This case was last updated from Los Angeles County Superior Courts on 12/03/2019 at 08:21:42 (UTC).

DAVID GUERRERO VS CITY OF LOS ANGELES ET AL

Case Summary

On 09/22/2017 DAVID GUERRERO filed an Other - Writ Of Mandamus lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES C. CHALFANT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0959

  • Filing Date:

    09/22/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JAMES C. CHALFANT

 

Party Details

Plaintiff and Petitioner

GUERRERO DAVID

Defendants and Respondents

LOS ANGELES CITY OF

DOES 1 TO 30

BECK CHARLES CHIEF OF POLICE CITY OF

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

KALINSKI JACOB A.

Defendant Attorney

PARK HOON SUK

 

Court Documents

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

8/8/2019: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

Notice - NOTICE OF CONTINUANCE OF TRIAL AND SETTING OF A NEW TRIAL SETTING CONFERENCE DATE

2/19/2019: Notice - NOTICE OF CONTINUANCE OF TRIAL AND SETTING OF A NEW TRIAL SETTING CONFERENCE DATE

Notice of Hearing on Petition

1/18/2019: Notice of Hearing on Petition

Request for Judicial Notice

1/18/2019: Request for Judicial Notice

Memorandum of Points & Authorities

1/18/2019: Memorandum of Points & Authorities

Minute Order - Minute Order (Court Order)

2/19/2019: Minute Order - Minute Order (Court Order)

Other - - Other - Stipulated continuance of trial date and setting of a trial setting conference date

2/19/2019: Other - - Other - Stipulated continuance of trial date and setting of a trial setting conference date

STIPULATION TO CONTINUE TRIAL DATE AND BRIEFING SCHEDULE; ORDER

7/30/2018: STIPULATION TO CONTINUE TRIAL DATE AND BRIEFING SCHEDULE; ORDER

Minute Order -

1/4/2018: Minute Order -

Minute Order -

7/30/2018: Minute Order -

Proof of Service -

10/20/2017: Proof of Service -

Proof of Service -

10/20/2017: Proof of Service -

PROOF OF SERVICE BY MAIL

10/20/2017: PROOF OF SERVICE BY MAIL

NOTICE OF TRIAL SETTING CONFERENCE

10/6/2017: NOTICE OF TRIAL SETTING CONFERENCE

NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

9/29/2017: NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE [CCP 1094.5 AND 10851 AND EXTRAORDINARY RELIEF {GC 3309.5]

9/22/2017: VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE [CCP 1094.5 AND 10851 AND EXTRAORDINARY RELIEF {GC 3309.5]

4 More Documents Available

 

Docket Entries

  • 01/28/2020
  • Hearing01/28/2020 at 13:30 PM in Department 85 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Petition for Writ of Mandate

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  • 08/08/2019
  • Docketat 09:30 AM in Department 85, James C. Chalfant, Presiding; Trial Setting Conference - Held

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  • 08/08/2019
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 03/12/2019
  • Docketat 1:30 PM in Department 85, James C. Chalfant, Presiding; Hearing on Petition for Writ of Mandate - Not Held - Advanced and Vacated

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  • 02/19/2019
  • Docketat 11:00 AM in Department 85, James C. Chalfant, Presiding; Court Order

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  • 02/19/2019
  • DocketOther - (Stipulated continuance of trial date and setting of a trial setting conference date); Filed by LOS ANGELES, CITY OF (Defendant)

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  • 02/19/2019
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 02/19/2019
  • DocketNotice ( of Continuance of Trial and Setting of a New Trial Setting Conference Date); Filed by LOS ANGELES, CITY OF (Defendant); BECK, CHARLES , CHIEF OF POLICE, CITY OF (Defendant)

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  • 01/18/2019
  • DocketMemorandum of Points & Authorities; Filed by DAVID GUERRERO (Plaintiff)

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  • 01/18/2019
  • DocketRequest for Judicial Notice; Filed by DAVID GUERRERO (Plaintiff)

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14 More Docket Entries
  • 10/20/2017
  • DocketProof of Service (not Summons and Complaint); Filed by DAVID GUERRERO (Plaintiff)

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  • 10/20/2017
  • DocketProof of Service (not Summons and Complaint); Filed by DAVID GUERRERO (Plaintiff)

