Judge James C. Chalfant, Case Number: 23STCP03264, Date: 2024-08-20 Tentative Ruling

Petitioner Daniela Cordoba (“Cordoba”) seeks a writ of mandate compelling Respondent City of Los Angeles (“City”) to set aside its decision discharging her.

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

Petitioner Cordoba commenced this administrative mandamus proceeding on September 7, 2023. The verified Petition alleges in pertinent part as follows.

Petitioner Cordoba was a sworn police officer with the Los Angeles Police Department (“LAPD” or “Department”). She was temporarily relieved of duty on or about June 22, 2021 after four years on the job. She held the rank of Police Officer II at the time of her disciplinary proceedings.

On February 24, 2020, Petitioner Cordoba was living in a domestic relationship with Officer Daniel Hartman (“Hartman”). Due to a disagreement about fidelity in their relationship, Cordoba asked Hartman to surrender his key to their apartment and leave. When Hartman refused, Cordoba sought the assistance of her superior, LAPD Captain Brian Morrison (“Morrison”), to recover the key. Hartman and Cordoba went to LAPD’s Pacific Station, to which both were assigned.

Thereafter, the Department initiated an investigation into allegations of domestic battery under Complaint File Number ("CF No.") 20-0567.

On February 26, 2020, Captain Morrison gave both Cordoba and Hartman a "direct order not to have contact with each other," which was a "stay away order" by LAPD.

During March 2020, Hartman contacted Cordoba and their relationship resumed. The Department became aware of this fact and initiated additional allegations of failure to follow direct written orders.

On June 25, 2020, LAPD Pacific Division officers responded to a radio call at Cordoba’s apartment complex. A resident of the apartment complex reported that he saw a male forcibly move a female into an apartment. The Department became aware of this fact and initiated another investigation under CF No. 20-1951 for disrupting the peace of tenants in the apartment complex.

After investigation, the Chief of Police ordered Cordoba to face a Board of Rights (sometimes, “Board”) on seven counts of misconduct. On or about May 30, 2023, the Board of Rights found Cordoba guilty of six of the seven counts of off-duty misconduct and recommended that she be discharged from her employment. The Chief of Police adopted the recommendation on June 14, 2023, and discharged Cordoba effective July 22, 2021.

Cordoba contends that the charges are barred by the statute of limitations contained in the Public Safety Officers Procedural Bill of Rights Act (Govt. Code §3304).

Cordoba also contends that the decision to discharge her was an abuse of discretion. The counts in the personnel complaint against Cordoba are vague, overbroad, and infringe on her protected off-duty conduct in familial relationships. The guilty findings on Counts 1, 2, 4, 5, 6, and 7 are not supported by the weight of admissible evidence. The Department also exceeded its jurisdiction, acted not in the manner required by law, and imposed an excessive penalty.

Cordoba seeks a peremptory writ of mandate directing the City to (a) set aside the decision to discharge her, (b) reinstate her with back pay and interest retroactive to the date she was taken off the payroll, (c) restore all benefits that would have accrued to her had she not been discharged, and ( d) remove all records related to discharge from her personnel file and any other file used for personnel purposes. Cordoba also seeks ancillary damages according to proof, costs of suit, attorney’s fees, and such other or further relief as the court deems appropriate.

No proof of service of the Petition is on file. Nor is there an answer to the Petition on file.

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.

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, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). The independent judgment standard of review applies to administrative findings on guilt in cases involving a police officer’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4^th 652, 658.

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.

“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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of 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 506, 514-15. Implicit in CCP 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. Id. at 115.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

During the pertinent time, Petitioner Cordoba was a Police Officer II with the Department with approximately four years of experience. In 2021, the Department alleged that she committed misconduct based on her actions in 2020 and 2021 involving her boyfriend, Hartman, and her brother Daniel.

On June 16, 2021, the Chief of Police signed a personnel complaint directing Cordoba to face seven counts of misconduct before a Board of Rights. The Complaint alleged as follows:

“Count 1: On or about March 23, 2020 (and after), you, while off duty, were insubordinate when you failed to obey a direct order from your commanding officer to have no contact with D. Hartman.

Count 2: On or about February 24, 2020, you, while off duty, purposefully lied when you sent a false message to Officer M. Zendingle which you knew or should have known would require Officer M. Zendingle to notify a supervisor of alleged criminal misconduct by Officer D. Hartman.

Count 3: On or about February 23, 2020, you, while off duty, put your arms around Officer D. Hartman’s neck, pulled him down onto the bed, and held him in a choke hold during a domestic incident.

Count 4: On or about June 25, 2020, you, while off duty, were insubordinate when you failed to adhere to a direct written order issued by Captain S. Embrich to stay away from D. Hartman.

Count 5: On or about June 25, 2020, you, while off duty, unnecessarily engaged in a verbal dispute with your brother, D. Cordoba, which resulted in the response of on-duty officers from Pacific Division.

Count 6: On unknown dates between January 1, 2020 and June 26, 2020, you, while off duty, unnecessarily caused a disturbance that disrupted the peace of tenants residing at 7760 Paseo Del Rey.

Count 7: On or about January 5, 2021, you, while on duty, knowingly made false statements to supervisor during a personnel complaint interview.” AR 1.

The Board of Rights convened on July 2, 2021, but did not begin hearing evidence until January 26, 2022. AR 3-31. After multiple sessions, the hearing concluded on May 30, 2023. AR 2104. Among the ten witnesses (AR 2104) who testified were the following.

Cordoba’s first assignment after graduating from the Police Academy was Wilshire Division, where she spent about a year. AR 907. She then transferred to Pacific Division. AR 907.

