Judge Theresa M. Traber, Case 21STCP00687 2022-10-13 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCP00687, Date: 2022-10-13 Tentative Ruling

Case Number: 21STCP00687 Hearing Date: October 13, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: October 13, 2022 TRIAL DATE: October 6, 2022

CASE: California Department of State Hospitals v. California State Personnel Board, et al.

CASE NO.: 21STCP00687

PETITION FOR WRIT OF MANDATE

MOVING PARTY: Petitioner California Department of State Hospitals

RESPONDING PARTY(S): Opposition filed by Real Party in Interest Fabian Barraza

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a Petition for Writ of Administrative Mandate. Petitioner California Department of State Hospitals (“DHS”) seeks a writ setting aside a decision by Respondent State Personnel Board (“Board”) reducing the discipline for DHS Police Officer Fabian Barraza to a 30-day suspension and ordering the Respondents to adopt the Administrative Law Judge’s decision affirming Petitioner’s dismissal of Officer Barraza for cause.

TENTATIVE RULING:

The Petition for Writ of Administrative Mandate is DENIED.

DISCUSSION:

Petitioner DHS seeks a writ of administrative mandate setting aside a decision by Respondent Board and ordering it to adopt the Administrative Law Judge’s decision affirming Petitioner’s dismissal of a DHS Police Officer Fabian Barraza for cause.

Legal Standard

This is a petition for administrative writ of mandate under Code of Civil Procedure section 1094.5. Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘... otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) This presumption of correctness includes giving great weight to the agency’s credibility determinations. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 819.) Here, there is no dispute that Petitioner has produced the record of the administrative proceedings.

A writ of mandate will issue “to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ....” (Code Civ. Proc., § 1085, subd. (a).) Under Code of Civil Procedure section 1094.5(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(b).)

“A trial court's review of an adjudicatory administrative decision is subject to two possible standards of review depending upon the nature of the right involved. (Code Civ. Proc., § 1094.5, subd. (c).) If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32 . . . ) The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings. . . . If, on the other hand, the administrative decision neither involves nor substantially affects a fundamental vested right, the trial court's review is limited to determining whether the administrative findings are supported by substantial evidence. (Strumsky v. San Diego County Employees Retirement Assn., supra, at p. 32; . . . )” (Wences v. City of Los Angeles (2009) 177 Cal. App. 4th 305, 313 [Citations omitted].)

In determining the proper standard of review, “[t]he key fact is that the administrative mandamus proceeding was initiated by [Petitioner DSH] in an effort to reinstate the Department’s earlier decision to fire [Barraza].” (County of Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 633.) “It is well-established that an employer’s right to discipline or manage its employees ... is not a fundamental vested right entitling the employer to have a trial court exercise its independent judgment on the evidence. [Citations.]” (Los Angeles County Dept. of Parks & Recreation v. Civil Service Com. (1992) 8 Cal.App.4th 273, 279, 10 Cal.Rptr.2d 150, emphasis in original.)” (County of Los Angeles v. Civil Service Com., supra, at p. 633.) Thus, to the extent that Petitioner DSH challenges the Commission’s factual findings, the Court must use the substantial evidence test in reviewing the Commission’s decision. (Ibid.)

The Second Appellate District Court of Appeal has described the standards for evaluating a challenge to the level of discipline imposed on a peace officer as follows:

“‘[I]n a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.’” . . . “In considering whether such abuse occurred in the context of public employee discipline, ... the overriding consideration ... is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ . . . Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” . . .

When an administrative body’s findings are not in dispute, abuse of discretion is established where the body’s order or decision is unsupported by the findings. . . . The court conducts a “de novo comparison of the findings and the penalty” to ensure that the findings are not “inconsistent with [the administrative body’s] action in reducing the penalty,” resolving all reasonable doubts in favor of the administrative decision. . . . The court may not substitute its own judgment for that of the Commission, nor “disturb the agency’s choice of penalty absent ‘“an arbitrary, capricious or patently abusive exercise of discretion”’ by the administrative agency” . . . but must uphold the penalty if there is any reasonable basis to sustain it. . . . Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty. . . .

