Angeles (“City”)
initiated a nuisance abatement action against the Market. (Pet. ¶ 13.) On
February 15, 2022, an Associate Zoning Administrator (“AZA”) conducted a public
hearing in the nuisance abatement action. (Pet. ¶ 18.) The AZA took the case
under advisement and left the record open for further comment until December
15, 2022. (Pet. ¶18.)

            While the record was left open, a staff investigator conducted
a field investigation, whereby the investigator conducted site visits to twelve
businesses, including nearby 7-Elevens and liquor stores, between 11:00 a.m.
and 1:00 p.m. (Pet. ¶ 19; Evans Decl. ¶ 4 & Ex. 2 at 16-18.) During the
site visits, the investigator asked questions relating to hours of operation,
on-site security personnel and their working hours, and the type of active
liquor license maintained by the business. (Evans Decl. ¶ 4 & Ex. 2 at 16-18.)
Petitioners contend, and the City does not dispute, that the field
investigation was not disclosed to petitioners before the AZA issued its
determination in the nuisance abatement action. (Pet. ¶ 20; Opp. at 14:4-5.)

            On March 7, 2023, the AZA issued the Decision in the
nuisance abatement action. (Evans Decl. ¶ 4 & Ex. 2.) The Market was
determined to be a public nuisance. (Evans Decl. Ex. 2 at 60.) Under the
Decision, the following was required:

the modification of the
operation a convenience store, known as 7-Eleven, located at 6701, 6703, 6705
and 6707 West Santa Monica Boulevard, in order to mitigate adverse impacts
caused by the said operation and any potential impacts caused by any future
operation of the use ….

(Evans Decl. Ex. 2 at 2.)

Conditions on the Market
were imposed, including limiting the operations to 5:00 a.m. through 11:00 p.m.
daily. (Evans Decl. Ex 2 at 4.) The
Decision also imposes conditions regarding the use of the property, the
premises, or the site, as referenced by the following examples:

Condition 5: All graffiti
on the site shall be removed and painted over to match the color of the surface
to which it is applied with anti-graffiti paint within 24 hours of its
occurrence.

Condition 18: The business
operator shall not allow access onto the property by persons known to them to
be prostitutes, pimps, prostitution customers, parolees with prior narcotic or
prostitution offenses, narcotics users, narcotics possessors, narcotics sellers
or manufacturers of illegal controlled substances….

Condition 20(i): The
security guard shall discourage and dissuade patrons who remain on the premises
for more than 20 minutes to leave.

(Evans Decl. Ex. 2 at 2,
4, 5.) The Decision also cited the field investigation which was not disclosed
to petitioners. (Evans Decl. Ex. 2 at 16-18.)

            On March 17, 2023, petitioners filed an appeal to respondent
Los Angeles City Council. (Pet. ¶ 27.) On September 19, 2023, the City Council
upheld the Decision. (Pet. ¶ 29.) On September 27, 2023, the Mayor approved the
Decision. (Pet. ¶ 29.)

II.      Procedural History

On
December 8, 2023, petitioners filed a Verified Petition for Writ of Mandate
Pursuant to C.C.P. 1094.5. No Answer has been filed.

On
January 5, 2024, petitioners filed the instant motion. On January 30, 2024,
respondent City of Los Angeles, which includes respondent Los Angeles City
Council, filed an opposition. On February 7, 2024, petitioners filed a reply.

III.     Legal Standard

CCP
§ 1094.5 provides two different standards for a stay. Section 1094.5(h) applies
to administrative orders of any licensed hospital or certain state agencies and
requires the petitioner to show that (1) “the public interest will not suffer”
and (2) the “licensed hospital or agency is unlikely to prevail ultimately on
the merits.” (See also Medical Bd. of California v. Sup. Ct. (1991) 227
Cal.App.3d 1458, 1461.) Because this action is against the City of Los Angeles,
section 1094.5(g) applies here. CCP § 1094.5(g) provides, in pertinent
part:

(g)
Except as provided in subdivision (h), the court in which proceedings under
this section are instituted may stay the operation of the administrative order
or decision pending the judgment of the court, or until the filing of a notice
of appeal from the judgment or until the expiration of the time for filing the
notice, whichever occurs first. However, no such stay shall be imposed or
continued if the court is satisfied that it is against the public interest.

The
administrative stay provision of Section 1094.5(g) “requires the superior court
to weigh the public interest in each individual case.” (Sterling v. Santa
Monica Rent Control Bd. (1985) 168 Cal.App.3d 176, 187.)

IV.     Analysis

A.          
Evidentiary Matters

7-Eleven’s request to take judicial notice of
Exhibits 1 and 2, sections of the Los Angeles Municipal Code, is GRANTED,
pursuant to Evidence Code § 452(b).

The City’s request to take judicial notice of
Exhibits 1 through 16, portions of the administrative record, is GRANTED. (Evid.
Code § 452(h); Jefferson Street Ventures, LLC v. City of Indio (2015)
236 Cal.App.4th 1175, 1190 [taking judicial notice of administrative record
submitted before trial on petition for writ of mandate].)

The City’s request to take judicial notice of
Exhibits 17 through 19, sections of the Los Angeles Municipal Code, is GRANTED,
pursuant to Evidence Code § 452(b).

The City’s evidentiary objections are OVERRULED.

A.          
Whether Public Interest Would Suffer with Stay

The Court first addresses whether the public
interest would suffer with a stay of the Decision, as no stay “shall be imposed
or continued if the court is satisfied that it is against the public interest.”
(CCP § 1094.5(g).)

