Judge Stephen I. Goorvitch, Case Number: 24STCP01483, Date: 2024-12-11 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01483, Date: 2024-12-11 Tentative Ruling

Petitioner Jose Gomez (“Petitioner”) was a Permanent Class B Commercial Truck Driver with the Los Angeles Unified School District (the “District” or “LAUSD”). On July 8, 2021, Petitioner was driving his LAUSD truck and turned right on a green light. He struck an elderly pedestrian crossing the street—who was crossing with the light in the crosswalk—causing serious injury that required hospitalization for a broken clavicle and fractured ribs. This was not Petitioner’s first accident. On October 22, 2018, Petitioner struck a parked vehicle while he was attempting to back up into a school driveway. Exactly two years later, on October 22, 2020, Petitioner hit a red, four-foot post when reversing a District truck in a parking lot. Petitioner admitted that all three accidents were preventable.

The District suspended and terminated Gomez. Petitioner timely appealed, and a hearing officer found that the District’s decision to terminate Petitioner was just cause. The Los Angeles Unified School District Personnel Commission (the “Personnel Commission”) reviewed the hearing officer’s findings and recommendations and voted to grant Petitioner’s appeal but did not issue a written decision or findings of fact supporting that decision. The District then moved for reconsideration of the Personnel Commission’s tentative decision, following which the Personnel Commission voted to deny the appeal and sustain Petitioner’s termination. Afterwards, the Personnel Commission issued a written decision upholding Petitioner’s termination.

Petitioner filed the instant petition for writ of mandate under Code of Civil Procedure section 1094.5 and raises two issues. First, Petitioner argues that the Commission exceeded its jurisdiction when it “reconsidered” its decision to grant the appeal. Second, Petitioner argues that the decision to impose termination was an abuse of discretion. The District filed an opposition on both issues; the Personnel Commission filed an opposition addressing only the first issue.

The court denies the petition. Because the Personnel Commission had not made a “final and conclusive” decision to grant Petitioner’s appeal, the Personnel Commission was free to reconsider its tentative decision. Moreover, there is sufficient evidence to support the finding that Petitioner was at fault for the accident. It is not an abuse of discretion to terminate a driver who hits a pedestrian crossing in a crosswalk with the light and puts her in the hospital, especially when he had two prior accidents that were preventable.

On July 8, 2021, Petitioner was driving his LAUSD truck when he struck a pedestrian at the corner of Military Avenue and National Boulevard. As a result of the accident, the pedestrian suffered serious injuries and was hospitalized with a broken clavicle and fractured ribs. Two police officers of the Los Angeles Police Department (the “LAPD”) investigated the accident and determined that Petitioner struck the pedestrian while she was in a crosswalk legally crossing the street with the light. The District’s investigator agreed with the police officers’ determination and found that the accident was preventable. (See AR 656-661, 693-697, 720-736, 781, 885.) Petitioner signed a form in which he agreed with the District’s determination that the accident was preventable. (AR 365, 716, 734-736.) On November 3, 2021, Petitioner was issued a Notice of Unsatisfactory Service for the incident occurring on July 8, 2021. (AR 965.)

In the prior three years, Petitioner had been involved in two other preventable accidents while driving an LAUSD truck. On October 22, 2018, Petitioner struck a parked vehicle while he was attempting to back up into a school driveway. (AR 246, 790.) Exactly two years later, on October 22, 2020, Petitioner hit a four-foot post when reversing a District truck in a parking lot. (AR 213, 736-737.) No one was injured in these two prior accidents. However, the District’s investigators found that these two prior accidents were preventable. (AR 736-737, 789-793, 380, 399.) Petitioner signed forms in which he agreed with the District’s determinations that the accidents were preventable. (AR 380, 399.) The District issued a Notice of Unsatisfactory Service for the October 2020 accident, with no suspension or other disciplinary action. (AR 382-383.)

On January 25, 2022, after a Skelly meeting with Petitioner, the District served on Petitioner a Dismissal from Service based on charges that Petitioner was inattentive, derelict in his duty, and failed to safely operate his assigned LAUSD vehicle when he struck the pedestrian in a crosswalk who was crossing with the light. (AR 961-965.) Petitioner timely appealed his dismissal and an evidentiary hearing was held before a hearing officer. (AR 870, 967.)