(County of Los Angeles v. Civil Service Commission of County of Los Angeles (2019) 40 Cal.App.5th 871, 877; see also Kolender v. San Diego County Civil Service Com. (2007) 149 Cal.App.4th 464, 471[the court may find an abuse of discretion where an agency’s decision exceeds the bounds of reason].)

Procedural History

On June 12, 2019, Petitioner DSH terminated Police Officer Barraza from his position as a Hospital Police Officer, based on cause under Government Code §19572, subdivision (d) inexcusable neglect of duty, subdivision (f) dishonesty, subdivision (o) willful disobedience, and subdivision (t) other failures of good behavior. The factual circumstances underpinning the charges involved Barraza’s handling of a situation involving a hospital inmate who Barraza believed was being improperly restrained, the reports he did and did not make about that situation, and whether he was honest about what happened.

After an evidentiary hearing, ALJ Douglas A. Purdy issued a Proposed Decision on December 30, 2019. In his decision, the ALJ made 49 detailed factual findings, rejected Barraza’s motion to dismiss, affirmative defenses and due process challenges, made remarks about Barraza’s credibility, and sustained Respondent DSH’s charges in large part. Specifically, the ALJ decision found in Respondent DSH’s favor on the following charges: (1) when Barraza was ordered to write an incident report and failed to include important facts in his draft, despite specific instructions from his superior to do so, Barraza committed an inexcusable neglect of duty, engaged in dishonesty and willful disobedience, and failed to reflect good behavior; (2) in lying about whether he had submitted one or more online complaints to the Office of Law Enforcement Support (OLES), Barraza had engaged in an inexcusable neglect of duty, been dishonest, and committed acts of bad behavior. (AR4896-4899.) On the other hand, the ALJ determined Barraza had a reasonable belief he did not have to write an initial written report about the inmate incident, based on his oral reports to his superiors and their responses to those reports. (AR 4895-4896.) The ALJ also found Barraza had no intent to mislead Respondent DSH in marking a report written on November 7, 2018 with the incident date of October 25, 2018, because the DSH knew he was preparing the report at his superior’s instruction several weeks after the incident. (AR4897.) Based on his findings and conclusions regarding Barraza’s misconduct, the ALJ found that Respondent DSH’s decision to dismiss Barraza from his employment was a “just and proper penalty.” (AR4899-4901.)

On appeal, the State Personnel Board rejected the ALJ’s Proposed Decision and set the matter for oral argument. The Board then adopted the Findings of Fact and Conclusions of Law in the ALJ’s decision but modified the penalty to a suspension for one month, and granted back pay and benefits, plus interest, if any. (AR4868-4869, 4875.) The Board reached this conclusion based on certain mitigating factors it discussed in its final Decision made and adopted on September 18, 2020. (AR4871-4875.)

In this case, Petitioner DSH accepts the findings of the Administrative Law Judge, which were embraced wholesale by Respondent Board, but apparently challenges the Board’s additional findings regarding mitigating factors as not substantiated by the evidence. Thus, the Court assesses whether the mitigating factors findings are supported by substantial evidence and then evaluates whether the factual findings adopted by the Board are “not ‘inconsistent with [the administrative body’s] action in reducing the penalty,’ resolving all reasonable doubts in favor of the administrative decision.” (County of Los Angeles v. Civil Service Commission, supra, at p. 877.)

Challenges to Respondent Board’s Factual Findings

The substantial evidence standard tests whether there is substantial evidence that will support the factual conclusions reached by the body under review. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Courts have defined substantial evidence as “evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.” (People v. Lehman (2016) 247 Cal.App.4th 795, 804.) Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate support for a conclusion.” (Inyo Citizens for Better Planning v. Inyo County Bd. of Supervisors (2009) 180 Cal.App.4th 1, 13.)

That said, the Second District Court of Appeal has emphasized that the substantial evidence standard is “extremely deferential.” The trial court does not “weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. [The administrative agency's] findings come before us with a strong presumption as to their correctness and regularity. We do not substitute our own judgment if the [agency's] decision is one which could have been made by reasonable people. Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency's findings are not supported by substantial evidence. [¶] We are required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict. Credibility is an issue of fact for the finder of fact to resolve, and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact.” (Doe v. Occidental College (2019) 37 Cal. App. 5th 1003, 1019 [Citations and internal quotations omitted].)