Cordoba lived in an apartment near her parents on Paseo Del Rey in the Pacific Division. Her apartment was seven to ten minutes from Pacific station. AR 919. Prior to that, Cordoba lived with her parents. AR 911-12.

She began dating Hartman in October 2018, while she was still assigned to Wilshire Division. He eventually moved in with her. AR 912, 914. They married on July 1, 2021. AR 914.

On February 23, 2020, Cordoba and Hartman argued about where they were going to eat. AR 947. Hartman left the apartment and did not return that night. AR 948, 956. Late that night, Cordoba sent Hartman a text telling him that the apartment was not a hotel and he could not come and go as he pleased. AR 956.

Early the next morning, February 24, 2020, Hartman returned and another argument ensued. Cordoba said she felt disrespected and told him he should move out. AR 957. Hartman offered to work things out. AR 962. He sat on the couch and was texting someone. He mentioned he was texting his friend, Officer Mussie Zendingle (“Zendingle”). AR 957.

Cordoba also texted Zendingle that she needed his help getting Hartman out of her apartment. AR 957. She sent a text to Zendingle stating: “He fucking pulled my sweater and fuxking (sic) choked me my fucking neck is red.” AR 1996, 2020. Cordoba said “he’s a fucking sociopath” and “he will kill my dog if I leave her here.” AR 964. Zendingle responded by suggesting she just leave the apartment. She replied that, if she left, Hartman would throw the dog off the balcony. AR 959, 962.

Cordoba also texted Zendingle: “I’m going to call the cops, Zendingle. Tell your fucking friend to keep his dirty hands off me.” AR 1010, 1996. She told Zendingle, “I’m fucking done being cheated on.” AR 968. She wrote: “I’m not being irrational, he wanted to be a bitch and prove a point, not come home last night and spend it with some fucking ho-bag, then he can take his shit to her place.” AR 998. (Cordoba testified that she was referring to Hartman’s ex-girlfriend, Brenda. AR 999.)

Finally, she texted: “Stupid asshole ruined my life, he doesn’t know how to be loyal.” AR 994. Zendingle texted Cordoba: “Little D, just let it go, let him leave.” AR 992.

Cordoba admitted that her text to Zendingle about Hartman choking her and threatening to kill her dog was not true. AR 965-68. Zendingle was a mutual friend and she just wanted him to help her get Hartman to move out. AR 967. She was very emotional that day and tired of being cheated on and lied to. AR 962, 965. Cordoba conceded she should have known that Zendingle was obligated to report her physical assault accusation to the Department. AR 970.

When Hartman’s father arrived, he told Cordoba to go to her room. He also took pictures of her. AR 973, 2013-16. Cordoba asked Hartman for his key to the apartment. He refused. AR 990. They agreed to go to the station; Cordoba wanted help getting him out of her apartment. AR 990.

When they got to the station, Hartman agreed to turn over the key, but Sergeant (“Sgt.”) Hopkins and Lieutenant (“Lt.”) Fellhauer came out as he was removing it from his key chain. AR 1024.[2] Cordoba was put into the interview room. AR 1024.[3]

Two days later, February 26, 2020, Cordoba was summoned to the Station. AR 1043. Captain Morrison assigned her to home and gave her a written order from Captain Steven Embrich (“Embrich”) (signed by Morrison) to stay away from, and not contact, Hartman. AR 2023-24.

Cordoba was relieved of duty; her badge, police identification and service pistol were confiscated, and she was ordered to stay home during her hours of work. AR 1045. She could not leave home without the Watch Commander’s prior approval. AR1043-44, 2023-24.

On or about March 20, 2020, about a month after they were separated, Cordoba received an email from Hartman with a “very, very extensive apology and how much he loved me and he wanted to work things out.” She replied via text or email. AR 1046. She understood that she violated the written order by contacting him. AR 1047, 1049-50. The two did not “rekindle” right away; they went to individual therapy and couples therapy and got back together. AR 1050-51.

On June 25, 2020, she had a loud argument with her brother in her apartment. AR 1054. After a few minutes of back and forth between her and her brother, Hartman left. AR 1054. She did not argue with her brother outside the apartment; it was all inside the apartment. AR 1057. When she was subsequently photographed at the Station, she was wearing black tights. AR 1123.

A week before Hartman’s Board of Rights commenced, he called her and asked if she would resign from the Department in the hope that he would avoid facing a Board of Rights or prevail at his Board of Rights. Hartman told her he needed an answer right away. AR 1103-04. Cordoba did not resign. AR 1218. Cordoba testified that Hartman was very irritated with her. She suspected he had made a deal whereby he would get his job back with no penalty. Cordoba grew more suspicious when Hartman bought a hundred-dollar suit, suggesting to her that he might have known that he was getting his job back. That is exactly what happened. AR 1219. Hartman reached a settlement with the Department which resulted in him receiving a reprimand. See AR 1211.

Detective Alicia Elliot (“Elliot”) testified that Hartman told him in an Internal Affairs (“IA”) interview that Cordoba and Hartman had an argument on February 23, 2020. He was trying to leave, and Cordoba would not let him. AR 270. It escalated into physical grabbing and what Hartman later described as Cordoba “choking” and “throwing” him onto the bed. AR 270. Hartman eventually left the apartment and went to eat. AR 270. He slept in his car in his parents’ driveway. AR 270. The next morning, February 24, he went back to the apartment to pack his things and move. AR 270. He contacted his father for help moving. AR 270.

Elliot also spoke with Cordoba. She said she would not talk to Elliot without a representative. AR 352-53.

Cordoba is his wife. AR 475. They have been married almost a year. AR 475. They dated for six months before he moved in. AR 478.

