Judge Curtis A. Kin, Case Number: 24STCP01373, Date: 2025-03-11 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.

Petitioner Frank Bernard petitions for a writ of mandate directing respondent Los Angeles County Civil Service Commission (“Commission”) to set aside petitioner’s termination and restore him to his position as Deputy Sheriff with back pay and interest.

Petitioner was hired by the Los Angeles County Sheriff’s Department (“Department”) in September 2012. (AR 1668:22-24].) In 2015, petitioner was assigned to the Criminal Courts Bureau (“CCB”). (AR 1669:3-4.) During his time at CCB, petitioner worked briefly as a lockup deputy; in Department 126 as the bailiff; and in Department 129 as the bailiff, where he remained for one or two years. (AR 1669:12-1670:4.) Petitioner never worked in a custody facility. (AR 1669:5-8.)

On November 14, 2017, petitioner was working as the bailiff in Department 129. (AR 867.) Inmate Ariel Chavarria was in the courtroom for sentencing. (AR 118.) Prior to that date, both Chavarria and his girlfriend, Sierra Breidenstein, had been in Department 129 several times, as Chavarria had a lot of court dates, both out-of-custody and in-custody. (AR 1114:23-1115:5, 1120:1-1221:1, 1141:11-1142:22.) It was not a busy courtroom, and petitioner was familiar with both Chavarria and Breidenstein, although neither were able to recognize petitioner in a six-pack photo lineup. (AR 1115:15-18, 1120:18-1221:1, 1142:13-22, 1150:25-1151:18, 1211:4-19.)

On November 14, Breidenstein arrived in the courtroom and asked petitioner if he could pass Chavarria a greeting card. (AR 1114:11-15.) The card was laced with methamphetamine; such a card is called a “happy card.”[1] (AR 811, 918, 922.) Petitioner took the card but told Breidenstein it would have to be inspected first. (AR 846.) The card was not wet, and it did not look to the naked eye like as if it had any drugs on it. (AR 1129:21-1131:16.) Chavarria testified that he found the card in his property bag after his court appearance. (AR 1145:1-12.) That property bag had been searched by deputy personnel before Chavarria got on the bus for his return from court to the Pitchess Detention Center, and the card was not confiscated. (AR 1146:19-1147:10.) Upon returning on the bus to Pitchess, Chavarria’s property was again searched again by multiple deputies. (AR 1147:11-1148:11.) The card was not confiscated. (AR 1148:18-21.)

On November 15, 2017, Deputy Cory Mattice, who monitored inmate telephone calls for the Department’s Internal Criminal Investigation Bureau (“ICIB”), was randomly listening to calls and came across several conversations between Chavarria and Breidenstein from November 12, 2017 about making a happy card and getting it to Chavarria. (AR 878-80, 1162:2-10.) Mattice informed Operation Safe Jail Deputy Kyle Steffes that Chavarria was in possession of a happy card. (AR 1167:14-1168:2.) Steffes recovered the card. (AR 877, 1274:22-1275:3.) Half of the card was missing, and the front of the card had distinct water markings. (AR 877.) The card tested positive for methamphetamine. (AR 877.)

Detective Joshua Dubin was assigned to investigate the matter. (AR 1801:11-1802:2.) He brought a case against Chavarria and Breidenstein to the District Attorney’s Office, which rejected the case and requested more information as to who had been working as the bailiff in the courtroom. (AR 1802:5-1803:6.) On January 16, 2018, Dubin contacted the supervisor of the courthouse, Sergeant Robert Westphal, and learned that petitioner was the bailiff on November 14, 2017. (AR 98, 1803:1-7, 1819:22-1820:6.) When Dubin spoke to petitioner later that day, according to Dubin, petitioner admitted that he had passed the card from the girlfriend to the inmate and that, in addition to the card, he had also passed items in the past “from time to time.” (AR 1807:25-1808:8, 1810:10-14.)

On the same day Dubin spoke with petitioner, January 16, 2018, Westphal drafted a supervisory inquiry regarding petitioner. (AR 100, 895-97.) In the inquiry, Westphal related what Dubin told him after his conversation with petitioner, including that petitioner allegedly admitted to passing the card to Chavarria. (AR 895-96.) ICIB began an investigation into whether petitioner had conspired to bring narcotics into the jail, with Sergeant Michael Shaw as the assigned investigator. (AR 1242:13-17.)

