Judge: Curtis A. Kin, Case: 21STCP02733, Date: 2023-05-16 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP02733    Hearing Date: May 16, 2023    Dept: 82

            Petitioner Joan Vargas Oliveros (“Petitioner”) petitions for a writ of administrative mandate directing Respondents City of Los Angeles (“City”) and Michel Moore, Chief of Police (collectively “Respondents”) to set aside an administrative decision, after a Board of Rights hearing, to suspend Petitioner from his position as police officer with the Los Angeles Police Department (“LAPD” or “Department”) for 45 days. 

Background

Events of October 9, 2019

            On October 9, 2019, Petitioner and his new partner Officer Paris Archundia were on duty at Northeast Division.  (Administrative Record (“AR”) 100.)  Petitioner had worked for Department as a police officer for approximately 4 years, and Archundia had worked for approximately 14 years.  (AR 100, 62.)  Their shift was scheduled to end at 6:00 pm.  (AR 23.)  This was Petitioner’s and Archundia’s second shift working together.  (AR 100.)  Petitioner was out sick the day before and was still not feeling well.  (AR 317, 130.)  However, Petitioner was capable of doing his job.  (AR 159.) 

Toward the end of their shift, Petitioner and Archundia were required to respond to a child abuse call and work overtime.  (AR 64, 101.)  After the call, the two arrived back to the station at approximately 6:13 pm.  (AR 101.)

Back at the station, Archundia advised Petitioner that he was dealing with a health emergency involving his son, who was in the hospital.  (AR 65, 102, 80-81.)  Petitioner and Archundia agreed that Petitioner would write the incident report for the child abuse call (“incident report”) and Archundia would “download” their vehicle.  (AR 65, 102, 105.)  Downloading the vehicle involves “removing equipment bags, shotgun, beanbag, downloading and logging off the system.”  (AR 27; AR 144-145.)  Archundia also needed to move the car and park on a side street.  (AR 83, 144-145.) 

Around 6:45 pm, Archundia informed Petitioner he was going upstairs to change and go to the restroom.  That was the last time Petitioner spoke with or saw Archundia.  (AR 65, 105-106, 108-109, 143-146, 166.)  Archundia left the station at approximately 7:25 pm without further notifying Petitioner or the watch commander, Lieutenant Louis Lozano.  (AR 66-70, 47.)  Archundia filled out his overtime report but did not fill out the time he left the station.  (AR 65, 75, 105-106.)  Because Archundia had worked overtime and was submitting an overtime report, he was required to check out with the watch commander.  (AR 47.)  Archundia later testified that he made a mistake in not completing the end time on the overtime report and submitting the overtime report himself.  (AR 76, 88.)  He testified that he did not ask Petitioner to complete or submit his overtime report and was not sure how his report would be submitted.  Archundia was preoccupied with the health of his son at the time.  (AR 87-88.)

After completing the incident report, Petitioner submitted it to Lt. Lozano. (AR 102.)  Lozano reviewed the incident report and directed Petitioner to make some corrections. He also asked Petitioner where Archundia was, and Petitioner told Lozano that Archundia was outside downloading their vehicle. (AR 27, 103.)

At approximately 8:45 pm, Petitioner brought the corrected incident report back to Lozano and also submitted his and Archundia’s overtime reports.  (AR 28-29, 103.)  Petitioner had completed the end time on both overtime reports as 8:45 pm.  (AR 29, 119-120.)  Petitioner later testified that Archundia did not ask him to complete the end time of his overtime report.  (AR 121-122.)  Lozano signed and approved Petitioner’s overtime report, but  he told Petitioner that “he would hold on to [Archundia’s overtime report]” until he made contact with Archundia.  (AR 51, 138.) 

            Because Lozano had still not seen Archundia, he asked Petitioner again where he was.  (AR 29, 103.)  Petitioner told Lozano that Archundia was in the bathroom or was “probably” in the bathroom.  (AR 30, 103, 106, 109-110; see also AR 390, recording labeled “po 2 joan vargas” and “200106_001” at 18:00-18:20 of 24:43 minutes.)  This discussion occurred at approximately 8:45 pm.  (AR 29.) 

Lozano then told Petitioner to “have Officer Archundia to come see me,” and Petitioner said that he would. (AR 30, 110.)  Petitioner went to the locker room and changed.  As he did so, he looked for Archundia in the bathroom and locker room.  He did not see Archundia there.  After changing, Petitioner went home without informing Lozano that he could not find Archundia.  (AR 110-111.) 

