Judge Mary H. Strobel, Case 19STCP04567 2023-01-17 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Petitioner Mizrain Orrego (“Petitioner”) petitions for a writ of administrative mandate directing Respondent Los Angeles County Civil Service Commission (“Commission”) to set aside its final administrative decision discharging Petitioner from his position as Deputy Sheriff with the Los Angeles County Sheriff’s Department (“Department”).

In October of 2015, Petitioner was a new Compton Station deputy. On October 1, 2015, Petitioner attended a celebration for some fellow employees at the Tilted Kilt in the City of Orange. Petitioner had requested the day off so he could attend the party with his car partner, Deputy Aldama. Petitioner arrived around 7:00-8:00 pm and consumed alcohol. (AR 1288-89, 467-479.) Petitioner later testified that he is a quiet person, did not know many people, and felt socially ill at ease at the celebration. He testified that, instead of joining the coworkers he hardly knew, he decided to stay at the bar. (AR 471-473.) Petitioner left the Tilted Kilt around 2:00 am in the company of Deputy Aldama. Petitioner drove his friend’s pickup truck from the Tilted Kilt, later explaining that he was concerned the truck would be towed from the Tilted Kilt parking lot. (AR 1288-89, 101-102, 467-479.)

On October 2, 2015, at approximately 2:09 am, Orange Police Department Officer Lucia Zvonaru observed a 2004 GMC pick-up truck, driven by Petitioner, fail to stop at a red traffic light in the City of Orange. The truck displayed expired registration tabs. (AR 201-202, 723-741.)

Office Zvonaure stopped the vehicle and asked Petitioner for identification. Petitioner identified himself as a deputy sheriff. (AR 1288, 202.) When Officer Zvonaru asked if he was armed, Petitioner slid back in the driver’s seat, revealing an un-holstered pistol on the front passenger seat, near his hip. (AR 203, 728.) Officer Zvonaru then requested back-up. (AR 723-741.) After Petitioner displayed objective symptoms of intoxication, Officer Zvonaru commenced a DUI investigation. (Ibid.)

In its undisputed that, during the ensuing DUI investigation, Petitioner made derogatory and/or demeaning comments to Officer Zvonaru and other responding officers. As examples, he called Officer Zvonaru “sweetie” and said that, in his assignment in Compton, he was doing real police work. (AR 1289, ¶¶ 13-15; AR 569-576; AR 33-55; Dept. Exh. 25.) Petitioner also requested that he not be arrested because he was a deputy sheriff. (AR 228-230, 233.)

Petitioner was subsequently arrested by the Orange officers on charges of drunk driving. Petitioner eventually plead guilty to such charges. (AR 1289.)

Department commenced an internal affairs investigation into Petitioner’s conduct on October 2, 2015. On June 8, 2017, after the internal affairs investigation, Petitioner was served with a Letter of Intent to Discharge. Following a Skelly hearing, the Department served Petitioner with an August 1, 2017, Notice of Discharge after finding that he had violated Manual of Policy and Procedure Sections 3-01/000.13, Professional Conduct – Core Values, and/or 3-01/030.05, General Behavior; 3-01/030.85, Derogatory Language; and/or Bribes, Rewards, Loans, Gifts, Favors; and/or 3-01/030.10, Obedience to Laws, Regulations and Orders as it pertains to 23152(a) CVC, driving under the influence of alcohol or drugs and/or 21352(b) CVC, driving with a blood alcohol concentration of .08 percent or greater; 3-01/040.75, dishonesty/failure to make statements and/or making false statements during a Departmental investigation; 3-01/040.70, dishonesty and/or making false statements in a criminal investigation and/or 3-01/040.85, cooperation during a criminal investigation; and 3-01/025.45, the safety of firearms. (AR 520-539.)

