Judge James C. Chalfant, Case Number: 23STCP03062, Date: 2024-04-18 Tentative Ruling

Petitioner Jason Shaw (“Shaw”) seeks a writ of mandate compelling the City of Los Angeles (“City”) and Los Angeles Police Department (“LAPD” or “Department”), and Chief Michael Moore (“Chief Moore”) to set aside and vacate the decision to discharge Shaw from his employment as a police officer.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Shaw commenced this action on August 23, 2023, alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

Shaw was a police officer with LAPD for approximately 19 years. He was accused of using anabolic steroids and engaging in a domestic altercation with his former spouse, Elizabeth Shaw (“Elizabeth”). LAPD found that Shaw violated LAPD policy and directed him to a Board of Rights (sometimes, “Board”) hearing which commenced on November 1, 2022.

At the Board hearing, Petitioner faced two charges:

Count 1: On or before September 17, 2019, you, while off-duty, pulled E. Shaw’s hair and grabbed her face during a domestic altercation.

Count 2: Between January 1, 2016 and October 7, 2021, on one or more occasions, you, while on or off duty, improperly used anabolic steroids.

The Board found Petitioner guilty on both counts. The Board recommended a penalty of removal which Chief Moore imposed.

Petitioner Shaw seeks a peremptory writ of mandate to (a) set aside the decision to discharge him, (b) reinstate him with back pay and interest retroactive to the day he was taken off payroll, (c) restore all benefits which he would have accrued, (d) remove all records related to his discharge from his personnel file, (e) award ancillary damages, and (f) award costs and attorney’s fees.

2. Course of Proceedings

On August 23, 2023, Shaw filed the Petition.

No Answer is on file.

B. Standard of Review

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15. The pertinent issues under section 1094.5 are (1) whether the respondent has proceeded without jurisdiction, (2) whether there was a fair trial, and (3) whether there was a prejudicial abuse of discretion. CCP § 1094.5(b). An abuse of discretion is established if the respondent 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(c).

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). The right to practice a trade or profession is deemed to be a fundamental right requiring application of the independent judgment test. Golde v. Fox, (1979) 98 Cal.App.3d 167, 173.

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.” Id. 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 short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16. However, “[i]n 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, supra, 20 Cal.4th at 817. Further, an agency is presumed to have regularly performed its official duties. Evid. Code §664.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 15.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Alford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

C. Governing Law

Police officers who have completed their probationary period and are permanent employees have a property interest for purposes of due process with respect to their job and compensation. A public entity must accord the police officer constitutional procedural due process before depriving the officer of this property interest. City Charter §1070(a); see Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 215.

Generally, LAPD officers cannot be suspended, demoted, or removed from service except for good cause upon a showing of guilt before a Board of Rights. City Charter §1070(a). An exception to this rule permits the Chief of Police to demote a police officer or suspend him or her for up to 22 days following appropriate pre-disciplinary procedures. City Charter §1070(b). Any such action is subject to pre-disciplinary procedures required by law and a Board of Rights hearing if sought by the police officer. Id. This procedure, where the police officer elects to have a Board of Rights hearing, is commonly referred to as an “opted” hearing. A Board of Rights hearing occurring after the Chief of Police demotes or imposes less than a 22-day suspension satisfies the requirement of an administrative appeal under Govt. Code section 3304(b). Jackson v. City of Los Angeles, (1999) 69 Cal.App.4th 769, 780; Holcomb v. City of Los Angeles, (1989) 210 Cal.App.3d 1560, 1566.

If the Chief of Police intends a penalty greater than a 22-day suspension, including termination, the matter is automatically referred to a Board of Rights hearing. This procedure, where the police officer has no choice in the referral decision, is commonly called an “ordered” Board of Rights hearing. There is a one-year limitations period for termination, suspension, and demotion. City Charter §1070(d).

Whether the Board of Rights hearing is opted or ordered, it is a de novo evidentiary hearing. City Charter §1070(f). The Board of Rights consists of two officers with the rank of captain or above and one civilian. City Charter §1070(h). LAPD has the burden of prove by a preponderance of evidence. City Charter §1070(l).

Upon a finding of guilt, the Board of Rights recommends discipline, ranging from reprimand to removal. City Charter §1070(n). The Chief of Police has discretion to impose a lesser penalty, but not a greater penalty, than recommended. City Charter §1070(p). The officer can ask the Chief of Police for a rehearing at any time within three years. City Charter §1070(t).

“Anyone who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine up to two thousand five hundred dollars ($2,500) per violation by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.” Penal Code §632(a) (emphasis added).

A “confidential communication” for purposes of Penal Code section 632(a) is defined as:

“any communication carried on in circumstances that may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” Penal Code §632(c).

The first clause of Penal Code section 632(c)’s definition of “confidential communication” includes any conversation under circumstances showing that a party desires it not to be overheard or recorded. The second clause then excludes a conversation where the party reasonably believes it will be overheard or recorded. Flanagan v. Flanagan, (2002) 27 Cal.4^th 766, 774.

“Nothing in Section 631 or 632 shall be construed as prohibiting one party to a confidential communication from recording such communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to such communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m, and nothing in Section 631 or 632 shall be construed as rendering inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m, or any crime in connection therewith, any evidence so obtained.” (emphasis added).

Penal Code section 633.5 allows one party to record a confidential communication for the purpose of obtaining evidence reasonably believed to relate to the commission of domestic violence by the other party. The recording does not need to be made only for purposes of instituting a prosecution. People v. Ayers, (“Ayers”) (1975) 51 Cal.App.3d 370, 377 (recordings to show bribery made for parties’ own use and not prosecution were admissible at criminal trial).