On April 10, 2023, the hearing officer issued a proposed decision finding: (1) It was more likely than not that Petitioner was a fault for the accident of July 8, 2021; (2) Petitioner’s misconduct “warranted bypassing progressive discipline;” and (3) There was “just cause” to terminate Petitioner’s employment. (AR 886.) Accordingly, the hearing officer recommended that the Personnel Commission sustain the District’s decision to terminate Petitioner’s employment. (Ibid.) The hearing officer also found, however, that Petitioner had been a “valuable employee” and therefore “strongly encourage[d] the District to recognize that [Petitioner] can be a valuable employee in a different role and to offer Gomez a job in a non-driving position.” (AR 886.)

The Personnel Commission considered Petitioner’s appeal and the hearing officer’s recommendation at its meeting on October 19, 2023. (AR 1187.) The Personnel Commission voted at the meeting to grant Petitioner’s appeal. (Ibid.) However, the Personnel Commission did not issue a written decision or findings of fact as required by Commission Rule 904(P). (See Request for Judicial Notice (“RJN”) Exh. A.)

On November 8, 2023, the District moved for reconsideration of the decision to grant Petitioner’s appeal. (AR 1001-1003.) Petitioner responded to the motion for reconsideration in a written opposition filed on or about December 5, 2023. (AR 899, 1004-1184.)[1]

At its meeting on February 8, 2024, the Personnel Commission reconsidered its decision. Commissioner Paller noted that the Commission “had not issued a final written order in this case [and] therefore, he would not characterize it as a reconsideration.” (AR 1203.) The Commission then voted 3-0 to deny the appeal and sustain Petitioner’s discharge. (Ibid.) On February 8, 2024, the Commission issued Written Decision No. 0720 in which it adopted the hearing officer’s proposed decision and sustained Petitioner’s discharge. (AR 860-861.) This writ petition followed.

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 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.)

Petitioner requests judicial notice of one exhibit, which are excerpts of Personnel Commission Rules 501, 503, 514, 901, 902, 903, and 904. The request is not opposed. The court grants the request under Evidence Code section 452(b).

Petitioner first argues that the Personnel Commission exceeded its jurisdiction when it “reconsidered” its original decision to grant Petitioner’s appeal and then voted to deny the appeal. Whereas courts may reconsider any decision on their own motion, an administrative agency acting in an adjudicatory capacity does not necessarily have that authority. An administrative agency acting in an adjudicatory capacity may not reconsider or reopen a final and conclusive decision unless authorized by statute or regulation. (See Gutierrez v. Board of Retirement of Los Angeles County Employees Retirement Ass’n (1998) 62 Cal.App.4th 745, 749, fn. 3.)

In Heap v. City of Los Angeles (1936) 6 Cal.2d 405, the California Supreme Court applied this rule to a decision of the Los Angeles City Board of Civil Service Commissioners to sustain the discharge of a civil service employee. The City’s charter provided that the Board’s decision must be “in writing” and that “the order of said board with respect to such removal, discharge or suspension shall be forthwith certified to the appointing board or officer, and shall be final and conclusive.” (Id. at 407.) The record on appeal showed that the Board made “findings” and entered a “resolution” to sustain the discharge. (Id. at 406-407.) The Court held that the Board lacked jurisdiction to vacate its findings and make a new order to overturn the employee’s discharge. The Court reasoned as follows:

The jurisdiction of the commission is a special and limited one. The required procedure was followed, and the question of appellant’s discharge was determined by the commission when it adopted the first resolution. Its action sustaining his discharge was “final and conclusive.” It had no jurisdiction to retry the question and make a different finding at a later time. The charter gives no such grant of power, and it may not be implied.

This precedent does not benefit Petitioner because the Personnel Commission never made a “final and conclusive” decision to grant his appeal. Personnel Commission rule 904(P), which is titled “Decision,” provides as follows:

The Commission shall render a decision within a reasonable time after the hearing or investigation. The decision shall be filed by the Commission as a public record and given or mailed simultaneously to each party within ten days of the filing thereof. The decision shall be in writing and shall contain findings of fact and order of the Commission affirming disciplinary or resignation action or sustaining the appeal. If the appeal is sustained, the Commission shall order the reinstatement of the appellant and may order payment of all or part of appellant's full compensation from the date of suspension, demotion, dismissal, or resignation. In addition, the Commission may direct such other actions as it may find necessary to effect a just settlement of the appeal. The decision of the Commission shall be effective at the time specified and shall be binding upon the governing board.