On January 18, 2018, ICIB Sergeant Dennis Duarte interviewed Breidenstein. (AR 812.) On January 23, criminal charges were brought against Chavarria and Breidenstein. (AR 812.) On January 25, Duarte interviewed Chavarria for the purpose of determining whether petitioner or any other employee assisted Chavarria or Breidenstein in smuggling the happy card into the jail. (AR 812.) Petitioner was relieved of duty in February 2018. (AR 104.)

On November 1, 2018, the matter was presented to the District Attorney’s Office for consideration of filing criminal charges against petitioner. (AR 809.) Deputy District Attorney (“DDA”) Ann Marie Wise declined to file charges. (AR 809.) In the Charge Evaluation Worksheet, DDA Wise wrote, among other things, that:

there is no evidence to establish that Bernard knew the greeting card contained an illicit substance. There is no evidence of any prior relationship between Bernard and Breidenstein or Chavarria. There is no evidence of any quid pro quo, or benefit given to Bernard in exchange for passing the card to Chavarria. None of the recorded calls indicate Bernard knew the card contained an illicit substance, and neither Chavarria nor Breidenstein implicate him in knowing the card contained an illicit substance or engaging in any illegal behavior. Although the card was found to have a watermark at the time it was recovered from Chavarria’s property, there is no proof that the card was in the same condition when Bernard passed it to Chavarria. The fact that half the card was missing when it [was] recovered is consistent with its appearance having changed.

On August 19, 2019, Sergeant Shaw closed the criminal investigation into petitioner and forwarded the matter to the Internal Affairs Bureau (“IAB”) for an administrative investigation. (AR 809.) Sergeant Adrian Guillen was assigned as the primary investigator in February 2020. (AR 1340:11-22.) The Department issued its Letter of Intent to Petitioner on September 22, 2020. (AR 1342:4-20.)

On October 26, 2020, the Department issued its Letter of Imposition, discharging Petitioner from employment. (AR 9-11.) The Letter stated that the investigation established the following:

1. That in violation of Manual of Policy and Procedures (MPP) Sections 3-01/030.05, General Behavior; and/or 3-01/050.10, Performance to Standards; and/or 3-01/030.10, Obedience to Laws, Regulations, and Orders (pertaining to Court Services Division Manual Section 3-14/025.00, Communicating with Persons in Custody); and/or 3-01/050.85, Fraternization, on or about November 14, 2017, while on duty and assigned as a bailiff to Clara Shortridge Foltz Criminal Justice Center, you failed to perform to standards established for your position by accepting illegal contraband from a member of the court audience and passing it to an inmate. In doing so, you failed to preserve the credibility and integrity of the Department and brought discredit and embarrassment onto yourself and/or the Los Angeles County Sheriff's Department, as evidenced by, but not limited to:

a. failing to preserve the credibility and integrity of the Department by avoiding potential conflicts of interest that could be detrimental to the image of the Department, when you did a favor for the romantic companion of a person in the custody of the Sheriff’s Department, by passing illegal contraband from an inmate’s girlfriend to the inmate, in violation of established Department policy, procedures, and training; and/or,

b. allowing dangerous narcotics to be introduced inside the custody environment when you accepted from a member of the court audience, a greeting card laced with methamphetamine, and passed it to an inmate, in violation of established Department policy, procedures, and training.

(AR 9.) Petitioner appealed the discharge. (AR 96.) A civil service hearing was held over four days—November 8 and 9, 2022; April 5, 2023; and May 3, 2023. (AR 96.)

Both the Hearing Officer and the Civil Service Commission sustained petitioner’s termination. (AR 121, 149-50.)

On April 30, 2024, petitioner filed a Verified Petition for Writ of Mandate. On June 10, 2024, real parties in interest County of Los Angeles and County of Los Angeles Sheriff’s Department (collectively “Department”) filed an Answer.

