Judge Mitchell L. Beckloff, Case Number: 23STCP00757, Date: 2024-01-19 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP00757, Date: 2024-01-19 Tentative Ruling

Petitioner, Vincent Marc Rojas, seeks a writ of administrative mandate directing Respondents, City of Los Angeles and Michel Moore, Chief of Police (Respondents), to set aside a final administrative decision of the Chief of Police, after a Board of Rights hearing, to suspend Petitioner for 10 days and demote him from Detective to Police Officer II with the Los Angeles Police Department (Department). Respondents oppose the petition.

At the time of the administrative hearing, Petitioner had worked for the Department for approximately 16 years. (AR 951.) By that time, Petitioner had attained “dual status” as a sergeant and detective. His dual status allowed him to switch back and forth between the positions. (AR 952.)

While working as a detective at 77th Street Station, the Department charged Petitioner with misconduct relating to a trial in criminal court in October 2019 (counts one through seven), and failure to timely renew the registration on his personal car with the Department of Motor Vehicles between 2017 and 2019 (counts eight and nine). The complaint alleged in part:

· Count 2: On or about October 4, 2019, you, while on duty, failed to respond to DDA Goodrich’s text messages and voicemails in a timely manner.

· Count 3: On or about October 4, 2019, you, while on duty, failed to ensure witnesses were transported to a court trial in a timely manner. (AR 1.)

After a hearing, the Board of Rights (Board) found Petitioner guilty on all but two counts of the nine counts alleged in the complaint. (AR 1592-1599.) As a penalty, the Board recommended the Chief Moore impose a 10-day suspension and demote Petitioner from his Detective I position to a Police Officer II position. (AR 1602.) Chief Moore adopted the recommendation. (AR 1603.)

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision 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 respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

This proceeding concerns Petitioner’s fundamental vested right in employment. Accordingly, judicial review is pursuant to the court’s independent judgment. (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 court’s independent judgment, “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 v. Pierno, supra, 4 Cal. 3d at 143.) The court may draw its own reasonable inferences from the evidence and make its determinations as to the credibility of witnesses. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) Under independent judgment, “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code of Civ. Proc., § 1094.5, subd. (b).)

“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; see also Evid. Code, § 664.)

Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the weight of the evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.) A reviewing court “will not act as counsel for either party . . . 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.)

Petitioner contends the Board’s guilty findings for counts 2 and 3 of the complaint are not supported by the weight of the evidence. Petitioner also contends the penalty imposed by Chief Moore was “too harsh.” (Opening Brief 15:18.) Petitioner does not otherwise challenge the administrative proceedings.

On July 3, 2019, 77^th Street Division police officers Jonathan Grube and Paul Wellman arrested Vertis Portis for suspicion of assault with a deadly weapon (ADW). (AR 784-785, 1381.) The alleged victim was Dallreco Montgomery of the ADW. Montgomery’s girlfriend, Teresa Jarrison, witnessed the incident. (AR 1381.) Montgomery and Jarrison lived in the same residence in the 77^th Street Division area. (AR 1381)

On July 5, 2019, the Department assigned Petitioner the ADW investigation. (AR 1381.) On July 31, 2019, Petitioner presented his investigation to the district attorney’s office for filing consideration. (AR 1381.) On September 13, 2019, the district attorney electronically served Petitioner with a subpoena[1] and placed him on-call for the ADW trial as of October 2, 2019 for 10 days thereafter. (AR 1381-1382, 1417.)

On Friday, September 27, 2019, the district attorney’s office assigned Deputy District Attorney (DDA) Rebecca Goodrich to try the Portis/ADW case. (AR 1381, 784-785.) “On September 27, 2019, Goodrich sent an electronic mail (email) to [Petitioner] to introduce herself as the DDA assigned to the Portis criminal trial. Goodrich provided [Petitioner] with the trial date [set to commence Wednesday, October 2, 2019], requested Digital In Car Video (DICVs), and photographs of the weapon (a knife) used during the ADW. Additionally, Goodrich requested [Petitioner’s] assistance with locating and serving Montgomery and Jarrison subpoenas and transporting them to court. Goodrich provided [Petitioner] with her work and cellular telephone number. Goodrich requested [Petitioner’s] cellular telephone. Goodrich asked [Petitioner] to notify her if he had any scheduling conflicts during the week of the Portis jury trial, which was scheduled between October 2, 2019 and October 11, 2019.” (AR 1381 [administrative complaint investigation report]; see also AR 1415-1416 [Goodrich’s emails].) DDA Goodrich also informed Petitioner in her September 27 email that she would be off work on Monday, September 30, 2019, “for the jewish holiday” (Rosh Hashanah) but that she could be reached by cell phone or text on that date. (AR 1415; see also AR 791.)