As noted above, Petitioner DSH does not contest the factual findings made by the ALJ and adopted by the Board. Instead, DSH attacks certain factual conclusions reached by the Board in its review of the discipline imposed by DSH and endorsed by the ALJ. Specifically, Petitioner DSH contends that there is no substantial evidence to support the Board’s findings (1) that DSH conducted a “cursory review” of Barraza’s report of patient abuse; and (2) that Barraza’s denial that he filed OLES complaints was justifiable under the circumstances. (Petitioner’s Memorandum, pp. 16-24.)

1. “Cursory Review”

Petitioner’s first line of argument with respect to the mitigating factors analysis is that the SPB’s determination that DSH engaged in a “cursory review” of Barraza’s patient abuse allegations is not supported by substantial evidence. Petitioner contends that the characterization that Chief Rivera “reached [a] conclusion” is incorrect. Instead, Petitioner states that Chief Rivera never reached a decision on whether any patient abuse had occurred, according to the evidence in the record. (AR 1393:22-1395:25, 1399:11-25, 1399:11-1402:19, 1404:3-1405:12.) Petitioner also points to evidence in the record of other steps taken, including an email by Chief Rivera to Chief Landrum, Chief of Ops, regarding Barraza’s allegations, which Petitioner contends directly led to Chief Landrum initiating a formal investigation of, among other things, Barraza’s allegations. (AR 1970:12-1972:15, 2438:21-2441:21.) Petitioner argues that the SPB ignored this investigation, conducted by Stephen Beeuwsaert, which interviewed sixteen witnesses and attempted to interview Nurse Garcia. (AR 163, 174-208; 2104:12-2107:16.)

In opposition, Barraza argues that Petitioner has not shown that the decision of the SPB was unsupported by substantial evidence, and that Petitioner has misapplied the evidentiary standard for this Petition. Barraza argues that the Beeuwsaert investigation is not relevant, because Petitioner did not challenge any of the substantive conclusions made by the Board with respect to Chief Rivera’s investigation, and the Beeuwsaert investigation was principally targeted at Barraza, not at patient abuse. Barraza also contends that Chief Rivera concluded that no patient abuse occurred.

Because the parties dispute the significance of the Board’s “cursory review” finding, the first task for the Court is to determine the meaning of Board’s ruling.
“’Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.’ (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954, 237 Cal.Rptr. 191.) An agency’s findings under Code of Civil Procedure section 1094.5 ‘do not need to be extensive or detailed. (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 516, 80 Cal.Rptr.3d 28, 187 P.3d 888, italics added.) ‘In addition, findings are to be liberally construed to support rather than defeat the decision under review.’ (Topanga Assn. for a Scenic Community v. County of Los Angeles (1989) 214 Cal.App.3d 1348, 1356, 263 Cal.Rptr. 214.)” (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421.)

Here, the Board concluded that the evidence established two primary transgressions by Barraza: (1) that he failed to include in his written report the fact that a hospital nurse had told him that the patient had been restrained for three days; and (2) that he made false statements about filing OLES complaints. (AR4869.) Discussing the propriety of the penalty for those violations, the Board first evaluated Petitioner DSH’s initial response to Barraza’s efforts to report patient abuse. The Board observed that “[i]n reporting what appeared to him to be possible patient abuse, [Barraza] was attempting to report what he perceived as serious misconduct by his superior officers, not only with respect to the underlying incident of restraining a mental health patient inappropriately but also with respect to a potential cover-up of the incident.” (AR4871.) The ALJ’s factual findings reflect Barraza’s initial efforts to report the abuse, in his October 25, 2018 daily log, in an October 26, 2018 meeting with Metropolitan Police Chief Martin Rivera, and in a later discussion with Lieutenant Paul Lee. (Findings #23, 25-26, 33, AR4882-4884.) Focusing on Petitioner’s response to those initial complaints, the Board concluded, consistent with the ALJ’s findings, that Chief Rivera made a few brief inquiries about possible abuse and “believed [the sergeant who authorized the restraints] acted within reasonable discretion, and that Patient M’s placement in wrist-to-waist restraints did not constitute abuse that needed to be reported to OLES.” Chief Rivera also reported the abuse allegations to Chief Landrum on October 28, 2018, but there is no evidence that the latter did anything in response to that report. (Findings #27-29, AR4883.) The Board critiqued the extent and depth of Chief Rivera’s brief investigation and deemed it a “meek inquiry and quick justification [that] appear[ed] unreasonable given the seriousness of the allegation.” (AR4872.)

