Judge Curtis A. Kin, Case Number: 22STCP02809, Date: 2024-03-12 Tentative Ruling

Petitioner Marco Guzman petitions for a writ of mandate directing respondent Los Angeles County Civil Service Commission to set aside the termination of petitioner and restore him to his prior position of Deputy Sheriff with back pay and interest.

Petitioner Marco Gusman[1] was hired by the Los Angeles County Sheriff’s Department (“Department”) on September 13, 2006. (AR 307.) He was assigned to Men’s Central Jail as a Custody Deputy. (AR 308.)

In 2010, petitioner received his first DUI. (AR 308.) He received a 20-day suspension from the Department, but, because he participated in Education-Based Discipline (“EBD”), he received only four days off. (AR 308-09.)

On May 16, 2016, petitioner was arrested for his second DUI. (AR 40.) While off-duty, petitioner was driving northbound in the southbound lane of Old River School Road in Downey. (AR 166.) Petitioner struck an unoccupied vehicle, which caused a chain reaction collision with the two parked vehicles behind it. (AR 166.) No one was injured in the collision. (AR 41, 299.) At the time of the arrest, petitioner did not remember where he had put his loaded firearm. (AR 44, 50, 288.) Petitioner testified during the administrative interview that he left the firearm in the center console. (AR 180, 264, 291.) The arresting officer recovered the firearm in the side door panel of petitioner’s vehicle. (AR 178, 180, 291.) Petitioner’s blood alcohol level was determined to be .27%. (AR 41, 49, 166.)

On March 22, 2017, petitioner entered a no contest plea to a violation of Vehicle Code section 23152(b), as well as a violation of section 23540 for having obtained a second DUI within 10 years. (AR 41, 231.) Petitioner was placed on summary probation for 60 months, was ordered to “enroll and participate in, and successfully complete, a[n] 18-month licensed second-offender alcohol and other drug education and counseling program,” and was ordered to pay $2,331 in fines and costs. (AR 41, 232.) There is no dispute that petitioner satisfied all conditions of his sentence. (AR 41.)

On March 28, 2018, the Department notified petitioner that he was discharged from his position as Deputy Sheriff, based on the following:

1. That in violation of the Manual of Policy and Procedures Sections 3-01/030.05, General Behavior; and/or 3-01/030.10/A, Obedience-Laws/DUI, as it pertains to 23152(a) California Vehicle Code (OVO), Driving Under the Influence of Alcohol or Drugs and/or 23152(b) CVC, Driving With a Blood Alcohol Concentration of .08 percent or Greater, and/or 3-01/000.13, Professional Conduct - Core Values, on or

about May 16, 2016, you violated State law, and/or failed to maintain a level of moral conduct in keeping with the highest standards of law enforcement personnel, and/or engaged in behavior, which caused the Department to be brought into disrepute, and/or demonstrated a pattern of undesirable and/or unprofessional behavior, which was criminal in nature, as evidenced by, but not limited to:

b. being involved in a non-injury traffic collision, while operating a vehicle under the influence of alcohol; damaging three parked vehicles on a public street with your vehicle; and/or,

c. displaying the objective signs of intoxication, and/or emitting the odor of an alcoholic beverage from your breath when you were contacted by Downey Police Department personnel; and/or,

d. performing poorly when Downey Police Department personnel administered field sobriety tests; and/or,

e. providing a blood sample which revealed a .27% blood alcohol concentration (BAO); and/or,

f. being arrested for violations of California. Vehicle Code sections 23152(a), Driving a Vehicle While Under the Influence of Alcohol and/or 23162(b), Driving with a Blood Alcohol Concentration of .08% or Greater, and/or,

g. pleading Nolo Contendre to one (1) misdemeanor count of having violated California Vehicle Code section 23162(b), Driving with a Blood Alcohol Concentration of .08% or Greater; and to one (1) misdemeanor count of having violated California Vehicle Code section 23540, DUI Second Offense within 10 Years; and/or,

h. serving 96 hours in the Los Angeles County Jail with credit for 96 hours, and/or being placed on summary probation for five (5) years, and/or ordered to pay fines, and/or attend an eighteen (18) month alcohol program.

