Judge Curtis A. Kin, Case Number: 23STCP00301, Date: 2024-02-20 Tentative Ruling

Petitioner Patrick Mendoza petitions for a writ of mandate directing respondent Los Angeles County Civil Service Commission to set aside the discharge of petitioner and ordering real party in interest County of Los Angeles to restore petitioner to his position as Deputy Sheriff with back pay and benefits.

Petitioner Patrick Mendoza was a Deputy Sheriff with the Los Angeles County Sheriff’s Department (“Department”). On July 31, 2018, Mendoza was served with a Letter of Imposition indicating that his discharge would be effective as of July 31, 2018, due to a finding that he had violated Departmental Policy Sections 3-01/121.30, (Policy of Equality, Inappropriate Conduct Toward Others Based on Sex), 3-01/030.05 (General Behavior), 3-01/030.06 (Inappropriate/Disorderly Conduct), 3-01/121.15 (Policy of Equality, Sexual Harassment), 3-01/040.70 (Dishonesty), 3-01/040.75 (Dishonesty/Failure to Make Statements and/or Making False Statements During Departmental Internal Investigations), and 3-01/030.10 (Obedience to Laws, Regulations, and Orders). (AR 4-17.) The Department alleged, and subsequently found, that, between February 27, 2017 and March 6, 2017, Mendoza made sexually crass remarks and exposed himself to Deputy Alissa Perez inside the Men’s Central Jail gym. (AR 4-17.)

The requested Civil Service Commission (“Commission”) hearing began on January 27 and January 28, 2020, before Hearing Officer Jerry Ellner. (AR 993, 1259.) The hearing resumed on February 24, 2021, and concluded on February 26, 2021. (AR 1486, 1762.)

On or about June 23, 2021, the Hearing Officer served his “Discussion, Findings of Fact, Conclusions of Law and Recommendation” (“Recommendation”), finding that Respondent had met its burden of proving that Mendoza had engaged in the alleged misconduct and recommending that the Commission sustain petitioner’s discharge. (AR 245-56.)

On September 14, 2021, Mendoza served objections to the Hearing Officer’s findings, conclusions, and recommendation. (AR 1801-46.) On October 5, 2022, after having reviewed the record, the Commission served its Final Commission Action, overruling petitioner’s objections and upholding discharge on a three to one vote. (AR 312-313.)

This proceeding involves varying accounts of what occurred in the gym of Men’s Central Jail (“MCJ”) between petitioner Patrick Mendoza and complainant Alissa Perez, both Deputies of the Los Angeles County Sheriff’s Department. This proceeding also involves varying accounts of what was said in the 3000 Control Booth days later between Deputies Mendoza and Perez, as well as Deputies Matthew Powers and Christopher Alerich.

This petition requires the Court to assess the credibility of Deputies Mendoza, Perez, Powers, and Alerich. Accordingly, the testimonies of the deputies are recounted below.

As a preliminary matter, Mendoza and Perez dispute the date of the encounter in the MCJ gym. During the Commission hearing, Mendoza testified that he was positive it was March 4, 2017. (AR 1661.) Perez reported the date of the incident was February 27, 2017. (AR 421.) During the hearing, Perez first testified that she was uncertain of the exact date but figured it was in February 2017, because she spoke to IAB and ICIB in March. (AR 1506, 1507, 1565.) Perez offered to look back at her calendar to find the exact date but later stated she could be confident that the incident in the gym occurred on February 27. (AR 1568.)

At the hearing (February 24, 2021), Perez testified that the first thing she and Mendoza said to each other when she entered was, “oh hey, what’s up?” (AR 1510, 1573.) The two of them were the only ones in the gym. (AR 1509.) She testified that after greeting each other, Mendoza said, “your ass looks good in those workout pants.” (AR 1512.)

During her IAB interview (December 18, 2017), Perez stated that, as soon as she entered the gym, Mendoza immediately said, “hey Perez, wow, your ass looks great, you know, in those pants. He’s like, ‘I’ve never seen you out of uniform, you know, your ass looks great.” (AR 650, 1573.)

Perez told ICIB investigators (March 7, 2017) that, in response to the comment about her body, she responded, “oh, thanks, I’ve been working out, you know?” (AR 430, 475.) At the hearing, she denied saying “thank you” to Mendoza. (AR 1577.)

Later, when she saw Mendoza’s lips moving, Perez took her headphones off so she could hear him. (AR 1516.) During the hearing, Perez testified that Mendoza said: “I want to take you in the sauna and fuck you in your ass.” (AR 1515-16.) During the ICIB interview, Perez told investigators Mendoza said it once. (AR 462, 835.) In that same interview, Perez later said that Mendoza kept going “back and forth” between complimenting her “ass” and saying that he wanted to take her into the sauna. (AR 478, 852.) When the ICIB investigator then asked how many times Mendoza said he wanted to take her into the sauna, Perez responded: “Maybe two or three. I don’t want to give, like, wrong information because I…I was, like, processing it and so….” (AR 478-79, 852-53.) During the IAB interview, Perez told investigators Mendoza said it twice. (AR 397.) During the hearing, Perez testified that Mendoza said it a “couple times.” (AR 1578.)

At the hearing, Mendoza’s counsel asked Perez: “And then did you tell ICIB investigators that Deputy Mendoza made this comment [about taking Perez to the sauna] several times? (AR 1581.) Perez responded: “Yes, several times, or twice, what’s the difference? It was more than once.” (AR 1581.)

With respect to the “sauna” comment purportedly made by Mendoza, Perez was asked during the hearing whether she felt that Mendoza was trying to “rile” her up or if “he was inviting [her] to actually have sexual intercourse in the sauna?” (AR 1516-17.) Perez responded that the comment “started to freak [her] out…[b]ecause [she] didn’t know what his intentions were of saying that to [her].” (AR 1517.) Perez could not recall whether she told Mendoza to stop speaking to her that way. (AR 1517.)

To IAB, Perez said that the “sauna” comment made her “[v]ery uncomfortable” and that she was “just still processing.” (AR 394, 653.) Perez had stated earlier in the IAB interview that Mendoza’s first comment about her butt made her “extremely uncomfortable” and “in shock” to the point that she “really just wanted it to end.” (AR 393, 652.) To ICIB investigators, Perez explained that, after Mendoza commented about taking her into the sauna, she was trying to ignore it and continued her workout. (AR 479, 853.) At the hearing, Perez said her immediate response was that she “just kind of shrugged and, you know, looked at him, probably rolled my eyes and just put my headphones back in” and continued to work out. (AR 1517.) She explained that she just thought if she ignored Mendoza, he would stop. (AR 1517.)