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  • 10/20/2017
  • DocketProof of Service

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  • 10/06/2017
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by DAVID GUERRERO (Plaintiff)

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  • 10/06/2017
  • DocketNOTICE OF TRIAL SETTING CONFERENCE

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  • 09/29/2017
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 09/29/2017
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 09/29/2017
  • DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

    Read MoreRead Less
  • 09/22/2017
  • DocketVERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE [CCP 1094.5 AND 10851 AND EXTRAORDINARY RELIEF {GC 3309.5]

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  • 09/22/2017
  • DocketPetition; Filed by null

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Tentative Rulings

Case Number: BS170959    Hearing Date: January 28, 2020    Dept: 85

David Guerrero v. City of Los Angeles, et al., BS170959

Tentative decision on petition for writ of mandate: denied

Petitioner David Guerrero (“Guerrero”) seeks a writ of mandate directing Respondents City of Los Angeles and Charlie Beck, Chief of Police of the City of Los Angeles (“Chief Beck”), (collectively, “City”) to set aside its decision removing Guerrero from his position as a Police Officer.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

Petitioner Guerrero commenced this proceeding on September 22, 2017, alleging causes of action for traditional and administrative mandamus. The verified Petition alleges in pertinent part as follows.

At all times relevant, Guerrero was a sown peace office with the Los Angeles Police Department (the “Department” or “LAPD”). Guerrero was charged with misconduct stemming from an incident occurring on August 13, 2016. Guerrero was directed to a Board of Rights (sometimes “Board”) with the proposed penalty of removal from employment with the Department.

After a hearing, the Board of Rights issued a Decision finding Petitioner guilty on two counts of misconduct and not guilty on one. The Board recommended that Petitioner be removed from his position as a Police Officer, effective July 17, 2017.

On August 8, 2017, Chief Beck signed an Execution of the Order removing Guerrero from his position, effective July 17, 2017. The Execution of the Order was served on Guerrero on or about August 8, 2017.

The City committed a prejudicial abuse of discretion and failed to proceed in the manner required by law because (a) the Board of Rights based its decision on evidence not included in the administrative record, (b) the City failed to provide Guerrero with the opportunity for administrative appeal of the Chief’s August 8, 2017 order as required by Government Code section 3304(b), (c) Chief Beck's decision was not supported by the findings and the findings were not supported by the weight of the evidence, and (d) the penalty was excessive.

B. Standard of Review

1. Administrative Mandamus

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). The independent judgment standard of review applies to administrative findings on guilt in cases involving a police officer’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4th 652, 658.

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, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (“Lake”) (1975) 47 Cal.App.3d 224, 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217-218. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (“Nightingale”) (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, (“Cadilla”) (1972) 26 Cal.App.3d 961.

2. Traditional Mandamus

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085.

Traditional mandamus is the proper procedure to correct violations of the MMBA, and to remedy the failure to perform a ministerial duty. Vernon Firefighters v. City of Vernon, (1980) 107 Cal.App.3d 802, 808-810; San Joaquin City Employees Association. v. City of Stockton, (1984) 161 Cal. App. 3d 813, 820.

A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085. “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” CCP §1085(a).

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

A ministerial act is one that is performed by a public officer “without regard to his or her own judgment or opinion concerning the propriety of such act.” Ellena v. Department of Insurance, (2014) 230 Cal.App.4th 198, 205. It is “essentially automatic based on whether certain fixed standards and objective measures have been met.” Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt., (2008) 167 Cal.App.4th 1350, 1359. By contrast, a discretionary act involves the exercise of judgment by a public officer. County of Los Angeles v. City of Los Angeles, (2013) 214 Cal.App.4th 643, 653-54.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty.

C. The Disciplinary Scheme

1. POBRA and Due Process

The Public Safety Officers Procedural Bill of Rights Act (“POBRA”) is located at Government Code[1] section 3300 et seq., and it sets forth a list of basic rights and protections which must be afforded to all peace officers by the agencies that employ them. Baggett v. Gates, (1982) 32 Cal.3d 128, 135. The various procedural protections of POBRA “balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment.” Jackson v. City of Los Angeles, (2003) 111 Cal.App.4th 899, 909.