Petitioner Shaw and Elizabeth Shaw (“Elizabeth”) met in 2003. AR 37. They began a romantic relationship in 2010 and married in 2014. AR 57. They had two children. AR 57. They had one child, Sydney, was born on December 11, 2011. AR 57, 796. They married on January 2, 2014 just before the birth of their second child, Spencer, born on February 7, 2014. AR 57, 796. Shaw and Elizabeth separated in 2021 and began divorce proceedings. AR 374.

Prior to their marriage Shaw had been married to an LAPD officer named Katie Archuleta (“Katie”). AR 293. Elizabeth was married to a man named Luke Wagner (“Luke”). AR 355.

Elizabeth suffers from Post-Traumatic Stress Disorder (“PTSD”). AR 692. Elizabeth testified that she has a mental health disorder and was diagnosed by the Veterans Administration as having PTSD. AR 360-61. She receives $4,000 a month from the V.A. for her disability. AR 808, 812, 820.

When Luke was married to Elizabeth, she reported to police that he had assaulted her, resulting in his arrest. AR 355. Elizabeth testified that she was in the Air Force at the time, and they saw her bruises when she came to work. AR 355. She was forced to seek a restraining order against Luke and his father. Id. She was then confined to the base for 31 days “for my protection…and they gave me medical [sic].” AR 355, 359. Elizabeth said Luke did not want to go to jail so he instructed her to go to Kaiser and tell them she made stuff up and request a prescription for Prozac “to verify that I made everything up so it looked like I was the one that did bad, not him.” AR 357-58. She stopped cooperating with the District Attorney and eventually she requested that the charges be dropped. AR 200, 649.

Shaw and Elizabeth began a romantic relationship in 2010. AR 293. Katie and Shaw were still married at the time, but Elizabeth did not know it. Id.

Elizabeth emailed Katie on September 2, 2014 to apologize for hurting her and breaking up her family. AR 795. She stated that she and Shaw planned to divorce, she planned to move out, and she expressed the hope that Katie would adopt Sydney and Spencer and treat them as her own. AR 795.

Elizabeth testified that Shaw was abusing her mentally but had not yet started to abuse her physically when she wrote this email. AR 291-92. She wrote the email to get Katie off their backs by thinking the relationship was over. AR 293. She did so because “Jason always said we had to hide our relationship from Katie, because she was crazy and that she would flip out and do something to me.” AR 293.

In 2015 or 2016, Elizabeth filed a personnel complaint accusing Katie of stalking, but an LAPD investigation found the accusation to be unfounded. AR 201, 290, 688.

On October 5, 2021, the Murrieta Police Department (“MPD”) was informed by Child Protective Services (“CPS”) of a referral they had received from Elizabeth’s therapist. AR 568. Elizabeth had told the therapist, a court mandated reporter, that Shaw recently had threatened their daughter when she walked in front of the television while he was watching Monday Night Football.[1] AR 635. Elizabeth said that she did not believe the threat was credible, but it was the last straw helping her to decide to divorce Shaw. AR 636. MPD told Elizabeth about restraining orders and how to get one. AR 636.

Later the same day, MPD paid a follow-up visit to Elizabeth. AR 643-45. She told police that there had been unreported cases of domestic violence by Shaw since they were married, the last incident occurring two or three months earlier. Id. According to Elizabeth, Shaw would hold her down for a few seconds and yell at her. Id. She has never had any serious injuries requiring medical attention or lasting overnight. Id. She also told the officers that she believed Shaw was cheating on her with other women. Id. She also said that Shaw was an alcoholic and was taking steroids. Id.

MPD investigated the allegation of abuse. AR 644-45. MPD presented the case to the Riverside County District Attorney’s Office (“DA”). AR 569. On March 8, 2022, the DA notified MDP that it declined to file criminal charges against Shaw for “lack of sufficient evidence.” AR 633.

MPD then reported the incident to LAPD and the complaint came to the attention of Lieutenant James Canales (“Lt. Canales”) on October 7, 2021. Id.

On September 9, 2020, Elizabeth filed a request in family law court for a restraining order against Shaw, custody of their children, and for spousal support. AR 143-44. At that time, she did not allege any domestic abuse. Id. Elizabeth told the court there had been no “domestic altercations” during the marriage. AR 57.

According to Elizabeth’s declaration and other family law court documents, Elizabeth and Shaw separated on July 8, 2021. AR 739, 796, 810. Shaw testified that he and Elizabeth separated in October 2021. AR 57.

On September 3, 2021, Elizabeth filed for divorce. AR 796. She reported that her disability income of $4,000 per month would be reduced upon entry of dissolution. AR 816. Her petition for divorce made no claim of abuse. AR 294-95.

On September 9, 2021, the family law court ordered the parties to attend an appointment on November 8, 2021, via video conference, concerning child custody issues. AR 802.

MPS contacted a judge and obtained an emergency protective order (“EPO”) for Elizabeth. Id. On October 6, 2021, the court granted Elizabeth a one-week EPO requiring Shaw to move out of their home immediately and stay at least 100 yards away from her. AR 648. When MPD advised Shaw of the EPO, he told them that Elizabeth had false police reports against her previous husband, “Weaver”. AR 648.

LAPD Captain Hurtado served the EPO on Shaw at work on October 7, 2021. AR 632. The same day, Shaw surrendered all his firearms to MPD and, with the help of his mother, removed his personal property from the home. AR 646, 649.

On October 12, 2021, Elizabeth filed a request for a domestic violence restraining order and a request for child custody. AR 700-13.

On November 2, 2021, Shaw appeared in family law court to contest the restraining order that had been imposed. AR 144. With Elizabeth’s consent, the court dismissed the complaint she had filed and dissolved the “Temporary Restraining Order as to Domestic Violence with Children.” AR 733.

On December 13, 2021, Shaw submitted to a forensic substance abuse evaluation by O’Brien and Associates for purposes of the family law court proceeding. AR 160. After interviewing Shaw, his mother, his sister, a family friend and two neighbors, as well as administering two alcohol and drug assessment tests, O’Brien and Associates advised the family law court that Shaw had no substance use disorder. AR 728-32.