Petitioner did not work from Friday, September 27, through Monday, September 30. (AR 970.) Petitioner usually worked Tuesday through Fridays from 5 a.m. to 3 p.m. (AR 966-967.) Petitioner did not respond to DDA Goodrich’s emails from September 27 at any time, including after he returned to work on Tuesday, October 1. (AR 791-792, 970, 1419-1420.)

By Tuesday, October 1, DDA Goodrich had not heard from Petitioner and became concerned. She called a detective she knew, Detective Matthew Snyder, and obtained Petitioner’s cell phone number. (AR 739-740 [Goodrich “pretty frantic”, 1382.) Thereafter, after obtaining Petitioner’s cellphone number, DDA Goodrich corresponded with Petitioner by text message and voicemail regarding the Portis/ADW case. (See AR 1418-1430.)

Specifically, on October 1, 2019, at 4:29 p.m., DDA Goodrich texted Petitioner: “Please call me to discuss tomorrow’s trial, this is dda Rebecca Goodrich.” (AR 1419.) Sometime thereafter, on October 1, Petitioner responded by text: “I’ll be in meeting until at least 8pm[.] How can I help[?]” (AR 1419.) DDA Goodrich then texted Petitioner: “I sent you an email last week, regarding disc but mostly letting you know that I need color photos of knife and for you to bring it to court for trial. Also victim’s car broke down and he needs a ride to court for his testimony as well.” (AR 1419.) That same day, Petitioner texted back: “I haven’t been in the office. .” (AR 1420.) DDA Goodrich responded: “Okay. I still need that stuff for trial starting tomorrow and victim cant get to court to testify[.] Can you bring the knife and victim and Victim's girlfriend to court for testimony, either Thursday or Friday depending on jury selection[?]” (AR 1420.)

That next morning, at 4:26 a.m., Petitioner responded: “I'll need there [sic] addresses and phone #. Are they all at one location? I'll need to arrange for them somehow to be picked up..I only have one other Detective to help out, if he's not already in court. I have no idea which case this is. . .” (AR 1420-1421.)

Additional relevant text messages, voicemails, and other evidence are discussed below in connection with Petitioner’s challenge to the Board’s findings on counts 2 and 3 of the complaint.

Count 2 alleges: “On or about October 4, 2019, you, while on duty, failed to respond to DDA Goodrich’s text messages and voicemails in a timely manner.” (AR 1595.)

[1] On October 1st by text message, DDA Goodrich asked you to call to discuss the trial. It's undisputed that you did not call her. [2] On October 1st by text message, DDA Goodrich advised you about the e-mail she sent you, which you did not reply to nor did you acknowledge receipt of. [3] On October 3rd, DDA Goodrich by text asked you to ‘please let me know who will be picking them up, so i can let them know. And then you will meet them at court with the knife because you will need to testify?’ You admitted that you did not answer her question as to who will pick them up. (AR 1595.)

The Board found Petitioner guilty of count 2, in part, because he did not call DDA Goodrich on October 1 in response to her 4:29 p.m. text message stating “Please call me to discuss tomorrow’s trial, this is dda Rebecca Goodrich.” (AR 1595, 1419.)

Petitioner contends his failure to respond to DDA Goodrich on October 1 cannot support Count 2. Petitioner advises he had completed his work for the Department at 3 p.m. that day. DDA Goodrich did not send her text message to him until well after he had stopped working on October 1. That is, DDA Goodrich texted him after he was no longer on duty. The court agrees.