In paragraph 2 of the Notice of Discharge, Department alleged that, during his interview on February 24, 2017, Petitioner made false statements during an internal investigation, including:

a. Claiming that he only saw Witness Aldama at the restaurant on October 1, 2015. Whereas Witness Reynoso indicated having talked to and/or interacted with Petitioner as they arrived to the gathering sometime between 1900 and 2100 hours, and Witness Lopez said that he believed Petitioner was present but did not recall interacting with Petitioner on October 1, 2015; and/or

b. Stating to investigators that his intention was to park his vehicle and have Witness Aldama drive him home.

In paragraph 3 of the Notice of Discharge, Department alleged that Petitioner knowingly gave untruthful or misleading statements to the Orange police officers during the DUI investigation or was uncooperative, including:

a. Stating to arresting officers that he was driving his friend’s truck because the friend had left the party earlier, with someone else, and/or words to that effect when Petitioner’s friend denied being at the party at all; and/or

b. Stating to arresting officers that he had been celebrating a Sergeant’s promotion and then later denying that he was drinking with anyone; and/or

d. Asking for a courtesy due to his position as a law enforcement officer; and/or

e. Stating to arresting officers that he never saw other officers at Tilted Kilt. (AR 523-524.)

Petitioner requested a Civil Service Commission hearing, which was held on April 5, 12, and 13, 2018. (AR 1-517.) On or about November 12, 2018, Hearing Officer Hugo Rossiter served his “Hearing Officer’s Findings of Fact, Conclusions of Law and Recommended Decision.” (AR 1271-1290.) The Hearing Officer found that the allegations contained in the Notice of Discharge were true and recommended upholding Petitioner’s discharge. (Ibid.)

Petitioner filed objections to the proposed decision. The Civil Service Commission heard argument on Petitioner’s Objections to the Proposed Decision on July 24, 2019. On July 31, 2019, the Commission issued its Final Commission Action overruling Petitioner’s Objections and upholding Petitioner’s discharge. (AR 1331.)

On October 23, 2019, Petitioner filed his original petition for writ of mandate. On December 16, 2020, Petitioner filed the operative first amended petition (“FAP”). Real Parties County of Los Angeles, Department, and Alex Villanueva, Sheriff answered the FAP.

On November 18, 2022, Petitioner filed his opening brief in support of the petition. The court has received Department’s opposition, Petitioner’s reply, the administrative record, and the joint appendix.

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

Because the termination of Petitioner from his position as Deputy Sheriff concerns a fundamental vested right, the court exercise its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, supra, 4 Cal. 3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

Petitioner does not challenge the findings that he violated Department policy by driving under the influence, asking arresting officers for favors, making rude and demeaning comments to arresting officers, failing to cooperate in the DUI investigation because he was unwilling or unable to provide a second breath sample, and being unable to care for his firearm while intoxicated. As Petitioner states, those findings “are not being challenged by this writ.” (Reply 2 [italics in original].) Accordingly, Petitioner does not show any prejudicial abuse of discretion in those findings, which are supported by the weight of the evidence. (CCP § 1094.5(b).) Petitioner also concedes that a 25-day suspension was appropriate based on such findings. (Reply 2.)

In the opening brief, Petitioner primarily argues that his statements do not meet the Department’s own standard for being “dishonest,” as such standard was explained by Chief Joseph Gooden at the administrative hearing. (Opening Brief (“OB”) 9-12.) In this part of his brief, Petitioner asserts at various times that the hearing officer did not make sufficient findings to sustain the charges of dishonesty and false statements. (See e.g. OB 11:26-27 [“the Hearing Officer made no findings regarding intent or materiality”].) In reply, Petitioner reiterates these arguments and asserts that the hearing officer’s findings about the alleged false statements do not support the decision. (Reply 6-8.)