On February 15, 2022, the family law court issued an order limiting Shaw’s “parenting time” to 24 hours a week. AR 740.

On March 15, 2023, the court ordered that Shaw have unsupervised child visitation. Ar 790. The court required Shaw to “enroll in Soberlink,” and to “give notice to the City Attorney for the Pitchess motion.” Id. The court set July 20, 2023, for further hearing. Id.

On May 16, 2022, Elizabeth filed an ex parte request to amend Shaw’s parenting time, alleging child abuse. Pursuant to Family Code section 3027, the court ordered CPS to investigate Elizabeth’s claim that Shaw was physically and emotionally abusing their children and set a hearing date of July 25, 2022. AR 148, 735.

On October 26, 2022, Elizabeth filed another request for an order, alleging child abuse and seeking sole legal and physical custody of the children and limiting Shaw’s visitation to 24 hours per week, “professionally supervised” at Shaw’s expense. AR 744-45. She also asked the court to order Shaw to pay child support and spousal support, including “arrears” for October and November 2021, and to pay sanctions to her in the amount of $10,000. AR 749. The hearing was set for November 15, 2022. AR 744-45, 748.

Elizabeth also filed a Pitchess motion, requesting an order compelling LAPD to disclose Shaw’s records regarding his employment termination and the grounds for dismissal. AR 749-50, 783-88.

On May 23, 2022, Elizabeth was interviewed by LAPD Internal Affairs Division (“IAD”) investigator Sergeant Mark Wright (“Sgt. Wright”). AR 685. She told Sgt. Wright that Shaw told her he had started taking steroids in 2016 or 2017. AR 686.

She explained that Shaw committed acts of domestic violence against her two to three times per month during the first year of their relationship and it slowed to once every six months. AR 686. In the last year, his domestic violence had increased to once a month. Id. Approximately 85% of the time, these incidents occurred after Shaw had been drinking. Id. She reported incidents of domestic violence to MPD. Id. She stated that she had not reported these incidents in the past because Shaw told her that he would lose his job if LAPD found out and they would have no money to survive. AR 686.

The last incident occurred two or three months prior to her report to MPD. Id. They had been drinking and arguing and later fell asleep. In bed, Shaw got on his hands and knees and urinated all over her. Id. She smacked him to “wake up”. He laughed, got up, and urinated on a dresser. Id.

Elizabeth said that she had photographs of her injuries, but she later deleted them. AR 686. She did have an eight-minute recording she had made on September 17, 2019, in which Shaw admitted grabbing her face and pulling her hair. Id.

LAPD policy, dated February 21, 1992, states: “Drug abuse is the wrong or improper use of chemical substances. It includes the use of any illegal drug or controlled substance, along with the misuse of other chemical substances such as alcohol, anabolic steroids, and prescription or over-the-counter medications.” AR 614 (emphasis added).

Due to the allegation of anabolic steroid use, Shaw was ordered by Lt. Canales to provide a urine sample to LAPD’s Medical Services Division. AR 569. On October 19, 2021, Shaw submitted to a urinalysis test. AR 691.

On July 29, 2022, nine months after the October 2021 urinalysis, NMS Labs reported the presence of a steroid in Shaw’s urine identified as Boldenone. AR. 618-22. On the same date, Shaw signed a release allowing the lab results to be released to IAB Sgt. Wright. AR 691.

On August 18, 2022, IAB completed its investigation. AR 690. On October 6, 2022, the Department charged Shaw with misconduct as follows:

Shaw received a Skelly package containing a Letter of Transmittal with the investigation report and attachments. AR 103, 692-99 (without attachments).

The Board of Rights began hearing evidence on May 22, 2023. AR 2. Shaw pleaded not guilty to both charges. AR 27.

Sgt. Wright testified in pertinent part that, after he prepared his investigation report, when Elizabeth learned that she would testify at the Board of Rights, she provided the Department with several photographs and screenshots of her text messages with Shaw. AR 228-29, 653-81. AR 184, 186, 195, 685. She also provided an audio recording in which he admitted grabbing her face and pulling her hair. AR 196. She had not reported this incident to MPD. AR 198-99.[2]

The NMS Labs report did not say what amount or quantity of Boldenone was present. AR 208. LAPD’s Medical Services Division had no familiarity with the drug, stating only that it was an anabolic steroid for veterinary use. AR 209-10.

Elizabeth’s adult daughter, Haley Smith, was present at the Board of Rights as a “support person” during Elizabeth’s testimony. AR 238.

Elizabeth took photographs in July 2021 and gave them to her divorce attorney around August 2021. AR 245-46, 248, 252-54. She provided them again to her attorney in April or May 2023 for the court’s evaluation of parenting practices or mental health by an expert under Evidence Code section 730, but she did not know whether her attorney ever submitted them to the court. AR 246. [3]

Shaw told her around the beginning of 2017 that he had been using steroids for six months. AR 244. He told her that he wanted to look younger, and he wanted to be stronger so he could take down the “meth heads” he encountered in his work “because they were strong when they were on meth.” AR 278, 347.

One photo Elizabeth provided showed a box which she described as “a box of steroids, the alcohol prep pads, extra needles.” AR 249.[4] She photographed the box in July 2021, which had been “in our closet.” AR 248. The box was addressed to Shaw with a return address to Wilson Pena. AR 248, 653. Elizabeth explained that is how the vials of steroids would arrive every six months. AR 248. Shaw purchased steroids from Wilson Pena. AR 244. He made her pay Wilson Pena via her Venmo account. AR 254-55. Elizabeth testified to screenshots of Venmo payments and text messages discussing specific payments. AR 254-59, 263, 269-71, 659-62, 677-78.