The Department explicitly charged Petitioner in count 2 with misconduct “while on duty.” The complaint alleged “while on duty, [Petitioner] failed to respond to DDA Goodrich’s text messages and voicemails in a timely manner.” (AR 1595 [emphasis added].)

There is no dispute Petitioner worked for the Department four days a week—Tuesday through Friday—from 5 a.m. to 3 p.m. (AR 966-967.) There can also be no dispute DDA Goodrich texted Petitioner on his cellphone for the first time after he had ended his duty on October 1 at 4:29 p.m. (See AR 971-974.) Respondents also concede DDA Goodrich sent her first text message to Petitioner on October 1 “while he was off-duty.” (Opposition 11:6.)

Lieutenant Victoria Lim, Petitioner’s supervisor in 2019 (AR 532-533, 760), testified she had no expectation that Petitioner monitor his cellphone for work communications while off duty unless he made prior arrangements to do so. (AR 760.) Moreover, Lim did not direct Petitioner to monitor his cellphone during the hours he was not actually working. (AR 760.)

The weight of the evidence does not support the Board’s finding Petitioner committed misconduct “while on duty” by failing to respond to DDA Goodrich’s text message on October 1 at 4:29 p.m. Additionally, according to Petitioner’s supervisor, Lieutenant Lim, Petitioner had no obligation to monitor his cellphone for work communications when he was not actively working.

Respondents contend the Department’s “while on duty” part of Count 2 was “incidental.” (Opposition 11:13-14.) The meaning of Respondent’s just “incidental” claim is unclear. Respondents further argue: “as an investigating officer for the case, he had the obligation to respond timely to Goodrich whether he was on or off duty.” (Opposition 11:14-15.)

Respondents’ position directly conflicts with the testimony of Lieutenant Lim, Petitioner’s supervisor. That is, absent direction from a supervisor, Petitioner was not required to monitor his cellphone for work communications during the hours he was not on duty. (AR 760.) Respondents provide no evidence of the Department’s policies, applicable statutes or caselaw provides otherwise. Respondents’ argument is unsupported. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862-863 [failure to support claim with reasoned argument and citations constitutes waiver].)

Further, Petitioner’s discipline must be based on the Department’s policies and standards. Whether an officer is on or off duty is relevant to the charge. Here, for example, Chief Moore’s complaint alleged nine counts. (AR 1.) Of those counts, Chief Moore alleged seven occurred while Petitioner was on duty, one while he was off duty and one was unspecified. (AR 1. Compare counts 1 through 7 [“while on-duty”] with count 8 [“while off-duty”].)

Petitioner was under subpoena, on-call to Goodrich from October 2 on for ten days thereafter. On-call meant he was obligated to respond to the prosecutor’s contacts and to appear in court within one hour, if necessary, whether he was on or off-duty. Officers get paid for their on-call time, and for responding to a subpoena as on-duty time. (Opposition 11:10-13.)

Respondents provide no citations to the record to support of their contention Petitioner was somehow “on duty” at the time of the October 1 text messages because he had received a subpoena specifying that he was “on call” beginning on October 2. Accordingly, Respondents’ position is unsupported and unpersuasive.

Based on its review of the record, the court finds no evidence that the “e-Subpoena” worked to convert Petitioner to “on duty” on October 1 when DDA Goodrich texted him. (See AR 1417 [e-Subpoena].) Lieutenant Lim testified “on-call status” means that the district attorney or court has placed the officer “on call, meaning you don’t have to be physically present in court, however, during the hours, and typically otherwise specified, it would be between 8:30 and 4:00 p.m. that you will be available to respond to court, and I believe the parameters is you have to respond within one hour of being called to court.” (AR 760-761.)

Lieutenant Lim explained the officers receive compensation for their on-call time. (AR 761.) Lieutenant Lim did not testify or suggest an officer who is “on call” is considered “on duty” during the entire period of the criminal trial for which he/she received an “e-Subpoena.” She also did not testify that an “on-call” subpoena obligates an officer, during his or her off-duty time, to perform any duties other than timely respond to court when called to testify. Because DDA Goodrich did not place Petitioner on call until October 2 for the Portis/ADW case, there can be no reasonable argument Petitioner was “on duty” on October 1 at 4:29 p.m.

