Judge: Curtis A. Kin, Case: 24STCP01275, Date: 2025-05-13 Tentative Ruling

24STCP02299  Luchia Tsegaberhan
The Petition will be granted.  A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Case Number: 24STCP01275    Hearing Date: May 13, 2025    Dept: 86

            Petitioner Mark Lopez petitions for a writ of mandate directing respondent Los Angeles County Civil Service Commission (“Commission”) to set aside its decision imposing a fifteen-day suspension for violations of 3-01/121.30: Policy of Equality—Inappropriate Conduct Toward Others (Based on Sex) and 3-01/122.05: Policy of Equality—Duties of Supervisors and Managers.  For the reasons that follow, the petition is DENIED.

I.       Factual Background

            Petitioner has been employed by respondent Los Angeles County Sheriff’s Department (“Department”) since December 23, 1996, and, over his career, he has received 20 commendations. (AR 146, 149, 233.) Petitioner had been assigned to the Compton Sheriff’s Station and the Department’s Internal Affairs Bureau when he was a sergeant, filling various roles. (AR 2635.) By July of 2017, petitioner had been promoted to lieutenant. (AR 149, 673.)

            On October 13, 2017, Captain Michael Thatcher conducted a welfare check of one of petitioner’s subordinates, a law enforcement technician who had been absent from work at the Compton Sheriff’s Station for three days without notice and had not been answering any work calls. (AR 672-74.) After finding the subordinate at her apartment in an emotionally distraught state of mind, Captain Thatcher transported her to a nearby hospital for psychiatric care.  (AR 677-78.)  Through questioning, it was revealed that the subordinate was troubled because she had engaged in inappropriate, sexual conduct with petitioner, her former supervisor, which she had not previously disclosed. (AR 678-80.) Captain Thatcher reported the subordinate’s statements to the Intake Unit for the Sheriff’s Internal Affairs Bureau (“IAB”). (AR 648-85.)

            On June 14, 2018, petitioner was interviewed by the IAB, during which petitioner denied engaging in any sexual conduct with the subordinate or having sexually harassed her while using the Department’s equipment or while at a Department location. (AR 449-93.) Petitioner, however, did admit to having an “intimate encounter” with the subordinate in her apartment while he was off-duty. (AR 462-65, 811-15.) Petitioner explained that he went to his subordinate’s apartment in mid-2015 while on his way to work, because she had failed to answer any work calls and because he needed information pertaining to her job responsibilities and wanted to inquire whether she would report back to work. (AR 463-66, 469, 812-815, 818, see also AR 2475-79 [hearing testimony].) As described by petitioner, during the visit, petitioner entered his subordinate’s apartment, watched her pleasure herself with a vibrator while lying on her bed, sat next to her on the bed, and touched her breasts or vaginal area, or both. (AR 463, 467-68, 812, 816-817.)  Petitioner also stated that he had received sexually explicit photos and a video from his subordinate while she was off duty and encouraged the behavior. (AR 481-84.) Petitioner explained that he did not believe his behavior was improper because he was not in a relationship with his subordinate. (AR 475.)

            On September 26, 2018, the Department served a letter of intent to suspend petitioner for a period of 15 days based on allegations of inappropriate sexual conduct with his subordinate and failing to act in response to a rumor about his subordinate engaging in other sexual conduct. (AR 612-16.) Following the culmination of the investigation, on November 26, 2018, the Department suspended petitioner for 15 days without pay on the ground: (1) that petitioner engaged in inappropriate workplace conduct, in violation of  3-01/121.30: Policy of Equality—Inappropriate Conduct Toward Others (Base on Sex); and (2) that petitioner failed to follow supervisory procedures upon becoming aware of a sexual rumor regarding a subordinate, in violation of  3-01/122.05: Policy of Equality—Duties of Supervisors and Managers.  (AR 3-5.)