2. That in Violation of the Manual of Policy and Procedures Section 3-01/025.45, Safety of Firearms, on or about May 16, 2016, you were unable to exercise reasonable care and/or control of a firearm in your possession, which was placed inside the driver’s door panel, while off-duty, and consuming an intoxicating substance and having a Blood Alcohol Concentration (BAO) of .27%.

On April 8, 2019, a hearing on petitioner’s discipline was held before Hearing Officer Barbara Miller. (AR 273.) The two issues to be decided were (1) whether the allegations contained in the Department’s March 28, 2018 letter were true and (2) if any or all were true, is the discipline appropriate? (AR 40.)

The Department’s only witness was Bruce Chase, Chief of the Department’s Custody Services Division, who testified as the decision maker. (AR 284-86.) Chase explained that the “actual original decisions were ultimately made by Chief Jody Sharp who is…recently retired.” Chase was “acting in the capacity of reviewing the record to defend the case here in civil services.” (AR 286-87.)

In 2016, when petitioner was arrested for his DUI, Chief Eric Parra was Division Chief. (AR 286.) At that time, Chase was an executive aide to Parra and became familiar with the case. (AR 287.) In March 2017, Sharp took over the Division, and Chase stayed on as her executive aide. (AR 288.) As Sharp’s executive aide, Chase would consult and provide his opinion on the merits of the cases. (AR 288-89.)

Chase testified that the primary focus of his discussions with Sharp was that the Department’s 2014 Guidelines for Discipline, which were operative at the time petitioner was arrested in 2016, mandated discharge for a second DUI. (AR 289.) When Chase and Sharp discovered after the Skelly hearing[2] that petitioner “had been sober since the accident, and that he had been regularly attending alcohol counseling and substance abuse classes, [they thought it was] unfortunate that [they] couldn’t work out an agreement to keep him employed in the County in some respect taking into account his entire work history.” (AR 289-90.) Because of the Guidelines, Chase explained that he and Sharp “were left with very little discretion to settle.” (AR 298.) He added: “Termination solely based upon – solely based upon the charges in this past discipline, it was bright-lined. It was your second DUI. The Department had decided that making a second DUI automatic discharge would be enough to stop anybody from potentially falling into that activity.” (AR 298.) Chase further stated that, due to petitioner’s good work history and continued sobriety, Chase would have preferred having the option of allowing petitioner to work under strict conditions, as opposed to automatically terminating petitioner because of his second DUI. (AR 299-300.)

After petitioner was discharged, legal proceedings were instituted against the Department challenging the validity of the 2014 Guidelines. (AR 71, 337-38.) The Los Angeles County Employee Relations Commission (“ERCOM”) determined that the 2014 Guidelines were written without properly noticing and negotiating with the Association of Los Angeles Deputy Sheriffs. (AR 301, 337-38.) Ultimately, the Department reverted back to imposing discipline based on the 2012 Guidelines. (AR 301.) Under the 2012 Guidelines, discharge is not mandated for a second DUI. (AR 302.)

As a result of ERCOM’s decision, Chase testified that, due to petitioner’s high Blood Alcohol Content and violation of the safety of firearms policy, he believed a demotion would have been appropriate, including to the position of Custody Assistant, which is a civilian position. (AR 161, 300-03.) Chase did not discount the possibility of petitioner returning to the Department as a Deputy Sheriff with evidence of continued involvement in sober living, i.e., agreeing to testing and ensuring that he remained sober. (AR 304.)

Petitioner testified that, after his second DUI, his license was suspended. (AR 309.) Petitioner was required to attend classes once per week for 18 months and pay a fine. (AR 309.) Petitioner completed all his requirements for the DUI. (AR 309-10). Petitioner continues to attend Alcoholics Anonymous and Peace Officer Fellowship (Alcoholics Anonymous for first responders) meetings once or twice per week. (AR 310-11.) Petitioner has been sober since November 10, 2016. (AR 310.)

Petitioner testified that he would like to come back to the Department “in any capacity” and would comply with any requirements the Department put on him. (AR 311-12.) Petitioner would take breathalyzer tests. (AR 312.) Petitioner testified that the Department could show up at his house at “10:00 at night or at 6:00 in the morning, I’m good.” (AR 311-12.)