On February 23, 2020, they had an argument. AR 478. During the argument he responded to a text from Zedingle. AR 478. He never hit or became physical with Cordoba during the argument. AR 521. At some point, he left the apartment, went to a bar, and had a bite to eat. AR 478. He went back to the apartment, but Cordoba was not there. He put clothes in a duffle bag and went to Pacific Station where he slept in his car. AR 482.

He returned to the apartment the next morning. AR 483. Cordoba asked him to move out. AR 484. During this conversation, his friend Zedingle texted and asked if he had hit her, which Hartman denied. AR 485.

At some point, his father came to help him move out. AR 499. Cordoba asked him for his key. AR 500. He was paying rent and thought he was entitled to keep the key until the first of the month. AR 506. Cordoba said: “Let’s go talk to the Captain about it.” AR 500. Hartman said: “Okay, let’s go.” AR 500. They both went to Pacific Station because Hartman wanted to be present when Cordoba talked to the Captain. AR 505.

Sgt. Gregory Probst put Hartman in the Community Relations Office which is in a trailer across the parking lot. AR 508-09. He was detained for 11 hours at the Station. AR 505-06. An investigative report was filed naming Hartman as a victim of domestic violence and Cordoba as the suspect. AR 519-20.

Hartman was served with an order to stay away from Cordoba. AR 521, 2059-60. His badge, weapon, and police identification were taken. AR 521-22.

About a month after they were separated, he went to see Cordoba. AR 522. The encounter was emotional. AR 525. On March 20, 2020, he wrote her a lengthy email expressing his feelings and apologizing. AR 534-35.

On June 25, 2020, there was an argument between Cordoba and her brother at the apartment. AR 525. There was no physical contact and Daniel did not pick her up in a bear hug. AR 526. The argument did not migrate out to the balcony. AR 526. He left after it escalated to yelling. AR 529.

Captain Morrison testified that the purpose of the stay away orders to Cordoba and Hartman was to avoid the sort of incidents that had preceded them. AR 635. The orders were to stay away and not make contact. AR 633. He signed Cordoba’s order and served it on her. AR 616.

In June, he heard from others at Pacific Station that Hartman and Cordoba were back together. AR 617. He instructed Sgt. Lovich to contact Hartman and Cordoba and instruct them to notify him (Morrison) when they planned on meeting so he could “keep tabs on things.” AR 617-18. Lovick reported that both officers said they had not contacted each other and understood. AR 618.

Morrison learned that there had been a call for service at Cordoba’s apartment complex. When police arrived, no one was at Cordoba’s apartment. AR 621. When Morrison arrived, he learned from the responding officers that one of the residents had reported yelling and heard a commotion at Cordoba’s apartment. AR 620. Morrison was told that a resident reported seeing Cordoba come out, then a man came out, put her in a “bear hug”, took her back in the apartment, and slammed the door shut. AR 620-21. One of the witnesses reported seeing Hartman there that day. AR 621.

Morrison testified that the officers’ disregard of the order not to contact each other was of concern to him: “If your actions are making you the subject of radio calls, then the Department is involved, and that does become my business.” AR 635. In Morrison’s view, the officers should have let him know they wanted to resume their relationship, in which case he would have given them permission to “circumvent the order.” AR 651-52. He met with both officers and their attorneys and recommended they get counseling if they were going to remain in a relationship. AR 633.

On June 25, 2020, Daniel came to Cordoba’s apartment and found her arguing with Hartman. AR 1566. Daniel visited his sister often. AR 1604. The three of them had planned to go out to eat. AR 1568. He does not have any tattoos. AR 1572. He is 5’8” and Hartman is 6’4”. He has never had short blond hair and was 25 years old in 2020. AR 1573.

Hartman and Cordoba were arguing when he arrived. AR 1567. He told them to stop arguing and Hartman headed for the door. AR 1567. Cordoba started crying and yelling, following Hartman to the door, where she tripped over shoes by the door and fell over a clothes hamper (AR 2064) that was about three to four feet inside the apartment (AR 2063). AR 1568-70, 1603, 1607. The clothes hamper caused a bruise on Cordoba’s left arm. AR 2029-30.

When Daniel put his arms around her waist and picked her up, Cordoba was still yelling. Daniel told Cordoba to just leave it alone and relax. AR 1578. Daniel called their mother to come over; her apartment building was right behind Cordoba’s apartment. AR 1570. Cordoba was yelling and screaming inside the apartment and their mother was better able to talk to her than he was. AR 1579, 1601-02. When their mother arrived, Daniel left. AR 1571.

IA Lt. Hector Madrigal (“Madrigal”) described his investigation of the events at Cordoba’s apartment building on June 25, 2020. The defense objected to Madrigal testifying because he was not a percipient witness to that incident. The Board overruled the objection. AR 1317-18. The defense renewed the hearsay objection later, noting that Manual section 363.40 allows hearsay evidence to supplement or explain direct evidence but is not sufficient in itself to support a finding unless it would be admissible over objection in a civil action. AR 1461-62.

Lt. Madrigal testified that Exhibit 9 (an incident recall report) states that Galante called the police and said he heard yelling and screaming by male and female, unknown if physical altercation occurred. AR 1322. He requested the police to keep the peace. He believed the subjects were police officers. AR 1322. Apparently, other neighbors called also. AR 1323. At least three calls were made. AR 1369.

According to written reports, Galante, called LAPD to report that he saw a male, whom he described as a “Peckerwood” (a white prison gang member) drag an “unknown” female into Cordoba’s apartment. He told investigators that he thought the male had “scurried out the back window,” because he did not see anyone leave the apartment. AR 1417, 1428.

Exhibit 9 also shows that witness Marilyn Nelson reported that a male white, white shirt, blue shorts, short blond hair, tattoos on arms, 30-35 years old, physically assaulted and dragged victim white female, blue jeans, 24-25 years old, into the apartment. AR 1324.