Petitioner appealed his suspension with the Commission, and the Commission granted petitioner’s request for an appeal, which was assigned to Hearing Officer Robert Klepa (“Hearing Officer”). (AR 7, 12.) The hearing on petitioner’s appeal spanned ten days, with the first hearing held on October 24, 2019, and the last one on May 11, 2021. (AR 12, 25-27, 30.) After receiving closing briefs, the Hearing Officer issued his Report, along with his proposed Findings of Facts, Conclusions of Law, and disciplinary Recommendation. (AR 31-67, 68-144, 145-79.) Of note, the Hearing Officer found that the subordinate was an unreliable witness based on her extreme version of events that were not supported by the evidence. (AR 166.)

The Hearing Officer found that the Department had only met its burden in establishing that petitioner had violated the Department’s policy on reporting a rumor but not the policy prohibiting inappropriate conduct at the workplace.[1] With respect to the policy concerning inappropriate workplace conduct, the Hearing Officer observed that sexual relations between consenting adult members of the Department do not violate the policy unless such acts are “work-related.” (AR 165.)  Thus, the Hearing Officer concluded the consensual sexual act between petitioner and his subordinate did not violate the policy because it occurred at the subordinate’s apartment and petitioner’s reasons for going to that apartment did not convert it “into a Department supervised or controlled workplace at the time of the act.” (AR 168, 173.)  Consequently, based on the one policy violation with respect to failing to address the rumor, the Hearing Officer recommended granting petitioner’s appeal and reducing his suspension from 15 to 3 days. (AR 179.)

In light of the Hearing Officer’s Report, on February 1, 2022, the Commission issued a Notice of Proposed Decision, indicating that it intended to adopt the Hearing Officer’s Recommendation but provided the parties an opportunity to present written objections to the proposed decision. (AR 189.) On February 22, 2022, the Department filed its written objections. (AR 190-211.) Petitioner did not object to the Hearing Officer’s Report but filed a response to the Department’s objections on April 6, 2022. (AR 213-23.) On September 29, 2023, the Commission issued a Notice of New Proposed Decision with Revised Findings of Fact and Revised Conclusions of Law, finding that petitioner violated both 3-01/121.30: Policy of Equality—Inappropriate Conduct Toward Others (Base on Sex) and 3-01/122.05: Policy of Equality—Duties of Supervisors and Managers and that a 15-day suspension was appropriate. (AR 227-35.)

In its decision, the Commission found that the evidence did not demonstrate that petitioner received or encouraged sexually suggestive images from his subordinate while he was on duty, using the Department’s equipment, or at the Compton Station. (AR 229.) The Commission also found that the evidence did not demonstrate that petitioner engaged in sexual conduct with his subordinate while at the Compton Station, in the Department’s vehicles, or at any of the locations alleged by his subordinate. (AR 229-31.) The Commission thus determined that petitioner had neither sexually harassed his subordinate nor created a hostile work environment for her at the Compton Station. (AR 230-31.) Notwithstanding these findings, the Commission found that petitioner violated 3-02/121.30: Policy of Equality—Inappropriate Conduct Toward Others (Based on Sex) based on the interaction that had occurred at the subordinate’s apartment in mid-2015.  The Commission so found because petitioner visited the subordinate’s residence “for a welfare check and work related purpose [and] then assisted in sexual acts in violation of this policy.” (AR 234.)  The Commission specifically noted that petitioner “went to [the subordinate]’s apartment to conduct a welfare check on [the subordinate] prior to coming on duty, because she had not shown up to work for two days.”  (AR 229.)  The commission further noted that petitioner went there because ‘[h]e also needed to obtain some work-related information from her at that time,” finding explicitly that the sexual encounter in the apartment “was a work-related event because one of the reasons for [petitioner]’s trip to [the subordinate]’s apartment was to obtain work-related information” for her. (AR 229.)

Following petitioner’s October 23, 2023 written objections to the Commission’s proposed decision (AR 236-45) and arguments presented on December 20, 2023 (AR 270-82), the Commission issued its final determination on January 24, 2024, upholding petitioner’s original 15-days suspension based on the two policy violations. (AR 247-49.)