The Court concludes that this factual conclusion is focused solely on Respondent’s initial response to Barraza’s early complaints, so the later more extensive investigation is not relevant to the question of whether substantial evidence supports the “cursory review” finding. In reaching this conclusion, the Court notes that the Board emphasized that Barraza’s initial reports raised concerns about a possible cover-up of patient abuse by superior officers. When nothing was done to conduct an in-depth inquiry based on the meeting with Chief Rivera, the cover-up aspect of Barraza’s complaint was arguably reinforced. Barraza then filed an anonymous OLES complaint on October 27, 2018, which was followed by another complaint made on November 2, 2018 by Barraza’s former union representative. The ALJ’s findings show that no serious investigation commenced until on or about November 5, 2018 and only after these OLES complaints were filed. (Findings #30-32, 34, AR4883-84.) It was then that Petitioner DSH pressed Barraza to submit a comprehensive written report of the incident, interviewed him at length about the relevant events, including the OLES complaints, and then charged Barraza with misconduct for his false and incomplete responses to these interrogations.

The Court reads the Board’s indictment of Chief Rivera’s initial investigation as a partial justification for Barraza’s failure to be completely forthcoming in drafting his incident report and responding to interview questions, because the quick whitewash was “unreasonable” and reinforced Barraza’s worries about a cover-up. Viewing Chief Rivera’s “cursory review” in its chronological context – as a weak inquiry that failed to engender any follow-up – the Court cannot agree that this mitigation factor considered by the Board is not supported by substantial evidence. Indeed, Petitioner does not contest the factual findings identified above or the fact that they are grounded on substantial evidence in the record. Further, Petitioner points to no evidence that Chief Rivera’s email to Chief Landrum led to any further investigation or that the later investigation was spawned by Barraza’s initial complaints about patient abuse and supervisor cover-up. Instead, the evidence clearly shows that that the later investigation by Investigator Stephen Beeuwsaert arose from the OLES complaints filed in late October and early November, not from anything instigated by Chief Rivera or Chief Landrum before those complaints were filed.

2. Misstatements Regarding Filing of Anonymous OLES Complaint

Petitioner’s second argument is that the SPB’s finding that Barraza’s misstatements regarding the existence of his anonymous OLES complaint were partially justified is not supported by substantial evidence. In its decision, the Board stated:

While Appellant was untruthful in his denial to his supervisor and during his investigative interview that he had filed an anonymous complaint with OLES, his reluctance to disclose having done so was not wholly unjustified. While erroneous, it was not unreasonable for Appellant to believe that he was not required to disclose the filing of a complaint revealing potential wrongdoing by his superiors that was intended to remain confidential. As a matter of public policy, identities of whistleblowers are generally protected and need not be disclosed unless absolutely necessary. (Gov. Code, §§ 8547.1 & 8547.5.) "When confidentiality is provided to a whistleblower, it is not on the basis of a privacy privilege but rather as a matter of public policy, usually according to standards best described as an undefined conditional privilege." (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1548.) This is not to say that Appellant had a right to provide an untruthful response; rather his belief in his right to maintain his anonymity is not without basis or reason.

(AR 4872-4873.)

Petitioner contends that this analysis is erroneous because it only focuses on these specific incidents and ignores other misstatements and misrepresentations made by Barraza, as well as the ALJ’s finding that Barraza was generally not credible as a witness. However, as Barraza argues persuasively in the opposition, these contentions do not bear on whether this finding was unsupported by substantial evidence. The SPB found that Barraza’s failure to disclose that he had filed an anonymous OLES complaint was wrongful and did not challenge the ALJ’s credibility determination regarding this matter. The Board decided, however, that Barraza’s lack of candor was partially justified because it was reasonable for him to believe that he was not required to disclose his submission of an anonymous complaint. Petitioner cites neither law nor evidence that attacks the finding that this belief was reasonable.