Witness Vikas Chhabra reported to Madrigal that he heard a commotion coming from Cordoba’s apartment. AR 1337. He heard a female screaming “Let go of me” two or three times. AR 1337. He looked through the window and Galante told him to call the police. AR 1337. He did not see any physical altercation and did not see anyone come out of the apartment. AR 1337. He did see Hartman walking away from the apartment. AR 1356.

Other witnesses -- Ms. Crayton, Mr. Gordy, Ms. Averswald, and Ms. Diaz -- all heard loud noises from Cordoba’s apartment. AR 1338, 1340, 1348. Madrigal interviewed witnesses Sato and Creighton, who told him Hartman had been present at 207 but left after the disturbance. AR 418.

Witness Galante stated that around 6 p.m. he heard a disturbance and pointed to apartment 207. AR 414, 419. He heard commotion and yelling, a “ruckus”. AR 414. He looked up to the second floor towards Apt. 207 and saw a male bear hugging a female and lifting her about 15 inches off the ground back into the apartment. AR 414. Galante said he heard shouting from a female inside the apartment: “Why are you doing this? Leave me alone. Don’t hurt me.” AR 415. He heard a male voice say: “Where is it?” AR 415. Galante told Madrigal: “He was fucking her up, guys.” AR 415. Galante called the police about 20 minutes later. AR 415. Galante later tried to find out whose name the apartment was in but was unsuccessful. AR 415. He was new to the apartment complex and did not know Cordoba and Hartman. AR 419.

Madrigal interviewed Cordoba on January 5, 2021. AR 1373. She told him that she had an argument with Daniel inside the apartment. AR 422. Hartman was there. Daniel interjected himself into the discussion about their relationship, which infuriated Cordoba. AR 422. She started arguing with Daniel and Hartman left. AR 422. She denied any physical altercation with either of them. AR 422. She said she tripped over a clothes hamper in the apartment and sustained a bruise on her arm. AR 1348. She denied being dragged back into the apartment by a male. AR 1361.

Madrigal believed Cordoba made false statements to him about the events at her apartment on June 25, 2020, because they conflicted with Galante’s statement, and he was credible. AR 1374.

The Board found Cordoba guilty on Counts 1, 2, 4, 5, 6, and 7, and not guilty on Count 3.

The Board relied on Exhibit 9, an incident recall report, that was admitted without objection. AR 2118. The calls for service were made on June 25, 2020. AR 2118. They described yelling and screaming from Cordoba’s apartment. AR 2118-19. The Board stated that Crayton, Gordy, Agrowale, Diaz, or Shabra heard loud arguing but none saw a disturbance on the landing of the apartment. AR 2119. Shabra did see Hartman walking away from apartment 207 but did not see a physical altercation. AR 2119. He did hear a female yell “Let go of me.” AR 2119.

The Board believed that a physical altercation between Cordoba and her brother occurred on the landing after Hartman left, relying on Galante’s report to Lt. Madrigal. AR 2120. The Board amended Count 7 to substitute the word “statement” (singular) for “statements” (plural) to reflect its finding that Cordoba’s denial to Lt. Madrigal that she had a physical confrontation/altercation with her brother outside of her apartment was a false statement. AR 1949, 2122.

In considering penalty, the Board of Rights reviewed Cordoba’s personnel package which showed that Cordoba had earned a degree from Cal State Northridge and had numerous citizen commendations. AR 1763. There were no negative reports. AR 1763.

Lt. Mark Ro (“Ro”), who had 28 years with the Department, was very familiar with personnel complaint system. AR 1769. He was a Watch Commander at Wilshire while Cordoba was on probation. AR 1770. After being advised of the guilty findings of the Board of Rights, he testified to his experience with Cordoba in the workplace. She did her job well and got along with her co-workers. AR 1773. He would welcome her back to Wilshire with the proviso that she participate in a “professional development plan,” which is part of the Department’s “reintegration process.” AR 1774.

The Board found Cordoba’s ability to function as a police officer was compromised and recommended that she be removed. AR 2126. What was “most troubling” to the Board was her false statement to Lt. Madrigal denying a physical confrontation with her brother on June 25, 2020. AR 2125.

The Chief of Police followed the Board’s recommendation and discharged Cordoba. AR 2127.

Petitioner Cordoba seeks a writ of mandate compelling the City to set aside its decision to remove her from her position as a Police Officer II on the grounds that the weight of the evidence does not support the Board of Rights findings, some of the counts are improper, and the penalty of discharge should be reconsidered.

Cordoba was found not guilty on Count 3 and does not dispute her guilt on Count 2.

Under the Rules of Evidence, except as otherwise provided by statute, all relevant evidence is admissible. Evid. Code §351. “Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Evid. Code §210. “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and is offered to prove the truth of the matter stated. Evid. Code §1200(a). Except as provided by law, hearsay evidence is inadmissible. Evid. Code §1200(b).

A writing made as a record is not made inadmissible by the hearsay rule if the writing was made by and within the scope of duty of a public employee, was made at or near the time of the act, condition, or event, and the sources of information and method and time of preparation were such as to indicate its trustworthiness. Evid. Code §1280.

An administrative agency is not required to follow the strict rules of evidence enforced in the courts. McCoy v. Board of Retirement, (1986) 183 Cal.App.3d 1044, 1054. Local agencies are free to develop their own rules and procedures governing administrative appeals. Govt. Code § 3304.5.

In a City administrative hearing, the strict rules of evidence do not apply. The administrative agency may consider any relevant evidence to the charges, “irrespective of whether they were associated with a personnel complaint against the accused and irrespective of the resolution of the complaint”. City Charter §1070(m).