Shaw did not buy gym equipment and did not have any gym equipment at home. AR 351. He went to the gym to exercise. AR 276, 351.

She provided LAPD with screen shots of text messages between herself and Shaw which referenced his use of “man juice,” which she thought meant steroids. AR 255-69, 665-75. He also texted that this “man juice made him sterile and he would become small if he did not use steroids.” AR 667-73. She acknowledged that Shaw used the terms “steroids” and “testosterone” interchangeably. AR 344-45.

Shaw physically, verbally, emotionally, and mentally abused her during their marriage. AR 242-43, 271-272, 291. He would grab her and force her to do something she did not want to do, which she felt was abusive. He also put her down non-stop. AR 243. On August 17, 2020, they had been drinking and went to bed. AR 271. About 30 minutes later, she felt him rollover get on his hands and knees, and pee on her. AR 271. There were about ten occasions of physical abuse. AR 291.

During their divorce proceedings, upon her attorney’s advice, Elizabeth submitted affidavits detailing Shaw’s emotional abuse of their children. AR 735-43. At the advice of her counsel, she did not put Shaw’s abuse of herself at issue because he could lose his job. AR 287- 288. She told her therapist, who is a mandated reporter, and law enforcement became involved. AR 325-26.

On September 17, 2019, Elizabeth recorded Shaw admitting to pulling her hair and grabbing her face. AR 240-41, 609. She made the audio recording while they were riding in Shaw’s truck having an argument about what had happened the night before. AR 240. In the recording, Shaw admitted that he had grabbed her face and pulled her hair. AR 609. Shaw denied on the recording that it was abuse or that he was hurting her. AR 241, 688, 609 (timestamp 3:35-3:47). Elizabeth had not reported the incident because Shaw told her he would lose his job. AR 243.

The conversation on the audio recording beginning at 3 minutes and 30 seconds is as follows:

because I want you to look at me. That’s not abuse. That’s not hurting you. Is it? You won’t look at me. That’s disrespectful. When I ask you to look at me, then you look at me. AR 609.

Elizabeth previously agreed to dissolve the temporary restraining order because “I was told Officer Shaw would never be able to work again with a restraining order against him”. AR 323.

Shaw testified in pertinent part as follows. He has worked for LAPD for 19 years. AR 53. His relationship with Elizabeth started in 2010 and they stopped living together in October 2021. AR 57. There have not been any domestic altercations in their relationship. AR 57.

He denied ever pulling his wife’s hair or grabbing her face. AR 58, 156. When the recording was played, he testified that he gently reached to touch her face so that she would look at him. AR 60, 157. She became angry and slapped his hand away, which caught in and pulled her hair. AR 157. He admitted pulling her hair in the recording because he was frustrated by their conversation about a possible divorce and was being sarcastic. AR 59, 63, 158. He wanted her to stop talking about divorce and wanting to leave him with the kids and disappear. AR 64.

He is familiar with LAPD drug policy and that all officers are required to follow it. AR 67-69. In 2021, he was not taking any prescribed medication except testosterone. AR 69-70. He was ordered to take a drug test for steroids in October 2021. AR 76. He was notified of the results in September 2022. AR 78. He did not know why his positive urine test result showed up. AR 79. He denied ever taking Boldenone or knowing what it was before the investigation. AR 74. He has never had it in his house. AR 74.

Shaw was prescribed testosterone cypionate, which was taken by injection and prescribed to him by his board-certified practitioner. AR 89, 91-92, 689. This was for erectile dysfunction. AR 91. The clinic mails it to you. AR 72. It comes in a Fed Ex package and the bottles are labeled “testosterone cypionate.” AR 72. Shaw said he took it only off-and-on between 2016 and 2020 because, at $300 to $500 a month, “it was always a little too pricey for me.” AR 75, 85. He could only remember the name “Game Show” as a clinic supplier and could not remember the name of other clinic suppliers. AR 75. He produced an August 1, 2022 statement from GameDay clinic that stated he was under its care for testosterone. AR 92-93, 683.

He knows a man named Wilson Pena. AR 80. He is a gentlemen Shaw met at the gym. AR 80. Wilson Pena is deceased. AR 80. He received one package from Wilson Pena that he recalled, but he could not recall what was in it. AR 80. He bought a large piece of workout equipment from Wilson Pena for about $1000 and paid by Venmo. AR 80, 82.

He has never seen the needles, alcohol prep pads, and other stuff in the box depicted in the photographs. AR 409. He recognized the picture of “bacteriostat water” and said it was for Elizabeth’s dogs. AR 423. Additionally, he recognized the bottle of Anastrozole as something he was prescribed to keep his estrogen levels down. AR 424-25.

His use of the term “man juice” in his texts to Elizabeth referred to the testosterone he was taking. AR 83-84. In one of the text messages, he said his “liver count levels may be off from taking steroids.” AR 664. He denied that this was an admission that he was taking steroids. AR 84. It was just shorthand for “testosterone.” AR 417. “She didn’t understand that testosterone was not steroids. She didn’t have an understanding of that.” AR 417. “She believed everything was steroids.” AR 419.

In one of the text messages, Shaw said he did not want to tell the doctor why his levels were all messed up. AR 675. Shaw testified that in 2018, his “levels” were “off,” and he was getting a lot of blood work done and eventually he was diagnosed with celiac disease. He did not want to tell the doctor that he was taking testosterone because he feared she would tell him to quit. AR 413-14.