7-Eleven contends that it has voluntarily imposed security
measures and property improvements starting in August 2020, including hiring a
nighttime security guard, fencing off a portion of the parking lot in front of
the commercial building to restrict vehicle access, checking the exterior of
the building every hour to pick up litter and prevent loitering and
panhandling, installing two security cameras and additional exterior lighting
for better nighttime visibility, installing a security camera at the front of
the premises to help the clerks monitor the exterior at night, putting up signs
to discourage loitering, installing electronic “mag locks” to prevent persons
posing a problem from entering the Market, and discontinuing the sales of malt
liquor. (Evans Decl. ¶¶ 13, 14, 21 & Ex. 4; Ali Decl. ¶ 4.)

7-Eleven also relies on the testimony of Senior
Lead Officer Brian White, who was the responsible person at the Los Angeles
Police Department (“LAPD”) in the nuisance matter, during the public hearing on
February 15, 2022. (Evans Decl. ¶¶ 9, 12 & Ex. 2 at 24.) Officer White
testified that having a security guard in the parking lot in the evening helps,
closing off the parking lot and putting up the fence did help, lighting in the
lot is key, the mag lock can make things better, there were “[s]ome positive
effects due to the changes made,” and “conditions have been effective.” (Evans
Decl. ¶ 22 & Ex. 2 at 29.) Further, on January 11, 2022, when counsel for
7-Eleven consulted with Officer White regarding conditions to which it would
agree to address the nuisance, conditions which were consistent with the
measures it was already taking, Officer White stated that he was “good with the
conditions as submitted.” (Evans Decl. ¶ 19 & Ex. 3.)

 7-Eleven
also contends that Calls for Service (“CFS”) to LAPD to provide police services
to 7-Eleven’s premises have decreased after 7-Eleven began working with the
LAPD to address the nuisance activity. (Evans Decl. ¶¶ 10, 11, 23.) After the
City pointed out significant inaccuracies in 7-Eleven’s calculations presented
in the motion (Opp. at 10, fn. 3; compare City Ex. 12 at 221 [letter submitted
by counsel for 7-Eleven on 12/15/22] with Evans Decl. ¶ 23), 7-Eleven
admitted to the inaccuracies and withdrew its reliance upon them.  (Kroll Decl. ¶ 8 [“W]hen arguing the
percentage declines in its Opening Brief, Petitioners withdraw those
arguments”].) However, 7-Eleven maintains in reply that the monthly CFS have decreased
by 69% per month from 2019 to 2022 (Kroll Decl. ¶ 9 [decrease from 13.33 CFS
per month in 2019 to 4.13 CFS per month in 2022]).  

            To
determine the effect that 7-Eleven’s measures to mitigate the nuisance on the
subject premises have had on CFS, crimes reported, and arrests, the following
discussion focuses on the time period after August 2020, when 7-Eleven began implementing
mitigation measures.

Notably, 7-Eleven does not address comparative data
presented by the City. From July 15, 2019 to February 16, 2022, when comparing the
subject Market, nine other 7-Eleven markets and 20 other businesses selling
alcohol, the subject Market had the second highest number of CFS (293) and third
highest number of arrests (11). (City Ex. 8, Ex. 13 at 315.) As Detective
Benjamin Thompson testified during the hearing:

I would request that you deny the appeal. The same
activity that I observed occurring from 2017 to 2019, in terms of calls for
service, crimes, arrests from the police department, is continuing to occur in
alarming numbers at and around this business. I have done surveys with crime
statistics from 2019 all the way up through 2022 and I’ve found that business
is still connected to unusual amounts of calls for service and reported
criminal activity. It’s about 100 less than it was from 2017 to 2019 but, still,
it exceeds anything in the immediate area by hundreds of numbers.

(City Ex. 15 at 417-18) While the Court recognizes Officer
White may have taken over for Detective Thompson as Senior Lead Officer (Evans
Decl. ¶ 9), this does not invalidate Detective Thompson’s review of crime
statistics and opinion concerning the nuisance activity that the Market
attracts. Thus, even if the CFS have decreased from year to year, there were
still a relatively high number of CFS and arrests compared to nearby
businesses.

Further, according to LAPD data of the subject
Market, there were 295 CFS between July 2019 to August 2022 (37 months with an average
of 8.0 per month) for theft, disturbance, robbery, narcotics, injuries, assault
with deadly weapons, forgery, battery, trespassing, arson, intoxication,
indecent exposure, disturbance, fights, noise disturbance, burglary,
intoxicated group in vehicle, and others. (City Ex. 12 at 234-49.) Of the 295
CFS, 182, i.e., 62% of the calls, were between 11:00 pm and 5:00 a.m.  In addition, 145 of the 295 CFS were between
September 1, 2020 and August 15, 2022, which is after the August 2020
mitigation measures.  For that period of
23.5 months, there was an average of 6.2 CFS per month.  Further, 83 of the 145 CFS after August 2020 were
between 11:00 p.m. and 5 a.m., which constitutes 57% of the CFS.  (Blau Dec. ¶¶ 8-12.)

Based on the foregoing, even if 7-Eleven’s
voluntary measures have reduced the number of CFS year-by-year, there were still
a significant number of CFS after August 2020 and between the hours of 11:00
p.m. to 5:00 a.m.—the hours when the Market is to closed under the Decision.

            With
respect to crimes reported, 32 crimes were reported between February 23, 2019
and March 18, 2022. (City at Ex. 12 at 251-53.) The crimes were for physical
injuries to customers, punching victims, verbal disputes, robbery at gunpoint,
breaking a glass panel in the door, loud music, use of lighter fluid in front
of entrance in an attempt to ignite the building, and multiple thefts by
individuals and multiple suspects.  Of
the 32 reported crimes, nine (28%) were between 11:00 p.m. and 5:00 a.m.  Of note, 11 of the 32 reported crimes came after
August 2020.  Of those 11 crimes
occurring after the mitigation measures, three (27%) were between 11:00 p.m.
and 5:00 a.m. (Blau Dec. ¶¶ 13-16.)