Respondents next assert “Petitioner, as investigating officer for the case, had the obligation to respond timely to Goodrich whether he was on or off-duty.” (Opposition 11:14-15.) Respondents do not support their position with any citation to the administrative record or legal authorities. Further, the issue, as alleged in the complaint, Petitioner’s on-duty conduct. Chief Moore did not allege and the Board did not find Petitioner committed misconduct by failing to respond to DDA Goodrich while he was off duty.

Finally, Respondents contend “while not mentioned by the Board, texts on October 4 at 6:50 a.m., 9:21 a.m., 9:55 a.m., and 10:15 a.m. were delivered to Petitioner while on-duty to which Petitioner failed to respond timely.” (Opposition 11:7-9; see also Opposition 11, fn. 4.) The Board did not find Petitioner was guilty on count 2 because he failed to respond in a timely manner to text messages sent on October 4. (AR 1595.)[2] The Board made explicit factual findings for Count 2; it did not include any misconduct findings based on communications made on October 4 communications. (AR 1595.) Where the Board has specifically identified the misconduct by date (October 1), the court cannot find the Board intended to find Petitioner guilty of count 2 based on Petitioner’s acts on another date (October 4). (See American Funeral Concepts v. Board of Funeral Directors & Embalmers (1982) 136 Cal.App.3d 303, 311 [court cannot “supply its own finding” to cure agency’s improper finding].)

Based on the foregoing, the weight of the evidence does not support the Board’s finding that Petitioner was guilty of misconduct, as alleged in Count 2, for failing to call DDA Goodrich on October 1, 2019, “while on duty,” in response to her text message sent at 4:29 pm that date.[3]

The Board also found Petitioner guilty of count 2 because “[o]n October 1st by text message, DDA Goodrich advised [Petitioner] about the e-mail she sent [to him], which [Petitioner] did not reply to nor did [Petitioner] acknowledge receipt of.”[4] (AR 1595.)

It appears the Board found Petitioner guilty of Count 2, in part, because he did not directly acknowledge receipt of the September 27 emails in his text messages to DDA Goodrich on October 1. The weight of the evidence, however, does not support such a finding.

I sent you an email last week, regarding disc but mostly letting you know that I need color photos of knife and for you to bring it to court for trial. Also victim’s car broke down and he need a ride to court for his testimony as well. (AR 1419.)

Petitioner stated in response to DDA Goodrich: “I haven’t been in the office.” (AR 1419-20.) Petitioner’s text appears responsive; he explained he had not been at work to receive the email. His response acknowledged her statement about the email contrary to the Board’s finding he did not acknowledge the email. The only part of DDA Goodrich’s text to which “I haven’t been in the office” is her statement she sent him an email last week. That is, “I haven’t been in the office” is non-responsive to DDA Goodrich’s need for color photos and the victim needing a ride to court.

Although not entirely clear, it appears the Board faulted Petitioner for failing to respond to the emails sent to him by DDA Goodrich on September 27. The evidence demonstrates Petitioner did not respond (by email) to DDA Goodrich’s September 27 email at any time, including after Petitioner returned to work on October 1 and was back on duty. (AR 791-792, 970, 1419-1420.)

Nonetheless, the Department did not charge Petitioner with failing to respond to DDA Goodrich by email—count 2 alleges misconduct for failing to respond to “text messages and voicemail.” Accordingly, to the extent Board found guilty of Count 2 for failing to respond to DDA Goodrich by email, the Department did not make such an allegation. (See generally Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240 [in administrative proceedings, “[n]otice of the charges sufficient to provide a reasonable opportunity to respond is basic to . . . the common law right to a fair procedure” and the accused must be told “what he is accused of doing and what the basis of the accusation is”].)[5]

Finally, the Board found Petitioner guilty of count 2, in part, because “[o]n October 3rd, DDA Goodrich by text asked [Petitioner] to ‘please let me know who will be picking them [the witnesses] up, so i can let them know. And then you will meet them at court with the knife because you will need to testify?’ [Petitioner] admitted that [he] did not answer her question as to who will pick them up.” (AR 1595.)

