Judge Curtis A. Kin, Case Number: 23STCP01739, Date: 2024-04-09 Tentative Ruling

Petitioner Marcus D. Portis petitions for a writ of mandate directing respondents City of Los Angeles (“City”) and Kristin M. Crowley, in her official capacity as Fire Chief, to set aside the termination of petitioner and restore him to his prior position of Paramedic/Firefighter III with back pay.

On June 23, 2021, the Professional Standards Division (“PSD”) of the Los Angeles City Fire Department (“Department”) was notified by the Signal Hill Police Department that an arrest warrant was being executed for petitioner, as he was a suspect in a revenge pornography case against an individual, Ms. Calderon, and charges had been filed against him. (AR 497-507, 509, 596, 688.)

On October 6, 2021, Department Lead Investigator Paul Besse and Captain Nande Kalenga interviewed petitioner as part of PSD’s investigation into possible violations of Department rules, regulations, practices, and procedures. (AR 595-623.) During PSD’s interview of and investigation into petitioner, PSD learned that, on or about September 4, 2020, Ms. Calderon filed a report with the Riverside County Sheriff’s Office detailing that the windows on her vehicle had been broken and orange paint had been poured into her car. (AR 493-95.) Ms. Calderon reported she believed petitioner was taking revenge on her for having shared his journal with petitioner’s ex-wife. (AR 494.) During his interview, petitioner admitted to having engaged in revenge porn as well as having vandalized the vehicle of Ms. Calderon and the vehicles of former relatives by slashing their tires. (AR 603-05, 614-16, 619.)

Section 1060 of the Charter of the City of Los Angeles (“Charter”), titled Rights and Due Process Procedures, governs the disciplinary procedures for the Department. Section 1060(a) states, in part: “The charges must be filed within one year of the department’s discovery of the act committed or omitted by a member and in no event later than two years from the date of the act or omission.” (AR 781.)

On November 18, 2021, Battalion Chief Amir Caspian of PSD submitted the Department’s “XO” report, proposing a Board of Rights Hearing for petitioner following PSD’s investigation. (AR 786-794.) In the XO report, Chief Caspian identified 11 specific allegations against petitioner along with the date of the incident, date of discovery by the Department, and the statute of limitations periods under the Charter. (AR 787-89.) Chief Caspian concluded that, while all 11 allegations were proved by a preponderance of the evidence, allegations 10 and 11 were out of statute. (AR 792-94.) Accordingly, Chief Caspian recommended that a Pre-Disciplinary Hearing be held and that a Board of Rights hearing be considered for petitioner for the following three charges encapsulating the nine remaining allegations against petitioner for violation of Sections 10(f), 13(a), and 13(h) of the Department’s Rules and Regulations:

On November 19, 2021, Deputy Chief Stephen Gutierrez, the then-Acting Commander of PSD, sent petitioner a memorandum notifying him that “Management proposes to hold a Board of Rights to hear the charges proferred against you, set forth in the unsigned copy of Form F-501/Complaint Against Member.” (AR 729.) Petitioner was also notified of his right to attend a Skelly hearing, which was scheduled for November 29, 2021.[1] (AR 729.)

On December 8, 2021, petitioner’s Skelly hearing was held. (AR 730.) The Skelly Officer was Kristin Crowley, who was serving as Deputy Chief at the time. In her recommendation, dated December 8, 2021, Chief Crowley noted that petitioner admitted that “he has made bad decisions.” Upon her review of the complaint, the charges, and material which the Department relied upon for the recommendation of a Department Directed Board of Rights, Chief Crowley concluded that “there are reasonable grounds to believe that Firefighter/Paramedic Portis engaged in the misconduct charged” and recommended that the proposed disciplinary action be sustained. (AR 730.)

On December 9, 2021, Deputy Chief Gutierrez sent a signed Form F-501/Complaint Against Member to petitioner. (AR 818-21.) A signed Form Gen. 77 “Notice of Discharge, Suspension, or Probationary Termination” and F-500 “Notice of Suspension” were attached to the complaint. (AR 818-24 [date and time of service by certified/registered mail consistent on all three forms].) Also, on December 9, 2021, Fire Chief Ralph M. Terrazas filed the charges with the Board of Fire Commissioners, reporting that petitioner was to “go before a Board of Rights on charges preferred by Deputy Chief, Acting Commander, Stephen L. Gutierrez.” (AR 796.) The report was received by the Board of Fire Commissioners on December 13, 2021. (AR 796.)

