Judge: Mary H. Strobel, Case: 21STCP03263, Date: 2022-10-27 Tentative Ruling

Hon. Mary H. Strobel

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

Case Number: 21STCP03263    Hearing Date: October 27, 2022    Dept: 82

             Brian Banks (“Petitioner”) petitions for a writ of administrative mandate directing Respondent Los Angeles County Civil Service Commission (“Commission”) to set aside its final decision affirming a 15-day suspension without pay imposed on Petitioner from his position as firefighter paramedic.  Real Parties in Interest County of Los Angeles and County of Los Angeles Fire Department (“Department”; collectively “County” or “Real Parties”) oppose the petition. 

Background

January 19, 2017, Incident and Department Investigation

            On January 19, 2017, Petitioner was assigned to Fire Station (“FS”) 172 and scheduled to work a 24-hour shift beginning at 8:00 am and ending at 8:00 am on January 20, 2017.  (AR 61, 640.)

Captain Alvin Brewer was the Fire Captain assigned to FS 172 in January 2017 and was on duty on January 19, 2017. (AR 635, 61.)  As Fire Captain, Brewer was responsible for supervising his crew and overseeing and managing the fire station to which he is assigned. (AR 634.)  At the administrative hearing on Petitioner’s suspension, Brewer testified that, on January 19, 2017, he received a call from Petitioner stating that he was leaving a different fire station, FS 119; that he encountered traffic; and he was going to be late to his shift. (AR 640.) Brewer testified that Petitioner then arrived for his shift after the 8:00 am start time. (AR 642.) In an email Brewer sent to his supervisor at 9:57 am that morning, Brewer documented that Petitioner arrived at 8:39 am on January 19, 2017. (AR 361.)  Brewer noted that Petitioner had arrived late on prior occasions and that counseling would be required.  (Ibid.) 

Department commenced an investigation to determine whether Petitioner committed misconduct on January 19, 2017, including for failing to arrive at his scheduled time and for making false statements to Brewer.  (AR 62-68.)  Department’s investigator determined that Petitioner failed to arrive to FS 172 at his scheduled start time on January 19, 2017, and that Petitioner made untruthful statements regarding the incident.  (AR 63, 142, 294, 303.)  

Department Imposes 15-Day Suspension

            On November 21, 2017, Department issued Petitioner a Notice of Intention to suspend him for 15 days without pay based on misconduct related to the January 19, 2017, incident.  On February 16, 2018, Department suspended Petitioner for 15 days without pay based on misconduct related to the January 19, 2017, incident.  Department found that Petitioner failed to appear for work on time on January 19, 2017, and made untruthful statements about the reasons he reported to work late.  (AR 61.) 

Administrative Hearing and Decision

            Petitioner appealed the suspension and an administrative hearing was held on multiple days in April and May 2019.  The hearing officer issued a proposed decision recommending that the Commission uphold the suspension.  (AR 62-65.)  The Commission overruled Petitioner’s objections, adopted the hearing officer’s proposed decision as its final decision, and upheld the suspension.  (AR 233.)

Writ Proceedings

             On September 30, 2021, Petitioner filed his verified petition for writ of administrative mandate.  Commission filed a notice of no beneficial interest in outcome.  

            On August 26, 2022, Petitioner filed his opening brief in support of the petition.  The court has received Real Parties’ opposition, Petitioner’s reply, the administrative record, and the joint appendix. 

Standard of Review

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 suspension of Petitioner from his position as firefighter paramedic 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.)  

Under CCP section 1094.5, Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the evidence supports his position.  (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.)  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.) 

Analysis      

The Hearing Officer Did Not Prejudicially Abuse Her Discretion in Denying Petitioner’s Last-Minute Request for a Continuance

            Petitioner contends that the hearing officer prejudicially abused her discretion in denying his request for a continuance on the first hearing date, April 19, 2019. Petitioner’s grounds for a continuance were that he had just retained new counsel.  (Opening Brief (“OB”) 5-6.) In the opening brief, Petitioner provided no record citations in support of this argument, including any citations regarding the reason Petitioner “retained a new attorney two (2) days prior to the initial hearing date in this matter, April 19, 2019.”  (OB 5.)  Given the absence of record citations, Petitioner did not prove any prejudicial abuse of discretion in the opening brief.