Petitioner challenges the Board’s finding because the “Board did not identify which of Goodrich’s messages went unanswered” and “[i]f it was her last one at 4:56 p.m., [Petitioner] was off duty by that time, and he responded to her at 6:14 a.m. the next morning.” (Opening Brief 14:9-11.)[6]

The Board expressly found Petitioner never responded to DDA Goodrich’s direction to let her know who would be transporting the witnesses. Thus, Petitioner is incorrect when he states the Board did not identify which of DDA Goodrich’s messages went unanswered.

Petitioner also points out that “[a]s for the finding that [Petitioner] failed to respond to one of DDA Goodrich’s text messages on October 3rd, the record shows they exchanged numerous text messages between 7:55 a.m. (A.R. 1424) and 4:56 p.m. (A.R. 1424-1427), mostly concerning difficulties getting the witnesses to court.” (Opening Brief 14:6-9.)

The record shows the following exchange of text messages between DDA Goodrich and Petitioner on October 3:

DDA Goodrich (at 7:55 am): You already have on call subpoena for trial but if you need one for tomorrow please let me know. I need you to bring [the witnesses] by 12 tomorrow for me to go over everything with them before they testify at 1:30 and I need you to bring knife to court from evidence and most likely testify to chain of custody of it

DDA Goodrich: Thank you. What time should I tell them you will pick them up to be at court around 12? They live at 813 1/2 w 85th Street.

Petitioner: I won't be able pick them up.. I'll see if I can arrange something. I have multiple cases going this week and next.

DDA Goodrich: Please let me know who will be picking them up so I can let them know. And then you will meet them at court with knife because you will need to testify?

DDA Goodrich: Okay well they don't live that far from court so then maybe a patrol officer can pick them off and drop them off after court if you aren't able to. Please let me know today.

DDA Goodrich (at 2:47 pm): Who do I need to call to make this happen when I get out of court?

DDA Goodrich (at 4:56 pm): Please be here at 9:30 tomorrow and meet me on the 17th floor. (AR 1423-1427.)

DDA Goodrich: Okay well they don't live that far from court so then maybe a patrol officer can pick them off and drop them off after court if you aren't able to. Please let me know today.

Petitioner and DDA Goodrich continued to exchange text messages the morning of October 4 about the transportation issues with the witnesses. (AR 1427-1428.) As discussed below with count 3, Petitioner did arrange for the witnesses to be transported to the court building.

The above-quoted October 3 text messages demonstrate Petitioner informed DDA Goodrich on October 3 that he had been unable to find someone to transport the witnesses. In his testimony, Petitioner admitted he did not respond to DDA Goodrich’s request to let her know who would be transporting the witnesses. Petitioner explained he did not know on October 3 who was going to transport the witnesses so he could not tell her. (AR 1185.) The court finds Petitioner’s explanation credible. He failed to identify who would be transporting the witnesses because he could not do so on October 3. The text messages in context reflect just that—it appears DDA Goodrich requested Petitioner let her know who would be transporting the witnesses after he arranged it:

Petitioner: I won't be able pick them up.. I'll see if I can arrange something. I have multiple cases going this week and next.

DDA Goodrich: Please let me know who will be picking them up so I can let them know. And then you will meet them at court with knife because you will need to testify?

Petitioner: Knife and testifying no problem. Their logistics is going to be..

DDA Goodrich: Okay well they don't live that far from court so then maybe a patrol officer can pick them off and drop them off after court if you aren't able to. Please let me know today. (AR 1425-1426 [emphasis added].)

Further, DDA Goodrich’s text hours later, “Able to find anyone?” expresses her understanding Petitioner did not have identifiable transportation plans in their earlier text exchange.

The issue is whether Petitioner could be found guilty of Count 2 for failing to inform DDA Goodrich on October 4 of the names of the officers who would be transporting the witnesses after Petitioner made the arrangements. The parties do not address the issue in their briefing. More importantly, the Board did not find misconduct based on any failure later (on October 4) to identify who would be transporting the witnesses to court. Petitioner clearly communicated to DDA Goodrich he did not have the transportation logistics settled. The weight of the evidenced supports a finding DDA Goodrich understood Petitioner did not yet have a plan and could not on October 3 provide the names.