Fourteen arrests were made between August 9, 2019
and July 12, 2022. (City Ex. 13 at 255-56.) These arrests include robbery,
battery, vandalism, theft, and trespassing. Of the 14 arrests, eight occurred
after August 2020. (Blau Dec. ¶¶ 17, 18.)

            Thus,
notwithstanding any mitigation measures instituted as of August 2020, a
significant number of reported crimes and arrests continued thereafter, notably
for crimes occurring between 11:00 p.m. and 5:00 a.m.—the time period the
Decision addresses by requiring the Market to close.

            While
Officer White testified positively about 7-Eleven’s voluntary nuisance
abatement measures, his comments were vague and unsupported by data. With respect
to his assertion that “conditions have been effective,” in particular, it is
unclear how any measures implemented by 7-Eleven have been effective in light
of the foregoing data.

            Moreover,
as meaningful anecdotal evidence, the Hollywood Media Business Improvement
District (“BID”), in which the Market is located, submitted a letter to the
City on July 15, 2022, stating that, despite 7-Eleven’s claim of having
employed nighttime security, “its security service conducted surveillance of
the business in June 2022 and observed the same persistent issues of loitering,
littering, panhandling and a consistently dirty parking lot.” (City Ex. 7 at 136.)
On November 2022, the LGBT Center stated the nuisance continues and clients
have been intimidated, threatened, and subjected to violence from people
shopping at the 7-Eleven. (City Ex. 9.) During the public hearing, a
representative from AVA Hollywood testified that issues arising from the Market
have continued to grow year over year, including trespassing and crimes against
property from customers of the Market. (Evans
Decl. ¶ 4 & Ex. 2 at 34.)  

            By contrast, 7-Eleven has not presented any argument regarding
how closure of the Market between 11:00 p.m. and 5:00 a.m. would harm the
public interest.  The record is silent as
to whether the ability to access goods and services from the Market between
11:00 p.m. and 5:00 a.m. would in any way harm—or even inconvenience—the
community.  To the extent that the
franchisee is a member of the public, Chaar asserts that the limitation of
Market hours pursuant to the Decision has caused the Market to lose
approximately $48,000 per month in profit in October and November 2023. (Ali
Decl. ¶ 6.) Further, the Decision prohibits the Market from having an ATM.
(Evans Decl. ¶ 4 & Ex. 2 at 4 [Condition 10].) Chaar contends that the
ATM prohibition has caused it to lose $5,000 per month in profit. (Ali Decl. ¶¶
6-7.) Chaar avers that the Market now operates at a loss and 8 employees could
lose their jobs if it has to close the Market. (Ali Decl. ¶¶ 6-7.) The losses
asserted by Chaar appear to be inflated on their face and not supported with any
documentary or other evidence regarding how the purported losses were
calculated and the methodology used. 
Indeed, the Declaration of Market operator Anil Ali was made in January
2024, offers vague and conclusory assertions of lost profits in October and
November 2023, and omits and reference to operations in December 2024, thereby
ignoring 33% of the Market’s operations after the Mayor approved the Decision
on September 27, 2023. When this evidence of purported losses is weighed
against the continuing nuisance activity arising from the Market, the interests
of the residents of nearby buildings and the public in general must prevail.

            Based on the foregoing, the Court finds that it would not
be in the public interest to impose a wholesale stay on the Decision.[1]

B.          
Unruh Act

7-Eleven contends that Condition 18 violates the
Unruh Act because it would require 7-Eleven to discriminate against individuals
who have prior criminal pasts, even if they are not being disruptive. (See Civil
Code § 51; Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th
824, 840, 842 [Unruh Act’s enumerated categories are illustrative rather than
restrictive and includes “categories added to the Act by judicial construction”].)

Condition 18 states: “The business operator shall
not allow access onto the property by persons known to them to be prostitutes,
pimps, prostitution customers, parolees with prior narcotic or prostitution
offenses, narcotics users, narcotics possessors, narcotics sellers or
manufacturers of illegal controlled substances.” (Evans Decl. ¶ 4 & Ex. 2
at 4.)  

“[U]nder the Unruh Act entrepreneurs must generally
exercise [the] legitimate interest [of protecting their enterprises from
improper and disruptive behavior] directly by excluding those persons who are
in fact disruptive.” (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d
721, 740.) The activities implicated by Condition 18 are disruptive activities.
Condition 18 requires 7-Eleven to limit access to individuals known by it or
its employees to conduct nuisance activity. The City does not seek to “exclude
an entire class of individuals on the basis of a generalized prediction that
the class ‘as a whole’ is more likely to commit misconduct than some other
class of the public,” as prohibited by the Unruh Act. (Id. at 739.) If
an employee of 7-Eleven has seen a particular individual using or selling
narcotics or participating in prostitution at the premises, prohibition of that
individual would not be based on that individual’s personal, protected
characteristics, like race, sex, nationality, but because that person has
committed nuisance activity before. Like a felon who is not protected by the
Unruh Act (see Semler v. General Electric Capital Corp. (2011) 196
Cal.App.4th 1380, 1402), past nuisance activity by a particular individual
known by 7-Eleven is indicative that the individual will commit nuisance
activity again.

Condition 18 does not violate the Unruh Act.

