Judge Stephen I. Goorvitch, Case Number: 23STCP00002, Date: 2024-10-16 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP00002, Date: 2024-10-16 Tentative Ruling

Los Angeles Port Police Department: 82 Department, et al. Judge: Stephen I. Goorvitch

Petitioner Enrique Reynoso (“Petitioner”) was a Police Officer II with the Los Angeles Port Police Department (the “Department”). While off-duty and apparently intoxicated, Petitioner got into a loud argument with his fiancé outside her mother’s house. A neighbor called the police and reported a potential incident of domestic violence. When police officers responded, Petitioner cursed at them and refused to cooperate, resulting in his arrest. Petitioner eventually pleaded to violation of Penal Code section 415, disturbing the peace, a misdemeanor. Petitioner was terminated and filed a petition for writ of administrative mandate challenging the decision. Petitioner primarily challenges the penalty, arguing that another officer pleaded to a DUI but was not terminated. However, the Department’s discipline guidelines permit termination for a first offense of this nature, and unlike the other officer, Petitioner was abusive and uncooperative to responding officers. Therefore, the court finds that there was no manifest abuse of discretion in imposing a penalty of termination and denies the petition.

On April 28, 2019, while off duty, Petitioner had an argument with his fiancé, Lauren Flores, outside her mother’s home. (AR 994-1000.) Petitioner appeared to be intoxicated. (AR 611, 1005, 30, 65, 803.) The argument was so loud that a neighbor called the El Monte Police Department (the “El Monte PD”), and the El Monte PD were dispatched on a domestic violence call. (AR 68-69, 1004.) When El Monte PD arrived, they approached Petitioner, who yelled: “What? Are you going to fucking to arrest me? Fuck you!” (AR 595, 927.) Petitioner walked away from the officers toward his vehicle, which he had left running in the middle of the street and facing the wrong way. (AR 251, 927, 714.) At his administrative interview, Petitioner admitted that he was “trying to get back to my car so I can go home.” (AR 714.) To prevent Petitioner from leaving, an El Monte PD officer stuck Petitioner on the thigh with a flashlight and brought him to the ground, while another officer helped to restrain him. (AR 595-596, 927.) After Petitioner was arrested, he called the El Monte PD “motherfuckers” and remained uncooperative. (AR 571, 608-611.)

Initially, Petitioner was charged with violations of Penal Code sections 148 and 243, delaying an officer’s investigation and domestic battery, respectively. (AR 290.) Petitioner pleaded to a violation of Penal Code section 415, disturbing the peace, a misdemeanor. (AR 290-291.)

The Department conducted an Internal Affairs Investigation and sustained the following allegations against Petitioner:

1. On April 28, 2019, Officer Enrique Reynoso, while off duty, engaged in violations of state law during a contact with the El Monte Police Department resulting in his arrest and conviction (“Allegation One”).

2. On April 28, 2019, Officer Enrique Reynoso, while off duty, engaged in conduct that was disgraceful and adversely affected the member’s relationship with this department (“Allegation Two”).

3. On April 28, 2019, Officer Enrique Reynoso, while off duty, engaged in conduct unbecoming a member of this department (“Allegation Three”).

4. On April 28, 2019, Officer Enrique Reynoso, while off duty, engaged in violations of state law and Department policy by driving while intoxicated (“Allegation Four”).

On April 17, 2020, a pre-disciplinary “Skelly” package was issued to Petitioner proposing termination based on the four allegations. (AR 555.) On June 11, 2020, Petitioner appeared before Chief Thomas Gazsi, Police Chief for the Los Angeles Port Police Department (“Chief Gazsi”) and Judy Salazar, Senior Personnel Analyst with the Port of Los Angeles for a pre-disciplinary “Skelly” meeting. (AR 555) On August 13, 2020, the Department sent Petitioner a final discipline decision terminating him from his employment. (AR 553.)

Petitioner appealed his termination and administrative hearings were held in November and December 2021 before Hearing Examiner Craig Renetzky (the “Hearing Examiner”). (AR 966-968.) On May 16, 2022, the Hearing Examiner issued the Report of the Board’s Hearing Examiner (the “Hearing Examiner’s Report”). (AR 966.) The Hearing Examiner recommended that the Board of Civil Service Commissioners (the “Board”) sustain Allegations Two, Three, and Four, and not to sustain Allegation One. (AR 1009.)