Exercising its independent judgment, the court concludes that the weight of the evidence does not support finding Petitioner guilty of count 2 for a failure to provide DDA Goodrich with the name of who would be transporting the witnesses to court. The text messages show an ongoing responsive discussion between Petitioner and DDA Goodrich, including on October 4, about how the witnesses would be transported to and from court.

For example, on the morning of October 4 at 6:41 a.m., Petitioner and DDA Goodrich exchanged text messages concerning whether a district attorney investigator could assist with transportation from court after the witnesses testified. (AR 1427-1428.) DDA Goodrich discussed the matter with a sergeant, who indicated that a district attorney investigator could not assist with transportation due to liability issues. (AR 1427-1428.) DDA Goodrich did not reiterate her request for the names of the officers transporting the witnesses to court on October 4. (AR 1427-1428.)

The Board did not find Petitioner failed to respond in a timely manner to text messages or voicemails received from DDA Goodrich on October 4. While it may have been prudent for Petitioner to provide DDA Goodrich the names of the officers transporting the witnesses on October 4 based on her earlier request on October 3 when there was no transportation plan in place, Petitioner timely responded to DDA Goodrich’s October 3 text message by informing her that he had not yet been able to arrange transportation. Petitioner responded to DDA Goodrich in the only way possible on October 3—he did not know who would be transporting the witnesses because he did not yet have a plan in place. The text messages, considered in context, indicate DDA Goodrich at that moment understood Petitioner’s response that he had no names to provide.

Respondents argue: “As for the October 3 example, Petitioner’s response to Goodrich was again untimely. Petitioner had done nothing up to that point securing the transportation of the witnesses and predictably had Goodrich very concerned.” (Opposition 10:12-14.) While that may be true, the argument is unpersuasive. The Department did not allege in count 2 did not that Petitioner committed misconduct by failing to find transportation for the witnesses on October 3 or in a timely manner. Petitioner cannot be disciplined for allegations not reasonably presented in the administrative complaint.

Respondents point out Petitioner did not respond on October 3 to DDA Goodrich’s text messages sent on 2:47 p.m. and 4:56 p.m. on October 3 (quoted above). (See Opposition 10:12-23.) However, the Board did not find Petitioner guilty of count 2 in connection with those text messages. (AR 1595.) The Board expressly found Petitioner guilty of failing to advise DDA Goodrich on October 3 about who was going to transport the witnesses to the court. (See American Funeral Concepts v. Board of Funeral Directors & Embalmers, supra, 136 Cal.App.3d at 311 [court cannot “supply its own finding” to cure agency’s improper finding].)

Petitioner’s response under the circumstances was again untimely. Petitioner left Goodrich in a state of uncertainty regarding whether the key witnesses could testify at all. Petitioner should have explained what he had done, what he planned to do that day and the next day, and what his plan B was. Even assuming that there was nothing that Petitioner could do, he had an obligation as the investigating officer under subpoena to communicate with Goodrich in a timely manner to fix the problem and to acknowledge that he would meet Goodrich at 9:30 a.m. the next day. (Opposition 10:24-11:2.)

These opposition arguments are unpersuasive. They far exceed the scope of the Board’s findings and the allegations in count 2. The Department did not allege in count 2, and the Board did not find, Petitioner committed misconduct because he failed to explain “what he had done, what he planned to do that day and the next day, and what his plan B was.” The Board found Petitioner was guilty of count 2, in part, because he did not timely answer DDA Goodrich’s question from the morning of October 3 about who would be transporting the witnesses to court. (AR 1595.) However, as discussed, the weight of the evidence supports a finding Petitioner timely responded to that question on October 3 when he stated that he had not yet found transportation for the witnesses and that DDA Goodrich understood the status of the transportation arrangements.

Based on the foregoing, the weight of the evidence does not support the Board’s findings Petitioner committed misconduct for failing to respond to DDA Goodrich’s text messages and voicemails in a timely manner while on duty on or about October 4, 2019. The finding must be set aside.

Count 3 alleges: “On or about October 4, 2019, you, while on duty, failed to ensure witnesses were transported to a court trial in a timely manner.” (AR 1595.)

