Judge: Stephen I. Goorvitch, Case: 24STCP02534, Date: 2025-04-24 Tentative Ruling

Case Number: 24STCP02534    Hearing Date: April 24, 2025    Dept: 82

Tammy Minuend,                                                     Case No. 24STCP02534

v.                                                                     Hearing: April 24, 2025

                                                                        Location: Stanley Mosk Courthouse

Los Angeles County Civil                                        Department: 82                                        Service Commission, et al.                                            Judge: Stephen I. Goorvitch

[Tentative] Order Denying Petition for Writ of Mandate in Part

[Tentative] Order Continuing Hearing on Petition for Writ of Mandate

INTRODUCTION

            Petitioner Tammy Minuend (“Petitioner”) was a Senior Detention Services Officer with the County of Los Angeles Probation Department (the “Department”) and assigned to Central Juvenile Hall.  On October 20, 2017, Petitioner used pepper spray against a minor and prepared a written report concerning the incident that same date.  Then, Petitioner was interviewed about the incident on March 22, 2018, and on June 21, 2018.  On January 7, 2018, the Probation Department served Petitioner with a Notice of Intent to Discharge, and ultimately terminated her for dishonesty during the investigation.  Petitioner appealed the decision, and the Los Angeles County Civil Service Commission (the “Commission”) ultimately upheld the termination.  Petitioner filed the instant petition for writ of mandate seeking to set aside the termination on three grounds: (1) The dishonesty charge was untimely under Government Code section 3304(d) because the Notice of Intent was served over one year after the underlying incident; (2) The Commission erred by predicating the dishonesty charge in part based upon her written report, submitted on October 20, 2017, which was untimely under Government Code section 3304(d); and (3) The decision to terminate Petitioner is not supported by the weight of the evidence, namely, the videos.  Now, the court denies the petition on the first issue and continues the hearing on the remaining issues because the parties have not lodged the videos in an accessible format. 

BACKGROUND

A.        Petitioner’s Employment History with the Department

Petitioner began her employment with the Department on March 5, 1999, as a Detention Services Officer (“DSO”). (AR 527.)  In July 2014, Petitioner was promoted to the position of Senior Detention Services Officer at Central Juvenile Hall.  (AR 1586.)  In her last three annual performance reviews for the period of February 1, 2015, to January 1, 2018, Petitioner was rated “very good.”  (AR 242.) 

B.        The Incident on October 20, 2017

            On October 20, 2017, Petitioner and several DSOs were involved in an incident with Minor D in the Girls Enhanced Supervision Unit (“GESU”) at Central Juvenile Hall.  (AR 242-243, 616, 1630-31, 1641-42.)  Three video monitors in Central Juvenile Hall documented the incident, including Petitioner’s actions.  (See AR 242; Videos Lodged on April 10, 2025.)  In her proposed decision, the Commission’s hearing officer summarized this incident as follows:

6.  On October 20, 2017 Minor D left her room and approached her assigned dining table to eat her dinner in the day room. As she exited her room, she wore a sweatshirt but did not have her arms in the sleeves of the shirt but hidden underneath the shirt.

7.  Minor D placed her knee on the stool of the dining table and the video demonstrates she had a verbal exchange with DSO Stance and DSO Smith.  A physical exchange ensured between the DSO’s and minor D.  DSO Stance attempted to grab minor D’s food tray and caused food to fall from the food tray onto the floor.  DSO Smith and Stance converged on to minor D, a scuffle ensured and to gain control, pushed minor D back towards a different dining table with minor D’s back hitting the tabletop.  DSO Stance lost control of minor D.

8.  During minor D’s dinner time, [Petitioner] was in the Senior DSO office, with a view of the boy’s enhancement supervision unit (BESU) day room only and failed to look at the video monitors because she was conversing with staff in the Senior DSO office, using cell phone, and text messaging.  [Petitioner] text message[d] her supervising DSO Phoebe Walker on the declining behavior of minor D hours prior to and after the incident, not at the time of the incident.

9.  [Petitioner] sprayed [pepper] spray in minor D’s face.  [Petitioner] did not stand in the doorway of the Senior DSO’s office to counsel minor D prior to spraying [pepper] spray in her face.

(AR 242-243.) 

C.        The Internal Affairs Investigation

On March 22, 2018, Internal Affairs Investigator Kamilah Aquil interviewed Petitioner concerning allegations of employee misconduct related to the incident on October 20, 2017. (AR 787-788.)  Investigator Aquil showed Petitioner three video portions of the encounter with Minor D without audio. (AR 787-853, 124.)  Petitioner answered questions about the incident and the videos. (AR 787-853.)  On June 21, 2018, Internal Affairs Investigator Aquil conducted a second interview of Petitioner.  (AR 854-855.)  Investigator Aquil showed Petitioner additional video footage without an audio component.  (AR 854-900.) Petitioner answered questions about the incident and the video footage.  (AR 854-900.)