On January 10, 2025, petitioner filed an opening brief. On February 7, 2025, the Department filed an opposition. On February 24, 2025, petitioner filed a reply. The Court has received a hard copy of the joint appendix and an electronic copy of the administrative record.

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

Because the suspension of petitioner from his position as Deputy Sheriff concerns a fundamental vested right, the Court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The Court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) “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 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. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

Petitioner argues that his discharge is not warranted because: (1) petitioner did not know that the greeting card he provided to Chavarria contained narcotics; (2) it was common practice at CCB for deputies to pass items to inmates as a method of gaining compliance from inmates and keeping peace in the courtroom; (3) petitioner had no ties to Chavarria or Breidenstein; (4) the Commission relied on prior discipline imposed on petitioner for a dissimilar incident; (5) petitioner was subject to disparate treatment; (6) there are mitigating factors.

As a threshold matter, in a “Conclusions of Law” section, the Hearing Officer found four violations of the Department’s Manual of Policy and Procedures (“DMMP”): (1) DMPP § 3-01/030.10 (Obedience to Laws, Regulations, and Orders); (2) DMPP § 3-01/03.05 (General Behavior); (3) DMPP § 3-01/050.10 (Performance to Standards); and (4) DMPP § 3-01/50.85 (Fraternization). (AR 120-21.) The conclusions are based on petitioner’s passing of a methamphetamine-laced greeting card from a member of the public to an inmate while serving in a courtroom as a bailiff (AR 120-21.)

From the petition and petitioner’s briefing, it is unclear whether petitioner challenges only the degree of discipline or the imposition of discipline altogether. The distinction matters because the Court reviews the decision to impose discipline under an independent judgment standard and the degree of discipline under an abuse of discretion standard.

In particular, petitioner argues, “[w]hile Department policy indicated this conduct was prohibited, the Department did not take any steps to train or brief deputies regarding this policy. This common behavior of passing items from audience members to inmates was not done as a favor or out of sympathy for inmates. Rather, deputies would regularly pass greeting cards or letters as a method of gaining compliance from inmates and keeping peace in the courtroom.” (Opening Br. at 11:19-22.) The first sentence concedes that petitioner violated Department policy, which subjected petitioner to discipline under DMMP § 3-01/030.10 (Obedience to Laws, Regulations, and Orders). (See AR 834.) However, with the second and third sentences, petitioner appears to dispute the finding of fraternization on the ground that he did not pass the envelope to Chavarria as a favor, but as a way of obtaining his compliance. (See AR 836.)

To the extent that petitioner disputes the imposition of discipline at all, the Court finds in the exercise of its independent judgment that discipline was justified. With respect to DMPP § 3.01/030.10 (Obedience to Law, Regulations, and Orders), this policy states: “Members who violate any rules, regulations, or policies of the Department or the County, shall be subject to disciplinary action.” (AR 834.) It is undisputed that petitioner violated DMPP § 3-14/025.00 by passing items from audience members to inmates. (AR 846 [petitioner took card from Breidenstein]; AR 1145:1-12 [Chavarria found card in property bag].) DMPP § 3-14/025.00 provides, in relevant part: “No property, money, or any other items shall pass between any person and an inmate…. No items shall be passed to an inmate…without permission from the judicial officer.” (AR 835.) There is no evidence that a judicial officer ever gave permission for petitioner to give the card to Chavarria.

Because petitioner violated a policy, petitioner is subject to discipline under DMPP § 3.01/030.10. (AR 834.) This is the case even if petitioner did not know that the card was laced with narcotics or did not receive adequate training on how to recognize “happy cards.” (See AR 118 [Hearing Officer found that petitioner was unaware that card was infused with methamphetamine]; 16456:14-21 [different deputy testified to not having received training on “happy cards”]; 1675:9-21 [petitioner testified to the same].) DMPP § 3-14/025.00 only requires the item to have been passed without the judicial officer’s permission. (AR 835.)