Although, [Petitioner] arranged the pickup of the witnesses by patrol who delivered them to the courthouse, [Petitioner] did not ensure that they found their way timely to DDA Goodrich. It’s uncontested that they were dropped off ‘at the front outside.’ See exhibit 12, addenda at 12. Moreover, when [Petitioner] was arranging the transport, he texted patrol officer Wellman that ‘their phones are disconnected . . . Just roll by. If they answer, they answer.. No biggie. We tried.’ Certainly, the obligation to ensure witness and victim appear at a trial is a biggie. Thus, the witnesses were not timely transported. (AR 1595-1596.)

On October 3, at 7:55 a.m., DDA Goodrich initially instructed Petitioner “to bring [the witnesses] by 12 tomorrow for me to go over everything with them before they testify at 1:30.” (AR 1424.) At approximately 4:15 p.m. on October 3, DDA Goodrich left a voicemail stating the trial had been moved to the morning of October 4; DDA Goodrich asked Petitioner to meet her at 9:30 a.m. the next day. (AR 810, 994, 995.) A bit later that day, 4:56 p.m., DDA Goodrich instructed Petitioner to “[p]lease be here at 9:30 tomorrow and meet me on the 17th floor.” (AR 1427.)

On October 4, at 6:34 a.m., Petitioner texted Officer Wellman and asked whether he could transport Montgomery and Jarrison to court. (AR 1384.) The complaint investigation report notes: “Wellman agreed to transport them. At approximately 0815 hours, Wellman and his partner, . . . transported [] Montgomery and Jarrison to [the courthouse], and arrived at approximately 0845 hours. Wellman responded to the LAPD Court Liaison Office and signed in on the Court Check-in Roster.” (AR 1384; see also AR 1015, 1444-1445.) Accordingly, the weight of the evidence shows Petitioner ensured the witnesses were transported to court by 8:45 a.m., well before the 9:30 a.m. time specified by DDA Goodrich.

The Board also found Petitioner guilty of count 3 because he “did not ensure that they found their way timely to DDA Goodrich.” (AR 1596.) Petitioner contends “[t]he charge dealt with transporting the witnesses to court, not with connecting the witnesses with the District Attorney.” (Opening Brief 14:22-23.) Respondents do not address this argument in opposition apparently conceding it.(See Opposition 11:16-12:13; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Count 3 explicitly alleged Petitioner committed misconduct because he “failed to ensure witnesses were transported to a court trial in a timely manner.” (AR 1595 [emphasis added].) Although there may be some ambiguity as to whether “court trial” referred to the court building or some specific location therein, there is no ambiguity in the word “transported.”[7]

The Department did not allege in count 3 of the complaint that Petitioner failed to ensure the witnesses were timely brought or escorted to DDA Goodrich at some location within the courthouse, or that Petitioner failed to give sufficient instructions to Wellman or the witnesses about where to meet DDA Goodrich.[8] Rather, as Petitioner argues and Respondents do not dispute, count 3 concerned the transportation of the witnesses to court. It is undisputed Petitioner ensured the witnesses were timely transported to the courthouse well before the 9:30 a.m. deadline specified by DDA Goodrich.

Respondents contend “Petitioner should have given specific instructions to Wellman or the witnesses themselves as to where to go, whom to meet, and by what time.” (Opposition 11:22-23.) Respondents also argue:

Petitioner, based on his experience, should have known better. Predictably, the witnesses were lost until it was almost 11 a.m., right before the trial began. Instead of having time to prepare the witnesses, Goodrich spent time and effort to locate the witnesses by gathering other DDA’s and interns to search the entire building to look for them. Eventually, the witnesses were located but it was too late for Goodrich to prepare them for their testimony. They testified without adequate preparation and according to Goodrich, it negatively affected the outcome of the trial. (Opposition 12:2-8.)

These opposition arguments are unpersuasive because they far exceed the scope of both the administrative complaint and the Board’s findings. The Department did not allege in Count 3, and the Board did not find, that Petitioner should have given specific instructions to Wellman or “should have known better” based on his experience. While it may have been prudent for Petitioner to give the witnesses specific instructions of where to go at court, to direct Wellman to escort the witnesses to DDA Goodrich, or for Petitioner to escort the witnesses himself, the administrative complaint did not make such allegations. Respondents develop no argument, and cite no authority, that Petitioner can be disciplined for such allegations that were not reasonably presented in the administrative complaint. (See Doe v. University of Southern California, supra, 246 Cal.App.4th at 240.)