II.      Procedural History

             On April 22, 2024, petitioner filed a verified Petition for Writ of Mandate. On April 12, 2023, respondents County of Los Angeles (“County”) and Department filed their Answer.

            On October 21, 2024, petitioner filed an opening brief. On March 28, 2025, respondents filed an opposition. On April 14, 2025, petitioner filed a reply.  The Court has received an electronic copy of the administrative record, as well as a hard and electronic copy of the joint appendix.

III.     Standard of Review

A.           Administrative Mandamus under CCP § 1094.5

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

Because the suspension of petitioner from his position 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.) “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.)

“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 a 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 respect 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.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

B.           Traditional Mandamus under CCP § 1085

CCP § 1085(a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”  “There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.) 

“When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1085, judicial review is limited to examining the agency proceedings to ascertain whether the agency’s action has been arbitrary, capricious or lacking entirely in evidentiary support, or whether the agency failed to follow the proper procedure and give notices required by law.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311, citing Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584.)

IV.     Analysis[2]

            Petitioner seeks to set aside the Commission’s decision on three grounds: (1) an abuse of discretion in weighing the evidence and making findings in support of the decision (Pet. Br. at 7-12); (2) an abuse of discretion in choosing the appropriate penalty (Pet. Br. at 12-24); and (3) failure to comply with the Commission’s own Civil Service Commission Rules (Pet. Br. at 14-15.)  The Court finds such contentions unavailing.

A.           The Weight of the Evidence and Findings Thereon Support the Decision that Petitioner Violated Section 3-01/121.30

With respect to his first contention, petitioner confusingly refers to the Commission as having abused its discretion “by imposing Petitioner’s 15 days suspension against the weight of credible evidence” (Pet. Br. at 7), but the abuse of discretion about which petitioner actually complains is not the imposition of the penalty but the contention that the Commission’s “decision is not supported by the findings, or the findings are not supported by the evidence.” (CCP § 1094.5(b).)  At the heart of petitioner’s first contention is his argument that “the Commission does not cite to any action committed by [petitioner] within the workplace or motivated by the [subordinate]’s protected characteristics that would be able to sustain an alleged violation of Section 3-01/121.30 Policy of Equality—Inappropriate Conduct Towards Others.” (Pet. Br. at 11.)  Relatedly, petitioner contends that the Commission fails to explain how the evidence led to its ultimate conclusion and decision, which, in petitioner’s view, runs afoul of the Supreme Court’s decision in Topanga Assn. for Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506.  (Pet. Br. at 10-11, citing Topanga, 11 Cal.3d at 515 [“[T]he agency which renders the challenged decision must set forth findings to bridge the analytical gap between the raw evidence and ultimate decision and order”].)

Section 3-01/121.30 of the Department’s Manual of Policy and Procedure states:

Inappropriate conduct toward others is any physical, verbal, or visual conduct based on or because of any of sex, race, color, ancestry, religion, national origin, ethnicity, age (40 and over), disability, sexual orientation, marital status, or medical condition when such conduct reasonably would be considered inappropriate for the workplace.

This provision is intended to stop inappropriate conduct before it becomes unlawful discrimination or harassment. As such, the conduct need not be pervasive or repeated in order to violate this Policy. An isolated derogatory comment, joke, racial slur, 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 by the Department for the workplace, it will violate this policy.

(AR 545). As is relevant here, the policy states explicitly that even conduct that is not unwelcome, i.e., consensual sexual conduct, may be in violation of the policy if such conduct “reasonably would be considered inappropriate by the Department for the workplace.” (AR 545.)  Here, as acknowledged by petitioner (Pet. Br. at 8; Reply at 5-6), based on the testimony of Chief Johnson concerning what the Department considered inappropriate, the Hearing Officer appropriately understood such provision to mean that “sexual relations between consenting adult members of the Department do not constitute violations of this policy unless the acts are also work-related.” (AR 165.)