Petitioner’s hearing testimony was consistent with what Chief Sharp stated in the “Mitigating Factors” and “Acceptance of Responsibility” sections of her February 27, 2018 report explaining the reasons for discharge. Sharp noted that Guzman had completed all his court required actions and alcohol classes and continued to attend AA meetings. (AR 168.) Sharp also stated: “Subject Guzman cooperated with the arresting officer during his investigation, and did not try to use his position as a deputy sheriff to elude ownership of his decisions. Subject Guzman did not dispute the facts contained within the police report written to document his traffic collision and subsequent arrest. During his subject interview, Subject Guzman appeared remorseful and was embarrassed for the discredit he brought upon himself and the Department.” (AR 168; see also AR 271.)

After having heard the testimony and considered the evidence, the Hearing Officer issued her “Findings, Conclusion, and Recommendation” on July 8, 2019. (AR 39-51.) The Hearing Officer determined that a 30-day suspension, rather than termination, was appropriate based on, inter alia, the following Findings of Fact:

17. Appellant continues to go to meetings of Alcoholics Anonymous and he also attends meetings of the Peace Officers Fellowship.

18. Appellant had an AA sponsor, someone who helped him through the steps of AA, he has taken on commitments at meetings, and he has reached out to newcomers.

19. When the appropriate discipline was considered for Appellant, Department managers wanted to find a way to let him stay on the Department with special[] conditions. Those managers thought, however, that Department policy mandated termination for a second DUI.

20. The policy that mandated termination for a second DUI offense is no longer in effect.

21. The Chief of the Department's custody Division thinks Appellant should be allowed to serve the Department.

The Hearing Officer, in reaching her conclusion, first noted that she was not bound by the Guidelines for Discipline. (AR 45, n. 3; AR 46 [“When it comes to penalty, this Hearing Officer and the Commission can look to the Department’s guidelines or positions for guidance, but when a civil service appeal is filed, penalty appropriateness is not up to the Department”].) The Hearing Officer then analyzed the factors set forth in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 in which the Supreme Court determined, with regard to the imposition of appropriate discipline, that the “overriding consideration in these cases 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. (Citation.) Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (AR 46.)

The Hearing Officer noted that there are “no guarantees that a person who has stayed sober 3 years will remain sober. Indeed there are no guarantees that any person will refrain from drinking and driving.” (AR 46.) However, the Hearing Officer noted petitioner’s testimony that he is aware of the dangers of his drinking and “has committed to staying connected with those who can help him stay sober.” (AR 47.) The Hearing Officer further noted that while petitioner may have embarrassed the Department due to his arrest and his conduct may have resulted in some harm to the public service, such harm was not substantial, and the likelihood of recurrence was low. (AR 47-48.)

Appellant is not a bad person or morally deficient as the Department seems to suggest. He is a man with a serious problem who recognizes it and is committed to never drinking again. After the first DUI, like so many others, Appellant remained in denial about the gravity of his condition. In the face of his new awareness and commitment, and his good work history, it is found that the Department did not establish, by a preponderance of the evidence, that termination is the proper penalty. Chief Chase did not want termination, and wanted conditions; the Appellant was willing to agree to a whole range of conditions. Even without those conditions, it is not appropriate, given the facts of this case, to slam the door in the face of a man who has been sober three years and whose testimony was convincing regarding his commitment and compelling with regard to his desire to be of service to the Department.

On September 25, 2019, the Department filed objections to the Recommendation. (AR 54-61.) On December 11, 2019, the Civil Service Commission (“Commission”) held a meeting concerning the objections. (AR 333-45.) During the hearing, one of the Commissioners stated: “Guidelines or no guidelines, you know, what good is he to the Department with two DUIs within a six-year period, one at a .24 blood alcohol and the other at a .27? I mean he’s got a serious problem here and he's out there with a gun in his hand, you know. And it is a public safety concern. [¶] And I --you know, I just can't, you know, go along with the fact that, you know, he's a good employee or a bad employee. He screwed up and he screwed up big time and should not be a law enforcement officer.” (AR 339.)