C.          
A Limited Stay is Required

Although the Court finds that a wholesale stay is
not in the public interest, the Court finds that the conditions must be
modified because they are overbroad with respect to the property, premises, and
site to which they pertain. The AZA required the modification of the operation
of 7-Eleven, purportedly “located at 6701, 6703, 6705, and 6707 West Santa
Monica Boulevard.” (Evans Decl. ¶ 4 & Ex. 2 at 2.) However, 7-Eleven is a
tenant of only 6701 W. Santa Monica Blvd. (Thomulka Decl. ¶ 3; Ali Decl. ¶ 3.)
The neighboring donut shop occupies 6705 W. Santa Monica Blvd. (Thomulka Decl.
¶ 4.; Ali Decl. ¶ 3.) The neighboring laundromat occupies 6707 W. Santa Monica
Blvd. (Thomulka Decl. ¶ 4; Ali Decl. ¶ 3.)

On their face, some of the conditions can be read
to require 7-Eleven to manage premises over which it has no control. For
example, Condition 19 states: “The business operator shall inform the Police
Department immediately if any person on the property is engaging in narcotics
activity, or if narcotics paraphernalia is observed on the property.” (Evans
Decl. ¶ 4 & Ex. 2 at 2.) Because the AZA included 6703, 6705, and 6707 West
Santa Monica Boulevard in the Decision, Condition 19 could be read to require 7-Eleven
to monitor the patrons of the donut shop and laundromat, over which it has no
control, for narcotics activity. The Court finds good cause to impose a stay to
the extent that the Decision pertains to real property located at 6703, 6705,
or 6707 West Santa Monica Boulevard. (See Webster v. Superior Court
(1988) 46 Cal.3d 338, 350 [courts have discretion to determine terms and
conditions of stay].)

V.      Conclusion

          The
motion is GRANTED IN PART. The March 7, 2023 Decision at issue in the petition
for writ of administrative mandate is stayed to the extent that it imposes
conditions pertaining to real property located at 6703, 6705, or 6707 West
Santa Monica Boulevard.

Case Number: 21STCP01067    Hearing Date: February 20, 2024    Dept: 82

Petitioner Michael Johnson petitions for a writ of mandate directing respondents City of Los Angeles and Michel Moore, in his official capacity as Chief of Police, to reverse the administrative decision suspending petitioner with total loss of pay for 55 days.

I.       Factual Background

            Petitioner Michael Johnson is a detective with the Los Angeles Police Department (“the Department” or “LAPD”) with approximately 21 years of experience. (AR 2470.) In February 2019, petitioner Michael Johnson, Detective III, was working at 77th Division as a supervisor in the Narcotics Enforcement Detail. (AR 2894, 3032.) On February 13, 2019, petitioner planned to attend a promotional party after work with his co-workers at a restaurant called Seven Grand in downtown Los Angeles. (AR 2894, 3021.) Petitioner rented an apartment nearby for one night, at 232 East 2nd Street in downtown Los Angeles. (AR 2894.) He planned to walk to and from the promotional party. (AR 3034.)

Before going to the promotional party, petitioner met up with Detective Vascones at a bar near the rented apartment. (AR 3025.) Petitioner consumed whiskey and coke for an hour or less. (AR 3026.) At approximately 9 p.m., petitioner and Detective Vascones arrived at the promotional party at Seven Grand. (AR 3028.) Petitioner drank an unknown amount of alcohol there until approximately 12:30 a.m. (AR 2894, 3028-29.) Petitioner estimated that he may have consumed two drinks per hour. (AR 3028.)

After the party, petitioner and a few co-workers walked to another bar, the Golden Gopher. (AR 2894, 3029.) Petitioner drank more alcohol there, until the bar closed at approximately 2:00 a.m. (AR 3032-33.) As petitioner and his co-workers were leaving, petitioner went back inside the bar to buy a cap with a Golden Gopher print on it. (AR 3036-37.) His coworkers could not find him and could not reach him via cell phone. (AR 2895.) Since the bar was already closed by that time, they believed that petitioner had left by himself and thus left without him. (AR 2895.)

Petitioner then began to walk back to the rented apartment alone, which was

approximately 1.25 miles from the Golden Gopher. (AR 2741, 2895.) Petitioner’s Blood Alcohol Concentration (BAC), from the blood sample taken later, was approximately .329. (AR 2895.) Petitioner believed that he was intoxicated to a point where he could not legally drive, but he believed he was capable of walking back to the apartment. (AR 2741, 2895, 3076.)

On the way to the apartment, petitioner decided to stop by at LAPD Central Community Police Station (“CCPS”) to use the restroom and possibly the ATM. (AR 2895, 3038.) Police Officer A. Gil was assigned to CCPS and observed petitioner walking on Wall Street from 6th Street. (AR 2895.) Officer Gil questioned petitioner about where he was going as petitioner was walking through the gate, and petitioner produced his police identification. (AR 2895.) Officer Gil smelled the odor of alcohol and asked petitioner if he was drunk, to which petitioner responded he was okay. (AR 2742, 2895.) Officer Gil told petitioner to see the watch commander and get someone to take him home. (AR 2742, 2895-96.) Petitioner then entered the CCPS to use the restroom. (AR 2896.) A few minutes later, petitioner exited the CCPS onto Wall Street and walked south toward 6th Street. (AR 2896.) When Officer Gil saw petitioner exit the CCPS, he called out to petitioner to re-engage him in conversation, but petitioner did not respond. (AR 2896.)

Petitioner then walked to the front of the CCPS and stood near the front doors for approximately fifteen minutes. (AR 2743.) Petitioner engaged in verbal interactions with several homeless people in that area. (AR 2743.)

Thereafter, petitioner walked east on 6th Street by himself. (AR 2743.) This area is full of tent-dwellers and is known as the “Skid Row” area. (AR 2465, 2747.) About mid-block, petitioner stopped and engaged in a conversation with a woman holding a pink umbrella, later identified as J. Daniels. (AR 2896-97.) According to petitioner, Daniels wanted money. (AR 2743, 2903.) The conversation lasted approximately four minutes. (AR 3098.) Petitioner testified that, when a homeless person asks him for money, often he spends minutes or even an hour talking to the person to help. (AR 3099.) Petitioner’s conversation with Daniels was interrupted when a man emerged from behind a tent, later identified as M. Wise. (AR 2897, 3101.)