            With this understanding of the policy in mind, the Hearing Officer noted that petitioner’s “intimate touching of [the subordinate] in her apartment, while consensual, is clearly ‘inappropriate for the workplace’ and was engaged in ‘because of sex.’” (AR 168, citing 3-01/121.30.)  Thus, the Hearing Officer further noted that “[a] violation of this policy might therefore have occurred if [petitioner]’s reasons for going to that apartment had converted that apartment into a Department supervised or controlled workplace at the time of the act.”  (AR 168.)  Indeed, observed the Hearing Officer, “[t]he policy has been applied in this way because the Department does not have a general policy that prohibits superiors from engaging in consensual sexual relations with their subordinates under all circumstances.” (AR 168.)  Rather, as further observed by the Hearing Officer, “the Department allows a sexual relationship to exist so long as it is reported to the Department and does not occur at the workplace.[3] (AR 168, emphasis added.)

            As urged by petitioner (Pet. Br. at 11-12; Reply at 5-7), the Commission applied the Hearing Officer’s same framework for analyzing whether petitioner violated 3-01/121.30, but reached a different conclusion.  While the Hearing Officer concluded the “interaction was not a work-related event for either [petitioner] or [the subordinate] because it did not occur in a Department supervised or controlled area” (AR 173),[4] the Commission concluded otherwise, finding that “[t]his interaction was a work-related event because one of the reasons for [petitioner]’s trip to [the subordinate]’s apartment was to obtain work-related information from [the subordinate].” (AR 229.)  In the Court’s independent judgment, the weight of the evidence supports the Commission’s findings and conclusion. 

Petitioner himself admitted that he went to the subordinate’s apartment on his way to work to check on her because she failed to answer any work calls and because he needed information pertaining to her job responsibilities.  Notably, petitioner explained that “I wasn’t able to contact her when I needed some information from her for work-related information” and that “she knew how critical it was for her to answer my calls again at that time, because of the high level of scrutiny that the station was under and the job that we were both working on together.” (AR 464.)  He further stated that the information he sought from her was “information that I needed that she is the only one that can give me” and that it “had to do with her responsibilities” at work. (AR 469.) 

Moreover, the Commission had before it the testimony of Chief Johnson, who testified that, in the view of the Department, petitioner’s visit to his subordinate’s apartment was work-related, stating: “Going to the employee’s apartment to get some wort of work information made it an extension of the workplace.” (AR 1690.)  On cross-examination, the Chief elaborated further:

So an employee’s conduct—based on their conduct alone can put them on duty even though they aren’t in uniform or not on the clock, if you will.  And there’s plenty of examples in the past where that’s occurred.  A deputy intervening in a robbery.  He’s on duty, although he’s off duty at the time.

In this case, because [petitioner] went to her residence on his own for her to produce some form of work that was related to her job, in essence, he put her on the clock.  If she’s a subordinate of his and he is requesting work from her, by his own testimony, that physically puts her on the clock.

(AR 1756-57.)

Such evidence supports the Commission’s findings and conclusion that petitioner violated 3-01/121.30 by having engaged in sexual conduct with his subordinate in her apartment while he was there for work-related reasons. Indeed, an employee is considered acting within the scope of their employment while going to or coming from the workplace when running a “special errand” on behalf of the employer—whether that is to check on a subordinate who failed to respond to work calls or to obtain work-related information from that employee to complete a project. (See Baptist v. Robinson (2006) 143. Cal. App. 4th 151, 162; see also Munyon v. Ole’s Inc. (1982) 136 Cal. App. 3d 697.)

Because the single incident of misconduct in the subordinate’s apartment is sufficient to support the violation, it does not matter, as petitioner emphasizes, that the Commission found that other allegations of sexual misconduct were not established, including allegations of intimate touching at the Compton station, in Department vehicles, or at other off-duty gatherings of Department personnel. (Pet Br. at 7-8, citing AR 229-30.)  Nor does the finding that petitioner never had sexual intercourse or touched his subordinate without consent (see AR 230) alter the conclusion that the consensual touching in the subordinate’s apartment was work-related and inappropriate for the workplace.