“No punitive action...shall be taken by any public agency against any public safety officer who has successfully completed the probationary period ...required...without providing the public safety officer with an opportunity for an administrative appeal. §3304(b). A “punitive action” is defined as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” §3303.

Under section 3304(d), no punitive action may be imposed upon any public safety officer for alleged misconduct unless the public agency investigating the allegations completes its investigation and notifies the public safety officer of its proposed disciplinary action within one year of discovering the alleged misconduct. The notice contemplated by section 3304(d) is simply notice that the public agency, having completed its investigation, has decided that it may pursue disciplinary action against the officer. Although the agency is not precluded from notifying the officer at that time of the proposed specific discipline, it is not required by section 3304(d) to do so. Mays v. City of Los Angeles, (2008) 43 Cal.4th 313, 320-322.

A court may award a civil penalty of up to $25,000 upon finding that a public safety department maliciously violated any provision of POBRA with the intent to injure the public safety officer. §3309.5(e).

2. Los Angeles City Charter

The Police Chief has final authority to remove an officer subject to the provisions of the Los Angeles City Charter (“Charter”), the rules of the Department, and the instruction of the Board of Police Commissioners (“Board”). LACC §574.

No member shall be removed, or otherwise separated from the service of the department, except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges assigned as cause or causes after a full, fair, and impartial hearing before a Board of Rights. LACC §1070(a).

D. Administrative Mandamus Evidence[2]

1. The Charges

Guerrero was charged with three counts of misconduct:

Count 1: On or about August 13, 2016, you while off duty, inappropriately became engaged in a physical altercation which caused permanent injury to Estrada;

Count 2: On or about August 13, 2016, you while off duty, fled the scene of a crime prior to the arrival of on-duty officers;

Count 3: On or about August 13, 2016, you while off duty, failed to notify the Department of a significant off-duty altercation in a timely manner. AR 7-8.

2. The Hearing

On July 19, 2017, the Board of Rights heard the charges. AR 5. Pertinent testimony from the hearing is as follows.

a. Undisputed Facts

On August 13, 2016, Guerrero planned to attend a Rams football game after work with his high school friend, Osvaldo Jimenez (“Jimenez”), Jimenez’s girlfriend Jana Christie (“Christie”), and a friend from the Department, Sergeant Scarlett Nuno (“Nuno”). AR 21-23.

Jimenez and Christie drove from Santa Barbara to Topanga Station where they picked up Guerrero. Since they were not familiar with downtown Los Angeles, Guerrero drove to them to the Coliseum. AR 22-23, 261-62. Nuno joined the group in the parking structure at the Coliseum. AR 24, 211. While tailgating in the parking structure, the group consumed alcohol prior to entering the Coliseum for the game. AR 23, 213. Guerrero had a couple of beers and other members of the group had shots of vodka. AR 23, 213.

When the group left the parking lot to walk over to the game, Guerrero left his keys and his wallet (including his police identification), in Jimenez’ vehicle. AR 265. Guerrero believed he would be returning to Topanga Station with Jimenez since the latter had to continue on to Santa Barbara. Guerrero was concerned that he would not be allowed to bring his wallet and keys into the game; it was the first Rams game and he was unclear what the rules would be for entering the venue. AR 264-65.

At the game, Jimenez, met up with Estrada, who is his cousin, and Estrada’s friend Josh Ewell (“Ewell”). AR 117, 160. When the game ended, Jimenez and Christie returned to the parking structure with Estrada and Ewell and drove away. AR 118. They did not wait for Petitioner or Nuno; Jimenez believed that Guerrero would get a ride home with Nuno. AR 25, 118.

When Guerrero and Nuno arrived at the parking structure, Jimenez’s vehicle was gone. AR 214, 264, 266. Guerrero needed his police identification for work the next day. AR 215.

Jimenez texted Guerrero and said he had the wallet with him. AR 26. When Guerrero called him back, Jimenez said the group was going downtown to do some more drinking at a bar named the Perch. AR 26, 266.