When asked during the hearing why she did not confront Mendoza and immediately report it, Perez responded: “Because it’s not my place to do that. I was in shock and uncomfortable and didn’t know how to react to that situation. I had never been in a situation like that before.” (AR 1591.)

When asked how it felt to have a male deputy apparently staring at her body, Perez said it made her “extremely uncomfortable. I can’t help how I look.” (AR 1594.) She went on to say: “I prefer that the male deputies that I work with do not look at me for what my body looks like but that they look at me with respect for how I work as a female.” (AR 1584) Earlier in the hearing, Perez acknowledged posting a “boomerang” video of herself in a thong bikini “shimm[ying] down and up” at the pool accompanied by male deputies with whom she worked. (AR 1546-47.)

When testifying at the hearing, Perez said multiple times that Mendoza used the word “ass” when speaking to her that day. (AR 1511-16, 1578, 1581, 1582, 1583, 1588, 1590.) Perez also testified during the hearing that she was not certain whether Mendoza used the word “ass,” “butt”, or both. (AR 1574.) She explained that she forgot this detail because the incident occurred four years ago. (AR 1574.) During the IAB interview, Perez said that she “really [did]n’t recall the exact verbiage…‘butt,’ or, ‘ass.’” (AR 391.) During the hearing, when reminded of her statement during the IAB interview, Perez responded: “I figured that saying that I didn’t recall would be better than lying.” (AR 1573-75.)

Perez also gave varying accounts about whether she lifted her shirt to show Deputy Mendoza her abdominal muscles that day. On March 7, 2017, the day after Perez lodged her allegation against Mendoza, ICIB interviewed MCJ’s Sergeant Lisa Diaz. (AR 447-48.) According to Diaz, Perez addressed rumors that Mendoza was claiming that she showed him her stomach. (AR 457-58.) Perez told Diaz: “Ma’am, I did not do that.” (AR 458.) During the IAB interview, Perez denied showing off her abs to Mendoza but also stated that she did not recall whether she lifted up her shirt. (AR 400-01, 659-60.) At the hearing, however, Perez testified that she did lift her shirt up to admire herself in the gym mirror. (AR 1593.) When asked about these discrepancies during the hearing, Perez testified that, when she spoke to Diaz, she was “still trying to gain my knowledge of what actually took place in the gym.” (AR 1595.)

In her ICIB and IAB interviews and during the hearing, Perez said that, as she continued her workout, she saw Mendoza either motion to her or move his lips, so she again took her headphones out to hear him better and asked, “I’m sorry, what did you say?” (AR 394, 653 [IAB interview], 1518, 1589 [hearing].) Likewise, during those interviews and at the hearing, Mendoza state that Perez then said “hey Perez” and pulled his shorts down to expose his penis and testicles. (AR 398, 657 [IAB interview], 1518, 1597 [hearing].) When asked how far he pulled them down, Perez said during the hearing that Mendoza pulled them down with the waistband just above his knee. (AR 1592.) During the ICIB interview, Perez reported that Mendoza pulled them down enough to expose himself. (AR 479, 853.)

At the hearing, Perez testified that she did not leave immediately afterward because she was in shock. (AR 1521-22.) Perez said she worked out for one or two minutes more. (AR 1522, 1592.) Perez thought about the situation and “just wanted to get out.” (AR 1522.) In those one or two minutes when Perez remained in the gym, Mendoza offered her workout advice. (AR 400, 659 [IAB interview], 1601 [hearing].) Perez said, “Cool, thanks” or “Oh okay, thank you.” (AR 400, 659, 1601.) Perez testified during the ICIB interview that, before leaving, she told Mendoza: “I’m going to leave, have a good shift.” (AR 482, 856.) According to Perez, Mendoza responded: “You too.” (AR 482, 856.) When asked why she was friendly to a person she feared, Perez said during the hearing: “I couldn’t believe that it had just happened. I’m sorry that I didn’t act how I was supposed to act or what was expected of me, but I acted how I act.” (AR 1603-04.) Perez also said during the hearing, “It’s not my place to have to tell Deputy Mendoza to not flash his penis to me.” (AR 1588-91.)

Perez testified at the hearing that she told her friend, Deputy Powers, what had happened in the gym on the same day the incident occurred. (AR 1523.) Later during the hearing, Perez said she was unsure whether she spoke to Powers about it that day or on another day. (AR 1566, 1604-05.) She also did not recall whether they spoke in person or by telephone. (AR 1566.) Sergeant M. Hernandez, however, indicated in an Incident Report, dated March 6, 2017, that Perez told him that she did not speak to anyone about the incident on the day it allegedly happened.[1] (AR 444.)

During an ICIB interview, Sargeant Diaz was asked if Perez had indicated why she did not immediately report Mendoza. (AR 456.) According to Diaz, Perez said it “took a while to process, like, did this really happen? Like, what is going—you know what I mean? It took a while for it to set in.” (AR 456.)

Deputy Mendoza, a training officer, worked a double shift on Saturday, March 4, 2017. (AR 1660, 1698.) Between shifts, he went to the facility’s gym to do a quick workout. (AR 1661-62.) While there, Perez entered the gym. (AR 1666.) Mendoza greeted her by saying: “Hey Perez, I haven’t seen you in here before.” (AR 1666.) Perez responded that she had been working out to prepare for the upcoming Baker-to-Vegas event and lifted her shirt to show Mendoza her abdominal muscles, to which he responded: “It looks good, keep it up.” (AR 1667.) They each then continued to exercise and no one else was in the gym. (AR 1666-67.)

Mendoza later made a joke about his own abdominal muscles, lifting his shirt and saying: “Hey Perez, I’m working on my abs too.” (AR 1667.) Mendoza testified that he did “have a gut” at the time and that Perez laughed a little and continued her workout. (AR 1667-68) Perez left the gym before Mendoza did. (AR 1671.)

During the hearing, Mendoza denied making the statements Perez attributed to him, stating: “[S]aying anything like that to a female, let alone a female law enforcement officer, is completely out of my reach. I literally don’t have those kinds of words in my vocabulary. I did not say and I would never ever say that to a female.” (AR 1669.) Mendoza also denied exposing his genitals to Perez. (AR 1669.)

After the gym encounter, despite having no work-related need to do so, Perez went into the control booth, where Mendoza was working. (AR 1607.)

To ICIB (March 7, 2017), Perez said that, while she, Mendoza, Powers, and Alerich were chatting in the control booth, Mendoza urged Perez to tell Powers and Alerich “what happened in the gym earlier this week.” (AR 493, 867.) Perez declined, but Mendoza insisted. (AR 493-94, 867-68.) Perez told ICIB that she told the others “Mendoza thought it would be cool if he showed me his dick and balls.” (AR 494, 868.)