According to petitioner, Wise asked for money, and petitioner refused. (AR 2897, 3101.) Petitioner observed the handle of a black handgun on Wise. (AR 2897, 3101.) Petitioner took a “blade” position and reached for his own firearm, a Glock 19. (AR 2897, 2899.) Petitioner advised Wise that he was a police officer, ordered him to drop the gun, and began to back up. (AR 2897, 3102.) A physical struggle ensued. (AR 2897, 3102.) Petitioner does not remember drawing or shooting his firearm. (AR 2897, 3102-03.) Petitioner remembers having been hit on the face and getting knocked down to the ground. (AR 2897, 3102.)

According to Wise, petitioner was being aggressive toward a woman, and Wise wanted to help the woman. (AR 2898.) In an interview with Channel 7 News that aired on April 4, 2019, Wise stated that petitioner was bothering a woman, that it made him angry, and that he told petitioner to “Get the ‘F’ out of here” as a result. (AR 1748.) Wise did not remember petitioner identifying himself as a police officer. (AR 2745, 2898.) Wise and petitioner got into a physical struggle, and Wise was shot in the abdomen. (AR 2791, 2899.) Wise grabbed the gun and tossed it aside and beat petitioner with his fists. (AR 2898.)

According to witness M. Faulks, he was sleeping in a truck when he heard the

commotion outside. (AR 2745, 2898.) He observed two men fighting and heard a single gunshot. (AR 2745, 2898.) Two men were still standing, and then a second gunshot was fired; Faulks observed a muzzle flash. (AR 2745, 2898.) Faulks then observed Wise pick up a metal trash can and hit petitioner twice while petitioner was laying on the ground. (AR 2745, 2898)

According to witness M. Hall, he was sleeping in the tent near petitioner and Wise. (AR 2744.) He heard petitioner make small talk. (AR 2744.) Hall then heard Wise tell petitioner to “get the fuck out of here.” (AR 2744.)

A video showed that Wise punched petitioner for approximately 90 seconds as petitioner lay on the ground. (AR 2745, 2898.) Wise then picked up a metal trash can and struck petitioner twice on the head. (AR 2745-46, 2898.) Afterward, Wise walked away, heading eastbound on 6th Street. (AR 2746, 2898.)

At 3:26 a.m., two witnesses walking on 6th Street found petitioner lying unconscious and called 911. (AR 2746, 2899.) At 3:26 a.m., a security guard at the Midnight Mission located at 601 South San Pedro Street found Wise outside with a gunshot wound and called 911. (AR 2746, 2899.) The officers searched the area and found an airsoft pistol at a construction site located at 401 E. 7th Street. (AR 108, 2749.) However, no link was made to Wise. (AR 107, 110.) Petitioner’s firearm was not found at the location, but it was recovered days later in an unrelated criminal investigation in City of Castaic. (AR 2753, 2900.)

Petitioner sustained serious injuries and was placed in an induced coma for swelling to his brain, keeping him hospitalized until February 19, 2019. (AR 2748, 2900-01.) At the hospital, petitioner’s blood was drawn by a nurse. (AR 3010.) The blood alcohol tests later revealed that petitioner’s blood alcohol level was 0.329. (AR 3010.)

Wise was treated for a gunshot wound. (AR 2901.)

On November 14, 2019, a Use of Force Review Board (UOFRB) was convened to evaluate the officer-involved shooting (“OIS”). (AR 3302.) The UOFRB was comprised of four members from the command staff and one peer member, a detective. (AR 3302.) A majority of the UOFRB determined petitioner utilized poor tactics and his drawing of firearm and shooting were “out-of-policy”. (AR 3305.) One member dissented in a minority opinion as to drawing and shooting but agreed with tactics. (AR 3303-05)

The Chief of Police concurred with the majority and proposed to terminate petitioner. (AR 89.) Petitioner was afforded an appeal, a Board of Rights hearing began on February 20, 2020. (AR 2.) At the hearing, petitioner faced three charges:

Count 1: On or about February 14, 2019, you, while off-duty and intoxicated, utilized tactics that were substantial deviation, without justification, from approved Department tactical training that reached a finding of “administrative disapproval.”

Count 2: On or about February 14, 2019, you, while off-duty and intoxicated, exhibited a firearm during a categorical use of force that reached a finding of “out-of-policy, administrative disapproval.”

Count 3: On or about February 14, 2019, you, while off-duty and intoxicated, utilized lethal force during a categorical use of force that was found “out-of-policy, administrative disapproval.”

(AR 2463, 2471, 2483.) The Board found petitioner guilty on only Count 1 and recommended a 55-day suspension which was imposed. (AR 2463, 2471, 2483, 2564.)

II.      Procedural History

            On September 8, 2021, petitioner Michael Johnson filed a Petition for Peremptory Writ of Mandate.[1] No Answer has been filed.

            On December 22, 2023, petitioner filed an opening brief. On January 19, 2024, respondents filed an opposition. On February 5, 2024, petitioner filed a reply. The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

III.     Standard of Review

          Petitioner seeks a writ of mandate pursuant to CCP §§ 1085 and 1094.5. (Pet. ¶¶ 9, 10.)

          Under CCP § 1085, a writ of mandate is available when: (1) the petitioner has “no plain, speedy, and adequate alternative remedy”; (2) the respondent has “a clear, present and usually ministerial duty to perform”; and (3) the petitioner has “a clear, present and beneficial right to performance.” (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 751-52.) Petitioner has not set forth any ministerial duty respondents purportedly failed to meet. Accordingly, the administrative decision is reviewed pursuant to CCP § 1094.5.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because the suspension of petitioner from his position as Detective III concerns a fundamental vested right, the court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under independent judgment review, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) 

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

“On questions of law arising in mandate proceedings, [the Court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 71.)