Guerrero did not want to continue to party, and he made additional calls to Jimenez to arrange a place to meet and retrieve his wallet. AR 267. During one of these phone conversations, Jimenez used his Bluetooth to place the call on speakerphone in his vehicle. AR 268. Guerrero was unaware he was on speakerphone and spoke freely as if it were a private conversation. AR 65, 267. During this conversation, Guerrero made a remark wherein he referred to Estrada and Ewell as Jimenez’s “faggot fraternity brothers.” AR 27, 119, 160-61, 267. Estrada and Ewell reacted angrily to the remark, saying “fuck you”. AR 119, 161, 267.

Jimenez abruptly hung up to minimize the tension. AR 27, 161. Guerrero attempted to contact Jimenez several more times, eventually reaching Christie. AR 27, 67, 218, 268-69. They arranged to meet at 5th Street and Broadway (a Walgreens was across the street) so Guerrero could retrieve his wallet. AR 28. The traffic was terrible, so Nuno dropped Guerrero off one block away and Guerrero walked to meet Jimenez. AR 219, 270.

b. Guerrero

Guerrero saw Jimenez and Estrada at the intersection across the street from Walgreens. AR 270. Estrada was staring at him with his chest puffed out. AR 270. When he (Guerrero) crossed the street, Estrada get in front of him. Estrada appeared drunk and was aggressive toward Guerrero. AR 270. When Guerrero asked Jimenez for his wallet back, Estrada told him to relax. AR 270. Guerrero told Jimenez that he had been trying to get a hold of them for an hour and a half and really needed his wallet back. AR 271. Jimenez gave back the wallet to Guerrero. AR 271. Estrada told Guerrero that he did not like the way he talked to Jimenez and he needed to show more respect to his cousin. AR 271. Guerrero responded that he had a job and “you guys” have been giving me the run around for an hour. AR 272. They may not have responsibilities, but he has a job, needed sleep, and needed to get to work on time. AR 272. “So don’t talk to me about respect when you don’t even know.” AR 272.

The conversation escalated, and Estrada said something along the lines of “get the fuck out of here before I kick your ass.” AR 271-72. Guerrero responded by telling Jimenez that he needed to get his cousin out of here if he cared about him. AR 272. Jimenez responded that if Guerrero fought Estrada he would be fighting Jimenez as well. AR 272. Estrada began emptying his pockets, leading Guerrero to believe he was getting ready to challenge him to a fight. AR 272.

During this exchange, Guerrero called Nuno, who did not pick up. AR 272. Estrada continued to insult Guerrero and Jimenez did not attempt to deescalate. AR 272. Guerrero called Nuno again, she answered, and he arranged to be picked up. AR 273. When he go off the phone, Estrada and Jimenez were walking towards him. AR 273. Guerrero threw his hand up to signal “really, don’t even try”. AR 273.

Christie came over and gave Guerrero a hug, saying these guys are being stupid and we will see you this weekend. AR 273. Estrada and Jimenez decided to leave and Guerrero watched them walk off. AR 273. He wanted to get distance between them. AR 273. However, in order to meet Nuno in the crowded street for his ride, Guerrero had to follow the other group up 5th Street. AR 273-74. He waited 10-15 seconds to allow some space to develop before he also walked westbound on 5th Street to meet Nuno’s car. AR 274, 286.

Guerrero eventually caught up with Estrada and Jimenez due to the crowd on the sidewalk. AR 274. Guerrero tried to walk around them but they, now joined by Ewell, blocked his path. AR 274-75. The three of them were pumping each other up. AR 275. They all surrounded Guerrero, with Ewell moving closer to him. AR 275. Ewell, who is 6’6” and 240 pounds, brought his hands to chest level and Guerrero thought he was going to get hit. AR 275. Guerrero told Ewell to relax and pushed him to create distance. Because of Ewell’s size, the push caused Guerrero to step back into the street. AR 275.

Estrada then raised his clenched fist and Guerrero struck him twice in the head, causing him to fall into the street. AR 275-76. Guerrero never intended to cause serious injury, but rather to get Estrada to leave him alone. AR 336-37. Guerrero knew Estrada was unconscious because his eyes were rolling in the back of his head and his body was coming down; you could tell he was unconscious. AR 323.