In sum, the Personnel Commission’s vote to grant Petitioner’s appeal did not become “final and conclusive” unless the Personnel Commission issued a written decision containing “findings of fact” and the “order of the Commission.” This vote was akin to a tentative decision, and the Personnel Commission retained jurisdiction to reach a different decision until it issued its final written decision, which occurred on February 8, 2024.

Petitioner cites Code of Civil Procedure section 1094.6(b), which states: “If there is no provision for reconsideration of the decision, or for a written decision or written findings supporting the decision, the decision is final on the date it is announced.” (Petitioner’s Opening Brief at 6:14-16.) Petitioner’s reliance on section 1094.6(b) is misplaced. Per section 1094.6(a), this section governs judicial review of any decision of a local agency “other than a school district . . . or of any commission, board, officer or agent thereof . . . .” Because Petitioner seeks review of a decision by the Los Angeles Unified School District and its Personnel Commission, this section is not applicable to this case. Regardless, section 1094.6(b) applies only if there is “no provision . . . for a written decision or written findings supporting the decision . . . .” As discussed, the Personnel Commission has such a rule, which governs instead of section 1094.6(b).

Petitioner argues that the District did not serve the motion for reconsideration on Petitioner’s counsel. (OB 7.) The Personnel Commission provided a copy to Petitioner’s counsel on November 15, 2023, and invited Petitioner to respond by December 11, 2023. (AR 898-899.) Petitioner filed a written opposition or about December 5, 2023. (AR 899, 1004-1184.) Accordingly, there was no prejudice, and Petitioner waived any defect in the notice by opposing the motion on the merits.

Petitioner argues that “no procedures exist for the Personnel Commission to reconsider a decision” and that the Commission did not serve its final February 8, 2024, decision “within ten days of the filing,” as required by Rule 904(P). (OB 7-8.) Neither argument supports Petitioner’s position. Because the Commission did not issue a final decision at the original meeting, it had jurisdiction to change its tentative decision, as discussed. Thus, the continued proceedings on the appeal through February 8, 2024, were not a “reconsideration” and did not require reconsideration procedures. Although the Personnel Commission did not email its final decision, dated February 8, 2024, until April 1, 2024 (AR 862), Petitioner does not show any prejudice from the delayed service. Further, Petitioner does not cite any authority that this procedural defect has any bearing on the validity of the decision.

Based on the foregoing, the Personnel Commission acted within its jurisdiction when it issued a written decision and findings denying Petitioner’s appeal on February 8, 2024. In light of this conclusion, the court need not reach the Personnel Commission’s alternative argument that reconsideration was authorized pursuant to Guilbert v. Regents of University of California (1979) 93 Cal.App.3d 233, 243. (See Commission Oppo. 7-8.)

In this administrative writ proceeding, 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, Petitioner’s arguments pertain to the Commission’s jurisdiction to deny his appeal on February 8, 2024, and the propriety of the penalty. Petitioner has not identified any factual findings that he challenges or argued that there is insufficient evidence to support any specific fact finding. Accordingly, Petitioner has forfeited any argument that the Commission’s fact findings are not supported by the weight of the evidence.

Nor could Petitioner successfully challenge the Commission’s fact findings. Exercising its independent judgment on the record, the court finds that the weight of the evidence, including the testimonies of two LAPD police officers and the District’s investigator, supports the Commission’s finding that Petitioner was at fault for the July 8, 2021, accident, which caused serious injuries to a pedestrian. (AR 882-884; see e.g. 871, 693-697, 656-661, 720-736.) Indeed, Petitioner signed a form in which he agreed with the District’s determination that the accident was preventable. (AR 365, 716, 734-736.) Although Petitioner argued below that the pedestrian may have been “contributorily negligent” (AR 873), he does not make that argument in his writ briefing. Further, exercising its independent judgment, the court finds that the weight of the evidence supports the Commission’s findings that Petitioner struck the pedestrian while she was lawfully crossing the street in a crosswalk and that being struck by the heavy vehicle pushed her back and caused her to fall several feet from the point of impact. (AR 883; see e.g. AR 650-654, 687-688, 725 [testimony of LAPD officers and the District’s investigator]; AR 221-231 [photos of truck]; AR 334-341 [police report]; AR 349-352 [District investigation report].) Petitioner has not cited any persuasive evidence in the record that the pedestrian was partially at fault for the accident.