To IAB (December 18, 2017), Perez was asked if Mendoza had said “Hey, did she tell you what happened in the gym?” (AR 415, 674.) Perez responded: “Yeah.” (AR 415, 674.) Perez was then asked if Mendoza specifically said what he did. (AR 415, 674.) Perez answered that, while she did not remember what Mendoza said word for word, she did “remember him saying that he showed [her] his penis in the gym.” (AR 415, 674.)

At the hearing, Perez testified that, while in the control booth, Mendoza asked: “[O]h Perez, did you tell them what happened in the gym?” (AR 1624.) Mendoza directed her to tell Alerich and Powers what happened in the gym. (AR 1533, 1608.) Perez shook her head, but Mendoza insisted, saying two or three times: “[C]ome on, tell them.” (AR 1533-34.) When Perez would not, Mendoza said something to the effect that he had shown her his “penis and balls.” (AR 1534.) During the hearing, when later presented with the IAB testimony in which Perez said she recalled Mendoza saying he showed her “his penis in the gym,” Perez testified that she recalled him saying that. (AR 1609-10.)

Perez also testified that Mendoza’s statement left her silent and in shock and that Powers and Alerich likewise appeared shocked and surprised. (AR 1535.) When told that Alerich recalled Perez laughing after Mendoza’s statement, Perez said she did not recall laughing. (AR 1623.) When Mendoza subsequently left the control booth, Alerich and Powers told her that this was inappropriate and crossed the line and that she should speak to Mendoza about it. (AR 1536.) Alerich told Perez that he would speak to Mendoza. (AR 1537.)

Based on the foregoing, Perez told ICIB that she told Powers and Alerich at Mendoza’s urging what Mendoza had done in the gym. To IAB during the hearing, Perez said that, when she declined to describe what happened in the gym, Mendoza was the one who revealed what he had done. In all her accounts, however, Perez stated Mendoza urged her to tell Powers and Alerich what he had done.

At the hearing, when asked who revealed what Mendoza had done, Perez testified that she did not “recall exactly what happened during that whole conversation.” (AR 1614.) She state she did not recall whether it was Mendoza or she who said what Mendoza had done. (AR 1615.) Perez explained: “I was extremely uncomfortable as you can imagine as someone’s being pushed to tell people in their control booth that you were sexually assaulted. Yeah, sorry I don’t have a perfect recollection of that moment.” (AR 1614.) Perez, however, had testified earlier in the hearing that her recollection of what was said in the control booth was “clear.” (AR 1608.)[2]

Mendoza returned with food for everyone, including a Shamrock Shake for Perez. (AR 1628.) Perez thanked him for the food but did not recall hugging him in thanks. (AR 1629.)

After the workout, Mendoza returned to his assignment in the control booth. (AR 1679-80.) Although Perez had no need to go into the control booth that shift, she stayed in the booth with Mendoza, Powers, and Alerich. (AR 1679-80.) At some point, the subject of their earlier gym encounter was raised, either by Mendoza or Perez. (AR 1673) Although he did not specifically recall how the subject came up, Mendoza testified that Perez joked that he had “flashed” her in the gym. (AR 1672.) Assuming Perez was joking about him lifting his shirt, Mendoza laughed and said: “[Y]eah, I flashed her.” (AR 1672.) Mendoza explained that they were both laughing and that it never occurred to him that anyone in the control booth would have thought that he exposed himself to Perez. (AR 1672-73.) Mendoza testified that such conduct would lead to the loss of a career, criminal liability, and possibly having to register as a sex offender. (AR 1659, 1674, 1675.)

After the conversation in the booth, Alerich spoke to Mendoza alone, telling Mendoza that Perez was offended by what was said in the booth and not to bring it up again. (AR 1676.) Although confused as to why Perez would take offense when they had both showed their abs to one another, Deputy Mendoza nonetheless agreed to not do so. (AR 1676-77) Alerich never said anything about genitalia being shown. (AR 1676.) Mendoza testified that, until the investigation, no one ever mentioned the gym encounter again to him, and he did not discuss it with anyone else. (AR 1678.)

Mendoza bought food for Powers, Alerich, and Perez. (1678-79.) Deputy Perez requested a chicken item and a Shamrock Shake. (AR 1679.) When Mendoza returned with the food, Perez said thank you and gave him a hug. (AR 1679.) They ate together, and Mendoza recalled Perez appearing happy. (AR 1680-81.)

Toward the end of that shift, however, Mendoza and Perez got into a “pretty heated” argument regarding their respective personal lives. (AR 1681, 1683, 1699-1701.) Mendoza admitted that, after work, he was meeting some other deputies and was bringing a woman along. (AR 1681.) Perez asked Mendoza if the woman knew that he was married. (AR 1681-82.) Mendoza said yes. (AR 1682.) At the time, Mendoza and his wife were having marital problems. (AR 1657.) Referring to the woman Mendoza had invited, Perez said “fuck that bitch” and said she hoped that “karma would get her ass.” (AR 1682.) Mendoza, in turn, made a comment to Perez that “the last couple guys you dated here at work treated you like dog shit and you’re still in love with them,” so she should check her own self-respect. (AR 1682.)

In an ICIB interview on March 7, 2017, Powers said Perez had called him about an incident that happened in the gym earlier that same day. (AR 888-89.) Powers did not think Perez told him exactly what Mendoza said in the gym. (AR 889.) Powers said:

But I know that they exchanged words because they—they know each other. And then he said something about, like, —something about like getting an erection or something like that and pulled his shorts down. And then she said that she, like, looked away and was, like, what are you doing? And then that was, pretty much, the extent of the story and then she said she left—left the gym.

(AR 890.) Perez was bothered by the incident and was torn about what to do because Mendoza was well known “by a lot of us.” (AR 890.) Perez did not know whether to report the incident because “we all know where it’s gonna lead, something like this.” (AR 901.) Powers sensed that Perez was holding back, but “the more she talked, she was kind of, well, if something doesn’t happen, then he’s just gonna go do this to somebody else….” (AR 891.)

With respect to the control booth, Powers stated that Mendoza brought up the incident. (AR 893, 897.) According to Powers, Mendoza said “[O]h, Perez, did you—did you tell them what happened in the gym” or something like that in a joking tone. (AR 893-94.) Perez did not respond. (AR 894.) Powers also said that he and Perez looked at each other “like what the heck is he—like, is he really gonna bring this up right now?” (AR 894; see also AR 897 [“[W]hen he brought it up, I was kind of just, like, no. He’s not gonna talk about this right here”].) Powers thought Perez felt “really awkward and uncomfortable.” (AR 894, 897.) Powers could not state with certainty whether anyone said what happened at the gym because he knew “something was gonna come of it” and “tried to block it out.” (AR 894.)