The Weight of the Evidence Supports the Findings for Charge 3.a; and Commission’s Findings Support the Decision for that Charge

The Commission found that, as alleged in charge 3.a, Petitioner falsely told arresting officers that the owner of the truck he was driving was also at the party and had left the party earlier. Commission found that Petitioner intentionally withheld information about the trucker’s owner. Commission found that Petitioner’s false statements to arresting officers violated Department policy 3-01/040.70. (AR 1289, ¶¶ 17-19, 25.)

The weight of the evidence supports these findings. Video evidence shows that Petitioner told the arresting officers he was driving his friend’s truck because the friend had left the party earlier. When specifically asked by an officer if his friend was at the party, Petitioner said, “yeah.” When asked where his friend was, Petitioner said his friend left the party with someone else. (AR 745-747; Exh. 25; Video at Exh. C, part 2 at 14:37.) Petitioner’s statement was false because Deputy Engelbert Perez, who owned the truck, testified that he did not attend the party at the Titled Kilt. (AR 149-153, 648-655.) Since Petitioner attended the party and knew the owner of the truck, it is reasonable to infer he knew the owner of the truck was not at the party, that his statement was false, and that he made the false statement intentionally. Petitioner also later admitted, in his investigative interview and at the administrative hearing, that he was not truthful when he answered the officers’ questions about who owned the truck. He admitted that he was intentionally untruthful because he did not believe, at the time of the DUI investigation, that the questions were “pertinent to the investigation” and he wanted to “get done with the process.” (AR 499-500, 721.)

Petitioner argues that the hearing officer found incorrectly that the truck was owned by Deputy Aldama. (Reply 5.) While the hearing officer wrote in the summary of evidence that Aldama owned the truck (AR 1277), the hearing officer later summarized testimony of Deputy Perez and stated that Perez owned the truck. (AR 1281.) Further, the hearing officer noted that Deputy Aldama attended the party, but the owner of the truck did not. (AR 1289.) Petitioner’s argument that the hearing officer misunderstood the evidence is not persuasive.

Petitioner argues that his false statement was not material to the DUI investigation, citing testimony of Chief Gooden. (OB 10.) In opposition, Respondent has not disputed that a false statement must have some materiality to an investigation or charges to constitute a violation of Department policy. (Oppo. 7-8 and generally.) Neither party cites a relevant written policy or case law discussing this issue. The administrative charges at issue are not the same as a criminal charge for perjury or fraud.

Petitioner had a duty under Department policies, specifically sections 3-01/040.70 and 3-01/040.85, to cooperate in the criminal investigation, to not make false statements, and to make full, complete, and truthful statements during such investigation. (See AR 533-534.) These policies do not state a materiality requirement. Nonetheless, Chief Gooden testified, generally, that a false statement must be material to an investigation or to charges to constitute a violation of Department policy. (AR 364.) Chief Gooden also testified, in reference to the false statement at issue, that Petitioner was obligated to provide full, complete, and truthful answers to the Orange officers and could not decide which questions were relevant. (AR 329-330.) Chief Gooden opined that Petitioner’s statement that the owner of the truck was at the party would not be material to a criminal investigation but was material to the administrative charges. (AR 374-375.) Taken in full, Chief Gooden’s testimony and policies 3-01/040.70 and 3-01/040.85 do not show that a false statement need actually be used in or influence an investigation to be material or to violate Department policy.

However, the parties do not sufficiently brief the legal standard of materiality that applies in this case, and counsel should further address that issue at the hearing. Subject to further argument, it appears that any potential relevance to the investigation or charges is sufficient. (Cf. Crooks v. Housing Authority of City of Los Angeles (2019) 40 Cal.App.5th 893, 907 [to be material, a false statement made to a government agency in a section 8 housing application need not have had actual influence; rather, the false statement must simply have the capacity to impair or pervert the functioning of a government agency].)

Petitioner also argues that the Commission made no finding of materiality for the false statement related to truck ownership. While true, Petitioner does not show that Commission was required to make an express finding on that issue. “Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.) Commission’s findings reasonably imply that the false statement at issue was sufficiently material to the DUI investigation and Petitioner’s duties to constitute a violation of Department policy. (AR 1289, ¶¶ 17-19, 25.)