            In reply, Petitioner provides several record citations and argues: “These facts combined with the last-minute service of discovery, placed Petitioner on an unevenly tilted playing field …. His rights to a fair hearing were clearly prejudiced.”  (Reply 1-2, citing AR 87-92.)  “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 does not show good cause to raise new arguments and provide record citations for the first time in reply.  This petition has been pending since September 2021 and the trial date was set in January 2022.  Petitioner had ample time to prepare and provide all relevant arguments and record citations in the opening brief. 

            Even if the court considers the new reply arguments and record citations, the court finds them unpersuasive.  Department imposed the suspension on February 16, 2018.  (AR 61.)  The administrative hearing occurred on April 19, 26, and 29, and on May 24, 2019.  (AR 52.)  Petitioner does not cite competent evidence explaining why he retained new counsel just prior to the April 19, 2019, hearing.

Petitioner cites to certain statements of his attorney, Mr. Brown, at the start of the April 19, 2019, hearing.  Attorney Brown did not explain why he was recently retained.  (AR 87-92.)  Brown asserted that Department has a policy that an accused employee shall not discuss the case with witnesses or other persons during the investigation.  He also asserted that he just received Department’s exhibits and needed time to prepare.  (AR 86-88.) 

Petitioner’s record citations do not show that Department prohibited Petitioner from contacting witnesses after the suspension was imposed or that the reason Petitioner had not conducted more investigation was because of any Department policy.  (Reply 2, citing AR 90 and 92.)  Petitioner also does not cite or discuss any specific Department exhibit for which further discovery or investigation was needed.

In denying the continuance, the hearing officer noted that Petitioner was represented by counsel during the Skelly proceedings; that he represented himself for some period; and that he was nonresponsive to certain requests from the Commission to continue the matter.  The hearing officer also noted that witnesses were present on April 19 and that hearings were also scheduled for April 26 and 29.  She then stated “we’ll see how far we got in the process today and make a determination at what point we stop.”  (AR 102-103.)  Petitioner does not cite any evidence that he renewed his request for a continuance or asserted a lack of preparation with respect to examination of any witnesses or evidence presented at the hearing. 

Petitioner does not show, with record citation, that it was an abuse of discretion for the hearing officer to deny the last-minute continuance request or that Petitioner was prejudiced by that decision.

The Decision Complies with Topanga

            Petitioner contends that the findings are “conclusory” and fail to bridge the analytical gap between the evidence and the decision.  (OB 2.)  Petitioner appears to argue that the decision does not comply with the Topanga findings requirement.  The court disagrees. 

Under CCP section 1094.5(b), an abuse of discretion is established if the decision is not supported by the findings, or the findings are not supported by the evidence.  (CCP § 1094.5(b).)  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."  (11 Cal. 3d at 516-517 [fns. Omitted].)

“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 made findings of fact from which Petitioner and the court can understand her mode of analysis.  (AR 53-69.)  The hearing officer bridged the analytical gap between the raw evidence and the legal conclusions.  The Commission adopted the hearing officer’s findings.  The decision complies with Topanga.

The Weight of the Evidence Supports the Findings

            Petitioner challenges the findings that he reported late for work on January 19, 2017, and was untruthful about his attendance on that date.  (OB 3-5.)  Exercising its independent judgment on the record, the court concludes that the administrative findings are supported by the weight of the evidence.

            Petitioner Was Tardy on January 19, 2017

            Commission found that Petitioner was tardy on January 19, 2017, for his 8:00 am shift at FS 172, arriving at 8:39 am, and that he failed to provide adequate notice of his late arrival to FS 172.  (AR 55-57, 61-62, 64.) 