On February 27, 2023, an Amended Complaint Against Member Form F-501 was served on petitioner by Kristina Kepner, the current Assistant Chief of PSD. (AR 4.) Charge No. 3 was amended to state that the alleged tire slashing occurred on or about December 13, 2019, instead of “November 18, 2020 to December 13, 2019, inclusive.” (Compare AR 6 with AR 821.) On March 7, 2023, Chief Crowley signed a “notification of temporary relief from duty” effective that day, “pending a hearing and decision by the Board of Rights on charges preferred against you by Assistant Chief Kristina Kepner, of which the attached is a copy, attested under oath.” (AR 734.)

On March 16, 2023, a Board of Rights was convened (“Board”). (AR 11.) Petitioner’s representative entered a plea of not guilty and filed a motion to dismiss. (AR 16, 18.) The motion argued, among other things, that the case was out of statute and was not verified by the oath of the Fire Chief pursuant to Charter Section 1060(c). (AR 743-75.)

On March 23, 2023, the Department submitted its opposition to petitioner’s motion to dismiss. In the opposition, the Department argued on the issue of the Fire Chief’s oath that the “Fire Chief possesses the authority to delegate the verifying of the complaint (F-501) to the Commander of the Professional Standards Division (PSD). The verified complaint is then presented for acceptance to the Fire Chief.” (AR 776-77, footnote omitted.) On the issue of the statute of limitations, the Department argued that “City Charter, Section (a) was followed when the charges were filed within one year of the department’s discovery with the Board of Fire Commission (dated December 13, 2021) pursuant to City Charter, Section (c).” (AR 778.) Further, the Department argued it met its obligation to notify a firefighter of its proposed disciplinary action within one year of the Department’s discovery of the act, omission, or other allegation of misconduct by issuing Portis notice of the Department’s XO report:

As the Defense is aware, the XO report clearly defines the date of the underlying conduct that justifies disciplinary action, the date on which the Department discovered the underlying conduct, the date of notification to the firefighter, and the one and two-year statutes. Further, the XO report proposes a Board of Rights hearing, the forum in which the specific disciplinary action is adjudicated, along with the charges sought and the potential penalties they carry. . . . Once the charges are filed with the Fire Commissioners within one year of the Department’s discovery of the underlying conduct, the requirements of Section 1060 laying out the applicable statute of limitations periods have been met. (AR 778-779.)

On March 28, 2023, the Board denied petitioner’s motion to dismiss, having found there was no violation of City Charter Section 1060. (AR 41-44.) Despite this ruling, petitioner continued to argue the same perceived procedural issues throughout the hearing, leading the Board to dismiss the arguments, noting it had already ruled on that issue. (AR 335-65.)

Following the Board of Rights hearing, the Board found petitioner guilty on all three charges and decided to remove him from his employment effective March 7, 2023. (AR 921-25.)

On May 22, 2023, petitioner filed a Verified Petition for Peremptory Writ of Mandate. On June 23, 2023, respondents filed a verified Answer. On July 17, 2023, petitioner filed a verified Replication to the Answer.

On February 8, 2024, petitioner filed an opening brief. On March 11, 2024, respondents filed an opposition. On March 25, 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 petitioner’s termination from his position as Paramedic/Firefighter III concerns a fundamental vested right, the Court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under 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.)

Petitioner argues that the charges against him were untimely filed under the Charter.

Charter § 1060(a) states: “The charges must be filed within one year of the department’s discovery of the act committed or omitted by a member and in no event later than two years from the date of the act or omission.” Charter § 1060(c) states: “In the event any order of relief from duty or suspension is made, the order shall contain a statement of the charges assigned as causes. The Fire Chief shall, within five days after the order is served as provided in subsection (d), file with the Board of Fire Commissioners, a copy of a verified written complaint upon which the order is based, with a statement that a copy of the order and verified complaint was served upon the accused.” Charter § 1060(d) states: “The service of any notice, order or process mentioned in this section, other than service of subpoena, may be made either by handing the member a copy personally or by sending a copy by certified mail to his or her last known address of record with the Fire Department if, after due diligence, the member cannot be found.”