Powers also stated that Alerich later confirmed to Powers that Alerich had told Mendoza that he couldn’t be doing “that.” (AR 897.) When the investigator asked Powers if “that” meant “exposing yourself,” Powers responded: “Right.” (AR 897.) Powers said that he and Alerich “stay out of it as best we could but once they told us it’s, like, okay.” (AR 898.)

In an IAB interview on January 30, 2018, Powers indicated that Perez called him and told him that Mendoza had exposed himself to her in the gym. (AR 704-05.) Powers stated that he did not remember the part about Mendoza getting an erection. (AR 523-24, 705-06.) Powers did remember Perez saying that Mendoza pulled his shorts down. (AR 524, 706.) Powers did not ask Perez to clarify whether Mendoza exposed himself to her, and Perez did not clarify that Mendoza exposed his genitals to her. (AR 524, 706.) Powers had difficulty remembering his phone call with Perez. (AR 524, 706.) He stated that his memory was better during his prior ICIB interview. (AR 523, 705.) Powers recalled Perez was surprised at her encounter with Mendoza. (AR 524-25, 706-07.) Perez did not specifically say to Powers that she was bothered, but it seemed to Powers that Perez was bothered. (AR 525, 707.)

With respect to what occurred the control booth, Powers first said during the IAB interview that he did not remember how the conversation about the incident in the gym came up. (AR 525-26, 707-08.) When Powers was referred to his ICIB interview, he then remembered that Mendoza brought up the incident but could not remember exactly what Mendoza said. (AR 526, 708.) Powers stated that Mendoza did not say that he exposed himself or “exposed his nuts” to Perez but referred to what happened in the gym. (AR 526, 529, 708, 711.) Based on his call with Perez a few days prior, Powers understood Mendoza to have been speaking about exposing himself. (AR 527, 709.) Powers remembered being surprised Mendoza had said anything. (AR 527-28, 709-10.) Powers also confirmed that Alerich had a conversation with Powers in which Alerich stated that he had spoken with Mendoza and told Mendoza that he couldn’t “be doing that.” (AR 530, 712.)

The IAB investigator asked Powers whether he believed the incident happened based on his call with Perez and the conversation in the control booth. (AR 530, 712.) Powers first responded that he did not, because Mendoza had a wife and kids. (AR 530, 712.) Powers said: “[T]he whole thing is kind of just blew [his] mind.” (AR 530-31, 712-13.) Powers also questioned to himself how Mendoza could have been hired and done “something like that.” (AR 531, 713.) When Powers was then asked whether Perez came across as a liar or whether he had reason to know Perez to lie, he responded: “No.” (AR 531, 713.) When asked again whether, based on his call with Perez and Mendoza having brought up the incident in the gym (albeit without specific statements), Powers believed “there was truth to what [Perez] had told [him],” Powers responded: “Well yeah, yeah, I did. I believe that something had to have happened in the gym for both of them to bring something up about it.” (AR 531, 713.)

Powers also stated during the IAB interview: “I made it pretty clear I was just, I didn’t, I mean I knew I was already involved, but I just kind of made it pretty clear that I didn’t want to talk about it or I didn’t want it to come up at all, or anything like that.” (AR 533, 715.)

Powers had a subsequent interview with IAB on February 15, 2018. (AR 534, 716.) He confirmed that he was “very sure” that the incident in the gym occurred on the same day Perez called him. (AR 535, 717.) Powers also said that, in the control booth, from what he remembered, Mendoza said: “Do you remember what happened in the gym?” (AR 536, 718.) Mendoza did not use the words “flash,” “testicles,” or “nuts.” (AR 536-37, 718-19.)

During the January 27, 2020 hearing (AR 997), Powers testified that Perez had called her to tell him that she had an incident with Mendoza. (AR 1181.) Powers could not remember the month or year of the call, but he remembered it was while he was on the way to work within an hour before his shift started at 2:00 p.m. (AR 1182.) Powers did not remember what Perez said but remembered that Perez told him about conduct of a sexual nature, specifically that Mendoza had pulled his shorts down in front of her. (AR 1182-84, 1185-86, 1198.) Powers did not remember Perez stating that Mendoza’s genitalia were showing. (AR 1183.) He formed the impression that Perez was surprised and in disbelief. (AR 1182-83, 1186.) Because Powers was not at the gym, he did not know whether Perez’s account was true. (AR 1185 [“Because I don’t know if what had happened had actually happened or not. I wasn’t there”].) As a result, Powers recommended to Perez that she talk to Mendoza and tell him not to do it again. (AR 1184.) Powers had no experience Perez that would lead him to believe that she was an untrustworthy person. (AR 1185, 1193.)

As for the conversation in the control booth, Powers testified during that hearing that it happened after Perez’s phone call to Powers, but not on the same day. (AR 1187.) Powers remembered Mendoza bringing up something about the gym. (AR 1201.) He did not, however, remember what Mendoza said out loud to everyone. (AR 1189.) Powers remembered looking at Alerich and Perez and thinking “what the heck is going on right now?” (AR 1189.) What occurred in the control booth was surprising to Powers because Perez had called him days prior about the incident and later told him that it was squashed or handled. (AR 1189.) In the control booth, Powers understood Mendoza was referring to Perez and something that happened at the gym. (AR 1190, 11999.) Powers did not remember Mendoza referring to any body part, pulling down his shorts, or talking about a sexual act. (AR 1190.) Powers testified that he did not remember “anything being said about him saying that he exposed himself.” (AR 1206, 1209.) When asked if he would remember a “fellow deputy admit to committing the crime of incident exposure,” Powers responded: “Yes.” (AR 1206.) Powers also did not remember Mendoza using the term “flashed” or saying that he “showed his nuts or testicles to Deputy Perez in the gym.” (AR 1209-10.)

When asked during the hearing whether he believes Mendoza exposed himself, Powers answered: “For me, personally, I mean, I – I don’t truly know what happened. So I don’t 100 percent feel that I can say, no he did it or, yes, he did do it. But for me, knowing him, I—I I don’t—I could never have imagined him doing something like that ...” (AR 1210-11.)

At the time of the conversation in the control booth, Powers had no reason to dislike Mendoza. (AR 1191.) Mendoza was liked by just about everybody at MCJ. (AR 1205.) Powers described Mendoza as a hard worker to whom other deputies listened. (AR 1217-18.) Powers testified that Mendoza had never said or done anything which made Powers question his credibility. (AR 1218.)