Petitioner only challenges the finding that he was tardy and arrived at 8:39 am.  Petitioner relies entirely on a time record prepared by Captain Brewer.  Petitioner contends that this time record “conclusively proves that on 1/19/2017 petitioner was placed on duty by Fire Captain Alvin Brewer (Captain Brewer) at 08:00 and ended his shift at 08:00 on January 20, 2002 [sic].”  (OB 3, citing AR 79, 310, 638, 744-45.) 

Petitioner’s arguments and record citations are not persuasive because Petitioner ignores evidence that supports Commission’s finding that Petitioner was late on January 19, 2017.  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.) 

At the administrative hearing, Brewer testified that, on January 19, 2017, he received a call from Petitioner stating that he was leaving a different fire station, FS 119; that he encountered traffic; and he was going to be late to his shift. (AR 640.) Brewer testified that Petitioner then arrived for his shift after the 8:00 am start time. (AR 642.) In an email Brewer sent to his supervisor at 9:57 am that morning, Brewer documented that Petitioner arrived at 8:39 am on January 19, 2017. (AR 361.)  As noted by Commission, and not rebutted by Petitioner, Brewer’s testimony that Petitioner arrived late was further corroborated by evidence that he announced Petitioner’s late arrival to staff of FS 172.  (AR 61 ¶ 7; see AR 641.) 

Petitioner cites evidence that Brewer placed Petitioner on duty for the 8:00 am shift on January 19, 2017, in a time record he prepares daily as fire captain.  (AR 79, 310.)  Brewer testified that those timesheets are an output of the program used to “put [fire fighters] on duty” by their supervisor. (AR 638.)  Significantly, Brewer testified that he “typically” completes the document when he first arrives at the station at about 7:00 am, which is before the start time for Petitioner’s shift on January 19, 2017.  (AR 638.) 

In context of Brewer’s testimony and other corroborating evidence, the time record of when Brewer placed Petitioner “on duty” is not strong evidence that Petitioner actually arrived at his “on duty” time on January 19, 2017.  (See AR 640-642, 361, 61 ¶ 7.) Brewer testified clearly and credibly that Petitioner arrived late on January 19, 2017, as corroborated by his email to a supervisor of that same date.  He also testified credibly that he typically prepares the timesheet placing firefighters on duty before the time Petitioner would have arrived. 

Petitioner also cites testimony of Captain Patrick Hamburg, of FS 119, that only a fire captain can input time into a time sheet and that the time records could reflect if an employee “works fewer than a full 24-hour shift.”  (AR 744-745.)  Petitioner does not show, with record citation, that Hamburg had personal knowledge about the time record at issue prepared by Brewer for FS 172.  Thus, weighing the evidence, the court finds that Hamburg’s cited testimony does not provide much support for Petitioner’s argument that the time records establish that he arrived by 8:00 am at FS 172 on January 19, 2017.

The weight of the evidence supports the finding that Petitioner arrived late at work on January 19, 2017.

Petitioner Made Untruthful Statements About Arriving Late on January 19, 2017

            Commission found that Petitioner made untruthful statements to Brewer on January 19, 2017, regarding the reasons he arrived late and also failed to make full, complete, and truthful statements during the administrative investigation.  (AR 55-64.)

            Petitioner challenges these findings almost entirely based on the time record discussed above.  Petitioner contends that “the foundation of this case was removed when the Department proved that petitioner reported timely for work.”  (OB 4.)  Petitioner’s arguments based on the time record prepared by Brewer are not persuasive for the same reason discussed above – Petitioner ignores other credible evidence upon which Commission relied for its findings. 

            In addition to the evidence summarized above, Commission also relied on testimony from Brewer that Petitioner told him on January 19, 2017, that he arrived late because he worked a “second half 3-way trade” at FS 119 on January 18, 2017.  (AR 62.)  The weight of the evidence supports Commission’s finding that this statement was untruthful.  Brewer consulted two software programs that the Department uses to track the schedules and hours of its employees. (AR 641-642.) Neither of these programs indicated that Petitioner was working the previous shift at FS 119. (AR 642.)  Captain Patrick Hamburg also testified that he was the captain on duty at FS 119 on January 18, 2017, the day Petitioner claims he worked a shift. (AR 700-701.)  Hamburg testified consistently and unequivocally that Petitioner did not work a shift at FS 119 on January 18, 2017.  (AR 700-703, 711-712, 724.)  Additionally, the firefighter who Petitioner claimed he had worked for at FS 119, Letthadeas McIntyre, testified that no such swap was arranged or executed for the relevant dates of January 18 and 19, 2017. (AR 616-617.) 