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.) “[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

IV.     Analysis

A.           Consideration of Blood Alcohol Concentration (“BAC”) Evidence

Petitioner contends that the Department improperly used petitioner’s medical records in its administrative investigation. The medical records contain the results of a blood alcohol test conducted on February 14, 2019 at or about 4:37 p.m., which indicated that petitioner’s blood alcohol level was 0.329. (AR 3010.)

According to petitioner, Robbery/Homicide Detective Dupree obtained a release from petitioner to obtain his medical records. (AR 184, 257-58.) Dupree testified that he was only investigating Wise’s physical altercation with petitioner, with petitioner as the victim. (AR 258, 2793.) Dupree was not involved with the internal affairs investigation concerning petitioner. (AR 258.)

Because Dupree was not involved petitioner’s internal investigation, petitioner argues that Dupree had no authority to release the medical records to Force Investigation Division (“FID”) Detective Gahry. (AR 3181.) The FID investigates categorical uses of force, including officer-involved shootings (“OIS”), i.e., discharges of firearms on or off duty. (AR 93-94.)

Petitioner cites no authority to support the assertion that Dupree was not allowed to provide Gahry with petitioner’s medical records. Petitioner does not even cite the terms of the medical release so that the Court could evaluate its scope. Arguments without any legal authority are without merit. (Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 42-43.) Accordingly, petitioner fails to meet his burden concerning his contention that his medical records obtained during a criminal investigation could not be used in the internal investigation.

Petitioner also argues that his expert Dewayne Beckner never testified at the hearing that petitioner “probably reached three times the legal limit for driving,” as the Board stated when referring to Beckner’s testimony. (AR 2470.) While it may be true petitioner’s expert did not say those words, he did testify that the blood alcohol test results for the blood sample extracted petitioner should be reduced by 20 to 25 percent to account for the difference in how the hospital would have handled the blood sample prior to testing (i.e., spinning it into a more concentrated serum), meaning that petitioner’s 0.32 blood alcohol level should be reduced to 0.26. (AR 2230-31.) Even a 0.26 blood alcohol level is more than three times the 0.08 legal limit for driving. (Cf. Veh. Code § 23152(b) [“It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle”].)

            Petitioner makes a further contention based on Beckner’s testimony that, if a nurse had used an alcohol-based disinfectant to clean the blood draw site before drawing blood, the results of the blood alcohol test would be unreliable. (AR 2231-33.) Petitioner then references the testimony of Edith Villagran, a nurse at LAC+USC Medical Center where petitioner’s blood was drawn. (AR 1925, 3010.) Villagran testified that, before drawing blood, the standard practice is to clean the draw site with alcohol swabs before drawing the blood. (AR 1926, 1932.) Villagran also testified that sometimes nurses wait for the alcohol to dry before drawing the blood. (AR 1936.) Villagran herself stated that she sometimes does not wait given the fast pace of the emergency room; when she does wait, she typically waits 30 seconds to a minute. (AR 1936-37.)

            Notably, Villagran was not the nurse who drew petitioner’s blood. (AR 1930, 1933 [Villagran had no recollection of ER on 2/14/19 and did not know petitioner].) More to the point, petitioner does not cite any testimony from the nurse who actually drew petitioner’s blood. Accordingly, the manner in which petitioner’s blood was drawn, including whether an alcohol swab was used (as opposed to a non-alcohol-based disinfectant) and whether the nurse allowed the alcohol to dry (and for how long) is unknown. Further, even if the draw site from which petitioner’s blood was taken had been cleaned with alcohol before the draw, Beckner testified that a blood test provides a “ballpark figure” for medical professionals to perform their duties. (AR 2254-55.) Thus, while there is a 0.08 limit to operate a vehicle legally, there is no such defined limit for impairment in an administrative case. Accordingly, the Board was entitled to use the BAC evidence to determine whether petitioner’s alcohol consumption had affected his judgment concerning his actions before the OIS. Whether petitioner’s BAC was 0.32, 0.26, or perhaps even lower, the BAC evidence—in combination with petitioner’s testimony concerning his alcohol consumption—provided sufficient evidence for the Board to find that petitioner had consumed enough alcohol to impair his judgment, as discussed further below.

            Lastly, petitioner argues that the Memorandum of Understanding (“MOU”) between the Department and the police union sets forth procedures governing “for cause” testing when the Department suspects an officer of being under the influence of alcohol. (AR 3288-89.) Such procedures include maintaining a separate sample for petitioner to have the opportunity to have tested. (AR 3289.) It may well be that the MOU so provided, but petitioner’s blood was not drawn “for cause”; rather, it was drawn for medical information by the hospital. (AR 606-07, 3010.) In the reply, petitioner does not dispute the City’s contention that the MOU governs the procedures the Department must follow in “for cause” testing. (See Opp. at 11:24-28.) Here, the hospital—not the Department—drew petitioner’s blood, and petitioner does not contend the hospital acted unlawfully in so doing.

            For the foregoing reasons, the Board was entitled to consider the BAC evidence.

B.           Weight of the Evidence

Petitioner disputes the finding of guilty on Count 1, which stated: “On or about February 14, 2019, you, while off-duty and intoxicated, utilized tactics that were substantial deviation, without justification, from approved Department tactical training that reached a finding of “administrative disapproval.” (AR 2463.)

            Petitioner first argues that the Board could not reach Count 1 because, by finding petitioner not guilty on Counts 2 and 3, the Board purportedly determined that an OIS had not occurred. Petitioner misconstrues the Board’s reasoning as to Counts 2 and 3.