The weight of the evidence supports the Commission’s fact findings that Petitioner was at fault for the accident, which was preventable and which caused serious injuries to a pedestrian. Based on these findings, Commission properly concluded that Petitioner committed misconduct as alleged in the Statement of Charges, including “inattention to or dereliction of duty” (Commission Rule 902(A)(4)) and “any other failure of good conduct tending to injure public service” (Commission Rule 902(A)(4)).[2]

Petitioner also challenges his termination, arguing that it reflects a manifest abuse of discretion.

[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 citations, alterations, and quotation marks 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 citations, alterations, and quotation marks omitted].)

Petitioner argues that the Commission did not follow the District’s progressive discipline policy and, therefore, abused its discretion in terminating his employment. Petitioner asserts that, under the progressive discipline policy, his “appropriate punishment should have been an Interim Performance Evaluation issued by the supervisor due to the fact that this was only Gomez’s second preventable accident within a twenty-four-month period.” (OB 8-9.) Petitioner

relies on a District policy titled “Prevention of Accidents,” which outlines a series of progressive discipline for a driver involved in preventable accidents. (AR 201.) The policy states:

1. After the employee’s first preventable accident, the first-line supervisor will try to assist the drive to correct the causes leading to the accident and possible future accidents. This meeting will be documented by the supervisor and the papers placed in the employee’s Transportation Branch personnel file.

2. If a second preventable accident occurs within a twelve-month period, an interim Performance Evaluation form will be issued by the supervisor.

3. If a third preventable accident occurs within a fifteen-month period, a Notice of Unsatisfactory Service will be issued with a recommendation for a disciplinary suspension.

4. If a fourth preventable accident occurs within a twenty-four month period, a Notice of Unsatisfactory Service will be issued with a recommendation for suspension, demolition, or dismissal from service.

(Ibid.) Contrary to Petitioner’s argument, this policy does not require four accidents within a 24-month period in order to terminate an employee. As the hearing officer observed, there is an important caveat to the policy:

The action taken for the initial, second or third accidents will depend on the seriousness of the accident and the conditions leading to and arising from the accidents. For example, a rear-end collision or other serious accident indicating serious driver error or neglect would probably result in action being commenced with number 3 or 4 above.

(AR 201.) This provision shows that the District has discretion to bypass the usual progressive discipline, even for a first preventable accident, depending on the “seriousness” of the accident.

In this case, Petitioner’s accident was sufficient to support a decision to terminate his employment. The Personnel Commission adopted the following finding made by the hearing officer:

I find that the July 8, 2021, accident was as serious, if not more serious, than a rear-end collision. A truck driver striking a pedestrian within a crosswalk indicates ‘serious driver error,’ and the consequences of the accident were severe: a pedestrian hospitalized with fractured ribs and a broken clavicle. Put differently, the ‘Prevention of Accidents’ document put Gomez on clear notice that a serious preventable accident like the one that occurred on July 8, 2021 could lead to his dismissal. . . . [T]he seriousness of the July 8, 2021 accident warrants discharge . . . .

Petitioner has not shown a manifest abuse of discretion in this penalty decision. It is undisputed that the accident was preventable and resulted in serious injuries to the pedestrian, who was hospitalized. Petitioner’s negligent driving exposed the District to potential legal liability. (See e.g. AR 1187 [the pedestrian filed a lawsuit against the District seeking damages exceeding $1,000,000].) Petitioner had also been involved in a non-serious but preventable accident in October 2020, less than a year before the accident on July 8, 2021. It was reasonable for the Personnel Commission to bypass the usual progressive discipline and conclude that discharge was the appropriate penalty based upon the seriousness of the accident and the victim’s injuries, Petitioner’s culpability and prior driving record; and the fact that Petitioner’s negligence subjected the District to financial liability. That the Commission could have imposed a lesser penalty does not prove an abuse of discretion. “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.)

[1] The District did not serve the motion on Petitioner’s counsel. However, a Commission employee emailed a copy of the motion to Petitioner’s counsel on November 15, 2023, and invited Petitioner to respond by December 11, 2023, which he did. (AR 898-899.)

[2] Petitioner states in his opening brief that “LAUSD terminated Gomez’ employment solely based on a charge that Gomez violated Personnel Commission Rule 902(A)(6), and (21).” (OB 9:17-18.) Petitioner is incorrect. In fact, the charges were based on Commission Rule 902(A)(4), (6), (21), and (23). (AR 961-965; see also AR 871.)