In a Board hearing, any relevant evidence, including hearsay, shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Manual §363.10 (RJN Ex. A). Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Manual §363.40 (RJN Ex. B). If the hearsay would be inadmissible over objection in a civil action, the Board may not rely exclusively on it for a finding of guilty. Id.

Count 6 alleges: “On unknown dates between January 1, 2020 and June 26, 2020, you, while off duty, unnecessarily caused a disturbance that disrupted the peace of tenants residing at 7760 Paseo Del Rey.”

Cordoba argues that no percipient witnesses testified to facts giving rise to Count 6. None of the residents at Cordoba’s apartment complex testified. The Board of Rights relied on Exhibit 2, which consists of screen shots of messages sent from Ms. Gordy (AR 1965-68) and Exhibit 9, which is an LAPD incident report (AR 2010-12). The Board also relied on statements which residents made to Detective Lukaszewski on February 24, 2020. The evidence is all inadmissible hearsay. The Board overruled objections to the Department’s repeated introduction of hearsay. See, e.g., AR 129, 130, 139-52, 216, 269, 928, 944, 1247, 1317, 1461, 1462, 1705, 1706. Pet. Op. Br. at 13.

Cordoba notes that the evidence relied on by the Board for Count 6 included an admission from Cordoba that she had a loud argument with her brother inside her apartment on June 25, 2020. She also admitted having ten to 15 arguments with Hartman during the January 1 to June 26, 2020 period. However, the charge in Count 6 is that these arguments disrupted the peace of her neighbors, none of whom were called by the Department to testify. Instead, the Board relied on the statements of apartment residents given to IA Detective Lukaszewski on February 24, 2020 (AR 2116), and statements provided to IA Lt. Madrigal on June 25, 2020. AR 1317-18. Reply at 6.

The City argues that Cordoba failed to develop a robust discussion on this issue, leaving the City to speculate exactly which statements are objected to and why. Cordoba merely argued that all absent witnesses’ statements are “inadmissible hearsay”. But each specific, objectionable hearsay statement must be analyzed for admissibility using an exception to hearsay rule or as non-hearsay. Therefore, Cordoba’s argument is insufficient to carry the burden as Petitioner on this issue. Opp. at 14, n. 4. The court does not agree. A hearsay objection to specific evidence suffices.

The City generally responds that the hearsay evidence from neighbors was admissible. Hearsay evidence may be used for all purposes if it would be admissible over objection in a civil action. The neighbors’ evidence would be admissible over objection in a civil action, either under an exception to the hearsay rule or as non-hearsay. See Jane IL Doe v. Brightstar Residential Inc. (2022) 76 Cal.App.5^th 171 (two types of statements in police reports are admissible despite appearing to be hearsay: statements that fall under an exception to the hearsay rule and hearsay statements that can be admitted as non-hearsay). Also, the second level of double hearsay statement may be cured because police reports qualify for business records exception to the hearsay rule. Lake v. Reed, (1997) 16 Cal.4^th 448. The key witness statements include 911 calls and interview statements to LAPD investigators. The circumstances under which these statements were made qualify them as “the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.” Opp. at 11-12.

Turning to the specific evidence supporting Count 6, the City notes that neighbor Ms. Gordy told Detective Lukaszewski that on February 24, 2020, approximately at 5:57 a.m., she heard the loud argument between Cordoba and Hartman, the argument “shook her apartment and rattled things”, and she heard Cordoba yell: “Get out. This isn’t working.” AR 160. Ms. Gordy also provided screen shots of her text messages under the name “Whitney Jade” complaining about the noise from Cordoba’s apartment on various dates. AR 1965, 1966,1967, 1968.

According to the City, Ms. Gordy’s statement, and the statements that other residents made to Detective Lukaszeqski on February 24, 2020 are admissible under the business record exception since they are memorialized in the official LAPD investigation report. The screen shots of Ms. Gordy’s text messages also are admissible under business records exception to the hearsay rule as part of the official LAPD investigation report. Those statements were obtained as part of an official LAPD investigation, the report was prepared by a supervising officer within the scope of his or her duties at or near the time of the alleged incident, and the sources of information and method and time of preparation were such as to indicate their trustworthiness. See Evid. Code §§ 1280, 664. Opp. at 12-13.

Cordoba correctly responds that there is no police report in evidence. Moreover, any police report would be only partly admissible. The observations of the officers who have a duty to observe and report to be received as records of a public employee. Evid. Code §1280; Lake v. Reed, supra, 16 Cal.4^th at 461. But witness interviews or screen grabs in a police report would not be admissible because the witness has no duty to make them. Id. Nor are witness statements in a police report an admissible business record under Evid. Code Section 1271. Reply at 7.

The City further argues that Ms. Gordy’s statement to Detective Lukaszeski is admissible as non-hearsay to show Gordy’s state of mind or the incident’s effect on Gordy’s peace, not for the truth of what she heard. Opp. at 13. Similarly, Ms. Gordy’s screen shots were not offered for the proof of their content – i.e., that there was fighting, that Hartman told Cordoba there was only one girl, etc. These and other statements from neighbors are admissible non-hearsay showing the resident’s state of mind and the effect of Cordoba’s loud arguing on them. Opp. at 12.

The City may be overstating the admissibility of the neighbor’s statements as non-hearsay. If relevant, a complaint of a crime made to the police and the circumstances surrounding its making are admissible but not the content of what the complainant heard or saw. People v. Brown, (1994) 8 Cal.4^th 746, 760. While the neighbors were not complaining about a crime, only noise, a similar analysis applies. The fact that neighbors told the police about noise from Cordoba’s apartment is admissible non-hearsay but not necessarily the content of what the neighbor heard. Ms. Gordy’s text messages to her mother are also admissible non-hearsay for this reason, even though not made to the police.