Later that night, Lozano called Archundia and also signed both Petitioner’s and Archundia’s overtime reports.  (AR 42, 48.)  After the call with Lozano, Archundia called Petitioner and asked if there were any issues with the incident report.  Petitioner let him know that a few corrections were needed and that Lozano was looking for him before he left.  (AR 71, 122-124.) 

The next day, Lozano reviewed video footage showing that Archundia left the station at about 7:25 pm, not 8:45 pm as documented by Petitioner on the overtime report.  Subsequently, the Department initiated a misconduct investigation.   (AR 34-36, 178.) 

Board of Rights Hearing

            After the internal investigation, Department alleged that Petitioner committed misconduct, and a Board of Rights hearing was held.  Petitioner faced the following four charges:

Count 1. On or about October 9, 2019, you, while on duty, completed an overtime report for Officer P. Archundia, which you knew or should have known contained false information.

Count 2. On or about October 9, 2019, you, while on duty, knew or should have known that you made a false statement when you advised the Watch Commander, Lieutenant L. Lozano, of Officer P. Archundia’s location.

Count 3. On or about May 18, 2020, you, while on duty, made false statements to Sergeant E. Berry, who was conducting an official investigation.

Count 4. On or about October 9, 2019, you, while on duty, were insubordinate to Lieutenant L. Lozano, when you were directed to have Officer P. Archundia see him and ignored his direction.

(AR 9-10.)

Petitioner pleaded not guilty to all charges.  (Ibid.)  The Board found Petitioner guilty on Counts 1, 2, and 4 and not guilty on Count 3. (AR 318-326.) As penalty, the Board prescribed a suspension of 45 days, which was imposed by the Chief of Police. (AR 379; Pet. ¶ 9.)

Writ Proceedings

            On August 20, 2021, Petitioner filed his verified petition for writ of administrative mandate.  Respondents have not filed an answer.

            On March 17, 2023, Petitioner filed his opening brief in support of the petition.  The court has received Respondents’ opposition, Petitioner’s reply, and the administrative record.

Standard of Review

Under CCP section 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 45-day suspension imposed on Petitioner concerns a fundamental vested right, the court exercise 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 the independent judgment test, “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, supra, 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.)   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 [his] 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, 77.)

Analysis

Count 1

            Board found Petitioner guilty of Count 1 because he wrote on Archundia’s overtime report that Archundia remained on duty until 8:45 pm and worked 2.8 overtime hours on October 9, 2019, even though Petitioner did not know when Archundia ended his overtime shift and had no rational basis to make this statement on Archundia’s report.  Board reasoned that Petitioner had not seen or communicated with Archundia for two hours when he completed the overtime report.  (AR 319-320.)

            Petitioner admits that he “filled out the end time of 8:45 p.m. for Archundia when he submitted the Overtime Reports” and that this statement was inaccurate.  (Opening Brief (“OB”) 6-7.)  Petitioner contends that “this was not done for the purpose of falsifying information” and that he “did not act with any malice or purpose to deceive.”  (OB 6.) 

Petitioner incorrectly frames the issue.  Count 1 was based on Department Manual section 828, which states in pertinent part that “[i]t is a violation of Department Policy for any employee to make a false statement ….”  Section 828 defines false statement as “any manner of communication … which a Department employee makes when he or she knew or should have known the statement was false at the time it was made….”  (AR 829 [bold italics added].)  Thus, to prove that Petitioner made a false statement, Department did not need to establish that Petitioner acted with malice, purpose, or intent.  Rather, as noted by Board, section 828 uses a negligence standard in the definition of “false statement.”  (See AR 378-379.)

Significantly, Archundia testified that he was talking to his wife about his son’s condition throughout the day on October 9, 2019, including on the drive back to the station from the child abuse call.  (AR 81-82.)  When they arrived at the station, Archundia also advised Petitioner about the situation at home with his son.  (AR 65; see also AR 102, 143.)  Petitioner and Archundia decided that Petitioner would prepare the incident report for the child abuse call and that Archundia would download the vehicle.  (AR 65, 102-104.) 