            Count 2 stated: “On or about February 14, 2019, you, while off-duty and intoxicated, exhibited a firearm during a categorical use of force that reached a finding of “out-of-policy, administrative disapproval.” (AR 2471.) The Board reviewed the evidence and found that a majority of the Board could not determine whether petitioner exhibited his firearm. (AR 2474, 2479-80.) According to two of the three Board members, based on the body camera footage of the incident, it was equally likely that Wise pulled petitioner’s handgun from the holster. (AR 2478-80, 2482 [“It is as likely that Johnson lost his gun in a struggle with Wise as opposed to drawing it”].)

Count 3 stated: “On or about February 14, 2019, you, while off-duty and intoxicated, utilized lethal force during a categorical use of force that was found “out-of-policy, administrative disapproval.” (AR 2483.) A majority of the Board found that “nothing definitive supports the notion that Johnson shot Wise as distinct from the gun going off as part of a struggle where Wise had his hand on the weapon.” (AR 2484-85.)

Separate and apart from what is alleged in Counts 2 and 3, it is undisputed that two shots were fired, that a shot from petitioner’s firearm struck Wise in the abdomen, and that petitioner, an officer, was involved. (AR 126-27, 1751, 2899, 2901.) There is thus no dispute that an OIS occurred. The only dispute was whether petitioner drew his firearm and pulled the trigger or whether the firearm discharged in a struggle with Wise. The issue determined for Count 1—whether petitioner’s tactics led to a situation whereby Wise was ultimately shot by petitioner’s firearm—is distinct from the issues in Counts 2 and 3, namely, whether petitioner himself exhibited his firearm and/or used lethal force during the incident. (AR 2472, 2479.)

            Accordingly, the Department was entitled to review the incident as an OIS. That petitioner was a victim or that petitioner was off duty does not change the fact that an OIS occurred. The Department was entitled to review the events preceding the OIS to determine whether discipline was appropriate. (See Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1224-25 [off-duty police officer’s actions and omissions preceding shooting, including escalating verbal dispute and failing to identify himself as police officer, examined to determine whether reduction of discipline from dismissal to suspension was an abuse of discretion].)

Petitioner cites Hayes v. County of San Diego (9th Cir. 2011) 658 F.3d 867 for the proposition that his pre-shooting conduct should not be examined when he was off-duty and when he was a victim. (Opening Br. at 9:3-11, 9:24-26, 10:25-28; AR 1030 [member of UOFRB questioned why Hayes was used for off-duty officer].) To begin with, in the Hayes case specifically cited by petitioner, the Ninth Circuit merely certified the question of the duty of care owed by sheriff’s deputies to a suicidal person to the California Supreme Court. To the extent petitioner intended to cite to Hayes v. County of San Diego (9th Cir. 2013) 736 F.3d 1223, which came after the California Supreme Court had answered the certified question, the Ninth Circuit found that the deputies’ conduct before shooting a suicidal person is part of the deputies’ duty of reasonable care. (Hayes, 736 F.3d at 1236.) While Hayes involved an on-duty OIS (see Hayes, 736 F.3d at 1227), the Ninth Circuit did not make any distinction between an on-duty OIS from an off-duty OIS. Hayes, therefore, can hardly be read to prevent the examination of petitioner’s pre-shooting conduct to determine whether his tactical decisions were within the Department’s tactical training.

Petitioner also argues that the Board’s decision did not set forth findings in compliance with Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506. In Topanga, the Supreme Court held that “implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga, 11 Cal.3d at 515.) The Court explained that “among other functions, … findings enable the reviewing court to trace and examine the agency's mode of analysis.” (Id. at 516.)

Here, after having reviewed the essential facts of the case, the Board discussed the Department’s expectations regarding tactical training:

In executive summary, the Department explained to the Board that tactics must be fluid, adaptive, and, ideally, instantly responsive. Neither the Department, nor any officer, can foresee the myriad situations which life and law enforcement may present. Therefore, tactics simply do not lend themselves to neat categorization, nor to the imposition of ironclad rules.

Nevertheless, the Department has expectations. The Department expects employees to use P.A.T.R.O.L., an acronym delineated particularly in Department’s Exhibit 26, beginning at Page 9. In essence, and in lay terms, an[] officer must plan, assess, “slow down” the tactical event, if possible and consistent with reverence to for [sic] life, access available resources, and deescalate where feasible.

(AR 2466-67; see also AR 2902-03.)

The Board then summarized the parties’ positions regarding whether petitioner deviated, without justification, from approved Department tactical training. (AR 2467-69.) The Board then made its findings and explained its reasons:

On balance, and seeking the preponderance of the evidence under the totality of these circumstances, the Board cannot sustain these tactics. The Chief observed in Department’s Exhibit 26, especially at page 11, that the Department expects its supervisors, in particular, to anticipate and to consider accurately, their surroundings, and the reasonably foreseeable circumstances those surroundings may generate. Yes, Johnson was perfectly within his right to walk through any public street at any hour of the day. However, doing so while intoxicated where his response time and his situational awareness may have been impeded, Johnson violated the Department’s expectations with respect to tactics….

It is important to note that while Johnson’s alcohol use cannot alone decide this case, nor may the Board understate its import. Even under the evidence most favorable to Johnson, including that of his own expert witness, Dewayne Beckner, he probably reached three times the legal limit for driving. Viewed rationally, this means that on some level, Johnson’s impairment affected his choices to walk on 6^th Street, to spend 15 pointless, uninterrupted minutes, before Central Station; to decline, ignore, or simply miss Officer Gil’s suggestion that he reach the watch commander and secure a ride home; and to spend another four minutes – at that hour, in that place, and in that state – before the tent leading to the attack. Indeed, Lieutenant James Hwang testified that Johnson should have been more aware he was not in a safe place, and that he could have stayed at the police station.