Powers testified that Perez was not the type of friend for whom he would lie. (AR 1181.) When asked about Perez’s credibility, Powers said: “So while I, you know, I believe what she says, I don’t necessarily—or, I’m sorry. At the time, I didn’t necessarily think, ‘Oh, he had to have done that. That had to have happened exactly ... You know? That’s kind of the best way I can describe the way I was feeling about it.” (AR 1220.) Powers also testified that he does not believe that Perez was concerned about Mendoza telling people what had occurred in the gym. (AR 1209.) However, Powers took Perez’s concern seriously when she called him. (AR 1221.) During Powers’ friendship with Perez, he did not find her to be untruthful or prone to make up “wild stories.” (AR 1219-20.) Powers testified that in law enforcement, it is important to get both sides of the story to truly understand what happened. (AR 1220.) Powers said he only heard the story from Perez, not anyone else. (AR 1207.)

During his interview with ICIB on March 13, 2017, Alerich said that, in the control booth, he was not paying attention to everything that was said. (AR 907-08.) Alerich also stated that he did not remember Mendoza asking Perez to say what happened between them at the gym. (AR 919.) Alerich did hear Mendoza say that they, i.e. Mendoza and Perez, were in gym together and “his nuts came out.” (AR 908.) Later in the interview, Alerich said he remembered hearing that “nuts were shown” but did not remember who said it. (AR 916.) Alerich thought it was a joke because everyone, including Perez, was laughing. (AR 907-08.) After Mendoza left the control booth, Perez talked to Alerich and said that she felt uncomfortable because it happened. (AR 907, 910, 912.) Alerich asked Perez if she would like him to talk to Mendoza, and Perez said yes. (AR 910.)

When speaking to Mendoza, Alerich told him Perez was uncomfortable, and Mendoza seemed shocked. (AR 913.) Mendoza told Alerich that Perez had showed him her stomach and was talking about losing weight and going to Baker to Vegas. (AR 913, 915.) Alerich did not ask Mendoza specifically what he did. (AR 915-16.) Alerich then told Mendoza to stop talking about what happened and that Perez felt uncomfortable. (AR 917.) Mendoza responded that he did not know Perez was upset and that he would stop talking about it. (AR 918.) Alerich later confirmed to Perez that he talked to Mendoza and that Mendoza agreed not to talk about it. (AR 920.) Perez thanked Alerich. (AR 920.)

During his interview with IAB on January 30, 2018, Alerich stated that, while they were in the control booth, he “wasn’t listening to every detail of the conversation, but from what I gather they [Perez and Mendoza] were both in the gym and he exposed himself.” (AR 545, 688.) Alerich further stated: “And I don’t know for sure what part of his body, but I was just guessing it was his testicles, from what I gathered from the conversation, and that’s the conversation that went down.” (AR 545, 688.) When asked whether his memory was better on the day he gave his statement to ICIB , Alerich said: “Yes.” (AR 545-46, 688-89.)

During his IAB interview, Alerich recalled having a conversation with Sgt. Hernandez about the control booth incident. (AR 546, 689.) When asked whether he remembered Mendoza saying, “Hey, I pulled my nuts out in the gym,” as quoted in the Hernandez’s Incident Report, Alerich answered: “I do remember him saying that. It’s been a long time since the actual event, but something to that extent.” (AR 546, 689.) Alerich also said that it did not seem too serious because Perez and Mendoza were laughing. (AR 546, 689.) Further, Alerich said that, after Mendoza made the comment, he did not feel upset or uncomfortable because he “wasn’t sure it actually happened.” (AR 549, 692.)

After Mendoza left, Perez told Alerich that she felt uncomfortable about the situation and that it wasn’t a joke. (AR 547, 690.) Perez seemed upset, but not too angry. (AR 548, 691.) Alerich asked her if she wanted him to talk to Mendoza, and she said yes. (AR 547, 690.)

The IAB investigator asked Alerich if, during his conversation with Mendoza, “Mendoza admit[ted] that obviously he said he showed her his nuts in the control booth.” (AR 547, 690.) Alerich responded: “Yes.” (AR 547, 690.) Alerich did not want to ask “too many details about what happened.” (AR 547, 690.) He told Mendoza that Perez was offended by what was said in the booth, so it was best to not bring it up again. (AR 547, 690.) Mendoza seemed shocked at the conversation. (AR 550, 693.) Alerich had the impression that Mendoza thought Perez was flirting with him. (AR 550, 693.)

During the conversation in the control booth and his conversation with Mendoza afterward, Mendoza did not deny showing his genitals. (AR 550, 693.) Alerich said: “I don’t remember him saying he didn’t do it, but I didn’t really ask any further.” (AR 550, 693.) Alerich believed the incident in the gym happened from the way that Perez reacted and based on his account of what Mendoza said in the control booth, as reflected in the Incident Report. (AR 550, 693.)

Alerich did not know of Mendoza to have done anything like he was being accused of in the gym. (AR 551, 694.) Alerich also did not know Perez to lie or make up stories. (AR 551-52, 694-95.)

In a second interview with IAB on February 8, 2018, Alerich said that he did not remember the specific word Mendoza used when he said that he exposed himself. (AR 553, 696.)

During the hearing on January 28, 2020, Alerich said his memory was better during his ICIB interview than during the hearing. (AR 1284.) Alerich testified that, in the control booth, he remembered Mendoza saying that “nuts were shown.” (AR 1286.) When presented with his statement to ICIB regarding hearing something about Mendoza having exposed his nuts, Alerich understood “nuts” to refer to testicles. (AR 1286-87.) Alerich testified that Mendoza brought up the conversation first. (AR 1287.) Alerich also testified he heard Perez laughing. (AR 1288.) Alerich did not feel Mendoza was bringing up a sexual topic into the workplace, but he could not account for how Perez felt. (AR 1289.)

At the hearing, Alerich also testified that, after Mendoza left the control booth, Perez communicated to Alerich that she did not feel comfortable. (AR 1288-89, 1300.) Perez appeared upset but kept her composure. (AR 1307.) Alerich offered to talk to Mendoza because Perez felt uncomfortable and they all worked together as partners. (AR 1289, 1301.) After Alerich told Mendoza that Perez was embarrassed and would like the conversation not to come up, Mendoza was shocked. (AR 1291.) Alerich did not remember referring to the word “nuts” specifically. (AR 1296.)

Alerich was asked during the hearing: “Would you have reacted the same way and talked to Perez and then also went and talked to Mendoza had he said ‘I exposed my guts’?” (AR 1294.) He responded, “No.” (AR 1294.) Alerich also said that he would not say that Mendoza had a big gut in 2017 but that Mendoza was a big guy. (AR 1294.) Alerich was also asked: “So had he [Mendoza] said ‘gut,’ it would definitely not be the same effect on you than what you heard that day; correct?” Alerich responded: “Me, personally, no.” (AR 1295.) When asked if it was possible that Mendoza said “gut” instead of “nut,” Alerich responded: “All I remember is what I heard at the time. I don’t want to try to entertain possibilities but, at the time, that’s all I remember.” (AR 1302.)