Lastly, the Court does not find that the Commission failed to set forth findings to bridge the analytical gap between the evidence and the Commission’s ultimate decision.  (See Topanga, 11 Cal.3d at 515.) In its Notice of New Proposed Decision, the Commission confirmed that the Hearing Officer’s decision was provided to the parties and issued its Revised Findings of Fact and Revised Conclusions of Law. (AR 227-35.)  The Commission then adopted its New Proposed Decision. (AR 247-49.)  As discussed above, the Hearing Officer’s decision explained that a consensual sexual act between petitioner and his subordinate at the subordinate’s apartment would only constitute a policy violation if work-related. (AR 165.)  In its Revised Findings of Fact, the Commission found that petitioner went to his subordinate’s apartment both to conduct a welfare check because she had not shown up at work for two days and to obtain work-related information from her. (AR 229 [Finding of Fact No. 10].)  The Commission then explained its finding that the sexual encounter at the apartment was “work-related” because petitioner’s “trip to [the subordinate]’s apartment was to obtain work related information from [the subordinate].” (AR 229 [Finding of Fact No. 10].)  Ultimately, the Commission explained its conclusion that it was sustaining the charge that petitioner “engaged in inappropriate conduct in violation of [the 3-01/121.30] policy because he visited [the subordinate]’s residence for a welfare check and work related purpose [and] then assisted [the subordinate] in sexual acts in violation of this policy.” (AR 234.)

Accordingly, because the Court finds the weight of the evidence supports the underlying findings and conclusion that petitioner violated 3-01/121.30: Policy of Equality—Inappropriate Conduct Toward Others (Based on Sex), the Commission did not prejudicially abuse its discretion in violation of CCP § 1094.5(b).

B.           A 15-Day Suspension as a Penalty was Not an Abuse of Discretion

With respect to the 15-day suspension imposed, petitioner contends the Commission abused its discretion by failing to appropriately consider the circumstances surrounding the misconduct and the likelihood such conduct will occur again. (Pet. Br. at 12, citing Skelly, 15 Cal.3d at 217-18.)  In so contending, petitioner focuses on the fact that petitioner has no history of misconduct involving similar allegations and that the subordinate was found to be not credible by the Hearing Officer.

While petitioner has only had one prior disciplinary over the course of his career, which only resulted in written reprimand (AR 229), the record supports the relatively modest 15-day penalty imposed for the conduct at violations at issue. It is not dispositive that the subordinate lacked credibility, because the sexual misconduct was admitted by petitioner.  Nor does it matter that the Commission did not find that petitioner committed any other sexual misconduct as claimed by the petitioner.  Here, petitioner exhibited disregard of his authority over the subordinate and lack of judgment by engaging with her in a sexual act while at her home for work purposes.  Moreover, he did so even though his subordinate was in a poor mental state, and he demonstrated no acknowledgment that his behavior was improper. (AR 475, 812-13; 1654-57) Given that the permissible discipline for both of petitioner’s violations ranged from a written reprimand to discharge (AR 1689-94), a 15-day suspension for the two violations of policy was not an abuse of discretion.

C.           The Commission Followed its Rules

Asserting entitlement to mandamus relief under both CCP sections 1094.5 and 1085, petitioner argues that the Commission failed to follow Civil Service Rule 4.12 by misapplying the required burden of proof in that the Commission “purposefully mischaracterized non-work actions as work-related misconduct” and sustained the Department’s discipline against petitioner even though the Department purportedly “did not present sufficient evidence to sustain their burden of proof.” (Pet. Br. at 14.)

 This argument is without merit.  As discussed above, the weight of the evidence supports the Commission’s finding that petitioner’s sexual misconduct was work-related, and there is no evidence to suggest that the Commission improperly shifted the burden to petitioner to disprove this point. Accordingly, the Court does not find that the Commission violated its own Civil Service Rules.

V.      Conclusion

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