As stated in the XO Report prepared by Chief Caspian, the earliest date of the Department’s discovery of petitioner’s acts was June 23, 2021, when the Signal Hill Police Department informed PSD of the revenge pornography charge against petitioner. (AR 596, 688, 786.) Petitioner does not dispute the statutes of limitations set forth in the XO report. (See Opening Br. at 15:3-15.) Accordingly, so long as the Department filed charges against petitioner on or before June 23, 2022—i.e., one year after discovery of the revenge pornography—the charges are within statute.

On December 9, 2021, Deputy Chief Gutierrez prepared a verified Complaint (Form F-501) against petitioner, which set forth the charges against petitioner, including having posted sexually explicit videos of a woman without her consent, having vandalized the woman’s vehicle by smashing the windows and splashing paint inside the vehicle, and having slashed the tires to another person’s vehicle. (AR 819-21.) On the same date, Chief Terrazas also prepared a Notice of Discharge, Suspension, or Probationary Termination (Form Gen. 77) and a separate Fire Chief’s Notice of Suspension (Form F-500), both of which indicated that petitioner was suspended during a period to be determined. (AR 822-24.)

On December 13, 2021, the F-501, Gen. 77, and F-500 forms were served on petitioner through certified mail, after two prior attempts at personal service. (AR 818, 822, 824-26.) The service comports with Charter § 1060(d).

Also on December 13, 2021, Chief Terrazas reported to the Board of Fire Commissioners that a “Firefighter III will go before a Board of Rights on charges preferred by Deputy Chief, Acting Commander Stephen L. Guterriez.” (AR 828.) Chief Terrazas also attached documents that were “served and fully explanatory of the offenses charged.” (AR 828.) As discussed further below, petitioner provides no reason to indicate that Chief Terrazas was referring to anyone other petitioner or not Chief Terrazas did not file the charges against petitioner with the Board of Fire Commissioners. Accordingly, Chief Terrazas filed the suspension order and statement of charges within five days of service of the suspension order, as required by Charter § 1060(c). Further, the charges were filed against petitioner before June 22, 2022, the date when the earliest applicable statute of limitations would expire. Accordingly, the Department complied with Charter § 1060(a).

Petitioner argues that the memorandum Chief Terrazas sent to and received by the Board of Fire Commissioners, which the Department relies to demonstrate that charges were filed within the statute of limitations, does not contain petitioner’s name. (AR 828.) It is not clear what documents were attached to Chief Terrazas’ memorandum. Nevertheless, an agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) As the party challenging the administrative decision, petitioner has the burden to demonstrate that the suspension order, verified complaint, and statement of service were not filed with the Board of Fire Commissioners, as required by Charter § 1060(c). (Fukuda, 20 Cal.4th at 817.)

Petitioner provides no evidence that the memorandum corresponds to a Firefighter III other than petitioner. The memorandum references “charges proferred by Deputy Chief, Acting Commander, Stephen L. Gutierrez.” (AR 797.) As stated above, Deputy Chief Gutierrez prepared the verified F-501 Complaint setting forth the charges against petitioner. (AR 819-21.) The memorandum also references attached documents which “were served and are fully explanatory of the offenses charged.” (AR 797.)

During the Board of Rights, petitioner asked the Department to produce proof of service that “the complaint was filed with the Fire Commission within the five (5) day statute of limitation as required in [Charter] Section 1060c.” (AR 813 [Request No. 2].) In response, the Department produced Chief Terrazas’ December 9, 2021 memorandum addressed to the Board of Fire Commissioners, with confirmation of receipt dated December 13, 2021. (AR 796, 814, 827-28.) Petitioner presents no reason for the Court to doubt the veracity of the Department’s production or to determine that Chief Terrazas’ memorandum addressed to the Board of Fire Commissioners did not relate to petitioner. Petitioner also presents no reason for the Court to find that the verified F-501 Complaint prepared by Deputy Chief Gutierrez was not attached to Chief Terrazas’ December 9, 2021 memorandum. Petitioner accordingly has not met his burden to demonstrate that the Department did not comply with Charter § 1060(c).