3. Omissions from Barraza’s Incident Report

Although it identifies this as a mitigating factor (Petitioner’s Memorandum, p. 15), Petitioner fails to identify any part of the Board’s decision that refers to “the omission of language from [Barraza’s] incident report” as a mitigating factor warranting a reduction of the penalty. Petitioner has not shown, therefore, that there was a new factual finding to be challenged, much less an absence of substantial evidence or an abuse of discretion that would undermine that finding.

In summary, the Court concludes that Petitioner DSH has not demonstrated, as it must, that the Board’s factual findings regarding the existence of mitigating factors were unsupported by substantial evidence. There being no basis to disturb any of the Board’s factual findings, the Court now turns to an evaluation of the Board’s penalty decision. As explained above, that inquiry involves an assessment of whether the factual finding support the Board’s decision to reduce the penalty to a 30-day suspension. (County of Los Angeles v. Civil Service Commission of Count of Los Angeles, supra, at p. 877.)

Reduction of Penalty

Petitioner contends that the State Personnel Board (SPB) abused its discretion in reducing the penalty imposed by the Administrative Law Judge (ALJ) by erroneously concluding that mitigating factors warranted a reduction in the penalty of dismissal. In ruling on this challenge, the Court must conduct a “de novo comparison of the findings and the penalty” to ensure that the findings are not “inconsistent with [the administrative body’s] action in reducing the penalty,” resolving all reasonable doubts in favor of the administrative decision. (Ibid.)

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.) In considering whether an abuse of discretion occurred, the “overriding consideration . . . is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circum-stances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 218.) “[I]n reviewing the penalty imposed by an administrative body, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter. [Citations.]” (Nightingale v. State Personnel Board (1972) 7 Cal.3d 507, 515.) “The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions.” (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 967.)

Here, the Board adopted the ALJ’s determinations that Barraza was untruthful in two respects: by failing to include all pertinent information in the incident report he was ordered to provide and by making false statements about whether he filed OLES complaints. (AR4868-69, 4873.) “Specifically, the ALJ found that [Barraza] failed to include in his written report the fact that a nurse had stated to him that the patient had been restrained for three days, falsely denied filing an anonymous complaint with [Petitioner’s OLES], and falsely stated during his investigatory interview that he had filed an OLES complaint that was actually filed by his union representative.” (AR4868-69; AR4881-82, Findings #21, 23; AR4886, Finding #39; AR4887-88, Finding #48.) The Board adopted these findings but modified the discipline to a one-month suspension, based on the mitigating factors discussed above, as well as Barraza’s “significant, multiple efforts to report what he believed to be patient abuse, only to have his concerns largely ignored.” (AR4873.) The Board also noted that, while Barraza’s failure to include important information in his written report “warrants decision,” the missing information about the patient being restrained for three days and having feces on his chains was reported promptly to Chief Rivera the day after the incident, as the ALJ found in his Proposed Decision. (AR4883, Finding #26.) Given Barraza’s early efforts to rectify what he saw as patient abuse and supervisory indifference, the Board concluded that the recurrence of misconduct was unlikely, particularly given Barraza’s 11 years of service without any record of discipline. The Board also found, in these circumstances, that Barraza’s actions “were not indicative of a person who seeks to conceal his own wrongdoing or complicity in misconduct,” undercutting the suggestion that his actions reflect “a continuing character trait of dishonest behavior.” (AR4874.) That said, the Board imposed the one-month suspension to acknowledge Barraza’s misconduct and remind him of “the importance of adhering to his duties.” (Id.)