D.        Notice of Discharge

On January 7, 2019, the Probation Department served Petitioner with a Notice of Intent to Discharge (“Notice of Intent”) for several counts of alleged misconduct related to the use of force incident that occurred with Minor D at the Central Juvenile Hall in on October 20, 2017. (AR 546-591.)  The Notice of Intent also asserted that Petitioner lied during the internal investigation of the incident.  (Ibid.)  On March 15, 2019, after a Skelly meeting with Petitioner, the Department discharged Petitioner for the same reasons asserted in the Notice of Intent. (AR 2-11.) 

E.         The Administrative Hearing and Decision

Petitioner appealed the discharge, and an administrative hearing was held in July and August 2021 before a hearing officer appointed by the Commission.  (AR 230.)  The hearing officer issued a report in which she recommended that the discharge be reduced to a 30-day suspension.  (AR 130, 145.)   Petitioner filed objections to the report.  (AR 185-227.)  Thereafter, the Commission “remanded the report to the Hearing Officer for further analysis of Government Code 3304(D) [sic],” which is the applicable statute of limitations.  (AR 229.)  On remand, the hearing officer issued a Revised Report in which she concluded that (1) The allegations with respect to the incident were barred by the statute of limitations in Government Code section 3304(d); (2) During the investigation, Petitioner made false statements concerning videos of the incident; and (3) The discharge should be reduced to a 30-day suspension, the same remedy that she proposed in her initial report. (AR 230, 244-247.)

The Commission accepted the Revised Report, issued its own Revised Conclusions of Law, and found that Petitioner should be discharged from her employment. (AR 250-252, 445.)  The discharge was based on the hearing officer’s Findings of Fact 12 and 13 and the Commission’s Revised Conclusions of Law 1, 2, and 5, which state the following:

Findings of Fact:

12.  On March 22, 2018 [Petitioner] was asked to explain her statements when video evidence was obtained showing the contrary.  [Petitioner] stated that minor D was being violently aggressive and physically combative.  However, video evidence did not show that. [Petitioner] stated that minor D was “out-of-control” and swung her arms wildly. Video evidence did not demonstrate that.  Video evidence showed that DSO Stance was physically restraining minor D as expected when an OC [Oleoresin Capsicum, or “pepper spray”] warning was issued.  During this session, the video showed actions that were contrary to [Petitioner’s] written statements.  After being shown the videos, [Petitioner] during the internal affairs interviews on March 22, 2018 made false statements and asserted that the videos did not accurately show the incident.

13.  Video evidence from camera #3 was obtained and shown to [Petitioner].  Camera #3 showed her using her cell phone in the Senior’s office.  [Petitioner] falsely asserted she was texting her supervisor seeking advice on how to control minor D deteriorating behavior.  However, the text messages show that the first messages was texted to Phoebe Walker before [Petitioner] shift began and the second message one hour after the incident had concluded.  [Petitioner]’s excuse that she was using her cell phone to text her supervisor about deteriorating behavior of minor D is a false statement. The video depicts her actions and observations.  She was on the boys’ side of the day room looking at her cell phone and sending/reading text messages rather than observing what was happening on the monitors.  The video is contrary to what is contained in [Petitioner]’s report, so she made further false statements on March 22, 2018 regarding the incident.

Revised Conclusions of Law:

1.  On March 22, 2018, [Petitioner] stated that the videos obtained of the incident were not accurate and stood by the statements she made in her report.  On June 21, 2018, [Petitioner] made further false statement when she was shown the video of her in the senior's office where she was being inattentive and again, she stated that the video of the senior's office was not accurate, and she stood by her statement made in her report.  It was not until March 22, 2018, and June 21, 2018, that the Department investigators determined that she had given false statement during her IAB interviews.  The Department served its Notice of Intent to Discharge Appellant Minuend on January 7, 2019, less than one year after [Petitioner] made numerous false statements during her administrative interviews on March 22, 2018.  The Department had until March 22, 2019, to serve its notice of intent to discharge but served its notice well before that date on January 7, 2019.  Therefore, there was no violation of Government Code Section 3304(d).

2.  On March 22 and June 21, 2018, [Petitioner] provided false information during an administrative investigation and violated Probation Department Directive (PDD) 1335- Employee Cooperation Related to Administrative Hearings and Departmental Investigations.

….[¶¶]

5.  Based on Findings of Fact 12 and 13 and Conclusions of Law 1 and 2, the Department demonstrated that Appellant should be discharged pursuant to Probation Department Policy Manual (PDPM) No. 706 - Discipline and Corrective Action - Discharge.                     

(AR 243-244, 250-251.)