Briana Peterson (“Peterson”) testified in pertinent part as follows. She is a forensic toxicologist for NMS Labs. AR 111. She wrote the report for Shaw’s test result. AR 111, 113-14. Shaw submitted to a urine test for illegal substances and tested positive for Boldenone. AR 113-15. See AR 618-22. Boldenone is a steroid that is legally used in animals for weight gain. AR113-16. It is illegally used by humans to build muscle mass. AR115-16. Boldenone is an illegal steroid and not for human consumption. AR 115-16.[5] Two tests were conducted: an initial test and a confirmatory test. AR113-14. The original screening test was conducted on November 8, 2021, and the confirmation test was on November 12, 2021. AR 114. Her lab does a qualitative report, but not a quantitative report. AR 128-29. The qualitative assessment was sufficient to show accurate results. AR113-15.

Dr. Marvin Pietruskia (“Pietruskia”) testified for Shaw as an expert. AR 456-57. He is a board-certified pathologist and forensic toxicologist. Id. In his opinion, the test used by NMS Labs did not reveal whether the Boldenone in Shaw’s system was exogenous or endogenous. AR 495. If a person were to have a minor production of Boldenone in his system, there is a test, not used by NMS Labs, that would determine whether the substance originated from within the body or originated outside the body. AR 469-70. To rule out contamination in the test laboratory and to determine whether the substance actually passed through a person’s liver, a search must be conducted to find the metabolite as the boldenone degraded, which was not done. AR 470. The test NMS Labs used was valid as a screening test, but not as a confirmatory test. AR 495. “With the proper testing, you have essentially 100% accuracy as to whether it’s positive or negative, whether it’s there or not. With the testing that they did, we have zero percent chance of knowing anything.” AR 495.

He did not test the urine sample and admitted he was unfamiliar with Boldenone. AR 476.

Carla Hogan (“Hogan”) submitted a declaration in which she stated that, near the end of August 2021, Elizabeth told her she had retained divorce counsel, and planned to tell the attorney that Jason was abusive and that she “needed the money [sic]”. AR 793. ‘I (Hogan) told her (Elizabeth) that is a lie and she stated that they will take her side because she is a woman, and her lying cannot be proved.’” AR 793.

Hogan also testified in pertinent part as follows. She was friends with Elizabeth and not so much with Shaw. AR 437. Elizabeth talked about divorce the first time they met. AR 452-53. Elizabeth did not ever say that she had been physically abused or had her hair pulled by Shaw. AR 442. Elizabeth told Carla that her divorce attorney said it was not enough to claim that her husband was cheating on her; there had to be some kind of abuse. Elizabeth told Carla that she was okay with lying about that so long as Shaw got what was coming to him. AR 446-47.

Hogan had lived with Shaw’s father, Parris, for 14 years but they never married. AR 448, 454. Beginning in June 2021, Elizabeth was saying she wanted to divorce Shaw and leave the children because she thought Shaw was cheating on her and she needed to get on with her life. AR 442-43. Carla said Elizabeth told her that she had been diagnosed with a mental health disorder, and some of it was PTSD from being in the service. AR 444, 454. Elizabeth told her it would be a good thing if Shaw lost his job. Elizabeth also told her she hoped Shaw would get killed in an accident. AR 445.

Elizabeth told her about the recording and said that she was baiting Shaw. AR 451-52.

On May 25, 2023, the Board of Rights found Shaw guilty of both counts of misconduct. AR 856.

Regarding Count 1, the Board noted that it focused on one particular incident on approximately September 17, 2019. AR 849. Shaw admitted the allegations in Count 1 but explained that he merely touched Elizabeth’s cheek to turn her face towards him and his hand got tangled in her hair. AR 850-51. The Board paid particular attention to the audio recording, and Shaw’s tone of voice and word choices were demonstrably abusive. AR 851. Some of the phrases were common markers of abusive behavior by domestic violence perpetrators. Id.

The Board found Elizabeths’ testimony on Count 1 believable. Based on the totality of the evidence presented and a pattern of conduct over more than ten years, the Board found Shaw guilty of the charges set forth in Count 1.

Regarding Count 2, the Board noted that the Department presented test results from NMS Labs showing the presence of Boldenone, an illegal anabolic steroid, in Shaw’s urine sample. AR 851. The Board heard from Peterson as to the accuracy of the test results and the need for only a qualitative assessment, which were sufficient for this purpose. Id.

Pietruszka testified to the effect that the NMS Lab test result was a false positive. AR 852. If this were a criminal proceeding, Pietruszka’s testimony might have been sufficient to create reasonable doubt. Id. However, under the preponderance of the evidence standard, there are factors presented to the Board that suggest Shaw injected Boldenone. Id. In addition to the NMS Labs result, other factors include Pietruszka’s own lack of familiarity with Boldenone or a history with it for analysis other than his recent research for this case, his insistence that every forensic toxicologist would agree with his conclusion (even though Peterson did not), his insistence of the need for 100% testing accuracy, Shaw’s reference to steroids in text messages with Elizabeth, and Elizabeth’s photograph of Boldenone vials in a box kept by Shaw. Id.

With respect to the photo, Shaw indicated that he did not know where the Boldenone came from and that the syringes in the picture were not the type that would be used for intramuscular injection based on the color of the cap. AR 852-53. Shaw’s testimony suggests that Ellizabeth planted the Boldenone as evidence. Id. This conclusion is controverted by the testimony that her photo of the box holding Boldenone vials was taken before the Department’s receipt of the lab results identifying the presence of Boldenone in Shaw’s urine. AR 853.

Shaw testified that the syringes were for diabetic use, but his support for this statement based on the color of the syringe cap is controverted by common knowledge. Id. In addition, Shaw testified that he only used testosterone-enhancing supplements and prescription for erectile dysfunction. Id. However, Elizabeth testified that Shaw said he was using steroids to “fight the meth heads,” and Shaw also testified that he competed in weightlifting competition. Id. The Board found Shaw guilty on Count 2. Id.