Alerich testified that he had no reason to lie about Mendoza. (AR 1298.) He did not know Mendoza to be dishonest or engage in any type of sexual misconduct. (AR 1304.) Alerich also testified that he had no reason to say anything to help Perez and that he neither heard nor seen Perez do anything that he felt was dishonest. (AR 1299.) When asked “Do you have any opinion about the validity or truth of Deputy Perez’s allegation in this case,” Alerich responded: “I try not to have an opinion about it, think too much about it.” (AR 1305.)

Alerich also testified that, after the conversation in the booth, everyone seemed comfortable as they ate dinner together. (AR 1302-03.)

On February 2, 2023, petitioner Patrick Mendoza filed a Verified Petition for Peremptory Writ of Administrative Mandamus. Real party in interest County of Los Angeles filed an Answer on April 3, 2023.

On December 22, 2023, petitioner filed an opening brief. On January 22, 2024, real party filed an opposition. On February 2, 2024, petitioner filed a reply. The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

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.)

The County’s request to take judicial notice of Civil Service Commission Rule 4.13 is GRANTED, pursuant to Evidence Code § 452(b).

In the parties’ briefing, the parties discuss whether the weight of the evidence supports specified findings of fact that the Hearing Officer made in his recommendation. The Court accordingly frames the discussion with respect to each of the specific findings of fact. (AR 255.)

Finding of Fact No. 5 states: “Upon Deputy Perez’ s arrival, Appellant said to her ‘Wow, your ass looks great in those pants.’”

It is undisputed that Mendoza and Perez were the only persons in the gym at the time of the incident. (AR 1509 [Perez].) Accordingly, there is no corroborating evidence regarding the statements that petitioner made to Perez. Nevertheless, having reviewed the record, including Mendoza’s and Perez’s accounts of what occurred in the gym, the Court finds that the weight of the evidence supports Perez’s version of events.

Throughout her interviews with ICIB and IAB and in her testimony at the hearing, Perez remained consistent that Mendoza told her that her buttocks look great. (AR 430, 475, 650, 1512.) Mendoza faults Perez for not stating with certainty whether petitioner used the word “ass,” “butt,” or both. (AR 391, 1574.) This does not change the fact that Mendoza made an inappropriate, derogatory comment to Perez about a particular part of her body, regardless of which word was used, in violation of Policy of Equality 3-01/121.30, Inappropriate Conduct Toward Others. (AR 8 [“An isolated derogatory comment…sexual innuendo, etc., may be grounds for discipline. Similarly, the conduct need not be unwelcome to the party against whom it is directed; if the conduct reasonably would be considered inappropriate for the workplace, it will violate this Policy”].)

During the hearing, Mendoza stated that he would never say to a female law enforcement officer that “her ass looks great.” (AR 1669.) He explained: “I literally don’t have those kinds of words in my vocabulary. I did not say and I would never ever say that to a female.” (AR 1669.) However, during the hearing, Mendoza was presented with a January 2018 text message that he sent to no fewer than five employees of the Sheriff’s Department in which he wrote: “[H]ey dick, tittie club tonight. This is Mendoza.” (AR 1706-07.) Mendoza testified that “tittie” is a term used for a woman’s breast and that a “tittle club” is a gentleman’s club, usually a topless bar. (AR 1707-08.) When asked whether using the term “tittle club” is “very different from [his] testimony recently that [he] would never talk about a woman’s body parts in a degrading way,” Mendoza said that he doesn’t “talk to women about that.” (AR 1708, emphasis added.) When asked if “it’s okay to refer to women’s body parts to other men but you would never talk like that to a woman’s face,” Mendoza responded: “Exactly.” (AR 1708-09.)

Even if credited, Mendoza’s testimony is, at best, consistent with his assertion that he would never make comments to a woman of the type Perez claims Mendoza said to her. But his testimony belies his assertion that “I literally don’t have those kinds of words in my vocabulary” (AR 1669), which greatly calls into question the truth of his entire contention. It is not a far leap for someone who uses the word “tittie” with a group of others to also use the word “ass,” and it is also easy to see how a person who lies about using such words at all might also lie about whether he used such a word privately with a woman where there are no third-party witnesses to contradict him.

For the foregoing reasons, the Court finds that the weight of the evidence supports Finding of Fact No. 5.

Finding of Fact No. 6 states: “After his initial comment Appellant told Deputy Perez ‘I’d like to take you in this sauna and fuck you in the ass.’”

The same analysis for Finding of Fact No. 5 supports Finding of Fact No. 6. Perez remained consistent that Mendoza told her he wanted to take her into the sauna and “fuck [her] in [her] ass.” (AR 1515-16.) While Perez initially said during the ICIB interview that Mendoza made this comment once, she later said during the same interview that it was “two or three” times. (AR 478-79.) During the IAB interview, she said it happened twice. (AR 397.) During the hearing, she said he said it was a “couple of times.” (AR 1578.) Simply put, Perez was consistent in her statements that the “sauna” comment happened more than once. More to the point, whether Mendoza made the “sauna” comments once, twice, or more times, it is clear he made such a comment, which violated Policy of Equality 3-01/121.30. (AR 8.)

For the foregoing reasons, the Court finds that the weight of the evidence supports Finding of Fact No. 6.

Finding of Fact No. 7 states: “Appellant then lowered his shorts to above the knees and exposed his genitals to Deputy Perez.”

Perez consistently stated that Mendoza pulled his shorts down to expose his genitals to Perez. (AR 479, 853 [ICIB], 398, 657 [IAB], 1592 [hearing].) During her ICIB interview, Perez stated that, when she realized what Mendoza was doing, she quickly looked away and told him to stop. (AR 479-81, 853-55.) Whether Mendoza pulled down his shorts with the waistband just above his knee (AR 1592 [hearing]) or just enough to expose his testicles (AR 479 [ICIB]), Perez never wavered from the critical point—that Mendoza exposed himself to her. Because Perez quickly looked away, it is reasonable for Perez not to know the precise positioning of Mendoza’s shorts when he exposed himself.

Moreover, the testimony of Powers and Alerich supports Perez’s version of events. Powers consistently maintained that Perez called him on the day of the incident in the gym and told him that Mendoza pulled his shorts down. (AR 889-90 [ICIB], 524, 706 [1^st IAB], 1182-84, 1185-86, 1198.) He consistently stated that Perez was bothered, surprised, and in disbelief (AR 890 [ICIB], 524-25, 706-07 [1^st IAB], 1182-83, 1186 [hearing].) While Powers did not affirmatively state that he believed Perez (AR 530, 712, 1135), he also stated that he knew of no reason to not believe Perez (AR 531, 713, 1185, 1193).