At the Board hearing, Archundia testified that, after downloading the vehicle, he informed Petitioner he was going upstairs to change and go to the restroom.  (AR 65.)  Petitioner recalled the sequence somewhat differently.  He testified that Archundia completed his overtime slip and then “told me he was going to download the vehicle and use the restroom.”  (AR 105-106, 108-109.)  Petitioner testified that Archundia was on the phone with his wife for about 30 minutes before he entered the station and that, since the officers arrived at the station at 6:13 pm, his last conversation with Archundia occurred around 6:45 pm.  (AR 143-146, 166.)  Board found, and the evidence supports, that this conversation occurred no later than 6:45 pm.  (AR 315, 322; see e.g. AR 143-146, 166.) 

The weight of the evidence, including Petitioner’s own testimony, supports the conclusion that Petitioner had not seen or communicated with Archundia for about two hours when he submitted the overtime report to Lozano at 8:45 pm, as found by Board.  (AR 319; see AR 143-146, 166.)  Petitioner knew that Archundia was concerned with the health condition of his son and eager to leave work to attend to his family.  Further, as aptly noted by Board, if Petitioner believed that Archundia was still present in the station, it “begs the question of why [Petitioner] did not locate Archundia so that he could complete his own slip.”  (AR 319.)  Since Petitioner asserted that Archundia was in the bathroom (see Count 2 below), he could have sought to locate Archundia to complete the overtime report, but he did not.  In these circumstances, Petitioner did not have a reasonable basis to believe that Archundia had worked overtime until 8:45 pm and he should have known that his statement that Archundia completed his overtime work at 8:45 pm was false. 

            Petitioner argues that he did not personally observe Archundia leave the station and did not know exactly what time that he left.  (OB 5, 7.)  These factors support Board’s findings.  Because Petitioner had not seen or heard from Archundia for a long period of time, he did not have a reasonable basis to complete the end time of Archundia’s overtime report as 8:45 pm.

            Petitioner argues that Archundia “assured Petitioner that he would come back downstairs before he left” and “that he would let Petitioner know when he was leaving.”   (OB 2:4-5, citing AR 65; and OB 5:15-18.)  Petitioner’s record citation does not support his position.  (See AR 65.)  Archundia testified that he told Petitioner he would come back downstairs after using the bathroom (AR 67), not that he “assured” Petitioner that he would let him know when he was leaving.  Petitioner did not have a reasonable basis to believe Archundia was still in the station based on Archundia’s statement, some two hours before, that he would come back downstairs before leaving.    

Petitioner argues that he did not make a false statement because “Lozano accepted Archundia’s Overtime Report and there was no mention of the discrepancy of the time.”  (OB 7.)  Lozano explained that he had to provide his captains with an overtime report before the end of his watch and he was giving Archundia the benefit of the doubt.  (AR 51.)  Lozano did not view the surveillance video showing that Archundia left the station at 7:25 pm until the next day.  (AR 34-35.)  Because Lozano did not have all relevant information, his approval of the overtime report does not undermine Board’s findings for Count 1.

Petitioner contends that he did not make false statements because “when he prepares reports, he loses track of time.”  (OB 6:3-4, citing AR 320.)  In its findings, Board accepted that Petitioner may “to some extent have lost track of time” while preparing the incident report, but nonetheless did not believe that Petitioner had a reasonable basis for the statements at issue in Counts 1 and 2. (AR 320.)  Exercising its independent judgment on the record, the court concludes that the weight of the evidence supports this credibility determination.  While Petitioner testified that preparing the report is “a lot of work and you lose track of time” (AR 109), Petitioner’s report writing was interrupted by a conversation with Archundia and a conversation with Lozano, who ordered Petitioner to make corrections to the report.  (AR 65, 102-103, 143.)  Petitioner should have known that he last spoke with Archundia around 6:45 pm, about 30 minutes after the officers returned to the station.   (See AR 23, 101, 143-144, 166.)  The weight of the evidence supports that Petitioner should have been aware of the long passage of time from when he last spoke with Archundia and when he completed the overtime report at around 8:45 pm. 

In opposition, Respondents argue that Petitioner’s knowledge of “at least three facts,” including that “Archundia wanted to go home to tend to his sick son,” supports Board’s findings for Count 1.  (Oppo. 6:5-13.)  The court agrees, as discussed above. 