In any event, the neighbor statements and Ms. Gordy’s screen grabs are admissible administrative hearsay because there is direct evidence that between January 1 and June 26, 2020 Cordoba caused disturbances that disrupted the peace of tenants residing at her apartment complex. Cordoba admitted having ten to 15 arguments with Hartman during that period. The screen grabs supplement and explain that admission. Similarly, the statements of neighbors to Det. Lukaszeqski are corroborative hearsay of the disturbance on February 24, 2020. See AR 2116-17.[4]

Count 7 alleges: “On or about January 5, 2021, you, while on duty, knowingly made false statements to supervisor during a personnel complaint interview.”

Cordoba notes that the Board of Rights found her guilty of only one false statement: she told Lt. Madrigal she did not have a physical confrontation/altercation with her brother.

Cordoba acknowledges that a neighbor, Galante, told Madrigal that he saw the confrontation on the second story landing from 60 feet away and downstairs in the apartment courtyard area. Galante described a white man -- who appeared to be a “Peckerwood”[5] between 6’0” to 6’2” with tattoos -- bear hug a woman and force her into an apartment. AR 1416, 1424, 1427, 1428, 2010.

Cordoba told Lt. Madrigal in her January 5, 2021 telephone interview that she had no physical fight with her brother on June 25, 2020 and he did not grab her and drag her back into the apartment. She told Madrigal that she wanted to leave the apartment but as she went toward the door she tripped over a hamper (see AR 2063). She sustained a bruise on the inside of her upper left arm. AR 2029, 2030. Pet. Op. Br. at 13-14.

Cordoba’s brother, Daniel, testified that he did not assault Cordoba. Rather, he lifted his sister up with his arms around her waist after she tripped over her shoes and fell onto a clothes hamper inside the apartment with the front door closed. AR 1606, 1673. Differing substantially from Galante’s description (tall white male Peckerwood with tattoos), Cordoba’s brother is hispanic, has no tattoos, is about 5’ 7”, and does not have blond hair. AR 1422, 1572, 1573, 1575. Cordoba also differs from the female described by Galante (white female wearing blue jeans) as she is hispanic and was wearing black tights. AR 1123, 1465, 2017, 2062. Pet. Op. Br. at 15.

Lt. Madrigal felt that Cordoba made false statements to him about the events at her apartment on June 25, 2020 because they conflicted with Galante’s statements. AR 1374, 1377, 1378-79. Madrigal admitted that Galante did not see the couple engaged in the confrontation go into Cordoba’s apartment 207, Galante did not see what apartment the couple entered, and Galante not know who the female was. AR 1420, 1422, 1443, 1444. Pet. Op. Br. at 14.

The Board heavily relied on the falsity of Cordoba’s statement to Madrigal. “What is most troubling to this Board is your false statement to Lieutenant Madrigal. The evidence presented to the Board supported a physical confrontation between you and your brother outside your apartment. A concerned neighbor that the Board believes was trying to protect you called the police. Rather than admitting the physicality with your brother….you chose to make a false statement during your Internal Affairs interview.” AR 2125 (emphasis added). Pet. Op. Br. at 14.

Cordoba notes that the effect of a guilty finding on Count 7 is potentially career-ending for a police officer. Captain Yasir Gillani is the commanding officer of Risk Management/Legal Affairs Division, the unit handling Brady issues. When an officer has been found guilty of making a false statement, LAPD notifies the District Attorney’s Office. “And if the Department is forced to retain an officer who has been found guilty of providing a false statement, then the Department takes steps to limit that officer’s involvement with the public.” AR 1805-06. Pet. Op. Br. at 15.

Galante did not testify, and Cordoba concludes that the guilty finding on Count 7 is supported only by inadmissible hearsay. Pet. Op. Br. at 15.

The City correctly notes that Exhibit 9, the LAPD incident report (AR 2010, 2011), was admitted without objection by Cordoba and may be used for all purposes (AR 1956, 1755). See Clary v. City of Crescent City, (2017) 11 Cal.App.5th 274, 302 ("Diehl waived any objection to its use of such evidence by failing to object."). Opp. at 13.

Exhibit 9 contains witness Marilyn Nelson’s incident report of a white male, wearing a sleeveless white shirt and blue shorts with short blond hair and tattoos, dragging a white female wearing blue jeans into an apartment. AR 1323, 2010. The parties were not known to her but she believed they were in a dating relationship. AR 2010.

Exhibit 9 contains another comment that the caller could hear a male and female yelling and screaming, and that he/she believed they were police officers. AR 2010. A third caller comment was that a male and female were heard arguing and the reporting person’s neighbor (Galante) witnessed the male assault the female and pull her into the apartment. The male and female are in a relationship. AR 2010.

All this evidence in Exhibit 9 was properly received, including the two statements that the male assaulted the female and dragged her into the apartment. As direct evidence, it may be explained or supplemented by hearsay.

That supplementing hearsay included Galante’s statement to Lt. Madrigal that around 6 p.m. he heard commotion and yelling, looked up to the second floor towards Apt. 207 and saw a male bear hugging a female and lifting her about 15 inches off the ground back into the apartment. AR 414. Galante said he heard shouting from a female inside the apartment: “Why are you doing this? Leave me alone. Don’t hurt me.” AR 415. He heard a male voice say: “Where is it?” AR 415. Galante told Madrigal: “He was fucking her up, guys.” AR 415.[6]

Cordoba suggests that the direct and supplementing evidence is unreliable because Galante described the male as a tall white male Peckerwood with tattoos, and Nelson described a white male, wearing a sleeveless white shirt and blue shorts with short blond hair and tattoos. Daniel has no tattoos, is about 5’ 7”, and does not have blond hair. Cordoba also differs from the female described by Nelson (white female wearing blue jeans) as she is hispanic and was wearing black tights.