Guerrero warned Ewell to stand down, but Ewell ignored the warning and approached Guerrero with a “little maneuver”. AR 276. Guerrero believed Ewell was going to retaliate, and it was still two against one. AR 276, 323. Guerrero did not stop to render aid to Estrada because he believed that Ewell and/or Jimenez would retaliate and attack him physically. AR 276, 323. In order to de-escalate the situation and avoid further physical confrontation, Guerrero ran away from the scene, heading Eastbound on 5th Street to Northbound on Broadway. AR 277, 297. As he was going, Guerrero told Jimenez and Ewell “You better stay there. You better stay there. You better not follow me.” AR 323-24. Ewell briefly gave chase, however, Guerrero eluded him. AR 276-77. He called Nuno about five minutes later and walked to her car. AR 277. She asked him if he got his wallet, and she drove him home. AR 277. He did not say anything to her about what happened because he did not want her involved. AR 277.

Guerrero defended himself. He was not going to press charges, because everyone was drunk and being stupid; it got out of control. AR 278. He was unaware of Estrada’s injuries until the following day when he received a text from a mutual friend, Eric, advising him that Estrada was in the hospital. AR 278, 324. At 11:00 a.m., Eric called him and verified that Estrada was badly hurt. AR 324. Guerrero concluded that “there might have been a police report” and now he had to notify a supervisor. AR 278. He called a representative and called his attorney. AR 278. At 5:00 p.m., he contacted his supervisor to report the incident. AR 278, 328.

c. Jimenez

When they got to the corner, he asked Christie and Ewell to go to Perch and ask about a cover charge and any dress code. AR 28-29. Guerrero approached Jimenez, and he appeared a little upset and aggressive. AR 29-30. Estrada stepped in to defend Jimenez because he felt Guerrero was being disrespectful and not acing like a good friend. AR 30-31.

At some point, the argument was between Estrada and Guerrero. AR 55. He (Jimenez) did not want to be part of it and started playing with his phone. AR 55. The video shows Estrada with his hands in Guerrero’s face while the latter was on the phone. AR 56. He did not see Estrada make any obscene gestures. AR 56. Jimenez felt it was a “nonsense argument” that eventually ended when Jimenez said “let’s go” and he and Estrada walked away. AR 31.

When they started walking down 5th Street, the pretty quickly saw that Guerrero was following them. AR 32. They stopped to “level him out” and tell him there was no reason to be angry. AR 32-33. There was no form of aggression towards Guerrero. AR 33. At some point, Christie gave Guerrero a hug. AR 33.

The conversation did not go well. Ewell ran over to stop the situation. AR 36. Ewell was not being aggressive at all. AR 36. Guerrero pushed Ewell, causing him to take a few steps back. AR 33. Jimenez put his hands out like “what’s going on?” AR 34. Estrada was just standing close when Guerrero struck him twice in the face, causing him to fall unconscious and hit the concrete. AR 34. Guerrero ran away about 20 steps before turning around and saying something like “yeah motherfucker,” before running off. AR 34-35.

Jimenez called 911 and Estrada was transported to the hospital in an ambulance. AR 35, 41. Jimenez made a report to the police at the hospital. AR 42.

Jimenez did not see Estrada react in any way that would cause Guerrero to feel the need to defend himself. AR 60. He felt Estrada was trying to protect Jimenez in telling Guerrero that he was not acting like a friend, but he did not feel that Estrada was physically aggressive with Guerrero. AR 60.

d. Estrada

Guerrero was visibly upset when he approached Estrada and Jimenez. AR 163. Guerrero was angry, aggressive, and used profanity towards Jimenez. AR 164, 175. Estrada told Guerrero to calm down and reminded him that Jimenez was his friend. AR 164. Guerrero did not like that Estrada was telling him what to do and directed his anger at Estrada. AR 164-65.

The conversation began to escalate, and Estrada asked Guerrero to leave, as he had already retrieved his wallet. AR 165. The argument ended when Ewell and Christie arrived, and the group left together to buy t-shirts so they could get into Perch. AR 166.