Discipline is also warranted even if passing cards or letters was a common practice. (See AR 1658:10-1659:20 [different deputy testified that birthday cards passed to inmates after inspection to prevent inmate from being upset and causing delay in courtroom].) The policy exists for the protection of the courtroom and the detention center where Chavarria was an inmate. (See, e.g., AR 835 [“If the judicial officer orders an item to be given to an inmate, the item shall be thoroughly inspected for contraband…. [¶] If the judicial officer orders the inmate to receive any legal paperwork, you must inspect all documents for paperclips, staples or any other paraphernalia prohibited to in-custody defendants….”].)

Discipline is also justified even if petitioner and other deputies determined the card to be clear of contraband. (See AR 1129:21-1131:16 [Breidenstein testified that card was not wet and that she probably chose card that was crinkly], 1147:11-1148:21 [Chavarria testified that deputies at detention center inspected card and did not confiscate it].) The fact that no one determined the card to be laced with narcotics does not mean that passing the card to the inmate was any less of a violation of the policy. Simply put, an item was passed to an inmate without the permission of a judicial officer.

DMPP § 3-01/030.05 (General Behavior) states: “A member shall not act or behave while on or off duty in such a manner as to bring discredit upon himself or the Department.” (AR 833.) DMPP § 3-01/050.10 (Performance to Standards) provides: “Members shall maintain sufficient competency to properly perform their duties and assume the responsibilities of their positions.” (AR 833.) Petitioner violated both of these policies by violating the rule to not pass items to inmates without permission of the judicial officer. Petitioner could and should have refused Breidenstein’s request. (See AR 1601:21-1602:20 [different deputy refused requests to pass greeting cards to inmates].) Despite his contention that passing items to inmate in violation policy is a means to gain inmate compliance and keep peace in the courtroom, petitioner points to no evidence indicating that Breidenstein or Chavarria would have disrupted court proceedings had petitioner refused to pass the card. (See AR 116-17.) Even if unwittingly, by passing the card to Chavarria, petitioner allowed contraband to be smuggled into a detention center.

With respect to DMPP § 3.01/050.85 (Fraternization), this policy provides: “Except in the performance of one's official duties, members shall not knowingly fraternize with, engage the services of, accept services from, do favors for, or maintain a business or personal relationship or association with people who are in the custody of any federal, state, county, or local law enforcement agency. Additionally, members shall not knowingly fraternize with, engage the services of, accept services from, do favors for, or maintain a business or personal relationship or association with the spouse, immediate family member, or romantic companion of any person in the custody of any law enforcement agency.” (AR 836.) Petitioner contends that he had no prior relationship with Breidenstein or Chavarria. (AR 846 [Breidenstein did not speak with petitioner about personal issue or over the phone], 1151:24-1152:1 [Chavarria did not have any type of relationship with petitioner].) While that may be true, it is of no moment. Irrespective of motive, the policy prohibits the provision of any favor an inmate or certain associates of an inmate. A “favor” is a “special privilege or right granted or conceded.” (Merriam-Webster, at https://www.merriam-webster.com/dictionary/favor?src=search-dict-box.) Breidenstein was not entitled to pass a card to Chavarria, and Chavarria was not entitled to receive such a card. By passing the card, in violation of policy, petitioner did a prohibited favor for both someone in custody of a law enforcement agency and the romantic companion of someone in custody.

Based on violation of the four policies discussed above, the Court finds in its independent judgment that imposition of discipline on petitioner was warranted. The question now turns to whether discharge, as opposed to lesser forms of discipline, is permissible. More to the point, can this Court conclude that termination an abuse of discretion? “Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.)

The Court cannot say that the Commission’s discharge of petitioner was arbitrary, capricious, or a patently abusive exercise of discretion. The Department’s Guidelines for Discipline provide a penalty range of “Written Reprimand to Discharge” for violating the policies related to (1) Obedience to Laws, Regulations, and Orders, (2) General Behavior, and (3) Performance to Standards. (AR 51.) The Commission’s selected discipline permissibly falls within this range. For violating the policy related to Fraternization, the Guidelines for Discipline provide for “Discharge” as the only penalty. (AR 51.) Thus, the violation of the Fraternization policy would appear to mandate petitioner’s discharge, but, even if the Commission had discretion to impose a lesser degree of discipline, under the circumstances presented here, the Commission did not abuse its discretion in declining to do so.