Petitioner also argues that the Board of Rights was empaneled to hear the charges against him set forth in the Amended Complaint Against Member prepared by Assistant Chief Kepner on February 27, 2023. (AR 734, 925.) Thus, according to petitioner, the Court should look at when the Amended Complaint was filed with the Board of Fire Commissioners, not the Complaint prepared by Deputy Chief Gutierrez on December 9, 2021. Because petitioner was either served the Amended Complaint on March 7, 2023, through his representative (AR 734) or March 16, 2023 (Answer ¶ 8), petitioner asserts that any filing of the charges with the Board of Fire Commissioners necessarily falls outside of the statutes of limitations under the Charter, as set forth in Caspian’s XO report. (AR 784-86.)

The Court disagrees. The Amended Complaint contains the same charges as the original Complaint prepared by Deputy Chief Gutierrez. The only difference is that Charge No. 3 was amended to state that the alleged tire slashing occurred on or about December 13, 2019, instead of “November 18, 2020 to December 13, 2019.” (Compare AR 6 with AR 794.) Charge Nos. 1 and 2 are identical between the two complaints. (Compare AR 4, 6 with AR 819, 821.) Because the substance of the charges is essentially identical, except for the elimination of a typographical error concerning the date of occurrence of Charge No. 3, the Amended Complaint relates back to the original Complaint for the purposes of the statute of limitations. “Under the relation back doctrine, to avoid the statute of limitations bar, the amended complaint must allege the same general set of facts, refer to the same accident, same injuries, and refer to the same instrumentality as alleged in the original complaint.” (Fix the City, Inc. v. City of Los Angeles (2024) 100 Cal.App.5th 363, 2024 WL 1012368 at *5.) Here, the Amended Complaint contains the same revenge pornography, vandalism, and tire slashing allegations set forth in the original Complaint. Accordingly, the timeliness of the filing of the charges against petitioner is based on the original Complaint, not the Amended Complaint. As discussed above, the Court finds that filing of the original Complaint was timely.

For the foregoing reasons, the Court finds that petitioner’s arguments concerning the statute of limitations are without merit.

Petitioner argues that the complaint against him was not verified by the Fire Chief. Charter § 1060(c) states: “The complaint shall be verified by the oath of the Fire Chief and shall contain a statement in clear and concise language of all the facts constituting the charge or charges.”

The Fire Chief is the chief administrative officer of the Fire Department. (Charter § 522.) The Fire Chief has the power to administer the affairs of the Fire Department, appoint employees to the Fire Department, and issue instructions to employees in the line of their duties. (Charter § 509 [powers of chief administrative officer under control of board of commissioners]; see Charter § 500(a) [Fire Department is under control of board of commissioners].)

It is undisputed that the Fire Chief did not sign any verified complaint against petitioner. (AR 819 [signed and sworn by Deputy Chief Gutierrez], AR 4 [signed and sworn by Assistant Chief Kepner].) However, the Fire Chief suspended petitioner based on review of the complaint verified by Deputy Chief Gutierrez. (AR 824 [“This action is based upon sworn charges regularly preferred against you by Deputy Chief, Acting Commander Stephen L. Gutierrez under the date of December 9, 2021”].)

Under Charter § 509, the Fire Chief had authority to delegate to Deputy Chief Gutierrez, Acting Commander Professional Standards Division, the responsibility of verifying complaints under oath as part of fulfilling the disciplinary procedures of the Fire Department under the Charter. (See AR 42 [stating in denying motion to dismiss, “The form F501 was signed by a delegate of the fire chief”].) Otherwise, under petitioner’s reading of Charter § 1060(c), Fire Chiefs would be required to verify each complaint based on their personal knowledge (AR 819), which is knowledge they could not reasonably be expected to possess in every case considering all the other responsibilities they have under the Charter. (See Charter § 509.) The Court will not interpret Charter § 1060(c) to require an absurd result. (See Ventura County Ry. Co. v. Hadley Auto Transport (1995) 38 Cal.App.4th 878, 881 [“A statute must be construed to render it reasonable; the literal meaning of its words must give way to avoid absurd consequences”].) The most reasonable reading of Charter § 1060(c) is that verification of the complaint by the Fire Chief or the Fire Chief’s designate with personal knowledge is sufficient.

For the foregoing reasons, the Court finds that petitioner’s arguments concerning the oath of the Fire Chief are without merit.

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

[1] 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.