These discrepancies do not undermine the essential point of both Galante and Nelson that they saw a male drag a female back into Cordoba’s apartment. Daniel admitted that he picked his sister up with his arms around her waist and the issue for false statement purposes was whether it occurred inside or outside the apartment. Galante observed this event from the floor below apartment 207 and his mis description of Daniel as tall and with tattoos can be easily understood. It is unclear what Nelson’s viewpoint was, but again the description is less important than the event.

Count 1 alleges: “On or about March 23, 2020 (and after, you, while off duty, were insubordinate when you failed to obey a direct order from your commanding officer to have no contact with D. Hartman.” (emphasis added).

Count 4 alleges: “On or about June 25, 2020, you, while off duty, were insubordinate when you failed to adhere to a direct written order by Captain S. Embrich to stay away from D. Hartman.”

Cordoba argues that Counts 1 and 4 are duplicative. Lt. Ro, who had experience with LAPD’s disciplinary system, testified that “stacking” is making multiple allegations that are duplicative in nature and should be avoided. AR 1769, 1852. There was only one order: Captain Embrich’s order of February 26, 2020. AR 2023-24. The order reads: “Until further notice, you are hereby ordered to stay away and make no contact, whether in person, telephonically, electronically, or in any other manner with Police Officer III Daniel Hartman, Serial No. 39342.” AR 2023-24. Cordoba acknowledged receipt of the stay away order on the same date. AR 1745. The order contained no end date, suggesting it was intended to remain in effect forever. That Cordoba allegedly violated Captain Embrich’s order twice does not justify two separate counts of misconduct given the “(and after)” language in Count 1. Pet. Op. Br. at 16.

Cordoba contends that the first violation of the order occurred around March 23, 2020, when Hartman contacted Cordoba and they got back together. The second violation of the order stems from the time Hartman and Cordoba were together in the apartment until Cordoba and her brother got into an argument, at which point Hartman left. That second date is covered by Count 1, making Count 4 duplicative and unnecessary. Pet. Op. Br. at 16.

The City correctly refutes this stacking argument. Opp. at 9. Count 1 charged Cordoba with failing to obey the no-contact order on March 23 and after whereas Count 4 charged her with failing to obey the order on June 25. The charge must be “clear and concise” under City Charter 1070. While the language “March 23 and after” may be interpreted as incorporating June 25, a reasonable reading of these charges does not create confusion. Count 1 refers to contacts from March 23 to some unstated number of days afterwards and Count 4 specifically refers to June 25 contact. Cordoba’s contacts with Hartman were discrete actions that could have been separately charged each time they occurred. The charges based on violations occurring from March 23 to June and again on June 25 gave Cordoba notice of the misconduct alleged.

Moreover, the City points out that this objection is waived because Cordoba did not express confusion or object to the duplicative charges during her hearing. Opp. at 9. Finally, Cordoba presents no evidence that stacking is prohibited; it simply should be avoided. AR 1852. Stacked charges should have little or no bearing on the penalty. In this case, there is no evidence that the finding of Cordoba’s guilt on both Counts 1 and 4 had a significant bearing on her dismissal.

Cordoba also argues that the power to issue domestic violence or workplace violence restraining orders lies solely with the courts. California law enables an employer to seek a temporary restraining order (“TRO”) to protect employees from a person who has engaged in violence or has made a credible threat of violence. CCP §527.8. A TRO issued under this provision shall not exceed 21 days. CCP §527.8(g). Under CCP section 527.8, the Department could have sought a TRO against Cordoba, but it was not authorized to issue one. Nothing in state law or the City Charter authorizes a Police Captain to bypass the judicial procedures provided by law. Therefore, the guilty findings on Counts 1 and 4 cannot stand. Pet. Op. Br. at 16-17; Reply at 4.

Cordoba is incorrect. She fails to show that a public employer cannot issue a no contact order between its employees. This is especially true for a law enforcement agency, which is a paramilitary organization performing a public safety function. Police officers are used to receiving orders from supervisors, including orders with respect to off-duty conduct, and a stay away order fits well within the rubric of that authority. As the City points out, a Departmental stay away order does not carry the force of law like a TRO under CCP section 527.8 because it is enforceable only by the threat of suspension or dismissal. The Department’s order also was reasonable under the circumstances. There were domestic violence allegations against Cordoba and the Department wanted to prevent a similar incident from occurring. AR 635. Cordoba has not shown that the stay away order was unlawful. [7]

Count 5 alleges: “On or about June 25, 2020, you, while off duty, unnecessarily engaged in a verbal dispute with your brother, D. Cordoba, which resulted in the response of on-duty officers from Pacific Division.”

Cordoba argues that, in finding her guilty on Count 5, the Board of Rights cited statements made by apartment residents to IA Lt. Madrigal. AR 2114. The Board also cited the testimony of Cordoba, Daniel, and Hartman, all of whom acknowledged there had been an argument inside the apartment. AR 2115. However, whether the argument was unnecessary is a matter of opinion, not fact. This allegation is not “clear and concise” as required by City Charter 1070 and Count 5 is too vague. Pet. Op. Br. at 17.

Cordoba is incorrect. It is undisputed that she and Daniel engaged in an argument on June 25, 2020. Her dispute was so out of control that three neighbors called LAPD and officers had to respond to her apartment because of the argument. Cordoba was yelling and screaming, and she had to be restrained by her brother. The neighbors’ statements are both admissible non-hearsay and administrative hearsay. The Department expects that a police officer to keep control of her actions and not bring disrepute to herself and it. The use of the word “unnecessary” in the charge refers to the fact that her screaming and yelling were not required for a legitimate purpose.