At his best, or partly at his best, Johnson might have made any number of decisions that could have changed this outcome, including waiting at the bar to see if his friends reappeared, calling a ride-share, accelerating his pace when he decided to walk through Skid Row, not stop to talk to anyone, reached his rental, and obviated this Board. Infinitely more importantly, he would have avoided his great bodily injury and traumatic brain injury, just as he would have saved Wise his shooting.

(AR 2469-70.)

            The reasoning set forth by the Board sufficiently “bridges the gap” between the evidence and the finding of guilty on Count 1. The Board explained that supervisors, like petitioners, are expected to anticipate their surroundings and the reasonably foreseeable circumstances that the surroundings may generate. (AR 2469.) The Board set forth actions petitioner could have taken that may have avoided the OIS. Petitioner could have called a ride share instead of walking from the Golden Gopher to his rented apartment. (AR 2741, 2895.) Petitioner could have followed the suggestion of Officer Gil, spoken to the watch commander at CCPS, and obtained a ride home instead of walking on 6^th Street. (AR 2742, 2895-96.) Petitioner could have accelerated his pace through Skid Row, a well-known dangerous part of downtown Los Angeles, instead of engaging with Daniels for four minutes (AR 2465, 2743, 2903, 3098), after which Wise emerged from behind a tent and had the physical altercation with petitioner that resulted in the shooting. (AR 2791, 2897-99, 3102.) The Board found that petitioner’s blood alcohol level, as evidenced by his medical record, affected his decision making. (AR 3010.)

            Moreover, the Board explained that petitioner chose to rent a room because he knew he would be drinking alcohol and therefore did not want to drive due to a past drunk driving incident. (AR 2470.) Knowing that he would be drinking, possibly to excess, petitioner could have decided not to carry a firearm. While it is undisputed that no Department policy bars officers from drinking and carrying a weapon (AR 2467), this does not preclude the conclusion that carrying a weapon while drinking may demonstrate bad judgment.

            Based on the foregoing, in the exercise of the Court’s independent judgment, the Court finds the weight of the evidence supports the finding that petitioner violated the Department’s expectation with respect to tactics. Petitioner failed to properly assess the danger in carrying a firearm while drinking. Petitioner also failed to properly assess the time, location, and surroundings when placing himself in Skid Row and engaging with conversation with Daniels instead of getting a ride home from a ride share or from the CCPS.

C.           30-Day Deadline to Start Board of Rights Hearing

Petitioner argues that the Department failed to convene the Board of Rights within 30 days after selection of the Board. Los Angeles Administrative Code § 1070 states:

Upon the selection of a Board of Rights, the Chief of Police shall set the time for (not less than 10 nor more than 30 days thereafter) and designate a place where the hearing is to be held, and shall cause notice thereof to be served upon the accused. After the Board of Rights has first convened, the Board may continue the hearing of the matter to a specific date, and no other notice need be given, except as may be required by order of the Board.

The Board was established on February 18, 2020. (AR 5.) Petitioner did not waive time. (AR 22.) The original dates of the hearing were March 24, 25, 27, and 30, 2020. (AR 26.)

            The hearing did not take place until August 5, 2020.  (AR 73.) The Board canceled the March 24, 2020 start date due to the COVID-19 pandemic. (AR 48.) Petitioner had raised concerns about the loss of pay, but his concerns were not addressed. (AR 49, 62.)

            The Administrative Code does not prescribe a penalty for failing to start a Board of Rights within 30 days. Further, it cannot be said that canceling the March 24 hearing constituted an abuse of discretion, as the pandemic was an “exceptional circumstance” that justified the continuance of the Board. (People v. Superior Court (2023) 93 Cal.App.5th 394, 402.) Even if continuing the March 24 start were an abuse of discretion, petitioner has not explained how the delay of the Board was prejudicial, as required by CCP § 1094.5(b). “[D]epartures from an organization’s procedural rules will be disregarded unless they have produced some injustice.” (El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 990.) Petitioner has not explained how the delayed detrimentally affected his ability to mount a defense, e.g., loss of memory, witnesses, or material evidence. While petitioner raised his concerns about loss of pay, petitioner does not dispute the City’s contention in the opposition that he has been reinstated with back pay. (Opp. at 16, fn. 4.)  Accordingly, the delay of the Board of Rights hearing does not warrant the overturning of petitioner’s suspension.

D.           Propriety of Penalty

“Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.)

Based on the evidence discussed in section IV.B, the Court cannot find the City abused its discretion in imposing a 55-day suspension. Petitioner exhibited poor judgment during the events of February 13 and 14, 2019, where he drank to excess, carried a firearm, and walked through Skid Row instead of obtaining a ride to his rented apartment.

An offense does not need to be publicized for the offense to cause “discredit to the appointing authority or the person's employment.” (Gov. Code § 19572(t); Orlandi v. State Personnel Bd. (1968) 263 Cal.App.2d 32, 37.) Nevertheless, the shooting was publicized. (AR 3341-42.) As Wise was a veteran, it was reported that petitioner shot a homeless military veteran while off-duty. (AR 3341.) Because of the high standards to which law enforcement is held, this OIS led to erosion of public trust. (Anderson v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 769 [“Unquestionably, the actions of a law enforcement officer must be above reproach, lest they bring discredit on the officer's employer”].)

Thus, despite petitioner’s commendations, productivity, and skill set (AR 1016), or any assertion by petitioner that he no longer drinks alcohol and therefore the incident is unlikely to recur,[2] reasonable minds could find that a 55-day suspension was reasonable in light of the harm to the public service. (Skelly, 15 Cal.3d at 218.)

V.      Conclusion

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondents shall prepare, serve, and ultimately file a proposed judgment.