The Board stated it was proper to note the Department’s penalty guide and noted the only recommended penalty for steroid use in the penalty guide is termination. AR 855. For a first-time sustained domestic violence count, the penalty guide has several recommendations, including removal. AR 855. The Board considered Shaw’s 38 minor commendations as well as his disciplinary history of four sustained complaints resulting in one admonishment, one official reprimand, and two suspensions of seven and ten days, respectively. AR 854. The Board recommended that Chief Moore terminate Shaw’s employment. AR 855.

On May 31, 2023, Chief Moore followed the Board’s recommendation and removed Shaw from his position as police officer, retroactive to November 4, 2022, presumably the date he was relieved of duty. AR 856.

Petitioner Shaw contends that the Board erred because (1) the text messages and photographs should have been excluded as a Skelly violation, (2) the audio recording should have been excluded as illegally recorded, and (3) the weight of the evidence does not support a finding of guilt on Count 2.

After the investigation was concluded and the matter was set for hearing, Elizabeth provided IAB with photographs she had taken as well as images of text messages between herself and Shaw. Shaw objected to this evidence on the ground it had not been provided to him during the Skelly process. AR 247. The Board overruled the objection. AR 279. Pet. Op. Br. at 13-14.

Shaw argues that there is no evidence that the Department provided this evidence to him before he was relieved of duty. In using this evidence without giving him an opportunity to review and respond to it before he was relieved of duty, LAPD violated his right to due process under Skelly, supra, 15 Cal.3d at 194. Skelly spells out what is required of a public employer before taking punitive action. Pre-disciplinary safeguards, the court said, must include at a minimum, “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” Id. at 215 (emphasis added). Pet. Op. Br. at 14.

Shaw was not provided the text messages or photographs supplied by Elizabeth to support Count 2 before he was removed from duty on or about October 5, 2022, and taken off the payroll on November 4, 2022. The remedy for a Skelly violation is clear. Shaw is entitled to have the Board’s action set aside and reinstatement with back pay. Pet. Op. Br. at 14.

Constitutional principles of due process do not create general rights of discovery. Gilbert v. City of Sunnyvale, (2005) 130 Cal.App.4th 1264, 1280. A “‘tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.’” The employee has “‘the right to be informed not only of the nature of the charges but also of the substance of the relevant supporting evidence.’” Id. at 1278 (italics omitted). But the mere fact that the employer provides additional materials following his Skelly hearing is not a Skelly violation. Ibid. “What Skelly requires is unambiguous warning that matters have come to a head, coupled with an explicit notice to the employee that he or she now has the opportunity to engage the issue and present the reasons opposing such a disposition.” Ibid. (citation omitted).

Skelly only required LAPD to provide Shaw with a copy of the charges and materials upon which its action was based. The purpose of doing so is to give the public employee a pre-deprivation opportunity to avoid discipline by explaining whatever evidence the Department had at the Skelly hearing. The required disclosure is not intended to limit the scope of whatever evidence the public employer may develop after the Skelly hearing for the post-deprivation hearing.[6]

As the Department argues, Shaw was only entitled to the evidence Chief Moore may have reviewed in rendering his decision. If the Department did not have an item prior to the Skelly hearing, then he could not have been relied on it. Chief Moore did not rely on the photographs and text messages to render his decision because the Department did not have them yet. Opp. at 8-9.

In reply, Shaw argues that the Department contends that it can withhold evidence and then introduce it at the Board hearing simply because the Chief of Police did not review it. Skelly does not allow for such gamesmanship. Reply at 6. Maybe so, but that is not what happened. The Department did not withhold the text messages and photographs. It was unaware of them until Elizabeth produced them after she learned that she would testify at a Board of Rights hearing (AR 228-29), at which point they were disclosed to Shaw as evidence.[7]

On September 17, 2019, Elizabeth recorded Shaw in a conversation where he admitted to pulling her hair and grabbing her face. AR 60-61, 240-41, 609. Shaw was unaware that Elizabeth was recording. AR157, 693. In the recording, Shaw admitted that he had pulled her hair and grabbed her face. However, he denied in the recording that it was “abuse” or that he was hurting her. AR 241, 609 (audio file, 3:35 - 3:47). On May 23, 2022, Elizabeth told IAB Sgt. Wright that she had the recording and provided it to him. AR 184, 186, 195, 685.

Elizabeth testified that she made the recording while the two of them were riding in Shaw’s truck and having an argument about what had happened the night before. AR 240. Shaw testified that he was trying to get his wife to stop talking about divorce, “and to stop bringing up the fact that she wanted to leave me with the kids and disappear.” AR 64.

During the IAB investigation, Shaw’s attorney objected to use of the recording since it had been recorded surreptitiously. AR 688. Shaw now reiterates that contention that the recording was inadmissible as evidence. The conversation recorded by Elizabeth was clearly “confidential” within the meaning of Penal Code section 632 and may not be relied on as evidence. Pet. Op. Br. at 15; Reply at 4.

Penal Code section 632 provides that “[a]nyone who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication…” is guilty of a crime. Penal Code §632(a). A “confidential communication” for purposes of Penal Code section 632(a) is defined as any conversation under circumstances showing that a party desires it not to be overheard or recorded. Flanagan v. Flanagan, (2002) 27 Cal.4^th 766, 774.

Penal Code section 633.5 provides an exception to Penal Code section 632 and states:

Penal Code section 633.5 allows a party to record a confidential communication for the purpose of obtaining evidence reasonably believed to relate to the commission of domestic violence by another party. The recording does not need to be made only for the purpose of instituting a prosecution. Ayers, supra, 51 Cal.App.3d at 377 (recordings to show bribery made for parties’ own use and not prosecution were admissible at criminal trial). Opp. at 9.