Exercising its independent judgment on the record, the court concludes that the weight of the evidence supports the finding that Petitioner’s false statement that the owner of the truck was at the party, but left early, was sufficiently material to the DUI investigation and Petitioner’s obligations under Department policy to constitute a violation of Department policy 3-01/040.70. At the administrative hearing, Petitioner admitted that the questions about truck ownership were pertinent to the investigation. (AR 500.) The owner of the truck was an acquaintance of Petitioner. (AR 149-153.) Officer Zvonaru testified that, as part of a DUI investigation, officers will ask with whom the suspect has been drinking. That way, if there is a dispute in the calculation of blood alcohol level, there may be a witness who can verify the time when a suspect was drinking. (AR 271.) The court finds that testimony of Officer Zvonaru to be persuasive. As applied here, if the owner of the truck had attended the party, he could be a witness to whether Petitioner consumed alcohol, the time he drank, and the amount he drank. Thus, Petitioner’s statements about whether the owner attended the party were material. Petitioner also had a duty under Department policies, specifically sections 3-01/040.70 and 3-01/040.85, to cooperate in the criminal investigation, to not make false statements, and to make full, complete, and truthful statements during such investigation. (See AR 533-534.)

The weight of the evidence supports the findings that Petitioner falsely told arresting officers that the owner of the truck he was driving was also at the party and had left early, and that such false statements violated Department policy.

The Weight of the Evidence Supports the Findings for Charge 3.b; and Commission’s Findings Support the Decision for that Charge

In paragraph 3.b of the Notice of Discharge, Department alleged that Petitioner violated Department policy when he knowingly gave untruthful or misleading statements to the Orange police officers during the DUI investigation by stating to arresting officers that he had been celebrating a Sergeant’s promotion and then later denying that he was drinking with anyone at Tilted Kilt. (AR 523-524.)

Petitioner argues that the Commission did not make sufficient findings to support a conclusion of guilt for charge 3.b. (OB 11; Reply 6.) In connection with this charge, the Commission found that Petitioner attended a party “for some fellow employees” at Tilted Kilt on October 1, 2015. (AR 1289 ¶ 3.) Relatedly, in discussing Petitioner’s claim that he only associated with strangers and did not contact any Sheriff’s personnel at the outdoor bar, the Commission found that “it strains credibility that [Petitioner] took the day off, drove some distance to attend the event, remained there for six hours to closing time, and never associated with his peers, including his car partner.” (AR 1285.) Commission found that Petitioner initially told Orange officers that he had been celebrating with other deputies at Tilted Kilt, but that he later that same morning denied he had been celebrating with other deputies. Commission found that Petitioner’s false statements to arresting officers violated Department policy 3-01/040.70. (AR 1289, ¶¶ 19, 29-30.) Commission also found that the allegations contained in the August 1, 2017, Notice of Discharge are true. (AR 1290.) When the decision is considered in full, including the credibility determination at AR 1285, Commission made sufficient findings that Petitioner intentionally made the false statement alleged in charge 3.b.

Petitioner argues that the Commission made no finding of materiality or intent for this charge. For the same reasons discussed above as to charge 3.a, Commission’s findings reasonably imply that the false statement at issue was sufficiently material to the DUI investigation and Petitioner’s duties to constitute a violation of Department policy. Commission also found that the false statement violated Department policy and, therefore, was done intentionally. Commission did not credit Petitioner’s contrary explanation that he “never associated with his peers.” (AR 1285.)

Petitioner argues that the evidence does not support the findings for charge 3.b. He cites his own testimony that he did not know many of the deputies and decided to drink at the bar. (OB 11, citing AR 471-472.)