In its finding, the Board cited Petitioner’s text message to Officer Wellman, which stated “[t]heir phones are disconnected . . . just roll by if they answer they answer . . . no biggie. We tried.” (AR 1596, 1445.) While certainly troubling and unfortunate, the Board did not explain how this evidence is relevant to the charge—whether Petitioner ensured that the witnesses were timely “transported” to court. Since the witnesses were in fact timely transported to court, it is immaterial to count 3 that Petitioner informed Wellman that it was “no biggie” if the witnesses did not answer their phones and were not available for pick up.

Based on the foregoing, the weight of the evidence does not support the Board’s findings for count 3. The Board also prejudicially abused its discretion to the extent it found Petitioner failed to ensure the witnesses “found their way” to DDA Goodrich, and to the extent the Board may have impliedly found Petitioner should have given specific instructions to Wellman or the witnesses concerning where they should report once having arrived at the courthouse.

“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.)

Here, as discussed above, the court has found that the weight of the evidence does not support the Board’s findings of guilt for counts 2 and 3. Both counts were material to the Board’s determination of the appropriate penalty. (See AR 1600-1602.) Accordingly, the matter must be remanded to Respondents to reconsider the penalty in light of the court’s opinion and judgment. (See Code Civ. Proc., § 1094.5, subd. (f).)

The petition for writ of mandate is GRANTED. The Board’s findings of guilt on counts 2 and 3 are set aside. The matter is remanded for Respondents to reconsider the decision and appropriate penalty in light of the court’s opinion and judgment.

[1] The subpoena was an “e-Subpoena” and contained an order to appear. It notes it was issued in lieu of a subpoena pursuant to Penal Code sections 1328A, 1328C, 1328D and 1328, subdivision (c). (AR 1417.)

[2] As argued by Petitioner, there may be reasons the Board did not find Petitioner guilty of misconduct related to DDA Goodrich’s October 4 communications with Petitioner. The court notes there was a conflict in the evidence about whether DDA Goodrich called Petitioner

“close to 30 times” on October 4. (Reply 4:1-6 [citing AR 878, 881, 1168-1169, 1171-1172, 1219.) Petitioner testified he received no calls or voicemails from DDA Goodrich on October 4. (AR 1168.)

[3] Whether the Department could properly charge Petitioner with off-duty misconduct is not before the court.

[4] The court’s earlier discussion about Petitioner being off duty when he received the text from DDA Goodrich is equally applicable here.

[5] In a footnote, Respondents argue “Petitioner should have responded to the emails because LAPD officers must check their emails every working day which meant Petitioner should have read Goodrich’s emails on October 1 because he worked that day.” (Opposition 9, fn. 3.) Respondents’ position misses the mark. Respondents do not develop any cogent argument Petitioner could be found guilty of count 2 when count 2 expressly alleged a failure to respond to text messages and voicemail.

[6] For the reasons discussed above for the October 1 messages, the court agrees the Board could not find Petitioner guilty of count 2 based on his off-duty conduct given the express language of the complaint. However, it does not appear the Board found Petitioner guilty of failing to respond to DDA Goodrich’s October 3 text messages during other than work hours, i.e., when he was on duty.

[7] The ordinary dictionary definition of transport means “to transfer or convey from one place to another.” (https://www.merriam-webster.com/dictionary/transport.)

[8] Petitioner testified the witnesses had been served with a subpoena that instructed the witnesses where to report. (AR 1044.) Petitioner also reported the officers who transported the witnesses to court, the officers who arrested Portis had been issued subpoenas with relevant information on them about the location of the trial. (AR 1044.) Petitioner also testified the subpoenas listed a telephone number the witnesses could call “worst case scenario.” (AR 1048.) Petitioner also believed the witnesses had spoken to DDA Goodrich “days prior based on what [DDA Goodrich] had provided to [him].” (AR 1049.) Petitioner assumed the witnesses knew “where they were supposed to go.” (AR 1049.)