While Powers did not obtain clarification from Perez that Mendoza exposed his genitals (AR 524, 706, 1183), Alerich consistently maintained that Mendoza admitted in the control booth that he “pulled [his] nuts out in the gym,” or words to the effect that Mendoza had exposed his testicles to Perez at the gym. (AR 445 [Incident Report], 908 [ICIB], 546, 689 [1^st IAB], 1286-87 [hearing].) At first, Alerich thought Mendoza’s statement was a joke but later learned from Perez that it was not and that she felt uncomfortable. (AR 907, 910, 912 [ICIB], 547, 690 [1^st IAB], 1288-89, 1300 [hearing].) While Alerich tried not to have an opinion about the truth of the matter (AR 1305), he had never seen Perez act dishonestly (AR 1299).

During the hearing, Alerich was asked whether Mendoza could have said the word “gut,” referring to Mendoza’s assertion that he showed his stomach to Perez, instead of “nut.” (AR 1302, 1667.) Alerich did not allow for this possibility. (AR 1302.) Moreover, Alerich testified that he would not have talked to Mendoza or reacted the same way had he heard “gut” instead of “nut.” (AR 1294-95.)

While Powers and Alerich may have been reluctant participants in the administrative proceeding (AR 533, 715, 894, 898 [Powers], 1305 [Alerich]), Powers and Alerich had no reason to lie about what they heard from Perez or Mendoza. Powers and Alerich were credible witnesses. Considered together, the statements and testimony of Powers and Alerich support Perez’s assertion that Mendoza pulled down his shorts and exposed his genitals to her.

For the foregoing reasons, the Court finds that the weight of the evidence supports Finding of Fact No. 7.

Finding of Fact No. 8 states: “Deputy Perez was shocked at Appellant’s comments and acts and feared for her safety.”

During the hearing, Perez testified that, after Mendoza made his “sauna” comment, the comment “started to freak [her] out…[b]ecause [she] didn’t know what his intentions were of saying that to [her].” (AR 1517.) Mendoza faults Perez for not leaving immediately. The fact that Perez continued to work out does not mean that Perez was not shocked or did not fear for her safety. Perez repeatedly and credibly maintained that she was “processing” Mendoza’s acts and comments. (AR 478-79, 852-53 [ICIB], 394, 653 [IAB].) Perez hoped that ignoring Mendoza would make him stop. (AR 1517.) Perez was in shock and uncomfortable and did not know how to react because she had never been in that situation. (AR 393, 652 [IAB], 1521-22, 1591 [hearing].) When asked why Perez thanked Mendoza for his workout advice after he had exposed himself and feared him, Perez persuasively responded: “I couldn’t believe that it had just happened. I’m sorry that I didn’t act how I was supposed to act or what was expected of me, but I acted how I act.” (AR 1603-04.) Considering that Mendoza did not pose an immediate danger to Perez, Perez’s continued stay in the gym while processing what Mendoza had done is not inconsistent with a feeling of shock or fear.

For the foregoing reasons, the Court finds that the weight of the evidence supports Finding of Fact No. 8.

Finding of Fact No. 9 states: “Deputy Perez promptly disclosed the nature of the comments to her friend, Deputy Matthew Powers.”

Mendoza maintains that, in preparation for the Incident Report, Perez said that she did not speak to anyone about the incident on the day it allegedly happened. (AR 444.) Mendoza also refers to Perez’s testimony during the hearing that she was unsure whether she spoke to Deputy Powers about the incident in the gym on the same day or on another day, when Perez had earlier testified that the call happened on the same day. (AR 1523, 1566, 1604-05.) Perez also did not recall whether they spoke in person or by telephone. (AR 1566.)

Nevertheless, Powers consistently maintained that Perez called him on the same day of the gym incident. (AR 888-89 [ICIB], 535, 717 [2^nd IAB].) Even though Powers could not recall the month and day of the call during the hearing (AR 1182), the hearing was on January 27, 2020, almost three years from the gym incident. Powers understood the call to refer to conduct of a sexual nature, specifically that Mendoza had pulled his shorts down in front of her. (AR 1182-84, 1185-86, 1198.)

Therefore, although Perez may have had trouble remembering certain details of her call with Powers, Powers’ testimony supports Finding of Fact No. 9.

For the foregoing reasons, the Court finds that the weight of the evidence supports Finding of Fact No. 9.

Finding of Fact No. 10 states: “On or about February 27th or March 4th, 2017, when Deputies Perez, Powers, Alerich and Mendoza were all situated in the 3000 control room, Deputy Mendoza announced to all present that he had ‘flashed’ Perez and showed her his ‘nuts’ while at the gym.”

In the IAB interview and during the hearing, Powers maintain that he could not remember Mendoza having used the word “flash” during the conversation in the control booth. (AR 536-37, 718-19, 1209-10.) However, Mendoza himself testified that, during the conversation in the control booth, he laughed and said “yeah, I flashed her.” (AR 1672.) Even though Mendoza maintained that he was referring to lifting his shirt to show his stomach, Mendoza did not deny saying that he flashed Perez.

With respect to the announcement from Mendoza that he showed Perez his “nuts” at the gym, while Powers did not recall Mendoza using this word (AR 536, 718, 1209-10), Alerich consistently and credibly maintained that Mendoza used the word “nuts,” as described in the discussion of Finding of Fact No. 7 above.

For the foregoing reasons, the Court finds that the weight of the evidence supports Finding of Fact No. 10.

Finding of Fact No. 11 states: “Deputy Powers and Deputy Alerich testified that they heard Mendoza use the word ‘nuts’ when referencing his actions at the gym.”

As stated in the discussion of Finding of Fact No. 10, Powers consistently did not recall Mendoza using this word in the control booth. (AR 536, 718, 1209-10.) The weight of the evidence does not support the finding that Powers testified that he heard Mendoza use the word “nuts” when referencing his actions in the gym. However, as stated in the discussion of Finding of Fact Nos. 7 and 10, Alerich consistently and credibly maintained that Mendoza used the word “nuts” in the control booth.