Exercising its independent judgment, the court concludes that the weight of the evidence supports all of Commission’s findings for charge 3.a and the conclusion that Petitioner’s false statements to the arresting officers violated Department policy. Officer Zvonaru testified that Petitioner initially told her he had been celebrating a friend’s promotion at the Titled Kilt, but later changed his story and claimed he was drinking by himself. (AR 207-208.) Officer Zvonaru testified the question was material to her criminal investigation because it helps officers identify witnesses who can potentially corroborate if a suspect had been drinking. (AR 205-206; 271-272.) The arrest video shows that Petitioner initially told the Orange officers he had come from the Tilted Kilt after celebrating a friend’s going away, but later, upon questioning, told the officers he had been drinking by himself at the Tilted Kilt. (AR 745-747; Exh. 25; Video at Exh. C, part 2 at 4:30 and 21:00-22:00.)

The weight of the evidence supports Commission’s credibility determination with respect to Petitioner’s claim he never associated with his peers at the party. (AR 1285.) Petitioner had requested the day off so he could attend the party with his car partner, Deputy Aldama. Petitioner arrived around 7:00-8:00 pm and consumed alcohol. (AR 1288-89, 467-479.) Petitioner left the Tilted Kilt around 2:00 am in the company of Deputy Aldama. (AR 1288-89, 101-102, 467-479.) Given the length of time he was at the party and that he took off work to attend, as well as the admission that Petitioner associated with Deputy Aldama, it is reasonable to conclude that Petitioner associated with at least some of the deputies, including Aldama, at the party.

In reply, Petitioner argues that “his blood alcohol content was scientifically determined by a blood test, not by officers returning to the closed restaurant to try to find patrons who might say they saw how much Deputy Orrego drank when.” (Reply 6.) Thus, Petitioner contends that it is immaterial whether he drank alone or with Department members. The court disagrees. As Officer Zvonaru credibly testified, the question about who Petitioner drank with is relevant if there is a dispute in the calculation of blood alcohol level, as a witness can verify the time when a suspect was drinking. (AR 271.) As discussed, Petitioner does not show that, under Department policy, the false statement must actually influence or impact a criminal investigation to be “material.”

The weight of the evidence supports the Commission’s findings and legal conclusions for charge 3.b.

The Weight of the Evidence Supports the Findings for Charge 2.a; and Commission’s Findings Support the Decision for that Charge

In paragraph 2.a of the Notice of Discharge, Department alleged that Petitioner violated Department policy when, during his interview on February 24, 2017, Petitioner falsely told Department investigators that he only saw Witness Aldama at the restaurant on October 1, 2015. (AR 523.)

Petitioner argues that Commission did not make sufficient findings as required by CCP section 1094.5 to support a conclusion of guilt for charge 2.a. (OB 9-10; Reply 3-5 and 6-8.) The court disagrees. “Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.) The agency's findings may “be determined to be sufficient if a court has no trouble under the circumstances discerning the analytic route the administrative agency traveled from evidence to action.” (West Chandler Blvd. Neighborhood Ass’n vs. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-22.)

Here, the hearing officer and Commission found that Department proved the allegations of the Notice of Discharge. (AR 1290.) Commission did not state that Department only proved some of the four charges. Commission discussed the relevant penalty for charge 2, which shows that Commission found that this charge was proven. (AR 1287-88.) By use of the phrases “as evidenced by” and “and/or,” the Notice of Discharge implied that not all sub-allegations needed to be proven for each charge. However, since the charges must be based on at least one factual allegation, it follows that at least one of the allegations needed to be proven for each charge. (AR 521-524.) Thus, Commission necessarily found that at least one of the two sub-allegations for charge 2 was proven.