On July 14, 2022, the Board voted unanimously to sustain Allegations Two and Three and not to sustain Allegation One. The Board voted four to one not to sustain Allegation Four. (AR 1087-1093.) The Board also voted four to zero to remand the case to the Department to reconsider whether termination was the appropriate penalty. (AR 1104-1105.) On remand, the Department determined that no less severe penalty was appropriate. (AR 1113-1119.) On October 27, 2022, the Board voted to sustain Allegations Two and Three, adopt the Hearing Examiner’s Report as to those allegations, and find discharge appropriate. (AR 1171-1174.) However, before the final vote, the Board lost its quorum and the item was unresolved. (Ibid. and AR 1174.) Due to clerical error, the matter was not returned to the Board for final action until July 17, 2023. (AR 1174.) On that date, the Board voted, without discussion, to adopt the findings and conclusions in the Hearing Examiner’s report as the Board’s own except with regard to Allegations One and Four. (AR 1174.) The Board sent Petitioner a letter on July 18, 2023, notifying him of the Board’s final decision and his right to demand reinstatement pursuant to Charter Section 1017. (AR 1174-1175.) This petition for writ of administrative mandate was filed on January 3, 2023, over six months before the final decision was rendered.

Under Code of Civil Procedure 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. (Code Civ. Proc. § 1094.5(b).)

Because the termination of Petitioner’s employment with Department concerns a fundamental vested right, the court exercises 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 v. Pierno (1971) 4 Cal. 3d 130, 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.) “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.)

The court has limited authority to reconsider the penalty. “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.)

Petitioner argues that the weight of the evidence does not support the findings, and that the findings do not support the decision. 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.) Significantly, Petitioner “must identify (with citations to the record) the factual findings made by the board that he or she is challenging and demonstrate (with citations to the record) why those factual findings were against the weight of the evidence.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.) 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 fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863.)

Here, nearly all of Petitioner’s arguments pertain to the propriety of the penalty, which is a separate legal issue analyzed below. While Petitioner asserts that the weight of the evidence does not support the findings, and that the findings do not support the decision, Petitioner does not support such assertions. (Opening Brief (“OB”) 8:19-27.) Specifically, Petitioner has not identified the factual findings that he challenges or explained why there is insufficient evidence to support the findings. Nor has Petitioner explained why the Board’s findings do not support its decision.

Nor could Petitioner successfully do so. The Board sustained Allegations Two and Three, which alleged that Petitioner, while off duty, engaged in conduct that was disgraceful and adversely affected Petitioner’s relationship with the Department and engaged in conduct unbecoming a member of the Department. (AR 566-569.) The Board adopted the Hearing Examiner’s Report, which includes detailed factual findings that support the decision to sustain Allegations 2 and 3. (AR 1002-1005.) The Report also includes sufficient findings to support the penalty decision. (AR 1002-1005, 1007-1008.)

The weight of the evidence, including video evidence and admissions of Petitioner, supports the Board’s findings. Specifically, on April 28, 2019, while apparently intoxicated, Petitioner got into an argument with his fiancé that was so loud and disruptive that a neighbor called the police to report a potential incident of domestic violence. (AR 68-69, 927, 1004.) When the El Monte PD arrived, they approached Petitioner, who was uncooperative and verbally abusive. (AR 927.) This evidence clearly supports the two charges that were sustained by the Board. To the extent Petitioner argues otherwise, his arguments are not persuasive.

Petitioner argues that he “was completely unaware that the officers arrived to speak to or confront him, as the argument with Flores had generally concluded by that point.” (OB 5:26-28, citing AR 483, 508.) The Board and Hearing Examiner did not credit Petitioner’s testimony that he “had no idea [the police] were there for me.” (AR 483, 1006.) Neither does this court. The video evidence shows that Petitioner knew they were police officers, and they arrived on scene while he was engaged in a domestic dispute. (AR 927.) Further, Petitioner said: “What? Are you going to fucking to arrest me? Fuck you!” (AR 595, 927.) This demonstrates that Petitioner understood the officers were responding to an incident in which he was involved. Regardless, it was unbecoming for Petitioner to curse at officers from a different police department and refuse to cooperate with them, even if he did not know why they were present.

Petitioner suggests that El Monte PD officer Nick Budge used excessive force in striking Petitioner with his flashlight without any prior “commands” or threatening conduct by Petitioner. (OB 6:1-12.) The Hearing Examiner wrote:

In my opinion, the El Monte Officer may have used excessive force, however this was after the Appellant’s statements and do not excuse his actions. His behavior leading up to what could have been excessive force by the El Monte Officer is not the question before this examiner. I am not judging the actions of the El Monte Officer, but rather the Appellant’s.