Cordoba notes that, in considering penalty, the Board of Rights reviewed her personnel package which showed that Cordoba had earned a degree from Cal State Northridge and had numerous citizen commendations. AR 1763. Lt. Ro was a Watch Commander at Wilshire while Cordoba was on probation. AR 1770. After being advised of the guilty findings of the Board of Rights, he testified that he would welcome her back to Wilshire with the proviso that she participate in a “professional development plan,” which is part of the Department’s “reintegration process.” AR 1774.

The Board recommended termination, stating that what was “most troubling” was Cordoba’s false statement to Madrigal denying a physical confrontation with her brother. AR 2125. This false statement was made to Madrigal over the phone some six months after the event. Cordoba acknowledges her guilt on Count 2 -- the false text messages she made about Hartman to their friend, Zendingle. She contends that most of the Board’s remaining guilty findings are unsupported by admissible evidence and the matter should be remanded to the Board to reconsider the penalty. Pet. Op. Br. at 17-18.[8]

It is unclear whether Cordoba is challenging the penalty as too harsh or only asserting that it is unsupported by proper findings of guilt. If the latter, she is wrong. As for the correct penalty, the court can only disturb a penalty of discharge if it is a manifest abuse of discretion. Lake v. Civil Service Commission, (1975) 47 Cal.App.3d 224, 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (1975) 15 Cal.3d 194, 217-218. In weighing these factors, the court considers the nature of the employee's profession, “since some occupations such as law enforcement, carry responsibilities and limitations on personal freedom not imposed on those in other fields.” Cate v. State Personnel Bd., (2012) 204 Cal.App.4th 270, 284. In a case where a police officer has been found guilty both of false statement, sending a false text message, and violating a direct order, the court cannot set aside the discharge decision.

The petition for writ of mandate is denied. The City’s counsel is ordered to prepare a proposed judgment, serve it on Cordoba’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 September 26, 2024 at 9:30 a.m.

[1] The City requests judicial notice of two provisions of the Department’s Board of Rights Manual: §363.1 (No strict enforcement of the Rules of Evidence) (Ex. A); §3643.40 (Hearsay) (Ex. B). Cordoba objects that these exhibits are from the 13^th Edition of the Manual, dated November 2022, ten months after her Board hearing. This objection would be well taken if Cordoba had shown any material difference in the correct version of the Manual and the 13^th Edition. She has not done so, and the requests are granted. Evid. Code §452(c).

[2] Detective Lukaszewski testified that Zendingle notified Sgt. Hopkins, the watch commander at Pacific Station (AR 129), that the two had been arguing and were in the station parking lot. Hopkins found them at the Station back door. AR 130-31.

[3] Detective Robyn Salazar testified that Captain Embrich asked her (Salazar) to go into the interview room and find out from Cordoba what was going on. AR 352, 370. Salazar activated a recording device and entered the room. AR 367. Cordoba started crying, asked if there were any allegations against her, and declined to talk without a representative present. AR 352-53.

[4] The City also relies on Detective Lukaszewski’s testimony that the apartment manager told his partner, Detective Harris, that there were two complaints about Cordoba’s loud argument on February 24. AR 163. Opp. at 13. This is quadruple hearsay -- from two residents to the apartment manager, to Detective Harris, to Detective Lukaszeski – that is too remote to be even corroborative hearsay.

[5] “Peckerwood” is a white prison gang. AR 1428.

[6] The supplementing hearsay also included Chhabra’s report to Lt. Madrigal that he heard a commotion coming from Cordoba’s apartment. AR 1337. He heard a female screaming “Let go of me” two or three times. AR 1337. He did not see any physical altercation and did not see anyone come out of the apartment. AR 1337. He did see Hartman walking away from the apartment. AR 1356.

It further included Ms. Diaz, who told Lt. Madrigal that the noise was coming from apartment 207 because she recognized the voice from the previous incident in January and had seen Hartman and Cordoba together, so she knew the screaming was Cordoba. AR 1352.

Finally, the hearsay of other neighbors -- Ms. Crayton, Ms. Gordy, and Ms. Averswald, and Ms. Diaz – that they heard loud noises from Cordoba’s apartment (AR 1338, 1340, 1348) was admissible to supplement the direct evidence, as was Lt. Madrigal’s interview of witnesses Sato and Creighton, who told him that Hartman had been present at apartment 207 but left after the disturbance. AR 418.

[7] In reply, Cordoba argues that Labor Code section 96(k) recognizes the right of an employee to engage in lawful conduct during non-working hours and away from the employer’s premises. Labor Code section 98.6(a) prohibits an employer from taking any adverse action against an employee who has engaged in that conduct -- lawful conduct occurring during non-working hours away from the employer’s premises. Labor Code section 98.6(b)(1) provides that an employee who is discharged for conduct protected by Labor Code sections 96(k) and 98.6(a) is entitled to reinstatement with back pay and benefits. Based on Lt. Morrison’s testimony, the stay away order included lawful off-duty conduct. Cordoba raised this issue to the Board of Rights (AR 939), arguing that the stay away order violated both provisions of the Labor Code (AR 53-54). Reply at 4-5.

The court need not address this issue raised for the first time in reply. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.

[8] In reply, Cordoba cites a recent U.S. Supreme Court case, Securities and Exchange Commission v. Jarskey, (June 27, 2024) 144 S.Ct. 2117, holding that the SEC practice of imposing civil penalties through in-house hearings violates the Seventh Amendment right to jury trial. Reply at 8-9. This case has no bearing on a California administrative process followed by judicial mandamus for termination of a public employee.