Petitioner was previously disciplined for Fraternization. Without the required express written authorization, he maintained a relationship with his half-brother, a convicted felon. (AR 283.) Petitioner brought his brother to a boxing event where Department members were in attendance. (AR 283-84.) For this violation of policy, petitioner was suspended for 30 days. (AR 243, 245-46.) With regard to the instant violations, the Hearing Officer permissibly took the prior disciplinary action into account when deciding whether to discharge petitioner. (AR 121 [“Discharge also is warranted due to the Appellant’s prior discipline for fraternization”].)

Although the subject incident concerning the greeting card and the prior incident are dissimilar, they nevertheless constitute violations of the Fraternization policy. Moreover, what they share is the ability to be reasonably viewed as significant lapses in judgment. With respect to the prior incident, the hearing officer in the prior proceeding found that there was “no question” that petitioner “exercised extremely poor judgement by meeting up with his brother, in the company of colleague sworn deputies, in order to attend an event that while public, was certain to be populated primarily by sworn law enforcement members.” (AR 281.) With respect to the subject incident, petitioner understood that passing items from the audience to an inmate was against policy. (AR 983, 990.) Nevertheless, petitioner admitted in his IAB interview to having passed items from the audience to inmates (AR 983)—actions against policy that pose a danger of introducing contraband into a detention center population and, in the case of Chavarria, actually did. The Commission reasonably decided to discharge petitioner based on petitioner’s repeated poor judgment, exhibited both during the subject incident and the incident resulting in his prior discipline. While a lesser form of discipline might also have been reasonable, this Court cannot say that termination was arbitrary or capricious.

Petitioner points to other cases where the Fraternization policy was violated, but the deputy was only suspended. (AR 1543:9-1548:23.) However, there is no evidence that the deputies at issue in the other cases had any prior discipline. Nor is there any evidence that any of those other policy violations actually resulted in the introduction of a controlled substance into an inmate population. While petitioner may be correct that neither Chavarria nor any other inmate was injured or overdosed, and that no civil lawsuit appears to have been brought against the Department, the potential for such serious harm resulting from petitioner’s policy violations cannot be ignored. Irrespective of whether injury or legal liability resulted, the Commission was well within its discretion to treat petitioner’s violation of Department policies seriously and discharge him.

Lastly, the Court finds there was harm to the public service to support the Commission’s chosen penalty. (See Skelly, 15 Cal.3d at 218.) Just a few months after petitioner had allowed the happy card to be passed to Chavarria, another Deputy Sheriff working in Department 129 was asked by an inmate, an inmate’s girlfriend, a member of the public in the courtroom, and counsel for an inmate whether he would pass a card to an inmate. (AR 104.) Indeed, one inmate specifically asked for “Deputy Bernard” and a female associate of an inmate asked that deputy whether he would be the regular bailiff in that courtroom. (AR 104.) That Deputy rightly refused to violate policy as petitioner had done, but this all suggests that other inmates and their associates had come to believe that members of the Sheriff’s’ Department might indulge the favor of passing items (which may contain contraband) to inmates while in custody. It was not an abuse of discretion for the Commission to discharge petitioner in light of this harm to the Department’s reputation and mission. (Anderson v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 769 [“Unquestionably, the actions of a law enforcement officer must be above reproach, lest they bring discredit on the officer’s employer”].)

The Court recognizes that petitioner was characterized as competent and professional in his performance evaluations. (AR 194, 199.) The Court also recognizes that petitioner appears to have admitted his mistake in passing the greeting card. (AR 990 [petitioner stated during IAB interview, “I have learned a lot from this. And it’s something that you see as something small, giving a letter, but I would never do that again”].) However, based on the Guidelines for Discipline and petitioner’s prior violation of the Fraternization policy, discharging petitioner for his demonstrated significant lapse in judgment was not an abuse of discretion, even if reasonable minds might differ as to whether a less serious punishment might have been sufficient. (County of Los Angeles, 39 Cal.App.4th at 634 [“If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion”].)

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

[1] A “happy card” is a greeting card that has been sprayed with narcotics and then dried. The card can then be torn into small pieces and ingested. (AR 811.)