(AR 1006.) This reasoning is correct. The Department was primarily concerned with Petitioner’s conduct—the verbal abuse and lack of cooperation—before Officer Budge used the force at issue. Whether Officer Budge used excessive force is not before this court and not relevant to these proceedings.

Based on the foregoing, the weight of the evidence supports the Board’s findings, and the findings support the Decision. Therefore, the petition for writ of administrative mandate on this basis is denied. [1]

Petitioner argues that the sustained Allegations Two and Three were insufficient to warrant termination. Petitioner points out that certain members of the Board stated that the penalty was a “close call,” and that the Department acknowledged that Allegation Two, on its own, was not sufficient to support the discharge. Petitioner also argues that the Department’s penalty determination was an abuse of discretion because Petitioner was given a harsher punishment that another officer who was convicted of a DUI (“DUI case”), even though Petitioner was not convicted for a DUI and Allegation Four was not sustained. (OB 9-13.)

[T]he 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. In reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter; nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court’s own evaluation of the circumstances the penalty appears to be too harsh. Such interference, in the light of the foregoing authorities, will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion.

(Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966, internal quotes, internal alterations, and citations omitted.) 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, harm to the public service. 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, internal quotes, internal alterations, and citations omitted.) “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.)

The Department’s discipline guidelines for both Allegations Two and Three are “a notice to correct . . . up to termination for first offense.” (AR 1044-1045, 1099, 557.) Accordingly, officers are on notice that a first offense may result in termination, and the Department had authority to terminate Petitioner under these circumstances. The Department’s reasoning to terminate is summarized in the Hearing Examiner’s Report:

The Chief of Police and other witnesses have made it clear that peace officers are expected to work together with other Departments and that a mutual level of trust needs to exist…. [A]fter hearing the evidence it seems that the evidence showed the Appellant while intoxicated, cursed at a fellow police officer, and attempted to evade that officer after creating a public disturbance. This has caused the Department to lose faith and trust in the Appellant. This loss of faith and trust is not unwarranted and cannot be rectified by a suspension even if lengthy. The bottom line is that the comparison, of an officer arrested for a DUI collision who is immediately remorseful, but remains cooperative to an officer who is drunk, abusive, obstructive and attempts to leave the scene causing a use of force against them, is not comparing the same thing. The discipline in these two cases should be different and dramatically so. In one case the officer demonstrated a poor decision, yet remained a professional. In the Appellant's case he has not demonstrated anything close to professionalism and his Department's loss of confidence in him is understandable, and reasonable.

Chief Gaszi also testified regarding why Petitioner should be terminated, recognizing the differences to the DUI case discussed at the hearing:

[I]t’s the aggregate of what happened that night. It’s the lack of care for someone you’re close to, in a neighborhood that has brought attention to this argument in front of Ms. Flores’ family. The neighbors being aware of this, the argumentative derogatory nature with the investigating agency that arrived, the car parked idly in the street, the terse, profane language, where he had not only an ethical obligation to comply with the officers, but a dutiful obligation to comply and a lawful obligation.

(AR 378; see also AR 350 [officer in the DUI case “was very polite and cooperative with the investigating agency”].) Indeed, had Petitioner acted in a more professional and less abusive manner that night, he would have had a stronger argument that termination was a manifest abuse of discretion.

Petitioner’s remaining arguments are unpersuasive. Petitioner points out that Chief Gaszi and the Department acknowledged that Allegation Two, particularly with respect to the argument with Flores, would not have justified discharge. (OB 10; see AR 386 and 1045-46.) This argument is not persuasive because Petitioner was found guilty of both Allegations Two and Three. Chief Gaszi and the Department were adamant that discharge was the appropriate penalty when Allegation Three is considered, specifically Petitioner’s conduct unbecoming in his interactions with the El Monte PD. (AR 1045, 1170.)

Petitioner also argues that he was remorseful and cites his apology letter in the record. (OB 10-11, citing AR 928.) The apology letter is dated May 28, 2020, more than a year after the incident that led to Petitioner’s discharge. The Hearing Examiner and the Board considered this evidence, as well as Petitioner’s lack of prior discipline, and concluded that discharge was the appropriate penalty. (See AR 1007-1008; see also AR 982, 997, 1005.)

In sum, the Board could reasonably conclude, as it did, that Petitioner’s disgraceful and unbecoming conduct toward the El Monte PD warranted termination. Based on the entire administrative record, the court concludes that the Board did not abuse its discretion in imposing termination as the penalty.

[1] Respondent contends that the action is untimely, and that Petitioner filed this action before the Board rendered its final decision. The court need not resolve these issues in order to rule on the petition.