In opposition, Department argues that “Charge 2(a) was supported by findings of fact 3, 5, 6, 26, 27, 28, 29, and 30, and his discussion of the evidence on pages 7 through 15 of his Report.” (Oppo. 2.) This argument is persuasive. The most pertinent of these findings are paragraphs 26 and 28, which state that Petitioner “exchanged greetings with Deputy Reynoso at the Tilted Kilt” and “did not fully answer the questions of the Department’s investigators.” (AR 1289.) It is undisputed that, when Department investigators asked if he saw any co-workers at Tilted Kilt, Petitioner stated that he only saw Aldama, his partner. (AR 708.) Given Commission’s finding of guilt for charge 2 and the other findings and discussion cited by Department, the court may reasonably determine that Commission found that statement to investigators to be false and to violate Department policy.

While unclear, Petitioner may argue that the weight of the evidence does not support the finding he made a false statement, as alleged in charge 2.a. The court disagrees. Deputy Reynoso testified that he talked to Petitioner outside Titled Kilt. (AR 666-671.) Petitioner does not refute that testimony. Also, it is undisputed that numerous other deputies attended the party; that Petitioner had requested the day off so he could attend the party; and that Petitioner stayed at the party for about six hours. (AR 1288-89, 467-479, 101-102, 367-368, 788.) Considered with Reynoso’s testimony, it is reasonable to conclude from such circumstances that Petitioner saw other co-workers at the party and that his statement to investigators was false.

Petitioner also argues that the false statement was not made intentionally and was not material, and that Commission made no findings about such issues. (OB 9-10.) Commission’s findings of guilt for Charge 2 reasonably imply both that Petitioner made the false statement intentionally and that any materiality requirement was met. The weight of the evidence supports those implied findings. Since the evidence supports that Petitioner saw other deputies at the party, including Reynoso, it can be reasonably inferred that Petitioner made the false statement knowingly and intentionally. The statement is material to the investigators’ determination of the witnesses to Petitioner’s alleged misconduct on October 2, 2015.

The weight of the evidence supports the Commission’s findings and legal conclusions for charge 2.a.

Commission Did Not Make Sufficient Findings to Support the Decision as to Charge 2b

In paragraph 2.b of the Notice of Discharge, Department alleged that Petitioner violated Department policy when, during his interview on February 24, 2017, Petitioner falsely told Department investigators that his intention was to park his vehicle and have Witness Aldama drive him home. (AR 523.)

Petitioner argues that Commission did not make sufficient findings as required by CCP section 1094.5 to support a conclusion of guilt for charge 2.b. (OB 9-10; Reply 3-5 and 6-8.) Department argues that the “Hearing Officer’s conclusion that Orrego made false statement to the Department’s internal investigators as alleged in charge 2(b) was supported by finding 28, plus his discussion of the evidence.” The court agrees that Commission did not make sufficient findings for charge 2.b under Topanga.

In Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515, the Supreme Court held that "implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order."

Finding 28 simply states, without elaboration, that Petitioner “did not fully answer the questions of the Department’s investigators.” (AR 1289.) Finding 28 is not, in itself, a finding that Petitioner falsely told investigators that his intention was to park his vehicle and have Witness Aldama drive him home.

Based on the court’s review, Commission did refer, in its summary of the testimony of investigator John Adams, to video evidence that Petitioner told arresting officers he was “driving to the freeway.” (AR 1280.) However, charge 2.b concerns Petitioner’s statements to the Department investigators, and Commission made no express finding based on that video evidence that Petitioner’s statements to Department were false. (AR 1280.) The hearing officer also wrote that “it is not clear to me that [Petitioner] might not have just entered the freeway to go to his home.” (AR 1285.) That is not a finding, under the preponderance of the evidence, that Petitioner made an intentionally false statement to Department investigators about where he was driving the truck.

However, procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928; Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200 [in administrative writ proceeding, an “[e]rror of law is not reversible unless, on an examination of the record, it appears to have resulted in a miscarriage of justice.”].)