In the opening brief, petitioner argues: “[P]erhaps most telling of all, when confronted with Deputy Alerich’s statement that he didn’t even know what body part they were even talking about, Deputy Perez testified that she doesn’t disagree with Deputy Alerich on that point.” (Opening Br. at 9:7-10, emphasis in original; see also Opening Brief at 21:3-4.) The Court does not find this particularly telling at all. During his IAB interview on January 30, 2018, Alerich stated: “I don’t know for sure what part of his body, but I was just guessing it was his testicles, from what I gathered from the conversation.” (AR 688, emphasis added.) Alerich merely explained that he was not 100% certain what part of his body Mendoza exposed but that Alerich understood from the conversation that Mendoza exposed his testicles. As discussed above, Alderich was clear that a reference to “nuts” was part of the conversation. (AR 546, 689, 908, 1286.) Thus, during the hearing, when Perez was referred specifically to the portion in question from the transcript of Alerich’s IAB on January 30, 2018, it is hardly surprising Perez answered “No” in response to the question “So does that conflict with your memory of your conversation with Deputy Alerich?” (AR 1621.)

For the foregoing reasons, the Court finds that the weight of the evidence supports Finding of Fact No. 11 to the extent that it pertains to Alerich. Notwithstanding Powers’ inability to recall Mendoza’s words in the control booth, Alerich’s testimony amply demonstrates that Mendoza used the word “nuts” when referring to his actions in the gym.

Finding of Fact No. 12 states: “Deputy Perez believed that Appellant was spreading false rumors about her to other deputies and so she filed a complaint against Mendoza pursuant to the Policy of Equality.”

Mendoza does not disagree with Finding of Fact No. 12. (Opening Br. at 21:8-11.) Rather, he finds noteworthy that the Hearing Officer “specifically found that Deputy Perez filed her complaint because of perceived rumors, not because Deputy Mendoza had exposed himself to her in the gym.” (Ibid.; see also AR 246 [Recommendation states, “[W]hen she was approached by other deputies a day or two later and was asked what had happened at the gym, it seemed that he was spreading false rumors about her, and she then decided to report the matter to Sergeant

Mendoza posits two reasons why Perez falsely accused him of inappropriate comments and indecent exposure: “(1) She erroneously believed that Deputy Mendoza was starting rumors that she had flirted with him in the gym, which she said testified made her ‘unhappy’ given that she had just had a ‘bad break up’ with another of their colleagues [citations]; and (2) Deputy Perez was angry and embarrassed about things which were said during their argument.” (Opening Br. at 10:17-23, citing AR 1508, 1649-51, 1670.)

Mendoza’s proffered reasons for Perez coming forward to make a false report do not ring true. Notably, Powers testified that he felt Perez’s concern in deciding whether to report Mendoza was the desire not to compromise his career, as Perez and Mendoza had a good working relationship. (AR 1217.) As a result, Perez “battled internally what she should do.” (AR 1217.) Perez also said she hesitated on reporting Mendoza because no one would want to work with a “rat,” or someone who tattles. (AR 402, 411, 661, 670, 1524-25.)

However, after the gym incident, other deputies started asking Perez if she “was sticking [her] butt out” or if she “flashed” Mendoza. (AR 405, 499, 1527-28.) Further, once Mendoza talked about the gym incident in the control booth with Powers and Alerich, Perez was concerned that Mendoza would say that she provoked it and that Mendoza might do the same thing to someone else. (AR 498.) After the control booth, Perez heard people speaking about how Mendoza flashed her in the gym. (AR 1539.) She did not want to be known as a “whore” or “slut.” (AR 406, 500, 665, 874, 1528, 1539, 1644.) She later decided to report Mendoza.

The weight of the evidence supports the assertion that Perez did not make up the allegations against Mendoza because rumors of her flirting with Mendoza aggravated her feelings concerning a breakup with another colleague or because Mendoza earlier accused Perez of not having self-respect. Perez originally did not want to report Mendoza because she feared the ramifications to her career of being known as someone who tattles. However, subsequent rumors of her flirting with Mendoza forced her hand. When faced with the lose-lose proposition of being known as a “rat” or as a “whore,” she took the risk of being known as a “rat.” Indeed, after Perez transferred jobs, she had to do extra work to reverse the reputation of being a rat. (AR 1545-46; see also AR 456 [Sgt. Diaz told ICIB that Perez would reap ramifications for “turning on [her] partner”].) Perez’s testimony demonstrates that the decision to report Mendoza was difficult, considered, and not done out of pure spite.

For the foregoing reasons, the Court finds that the weight of the evidence supports Finding of Fact No. 12.

Based on the findings of fact discussed above, reasonable minds would find that a discharge for a law enforcement officer who sexually harassed a colleague is appropriate.

Petitioner characterizes Perez as having been inconsistent with her accounts to the ICIB and IAB, and during the Commission hearing. The Court disagrees. While Perez may not have had perfect recall, Perez remained consistent in her account of what Mendoza communicated and did in the MCJ gym and control booth.

The Court notes that Mendoza presented and discussed the testimony of witnesses who attested to his good character. (Opening Br. at 11:8-12:23.) Mendoza also presented reasons concerning other unrelated incidents to establish that Perez was of questionable character. (Id. at 15:3-28, 17:2-18.)

However, the Department’s burden in supporting the discharge was preponderance of the evidence. (AR 254.) Preponderance of the evidence means “more likely than not” that the existence of a fact is true. (Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 369 [preponderance of the evidence is such evidence “as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests”].) Regardless of any inconsistency in Perez’s testimony or other incidents, which may cause one to doubt her ability to be honest, the Court here does not solely rely on Perez’s testimony. What tips the scales in favor of finding that the discharge of Mendoza was justified was the testimonies of Deputies Powers and Alerich, who have no reason to lie and whose testimony supports Perez’s accounts.

Based on the foregoing, the Court finds the weight of the evidence supports a finding that petitioner Patrick Mendoza made the inappropriate comments and exposed himself, as alleged in the Letter of Imposition. The discharge of petitioner Patrick Mendoza does not constitute an abuse of discretion.

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

[1] In the opening brief, petitioner misidentifies Lieutenant Anthony Haynes as having said that Perez told him that she did not speak to anyone about the incident on the day that it happened. (Opening Br. at 6:25-27.) Haynes approved the Incident Report on March 7, 2017. (AR 444.) Hernandez, however, prepared the report on March 6, 2017. (AR 444.)

[2] In the opening brief, petitioner states: “Confronted with Lieutenant A. Haynes’ report that Deputy Perez told him that it was Deputy Mendoza who had announced that he had shown her his ‘nuts,’ Deputy Perez again said she doesn’t recall.” (Opening Br. at 2-4, emphasis in original.) During the hearing, referring to the Incident Report, counsel for petitioner asked Perez whether she told Haynes that Mendoza “showed [her] his nuts.” (AR 1616-17.) The Incident Report says it was Deputy Alerich (not Perez) who told Hernandez (not Haynes) that Mendoza “suddenly said out loud ‘hey, I pulled my nuts out in the gym’ as he laughed about it.” (AR 445.) This may explain why Perez responded during the hearing that she did not remember having told Haynes that Mendoza “showed [her] his nuts.” (AR 1617.)