Respondents also assert that “Petitioner was covering for Archundia’s absence and was trying to get Archundia the same number of overtime as himself” and that “there must have been some discussion” with Archundia about how to complete his overtime report.  (Oppo. 6:24-7:5; see also Oppo. 7:18-23.)  The court need not opine on whether these inferences are supported by the record.  Under CCP section 1094.5, the court reviews the administrative findings made by the agency.  (CCP § 1094.5(b).)  Board did not find that Petitioner was covering for Archundia when he made the false statements or that Petitioner and Archundia had a conversation about how to complete Archundia’s overtime report.  (AR 319-320.) 

The weight of the evidence supports Board’s findings for Count 1.

Count 2

            Board found Petitioner guilty of Count 2 because Petitioner had not seen or communicated with Archundia for two hours when he told Lozano that Archundia was in the bathroom and he “knew or should have known that he did not know officer Archundia’s actual location when he made the statement to Lieutenant Lozano.”  (AR 322.) 

            As Board noted, there is conflicting evidence as to whether Petitioner told Lozano that Archundia was “in the bathroom” or whether he was “probably” in the bathroom “or words to that effect.”  (AR 322; see also AR 390, 30, 103, 106, 109-110.)  At his investigative interview, Petitioner said that he told Lozano that Archundia was in the bathroom, without any qualification.  (AR 321-322; see AR 390, recording labeled “po 2 joan vargas” and “200106_001” at 18:00-18:20 of 24:43 minutes.)  However, Board stated that it would have reached the same finding regardless of whether Petitioner qualified the statement.  Accordingly, the court need not resolve this conflict in the evidence. 

            For similar reasons as discussed for Count 1, the weight of the evidence supports Board’s findings that Petitioner should have known that his statement that Archundia was in the bathroom at 8:45 pm or probably in the bathroom was false.  Petitioner had not seen or communicated with Archundia for about two hours when he made this statement.  Petitioner knew that Archundia had expressed a need to leave the station to attend to his son when he last spoke with Archundia and that Archundia was heading to the bathroom to change.  (See AR 65.)  In such circumstances, Petitioner did not have a reasonable basis to believe that Archundia was still in the bathroom at 8:45 pm.

            Petitioner asserts the same arguments for Count 2 as he did for Count 1.  (OB 4-6.)  For the reasons discussed above, the court does not find those arguments persuasive. 

            Petitioner also contends that “if Petitioner had said ‘I don’t know’ this also would have been a ‘false’ response” and that “[t]here was no obligation for Petitioner to check where he was or to find him before he provided a response to Lozano.”  (OB 6.)  Neither argument persuades.  Because Petitioner admittedly did not know where Archundia was at 8:45 pm (see AR 109), it would not have been false to state “I don’t know.”  Petitioner also could have qualified his statement by explaining that his last conversation with Archundia—about Archundia heading to the bathroom to change—had occurred earlier in the night.  While Petitioner may not have had an obligation to look for Archundia before the conversation with Lozano at 8:45 pm, he did have an obligation under section 828 to make truthful statements to Lozano. 

The weight of the evidence supports Board’s findings for Count 2.

Count 4

            Board found Petitioner guilty of Count 4 because Lt. Lozano gave Petitioner a directive to have Archundia see him; Petitioner acknowledged the directive; and Petitioner did not comply with the directive or inform Lozano of his inability to comply.  (AR 324-325.)

            Petitioner contends that “he was asked to find Archundia and that if he finds him, to tell him to report to Lozano.”  (OB 7:25-26 [bold in original], citing AR 110 and OB 8:20-24, citing AR 206.)  Petitioner’s record citations do not support his position that Lozano added the phrase “if he finds him” to the directive.  (AR 110.)  Rather, Petitioner testified that Lozano asked him, “Can you have your partner come see me real quick.”  (AR 110.)  Upon questioning, Petitioner acknowledged that Lozano did not say “if you see him.”  Petitioner admitted: “That’s not what he said, that’s what I understood it as.”  (AR 112-113.)  Investigator Berry admitted he was paraphrasing Lt. Lozano’s statement and, in context, his testimony does not support that Lozano said “if he finds him.”  (AR 206-207.)  Petitioner cites no testimony from Lozano in support of this argument. 