They started walking away and words were still being exchanged. AR 166. Estrada remembers Guerrero pushing Josh and asking Guerrero what he was doing before “everything goes black from there.” AR 167. He woke up in the hospital. AR 167. He had fractures, two brain bleeds, and is permanently blinded in his left eye. AR 167-68.

e. Ewell

When Ewell approached Guerrero, Estrada, and Jimenez, they were already having a verbal altercation. AR 121. Jimenez was telling Guerrero that he was not being a good friend and Estrada was telling Guerrero that he did not need to talk to Jimenez that way. AR 121. Ewell stepped in to try and told Estrada and Jimenez that they could get into Perch, but they need to buy a t-shirt. AR 121. He said: “let’s go”, and the group walked away from Guerrero. AR 121-22.

Guerrero continued “chirping” and Ewell turned back a couple of times. AR 122. Guerrero was being aggressive and seemed like he was on some type of substance or otherwise intoxicated. AR 122. His words were extremely aggressive and trying to start a fight. AR 122. He used f-bombs and said “you want to go right now”. AR 123. Their response was “just get out of here, dude”. AR 123.

As they walked away, Ewell noticed Guerrero walking towards them. AR 123. Then he walked to the street side, and popped around a bus stop. AR 123. He was still trying to provoke a fight, saying “f you. Let’s go right now”. AR 123. Ewell told Guerrero: “Dude, calm down” and “get out of here.” AR 123. Guerrero came up on the curb and pushed Ewell, causing Ewell to step back two or three times. AR 124.

Estrada, who talks a lot with his hands when he drinks, tried to calm Guerrero down. AR 124. That was when he got hit and fell to the concrete. AR 124. Guerrero was “hooting and hollering” as if he had just won a fight and said “that’s right fuckers” before running away. AR 124. Ewell tried to follow Guerrero while attempting to call 911. AR 124. Ewell then waited for paramedics to arrive and transport Estrada to the hospital. AR 125. Ewell left before the police arrived to take a report. AR 125.

Estrada did not make any obscene gestures towards Guerrero. AR 127. Ewell was never aggressive and was never trying to fight. AR 132. He knew that Guerrero was a police officer and Jimenez’s friend. AR 132. He was trying to be a mediator and deescalate the situation. AR 132.

2. The Board’s Decision

The Board issued its recommended decision to Chief Beck on August 2, 2017. The Board found Guerrero guilty of Counts 1 and 3 and not guilty of Count 2. AR 465. The Board recommended the penalty of termination with total loss of pay, effective July 17, 2017. AR 465.

The Board’s Rationale of Findings stated in pertinent part as follows.

The involved individuals Guerrero, Jimenez, Estrada, and Ewell -- all have differing accounts of the event, which appear to be influenced by their level of sobriety, personal perspective, and vested interest in the incident. AR 468-69. The parties tended to agree with the circumstances that led up to the incident. AR 469. The Board summarized the testimony of the witnesses’ account of the incident. AR 471-72.

The Board then described events based on video recordings of the interactions. AR 472. The interaction between Guerrero, Estrada, and Jimenez is approximately five minutes in duration. AR 472. At times, Estrada is very animated and in close proximity to Guerrero. Estrada is animated and persistent in his interaction with Guerrero and the discussion is at least heated because it draws the attention of several people walking by. AR 473. Guerrero also is observed holding a cell phone to his ear and at times, turning his back on Estrada. AR 472-73.

Ewell and Jimenez place their arms on Estrada and attempt to shepherd or escort him away from Guerrero. AR 473. Estrada takes a few steps with them before returning to Guerrero, at which time Ewell and Jimenez escort him down the street a second time. AR 474.

Guerrero remains at the corner while the group walks away, creating distance. AR 474. After approximately 15 second, Guerrero begins walking the same direction and Jimenez separates from the group and walks back to Guerrero. AR 474. Jimenez grabs Guerrero and attempts to impede or stop his continued movement down the street. AR 474. Within seconds of the interaction, the entire group moves to the edge of the sidewalk, with Guerrero either in the street or on the curb. AR 474. Accounts of what transpired next are sharply divided and portions of the interaction are at times obscured on the recording. AR 475.

In evaluating the testimony and video, the Board found the following. Estrada, Jimenez, and Ewell were all intoxicated at the time of the incident and testified that they had been drinking continuously before the football game started and intended to continue drinking. AR 477. Guerrero does not appear to have been intoxicated at the time of the altercation. AR 477.