During the investigation, Petitioner repeated the above claims and excuses for his tardiness. (See AR 62-64, 116-118, 142, 299-301.)  Department’s investigator determined, and evidence supports, that Petitioner failed to arrive to FS 172 at his scheduled start time on January 19, 2017, and that Petitioner made untruthful statements regarding the incident during the investigation.  (AR 63, 116-118, 142, 294, 299-301, 303.)  

            Petitioner fails to address any of this evidence.  Exercising its independent judgment, the court concludes that the time record upon which Petitioner relies does not outweigh the other evidence more persuasive evidence supporting the finding that Petitioner made untruthful statements about the reasons he arrived late.

            Petitioner also argues generally that he was not interviewed until eight months after the incident, and that passage of time could plausibly have impacted his own memory or that of other witnesses.  (OB 4.)  This argument is not persuasive.  As Petitioner notes, “interviews were conducted from April 27, 2017 through November 8, 2017, from three months to ten months after the alleged incident.”  (OB 4.)  Thus, interviews were conducted in a reasonable time after the incident.  The relevant testimony cited by the parties does not show that witnesses’ memories of the incident were not fresh or could not be refreshed by reference to relevant documentation.  Petitioner cites no evidence from the record that he ever claimed a lack of memory of the events on January 19, 2017. 

            The weight of the evidence supports the findings that Petitioner made untruthful statements to Brewer on January 19, 2017, regarding the reasons he arrived late and also failed to make full, complete, and truthful statements during the administrative investigation.  (AR 55-64.)

Evidence Code Section 623 Is Inapplicable

            Petitioner contends that “[t]he testimony of witnesses regarding petitioner being late and the circumstances surrounding that issue have to be disregarded pursuant to [Evidence Code] section 623 that forbids any testimony that contradicts Department's own time records.”  (OB 6.) 

Evidence Code section 623 provides: “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” 

Petitioner cites no evidence that Brewer or Department led Petitioner to believe that the time record prepared by Brewer conclusively established the time upon which Petitioner arrived at work on January 19, 2017.  Furthermore, Petitioner does not show that he acted upon such belief or that he suffered any prejudice from the time record.  Accordingly, section 623 does not support Petitioner’s position that Department is conclusively bound by any statement in that time record. 

The Penalty Was Reasonable

“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 can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion.  (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)  

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

            Petitioner contends that a 15-day suspension was excessive because “the maximum discipline listed in the Department's Guidelines for Discipline for failure to timely report for duty is a warning.”  (OB 1.)  Relatedly, Petitioner asserts: “The commission did not point to any evidence that established any aggravating circumstances that justified a more significant disciplinary penalty than the normal range, and at the same time ignored mitigating evidence presented by FF Banks. For instance, FF Banks had no prior discipline, received evaluation ratings of ‘competent,’ and had years of service with no prior discipline. Additionally, Hearing Officer Shaw ignored uncontroverted testimony that FF Banks was a Department Medal of Valor winner.”  (OB 1; see also Id. 4-5.) 

            Given the deferential standard of review that applies to the penalty, all of these arguments are unpersuasive.  Petitioner was also found guilty of making false statements, which is considered dishonesty for purposes of Department’s disciplinary guidelines.  The guidelines state that the penalty for making untruthful statements during a Department investigation or during official Department business is a 3-30 day suspension and up to a discharge for a first offense. (AR 326-337.)  A 15-day suspension was well within the range of reasonableness based on the findings of dishonesty.  (See Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721 [“Dishonesty is incompatible with the public trust.”].)  Given the findings of dishonesty, Petitioner’s evidence of mitigation, including that he had no prior discipline, does not show a manifest abuse of discretion in the penalty. 

Conclusion

            The petition is DENIED.