When petitioner’s counsel explained that Chief Chase would have accepted the return of petitioner, one of the Commissioners stated: “So I guess the problem that we have is that alcoholism is viewed as a disease, and there is no control factor as to when a person can go off or on even after they go through rehab and medical treatment, et cetera, and that's our concern, I think, is the safety of the public. Whether this individual is off duty, on duty or whatever duty, it’s an uncontrollable

situation if it’s an illness that he cannot control. That's our concern.” (AR 342.) One of the Commissioners also commented: “I’ve even had classmates who were taking anti-drug pills and were still drinking on weekends on that stuff. It’s not a good situation.” (AR 342.)

On a 5-0 vote, the Commission sustained the Department’s objections and rejected the Hearing Officer’s recommendation to impose a 30-day suspension instead of a discharge. (AR 77, 344.) The Commission did not issue new Findings of Fact but issued Revised Conclusions of Law. (AR 323.) Among those Revised Conclusions was that petitioner established, by a preponderance of the evidence, both that “he understands that he must totally abstain from the consumption of alcohol” and that “he is committed to staying sober and working with others to achieve that result.” (AR 323.) Nevertheless, the Commission also concluded that the Department proved petitioner “is unfit to be an employee of the Sheriff’s Department” and that “discharge is appropriate.” (AR 323.)

On July 28, 2022, petitioner filed a Verified Petition for Writ of Mandate. On August 29, 2022, real parties in interest County of Los Angeles and Los Angeles County Sheriff’s Department (collectively, “Department”) filed an Answer.

On July 7, 2023, the Department filed an opening brief. On February 13, 2024, the Department filed an opposition. On February 26, 2024, petitioner filed a reply. The Court has received hard and electronic copies of the administrative record.

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 Deputy Sheriff 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 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, 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.)

Citing Evidence Code section 452(b), petitioner requests judicial notice of ERCOM’s Decision and Order in Association for Los Angeles Deputy Sheriffs v. Los Angeles County Sheriff’s Department. The decision and order, however, is not a “regulation[] and legislative enactment[] issued by or under the authority of . . . any public entity in the United States.” (Evid. Code § 452(b).)

Petitioner cites to the U.S. District Court’s ruling in California Sportfishing Protection Alliance v. Shiloh Group, LLC (N.D. Cal. 2017) 268 F.Supp.3d 1029, 1038 for the assertion that the Court may take judicial notice of records of administrative bodies. However, lower federal court cases are not binding on this court. (Qualified Patients Ass'n v. City of Anaheim (2010) 187 Cal.App.4th 734, 764.) Moreover, the persuasive value of California Sportfishing is doubtful given that it was not interpreting judicial notice under the California Evidence Code.

In any event, “[a]s a general rule, a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” (Richardson v. City and County of San Francisco Police Com. (2013) 214 Cal.App.4th 671, 702.) Petitioner may not seek to admit extra-record evidence by requesting judicial notice without having complied with the procedure to augment the record under CCP § 1094.5(e). (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475.)

For the foregoing reasons, petitioner’s request for judicial notice is DENIED.

Petitioner maintains that the Commission’s conclusion that petitioner was unfit to be an employee of the Department was not supported by the evidence. (Opening Br. at 9:13-15; AR 323.) Petitioner also argues that the Commission did not set forth findings supporting the discharge in compliance with Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506. According to petitioner, the Commission did not explain why it disregarded the testimony of Chief Chase, who, along with former Chief Sharp, would have not terminated petitioner had he felt like he had discretion in the penalty to be imposed. (AR 289-90, 298-300.)

The Court does not reach the issue of whether petitioner was fit to be an employee of the Department. An abuse of discretion must be prejudicial for a writ of mandate to issue. (CCP § 1094.5(b).) Even if petitioner were fit to be an employee of the Department, he does not dispute that he received a second DUI within 10 years. (Opening Br. at 9:8-9, citing AR 323.) Petitioner also does not dispute that he did not remember where he put his loaded firearm at the time of the arrest. (Opening Br. at 9:8-9; see also AR 44, 50, 288.)

The issues certified by the Commission were (1) whether the allegations contained in the Department’s March 28, 2018 letter were true and (2) if any or all were true, whether discharge was appropriate. (AR 40.)