In its attack on the Board’s decision, Petitioner DSH goes beyond and sometimes even contradicts the undisputed findings issued by the ALJ and adopted by the Board. For example, Petitioner complains that the Board did not consider Barraza’s false statements about feces on the patient’s back. (Petitioner’s Memorandum, p. 19.) While the ALJ found that Barraza did not tell his superior, Sgt. Salvador, about the feces on the restraints, there is no finding that he lied about the substance of this report in his interview with the investigator. (Finding #21, AR4881.) DSH highlights evidence that could have supported a credibility finding by the ALJ on this issue, but none was made. And, contrary to the DSH’s argument, the ALJ apparently credited Barraza’s testimony that he saw feces on the chain and cleaned it off. (AR4881, Finding #21.) The absence of any supportive finding also undermines Petitioner’s argument that the Board’s decision fails to account for Barraza’s supposed lies to his superiors about the on-duty nurse, CNA Garcia, saying that the patient at issue had been restrained for “three full days.” (Petitioner’s Memorandum, p. 20.) The ALJ disbelieved Barraza’s reason for excluding the “three full days” statement from his report, but did not find, as DSH argues, that Barraza dissembled about the nurse making the statement. (AR 4890.) To the contrary, the ALJ found both that “CPH Nurse Angie Garcia . . . told [Barraza] that Patient M has been in restraints for three days,” and that Barraza reported this fact to Chief Rivera the next day. (AR4882-83.)

Petitioner DSH also complains that the Board ignored the ALJ’s credibility determinations, but the Board’s decision does not support this accusation. To the contrary, the Board accepted all factual findings of the ALJ, including that Barraza omitted important information from the incident report he was ordered to prepare, falsely denied filing an anonymous OLES complaint he did file, and falsely admitted to submitting another OLES complaint that was filed by another. These Board conclusions are consistent with the ALJ’s credibility determinations. The Board departed from the ALJ’s determinations when it came to assessing the likelihood of harm to the public service and of Barraza’s continued dishonesty in the future. In coming to his contrary conclusions about these matters, however, the ALJ did not consider the mitigating factors addressed by the Board and validated above by the Court.

Undertaking the task of making “de novo comparison of the findings and the penalty” to ensure that the findings are not “inconsistent with [the Board’s] action in reducing the penalty,” this Court holds that the Board’s action must be upheld. The findings issued by the ALJ and embraced by the Board reveal two primary areas of misconduct by Barraza, who was found to have withheld important facts from the incident report he was ordered to write and to have made untruthful statements about the OLES complaints submitted about the alleged patient abuse and related concerns about a supervisory whitewash. Although the sustained charges are many, the underlying misconduct boils down to these two improper actions. An evaluation of Barraza’s misconduct must be tempered by the “circumstances surrounding the misconduct,” which are properly reflected in the mitigating factors considered by the Board.

Further, the impact of Barraza’s dishonesty about the alleged abuse he reported is sharply reduced by his early and vigilant effort to remedy the abuse by meeting with Chief Rivera the day after the problematic incident. It cannot be said that Barraza’s dishonesty served to shield police abuse or protect wrongdoers, and this fact distinguishes this case from many administrative actions where dismissal was found on judicial review to be necessary to protect the public from harm. (See, e.g., County of Los Angeles v. Civil Service Commision, supra, 40 Cal. App. 5^th 871 [reversing Civil Service Commission decision to reinstate officer who failed to report two incident of inmate abuse and then lied to cover up the abuse in a subsequent investigation]; Kolender v. San Diego County Civil Service Com. (2005) 132 Cal. App. 4^th 716 [reversing Commission decision to reduce termination punishment for deputy who lied about another deputy’s physical abuse of a prisoner]; Hankla v. Long Beach Civil Service Commission (1995) 34 Cal. App. 4^th 1216 [reversing Board decision to reinstate officer who had unnecessarily armed himself with a gun and negligently discharged it wounding a civilian].) In those cases, the dishonest officers put the lives of civilians at risk through their misconduct. The same cannot be said here.

For all these reasons, and because the Court cannot substitute its own judgment for that of the Board, the Court must reject Petitioner DSH’s challenge to the reduced penalty ordered by the Board, deny the Petition for Writ of Mandate, and affirm the decision of the Board in its entirety.

In short, the Court finds that Petitioner DSH has not established that Respondent Board abused its discretion in reducing Fabian Barraza’s dismissal to a one-month suspension.

CONCLUSION:

Accordingly, the Petition for Writ of Mandate is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: October 13, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.