Petitioner contends that Lozano did not explicitly say “that’s an order” and that Petitioner reasonably interpreted Lozano to make “a casual request … for the purpose of ascertaining Archundia’s whereabouts.”  (OB 7-8.)  The circumstances support Board’s finding that Lozano made an order.  (AR 30, 110.)  Just prior to receiving the directive, Petitioner told Lozano that Archundia was in the bathroom.  (AR 321-322, 390, 30, 103-110.)  While Lozano later discovered Archundia was no longer in the station, he could reasonably believe at the time, based on Petitioner’s statement, that Archundia was in the station.  Lozano had also signed and approved Petitioner’s overtime report but told Petitioner that “he would hold on to [Archundia’s overtime report]” until he made contact with Archundia.  (AR 51, 138.)  Thus, Lozano’s actions and statements were consistent with him giving a directive for Petitioner to “have Archundia come see me.”  Although Lozano did not say “that’s an order,” he testified that “when a lieutenant asks me, this is what I need you to do, or get done, I take that as a direct order.”  (AR 30, 37, 39.)  Petitioner acknowledged in his testimony that Lozano would not need to use the phrase “that’s an order” to give a directive.  (AR 112:16-24; AR 161.)  The weight of the evidence supports Board’s finding that “supervisors rarely, if ever, phrase a directive as ‘I order you.’”  (AR 325.) 

Petitioner contends that he had “already submitted his Overtime Report … which was approved and signed off by Lozano”; that “his shift had ended” and he was “checking out”; and that “[i]t would be nonsensical for Lozano to have given a direct order” to find Archundia in such circumstances.  (OB 8:3-11.)  Relatedly, Petitioner argues that Lozano did not need to make an order for Petitioner to find Archundia because Lozano could have contacted Archundia over the speaker system or call his cell phone, as he eventually did.  (AR 9:1-8.)

 Petitioner cites no Department policy suggesting that a supervisor cannot give an order to an employee that is ending his or her shift and has submitted an overtime report.  Because Petitioner told Lozano that Archundia was in the bathroom, it was reasonable for Lozano to believe that Petitioner could quickly comply with the directive.  Presumably, Petitioner’s overtime report could have been amended for the time needed to comply with the directive.  That Lozano had other options to contact Archundia does not undermine the evidence that Lozano gave a direct order for Petitioner to have Archundia come see him. 

Finally, in the alternative, Petitioner argues that he did comply with the order.   Specifically, “Petitioner did search for Archundia when he went upstairs and didn’t find him” and “when Petitioner talked to Archundia over the phone later that evening, he advised Archundia that Lozano was looking for him to discuss the Overtime Report.”  (OB 8:20-28.)  These arguments are not persuasive.  In his testimony, Petitioner did not dispute that he would have had a duty to look for Archundia in the station if Lozano had said “Vargas, have your partner come see me.”   (AR 112.)  Lozano’s directive reasonably required Petitioner to inform Lozano if he was unable to comply and did not find Archundia in the station.  Petitioner develops no argument to the contrary.  (See OB 7-9; Reply 6-7.)  Although Petitioner did look for Archundia when he went to the bathroom to change, he did not take any other actions to find Archundia and he did not tell Lozano that he could not comply with the directive.  (AR 110-111.)   Telling Archundia over the phone later that night that Lozano was looking for him did not satisfy the directive.  (AR 71, 122-124.) 

The weight of the evidence supports Board’s findings for Count 4. 

Propriety of the Penalty

“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.”  (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)  “If reasonable minds may differ with regard to the appropriate 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.) 

            Petitioner argues that the 45-day suspension was an excessive penalty because the weight of the evidence does not support Board’s findings of guilt for Counts 1-2 and 4. (OB 9-10.)  For the reasons discussed above, that argument is not persuasive. 

            Petitioner also argues that a 45-day suspension was excessive because he did not act with malicious intent, because he had an otherwise “outstanding professional career,” and he “exhibited a true appreciation for his conduct.”  (OB 10.)  As Petitioner notes, a majority of the Board members did not believe that Petitioner “knowingly or intentionally lied” when completing the overtime report or telling Lozano that Archundia was in the bathroom.  (AR 378.)  Nonetheless, Board found that Petitioner’s “negligent disregard for the truth” was serious misconduct, including because the guilty findings could impeach Petitioner’s credibility in criminal or civil cases in which he might be called to testify as a police officer.  (AR 377-378.)  While Board also considered positive character testimony (AR 332-376), it could reasonably give more weight to the risk that Petitioner’s credibility could be impeached and also that he engaged in insubordination.  Petitioner develops no argument that a 45-day suspension fell outside Department’s disciplinary guidelines for the three serious counts of misconduct for which he was found guilty.

The penalty was reasonable and not a manifest abuse of discretion.

Conclusion

            The petition is DENIED.