With respect to the first issue, the Letter of Imposition dated March 28, 2018 stated that an investigation established that petitioner violated Manual of Policy and Procedures Sections 3-01/030.06, General Behavior; 3-01/030.10/A, Obedience-Laws/DUI; and 3-01/000.13, Professional Conduct – Core Values. (AR 5.) Petitioner violated the policies by having driven under the influence of alcohol on May 16, 2016 with a .27% blood alcohol concentration, having been involved in a non-injury collision damaging three parked vehicles on a public street, having been arrested for DUI, and having pled no contest to receiving a second DUI within 10 years in violation of Vehicle Code § 23540. (AR 4-6.) The Letter of Imposition also stated that petitioner violated Manual of Policy and Procedures Section 3-01/025.46, Safety of Firearms by having been unable to exercise reasonable care or control of a firearm and having had a blood alcohol concentration of .27%. (AR 6.) As stated above, petitioner does not dispute the findings associated with his second DUI. (See also Opening Br. 4:2-4; 10:28 [not disputing second DUI within ten years].) Accordingly, the basis for discipline is not in dispute.

The Court proceeds to the second issue certified by the Commission – whether discharge was an appropriate penalty for these undisputed violations.

“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.)

After having reviewed the record, the Court finds that reasonable minds could agree that a discharge, as opposed to a thirty-day suspension, was appropriate.

Petitioner contends that, if Chief Chase and Chief Sharp been given the option to impose suspension under the 2012 discipline guidelines instead of being required to discharge plaintiff under the 2014 guidelines, they would have suspended petitioner. (AR 289-90, 298-302.) Petitioner points to his continued commitment to sobriety, not having drunk alcohol since November 10, 2016 and continuing to attend support meetings for alcoholics. (AR 310-11.) Petitioner is also remorseful and is willing to undergo breathalyzer testing. (AR 168, 311-12.)

Notwithstanding petitioner’s commitment to sobriety, remorse, support from Chief Chase, or his willingness to undergo ongoing testing, it is undisputed that petitioner received a second DUI within 10 years. After having received a first DUI, petitioner again drove while under the influence of alcohol six years later, drove northbound on the southbound lane, and collided into a parked vehicle, having caused the vehicle to collide into the vehicles behind it. (AR 166.) Petitioner’s level of intoxication rendered him unable to remember where he placed his loaded firearm. (AR 180, 264, 291.) Petitioner’s actions the night of May 16, 2016 posed a risk to the safety of the public, which is paramount in determining whether the Commission manifestly abused its discretion in discharging petitioner. (Skelly, 15 Cal.3d at 218.) “The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” (Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1223.)

Even if the 2012 guidelines are currently operative, thereby permitting suspension of petitioner instead of discharge, the guidelines still permit petitioner’s discharge. Even if petitioner were fit to remain an employee of the Department, notwithstanding any diagnosis of alcoholism, the Commission was entitled to discharge him based on his misconduct. (AR 339 [“And I --you know, I just can't, you know, go along with the fact that, you know, he’s a good employee or a bad employee. He screwed up and he screwed up big time and should not be a law enforcement officer.”]; see also Gonzalez v. State Personnel Bd. (1995) 33 Cal.App.4th 422, 435 [notwithstanding alcoholism, petitioner was not qualified for job due to misconduct and allowed to be terminated].) Petitioner does not cite any authority requiring him to have been given a third chance to remain employed by the Department.

The Commission had discretion to impose a penalty of suspension instead of discharge. Based on the foregoing, the Court does not find that the Commission committed a manifest abuse of discretion when imposing a penalty of discharge instead of a suspension.

The petition is DENIED. Pursuant to Local Rule 3.231(n), real parties in interest County of Los Angeles and Los Angeles County Sheriff’s Department shall prepare, serve, and ultimately file a proposed judgment.

[1] According to petitioner, his name was misspelled in the pleadings and the records of the Los Angeles Sheriff’s Department. (AR 306-07; Opening Br. at 4, fn. 1.)

[2] In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the California Supreme Court established certain procedural rights for public employees facing disciplinary action.