Shaw replies that Ayers concerned a conspiracy to commit murder. Id. at 372. In upholding the admission of recordings at the criminal trial, the court pointed out that Penal Code sections 631 and 632 make “it a crime for private individuals to intercept or record telephonic or other conversations without the consent of all parties to the conversation…. Id. at 376 (emphasis added). Shaw argues that the recording was not made “for the purpose of obtaining evidence” of any crime. Even though Elizabeth made the recording on September 17, 2019, she never reported the incident to MPD. AR 198-99. She did not even tell IAB investigator Sgt. Wright about the recording until she knew Shaw was under investigation. AR 184, 186, 195, 685. Shaw concludes that Penal Code section 633.5 does not make the illegal audio recording admissible at a Board of Rights hearing. Reply at 5.

The Department also argues that it did not record the conversation and Shaw’s legal recourse is against Elizabeth.[8] Opp. at 9. This is incorrect. As Ayers noted, Penal Code section 631 expressly provides that “‘[e]xcept as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative or other proceedings.’” 51 Cal.App.3d at 376 (emphasis added).

However, Ayers noted that the two witnesses who recorded the defendants testified at trial and could have testified to all the matters on the recording without any contention that the criminal defendants’ rights were violated. Id. at 378. Essentially, the court found any error in admitting the recordings was harmless. Id. In this case, both Elizabeth and Shaw testified at the hearing, and both testified to what Shaw said on the recording. In his testimony, Shaw admitted that he grabbed Elizabeth’s face and pulled her hair. He explained it by testifying that he gently reached to touch her face so that she would look at him. AR 60, 157. She became angry and slapped his hand away, which caught in and pulled her hair. AR 157. He should not have admitted this conduct if he wanted to preserve his objection to the significance of the recording. It is true that Shaw’s tone also was of significance to the Board, but the fact is that he admitted the misconduct.

As a result, any error was harmless. “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”. F isher v. State Personnel Board, (2018) 25 Cal.App.5th 1, 20. CCP section 1094.5(a)’s requirement of a fair hearing is no different. “A writ of administrative mandamus will not be issued unless the court is persuaded that an abuse of discretion was prejudicial.” Quinitar v. County of Riverside, (2014) 230 Cal.App.4^th 1226, 1236.

Count 2 alleged that “Between January 1, 2016, and October 7, 2021, on one or more occasions, you, while on or off duty, improperly used anabolic steroids.” AR 26, 218.

Preliminarily, Shaw argues that, to the extent that the Board relied on screenshots of text messages from Shaw to Ellizabeth alluding to “man juice” and making other comments, that reliance is unlawful under Penal Code sections 632, 632.5, 632.6 and 632.7.

“These statutes protect against interception or recording of any communication. When the Legislature determined that there was no practical means or protecting cordless and cellular phone conversations from accidental eavesdropping, it chose to protect all such conversations from malicious or intentional eavesdropping or recording, rather than protecting only conversations where a party wanted to keep the contents secret.” Flanagan v. Flanagan, supra, 27 Cal.4^th at 776 (italics in original; underlining added). Pet. Op. Br. at 17.

Penal section 632 only applies to the recording of audible sound or symbol-based communications. People v. Drennan, (2000) 84 Cal.App.4^th 1359, 1353, 1358 (statute does not apply to photographs). While the statute can apply to written words, Elizabeth did not “record” any text messages. They were sent to her by Shaw and appeared on her telephone. They are no different for purposes of analysis than testimony about the contents of a telephone call or an email, neither of which is protected by Penal Code section 632. The text messages were admissible.

Shaw contends that the evidence is insufficient on Count 2. On October 5, 2021, Elizabeth told MPD that she believed her husband was cheating on her with other women and that he was an alcoholic and taking steroids. AR 642-43.

Shaw testified that in 2021 he was not taking any prescribed medication except testosterone. AR 69-70. He was prescribed testosterone cypionate, which was taken by injection and prescribed to him by his board-certified practitioner. AR 89, 91-92, 689. This was for erectile dysfunction. AR 91. Shaw had a prescription for testosterone cypionate, which was taken by injection. AR 89, 689, 690. According to Wikipedia,[9] testosterone cypionate is an anabolic steroid, approved by the FDA for treatment of hypogonadism. Reply at 6.

Shaw testified that he knew a man named Wilson Pena, who now is deceased. AR 80. He received one package from Wilson Pena but could not recall what was in it. AR 80. He bought a large piece of workout equipment from Wilson Pena for about $1000. AR 80, 82. He paid Pena by Venmo. AR 82.

On October 21, 2021, Shaw submitted to a drug test. AR 623. The test results were positive for testosterone. AR 620. This qualitative test was also positive for Boldenone. A.R. 620, 621. He did not know why his positive urine test result for Boldenone showed up. AR 79. He denied ever taking Boldenone or knowing what it is before the investigation. AR 74. He has never had it in his house. AR 74.

The Department’s investigation referenced an article by the U.S. Anti-Doping Agency (“USADA”) about Boldenone. A.R. 685, 690. Based on this article, the Department investigation states that “[B]oldenone was not approved by the Food and Drug for use in humans for any reason.” A.R. 685. However, the Department investigation also acknowledged that the same USADA article indicated that “boldenone had been found in adulterated nutritional supplements sold over the counter and were often not declared on the product labels.” AR 685.

Shaw argues that there is no dispute that the Department’s “qualitative” test cannot be used to distinguish if the Boldenone detected was “endogenous” (naturally occurring) versus “exogenous” (externally administered). AR 131, 466, 469-470. The Department did not do the “isotope testing” that Peterson admitted is “recommended…in order to determine why boldenone is in the sample.” AR 130. Therefore, the Department cannot assert that the qualitative positive result necessarily means that Shaw was taking Boldenone. Using the flawed test report, the Department charged Shaw with violating Department policy which defines “drug abuse” as, among other things, the misuse of anabolic steroids and prescription or over the counter medications. A.R. 614.[10] Reply at 6-7.