As discussed above for charge 2.a, the hearing officer and Commission found that Department proved the allegations of the Notice of Discharge. (AR 1290.) Charge 2 in the Notice of Discharge was pleaded in the disjunctive. Charge 2 charges that petitioner “made false statements during an internal investigation, as evidenced by, but not limited to … (a) (statements regarding who petitioner saw at the restaurant;) “and/or” b. (statements regarding petitioner’s intent to park his vehicle and have Aldama drive him home). Commission only needed to find one of the sub-allegations of charge 2 to be proven to find Charge 2 proven.

Considering that Commission found Petitioner guilty of charge 2 based on charge 2.a, and that the finding is supported by the weight of the evidence, Petitioner does not show any prejudice from Commission not making a sufficient findings of guilt for charge 2.b. Especially in light of evidence in the record on the other sustained findings of dishonesty, Petitioner does not show any reason to believe Commission would reach a different result on the penalty if the court were to remand for a more specific finding on charge 2.b.[1]

Petitioner Does Not Show Commission Prejudicially Abused its Discretion In Not Considering Captain Thatcher’s Statements

Petitioner argues that, after the administrative hearing before the hearing officer, he obtained a written statement from Captain Michael Thatcher that Petitioner should not have been discharged and that the discharge was motivated by an unrelated officer-involved shooting that occurred after Petitioner’s DUI. (OB 13.)

Petitioner states that “Commission, however, declined to hear the newly available evidence.” (OB 13, citing AR 1307-1332.) Petitioner cites the transcript of the July 24, 2019, hearing before Commission. At the start of the hearing, Petitioner’s counsel stated that Petitioner had reached a settlement with Department for a 25-day suspension and requested a continuance to finalize the settlement. (AR 1308-09.) Department’s attorney asserted that he was not aware of the settlement and this was the first he was hearing of it. (AR 1309.) When a Commissioner asked Petitioner’s counsel for clarification, she then explained that Policy section 3-01/030.14 was recently rescinded and, but for that policy, Petitioner would have called Captain Thatcher as a witness and he would have testified that discharge was inappropriate in this case. (AR 1311.) Petitioner referred to Captain Thatcher’s statement as the reason the request for a continuance was just then being raised. (AR 1312.) The Commissioners then passed a motion to deny the request for a continuance. (AR 1312-13.) Later, in arguing Petitioner’s objections to the proposed decision, Petitioner’s counsel asserted that Captain Thatcher would have testified that Petitioner should never had been discharged and that the discharge was politically motivated, specifically, because of a shooting that occurred after the DUI at issue. (AR 1317.) Petitioner’s counsel seemed to request that the Commission hear from Captain Thatcher at the hearing on July 24, 2019. (Ibid.)

Because Thatcher’s testimony and statement were available during the Commission proceedings (see AR 1307-32, 1212-14), but were not submitted before the hearing officer, the pertinent issue on writ review is whether it was an abuse of discretion for Commission not to consider this new evidence. In the opening brief, Petitioner fails to develop an argument with respect to that issue. (OB 13.)

In reply, Petitioner argues, for the first time, that “Civil Service Commission hearing in this matter was fundamentally unfair due to since-rescinded Departmental policy Section 3-01/030.014 which prohibited management from criticizing any disciplinary decisions.” (Reply 9.) Petitioner states that “[h]ad Departmental policy not prevented him from testifying on Deputy Orrego’s behalf, though, such testimony would have been very powerful, and may well have persuaded the Hearing Officer to reach a different conclusion.” (Ibid.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner’s argument is based on the July 24, 2019, hearing transcript and a statement of Captain Thatcher, which are both part of the administrative record. Since this evidence was available to Petitioner when the opening brief was filed, Petitioner does not show good cause to raise his fairness argument for the first time in reply.

Even if considered, Petitioner’s fairness argument is not fully developed and is unpersuasive. “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.)