F.         Writ Proceedings

On August 12, 2024, Petitioner filed her petition for writ of mandate challenging the Commission’s decision.  On November 20, 2024, the court scheduled a trial date and set a briefing schedule.  On April 10, 2025, the court held a status conference with counsel at which the parties stipulated to include in the administrative record the videos of the October 2, 2017, incident, which were shown at the administrative hearing.  On April 10, 2025, the County lodged the videos with the court.

STANDARD OF REVIEW

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

“The 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.)  

DISCUSSION

            A.        The Dishonesty Charge Is Not Barred by the Statute of Limitations

Petitioner contends that that the Commission violated the one-year statute of limitations in Government Code section 3304(d) when it relied on her statements at the investigative interviews to sustain the discharge.  (Opening Brief (“OB”) 6-7.)  Relatedly, Petitioner contends that because “the discharge may not be based upon the events of October 20, 2017, the discharge may not be based upon video of the events of that day.”  (OB 7:21-22.) 

Government Code section 3304 states as follows:

Except as [otherwise provided], no punitive action  . . .  shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. 

(Gov. Code § 3304(d).)  This means that the one-year limitations period “begins to run when a person authorized to initiate an investigation discovers, or through the use of reasonable diligence should have discovered, the allegation of misconduct.”  (Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 101, 104.) 

Here, the Commission found that Petitioner submitted timely Physical Incident Reports to her supervisors on October 20, 2017; the Notice of Intent to Discharge was not served until January 7, 2019; and any charges based on the use of force incident on October 20, 2017, were barred by the one-year statute of limitations in section 3304(d).  (AR 250, ¶¶ 3-4.)  However, the Commission found that Petitioner provided false statements at her investigative interviews on March 22 and June 21, 2018, and that the dishonesty charge based on those statements was timely brought on January 1, 2019, within one year of the interviews.  (AR 250, ¶¶ 1-2.) 

            The Commission correctly decided this issue and did not abuse its discretion.  Petitioner’s reliance on Alameida v. State Personnel Board (2004) 120 Cal.App.4th 46, 49 is misplaced.  (See OB 6.)  In Alameida, a corrections officer was discharged for dishonesty after he denied committing a sexual offense at his investigative interview.  Significantly, at the time of the interview, the statute of limitations had run on the underlying allegation.  (Id. at 51-52, 60-63.)  Under those specific circumstances, the Court of Appeal held that the dishonesty charge was also time barred, stating: “[T]he dishonesty charge flows directly from the investigation of the assault.  To allow the dishonesty charge to survive would defeat the purpose of the limitations period, which is to insure that conduct that could result in discipline should be adjudicated when memories are fresh.” (Id. at 62.)  Simply, an investigation of a time-barred allegation cannot form the basis of a dishonesty charge.   

            By contrast, at the time of the investigation of Petitioner, the underlying allegations were not time-barred.  Petitioner was interviewed on March 22, 2018, and June 2018, within one year of the underlying incident on October 20, 2017.  The Department then served the Notice of Intent on January 1, 2019, which was within one year of the interviews.  The District Court of Appeal has held that a dishonesty charge under these circumstances is timely.  (See Crawford v. City of Los Angeles (2009) 175 Cal.App.4th 249, 257.)

Under this scenario, there is no danger that the [Department] used the false statement[s] to resuscitate a charge that was time barred. . . .  There is also a sound policy reason for not extending Alameida to the factual scenario in this case. . . .  An extension of Alameida to the scenario presented here, in which the false statement is alleged to have been made before expiration of the statute of limitations on the underlying conduct,

would deprive the City of the power to discipline an employee for making false statements during an investigation.

(Ibid.)  Tellingly, Petitioner does not address the Crawford case in her reply brief.  Based upon the foregoing, the court finds that the dishonesty charge was not barred by the statute of limitations.     

B.        The Court Cannot Resolve the Remaining Issues Raised in the Petition

Inexplicably, the parties did not include the videos in the administrative record.  The court held a status conference on this issue on April 10, 2025, and the parties stipulated to include the videos as part of the administrative record.  The court advanced and continued the trial date from April 16, 2025, to April 24, 2025, to give the court time to review the videos and prepare a tentative order.  However, the parties did not lodge the videos in an accessible format.  Therefore, the court cannot resolve the remaining issues raised in the petition.   

CONCLUSION AND ORDER

            Based upon the foregoing, the court orders as follows:

            1.         The court denies the petition for writ of mandate to the extent Petitioner argues that the dishonesty charge is barred by the applicable statute of limitations.

            2.         The court continues the trial date to __________, 2025, at _____.

            3.         The court orders the parties to lodge the videos on a thumb drive that is accessible to the court.  The court orders the parties to meet-and-confer with the court’s clerk as necessary.

            4.         The court’s clerk shall provide notice. 

IT IS SO ORDERED

Dated:  April 24, 2025                                                _______________________________

                                                                                    Stephen I. Goorvitch

                                                                                    Superior Court Judge