The weight of the evidence supports the guilty finding on Count 2. The qualitative test conducted by NMS Labs reported the presence of Boldenone. AR. 618-22. As Pietruskia testified, this test was not conclusive of the quantity of Boldenone in Shaw’s urine and could not definitively say that it did not come from another source, such as whether the Boldenone in Shaw’s system was exogenous or endogenous. AR 495. To determine whether the Boldenone actually passed through Shaw’s liver, a search must be conducted to find the metabolite as the Boldenone degraded, which was not done. AR 470. Nonetheless, Pietruskia admitted that the test NMS Labs used was valid as a screening test, albeit not as a confirmatory test. AR 495.

Screenshots of text messages show ongoing conversations between Shaw and Elizabeth regarding steroids spanning from 2016 to 2022. AR 660-81. In the text messages, Shaw which referenced his use of “man juice,” which Elizabeth thought meant steroids. AR 255-69, 665-75. He also texted that this “man juice made him sterile and he would become small if he did not use steroids.” AR 667-73. Elizabeth acknowledged that Shaw used the terms “steroids” and “testosterone” interchangeably. AR 344-45.

Several photographs showed vials, syringes, and other medications that Shaw kept either in the refrigerator or in a box located in his closet. AR 248-52, 342-43, 654-58. The vials were labeled “Boldenone” and “Equipose.” AR 654-55. Elizabeth testified that the vials of steroids would arrive in packages every six months. AR 248. Shaw kept the steroids in his closet and in their refrigerator. AR 249-52. Elizabeth saw Shaw inject the contents of the vials using needles into his buttocks. AR 250-51.

One photo Elizabeth provided showed a box which she described as “a box of steroids, the alcohol prep pads, extra needles.” AR 249. She photographed the box in July 2021, which had been in “our closet.” AR 248. The box was addressed to Shaw with a return address to Wilson Pena. AR 248, 653. Shaw purchased steroids from Wilson Pena. AR 244. He made her pay Wilson Pena via her Venmo account. AR 254-55.

Shaw further argues that the evidence does not support his use of Boldenone in the timeframe between January 1, 2016 and October 7, 2021. Shaw submitted to a urine test on October 19, 2021, which was outside the timeframe. See AR 691. Elizabeth testified that he told her he was using steroids at the beginning of 2017, but she also acknowledged that Shaw used the terms “steroids” and “testosterone” interchangeably. AR 344-45. Pet. Op. Br. at 16.

The evidence shows Petitioner’s steroid use was during the pertinent timeframe. Elizabeth testified that Shaw told her around the beginning of 2017 that he had been using steroids for six months. AR 244. In July of 2021, Elizabeth took photographs of the steroid vials and other substances in their home. AR 254. The Venmo transaction to pay Wilson Pena was on August 26, 2021. AR 255, 659. Text messages between Shaw and Elizabeth pertaining to steroids were sent on various dates from 2016 to 2021. AR 256-70. The evidence supports the dates in Count 2.

Given that the questioned evidence was properly received, Shaw essentially admitted guilt on Count 1 and the test results are corroborated on Count 2. The Petition is denied.

The City’s counsel is ordered to prepare a proposed judgment, serve it on Shaw’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for May 23, 2023 at 9:30 a.m.

[1] “The incident was reported to CPS by the therapist. AR 568. Elizabeth alleged that Shaw threatened Sydney, their minor daughter, that if she did not move out of the way of the television, he was going to “get his gun and blow her head off.” AR 568. CPS subsequently began its own investigation. Id.

[2] During LAPD’s investigation, Shaw’s attorney objected to use of the recording since it had been recorded surreptitiously. AR 688. LAPD acknowledged that Shaw was unaware he had been recorded. AR 693.

[3] Shaw objected to the use of these items as evidence at the Board of Rights hearing on the grounds they had not been provided to him during the Skelly process. AR 247. The Board of Rights overruled the objection. Id.

[4] Elizabeth’s daughter from her first marriage placed the comments “…steroids coming from…” on the photos. AR 349-50.

[5] The IAB investigation report referenced an article by the U.S. Anti-Doping Agency about boldenone. AR 685, 690. Based on this article, the IAB report states that “boldenone was not approved by the Food and Drug for use in humans for any reason.” AR 685. The report acknowledges that the same USADA article indicated that “boldenone had been found in adulterated nutritional supplements sold over the counter and were often not declared on the product labels.” AR 685.

[6] An exception -- not at issue here – exists where the employer adds charges based on new evidence without a new Skelly hearing.

[7] Shaw is incorrect that the remedy for a Skelly violation is reinstatement. Rather, the remedy would be back pay from the effective date of discharge to the date of Chief Moore’s decision to remove him. See Barber v. State Personnel Board, (1976) 18 Cal.3d 395, 402.

[8] The Department argues that the Board of Rights Manual (“Manual”) states “Administrative Tribunals were initiated as fact-finding bodies to appraise all the information accumulated concerning a given situation and to reach an equitable decision, without undue interference from restrictive legal minutiae.” Manual, p. 3. In the pursuit of the truth, the Manual allows all relevant evidence, generally allows hearsay, and favors admissibility over exclusion. (Manual, 13^th edition, §§363.10-363.30) The source of a recording is the legal minutiae that the Board of Rights seeks to avoid. It is more important that the recording exists, is relevant, and can help the Board reach an equitable solution. Opp. at 9.

Shaw correctly responds (Reply at 5) that the Manual was not received in evidence at the administrative hearing. Nor has the Department asked the court to take judicial notice of it. Therefore, the Department may not rely on it in their opposition. Although Shaw asks the court to strike the opposition’s reference to the Manual, the court will simply ignore it.

[9] https://en.wikipedia.org/wiki/Testosterone_cypionate

[10] Shaw argues that the policy does not define “misuse,” making the policy too vague to enforce – and certainly too vague as a basis to fire an employee. Reply at 7. This is a new issue raised for the first time in reply and has been disregarded. See Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.