It is undisputed that Captain Thatcher’s testimony and statement were not presented to the hearing officer. Thus, as was discussed at the Commission hearing, Petitioner needed to make a motion to admit newly discovered evidence so that it could be considered either by the Commission or remanded to the hearing officer. (AR 1319.) Petitioner never made a written motion to admit new evidence. While Petitioner’s counsel vaguely requested at the hearing that the Commission “allow … the commander to be heard,” counsel did not identify any legal basis for the Commission to hear such evidence at the July 24, 2019, hearing, without prior notice to Department. Nor did Petitioner move to continue the hearing so that Petitioner could make a written motion to admit new evidence. Rather, at the hearing, Petitioner’s counsel only requested a continuance so a settlement could be finalized. (AR 1308-09, 1320.) Petitioner does not show that it was an abuse of discretion for Commission to refuse to consider new evidence in these circumstances.

In opposition, Department argues that Captain Thatcher’s written statement could not change the outcome because he was not the decisionmaker, and because his email “does not explain when the OIS shooting occurred, or how it allegedly impacted the Department’s decision making.” (Oppo. 13-14.) Department also states: “Policy 3-01/030.014 is not part of the Administrative Record and should not be considered by this Court. There is no testimony in the Administrative Record about the purpose of the policy or how it allegedly applied to this case, let alone how or why it allegedly prevented Orrego from calling Captain Thatcher as a witness at the hearing.” (Oppo. 14.) The court agrees.

Policy 3-01/030.014 itself is not part of the administrative record, and Petitioner has not moved to augment the record pursuant to CCP section 1094.5(e). (See 9:27-28, citing AR 1307-30, a hearing transcript that does not quote Policy 3-01/030.014.) Petitioner did not develop an argument supported by evidence in the administrative proceedings that Policy 3-01/030.014 prevented Petitioner from calling Captain Thatcher as a witness.

Based on the foregoing, Petitioner does not show that Commission prejudicially abused its discretion in not considering Captain Thatcher’s statements.

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.” (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

“[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer's duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

Petitioner argues that the Commission abused its discretion by basing the discipline, in part, on the potential that Petitioner could be placed on a Brady list, even though such allegation was not made in the Notice of Discharge. (OB 12.) Petitioner was arrested by the Orange officers on charges of drunk driving. Petitioner eventually plead guilty to such charges. (AR 1289.) In its discussion of the penalty, Commission noted that Chief Gooden, the Department decisionmaker in Petitioner’s discharge, raised “the very real concern that [Petitioner’s] conviction on [DUI charges] could affect his future credibility in arrests he might make, as they would raise Brady issues in the event of a criminal defendant’s Pitchess motion.” (AR 1285-86.) The potential that Petitioner may be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83 is reasonably viewed as a circumstance surrounding his conduct and evidence of harm to the public service. (See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.) This Brady issue was not a separate charge of misconduct that needed to be pleaded in the Notice of Discharge. Petitioner cites no authority to the contrary. Nor does Petitioner argue that Commission’s consideration of this Brady issue violated Government Code section 3305.5(d), which states the circumstances in which a Brady issue may be considered for purpose “of determining the type or level of punitive action to be imposed” on a public safety officer.

Petitioner argues that he had strong performance evaluations and commendations from the community, his peers, and others. (OB 6-9, 14.) Based on the court’s review of the record, evidence supports Petitioner’s arguments. However, the Commission considered those factors and concluded that discharge was nonetheless the appropriate penalty. Considering the nature of Petitioner’s misconduct, including the findings of dishonesty for charges 2 and 3, the mitigating factors that Petitioner highlights do not show any abuse of discretion in Commission’s decision. Discharge was a reasonable penalty when the findings of dishonesty are considered.

[1] The court notes that there is evidence in the record which could support charge 2.b. Video evidence shows that Petitioner told the Orange officers he was on his way to the freeway. (AR 745-747; Exh. 25; Video at Exh. C, part 2 at 22:20.) He was also arrested near a freeway. Thus, there is evidence from which it could be found his statement to investigators that he planned to park the car was false.