An altercation did occur between Guerrero and Estrada during which Guerrero struck Estrada twice in the head and rendered Estrada unconscious. AR 476. Estrada fell to the ground, striking his head on the pavement and sustaining a multitude of injuries, including fractures and permanent blindness in his left eye. AR 477. The Board did not conclude whether the injuries were the result of Guerrero’s strikes or the resulting fall. AR 477.

It became clear through Ewell’s testimony that Estrada, Ewell, and Jimenez regularly discussed the events of that evening prior to providing their testimony before the Board. AR 478.

The security video clearly depicts that Estrada was the antagonist for the first interaction. AR 478. He can be seen gesticulating wildly with his arms and hands, standing within inches of Guerrero, and returning to Guerrero after an initial attempt by Ewell and Jimenez to separate them. AR 478.

There is a break in which Guerrero had several options available to avoid further confrontation. AR 479. His decision to walk in the same direction on the same sidewalk as the other three was flawed. AR 479. He had a multitude of options to get to where Nuno was waiting for him, and those options would have avoided a further confrontation. AR 479.

Guerrero failed to use the reasonable judgment that a person with his nine years’ experience as a police officer would have made to avoid further confrontations with individuals whom he knows and with whom he had already been involved in a heated argument. AR 479. Guerrero’s decision to walk in the same direction as Ewell, Jimenez, and Estrada led to the additional altercation and permanent injury to Estrada. AR 480. This course of action was unnecessary and could have been avoided. Guerrero is therefore guilty of Count 1. AR 480.

The incident report indicates that the altercation was reported to the Department at 1:25 a.m. the morning of August 14, 2016, two hours after the incident. AR 480. The incident was reported at the University of Southern California Medical Center, with a police response at 5:30 a.m. that morning. AR 481. Since there was no police response to the scene of the incident, the foundation of the allegation for Count 2 has not been met: the arrival of on-duty police officers. AR 481.

Guerrero reasonably fled the scene to avoid further confrontation. AR 481. There was a strong likelihood that an additional altercation would have occurred between Ewell and Guerrero had Guerrero elected to stay at the scene. AR 481.

Guerrero believed the altercation was a misdemeanor and that he was the victim of a crime, which gave him the option not to report the incident. AR 482. Guerrero notified the Department after receiving a text from a mutual friend and learning of Estrada’s condition the morning after the incident. AR 482. Guerrero sought counsel from a union representative and an attorney before notifying the Department. AR 482.

A police officer with Guerrero’s experience should know that the act of striking an individual with two punches is probable cause to believe a felony battery had occurred, therefore raising the obligation to notify the Department. AR 483. The Department has long maintained that an employee has an obligation to immediately notify the Department of their involvement in an incident that may portray the employee or the Department in a negative light. AR 483. Guerrero’s involvement in the incident did just that. AR 483.

Estrada, Ewell, and Jimenez were all aware that Guerrero is a police officer and would likely share that with police officers responding to the incident and Guerrero had an obligation to notify the Department. AR 483. He had the opportunity to do so when he arrived at Topanga Station after Nuno dropped him off. AR 484. The evidence and testimony find that Guerrero failed to meet his obligation to notify the Department in a timely manner of his involvement in the incident and he is guilty of Count 3. AR 484.

In determining the appropriate penalty, the Board considered Guerrero’s work and complaint history and his Watch Commander’s praise of his work ethic and dedication to the Department. AR 485. The Board was deeply concerned that the City’s District Attorney’s Office filed felony battery charges against Guerrero for his altercation with Estrada. AR 485-86. The District Attorney has a strict filing policy that it only files a case when it believes the suspect has committed a crime that can be proven beyond a reasonable doubt at a jury trial, which had a significant impact on the Board. AR 486. Guerrero’s ability to function as a police officer would be severely impaired should he be convicted. AR 486.

The Board was concerned that Guerrero has a sustained complaint for an allegation similar in nature to Count 3. AR 486. Having been involved in a previous similar incident, Guerrero should have known to immediately notify the Department of his involvement. AR 486. Guerrero’s failure to immediately notify the Department violates the Department’s core tenets of respect for others and reverence for the law. AR 486-87. Given the totality of the circumstances, the gravity of being arrested for felony battery, and Guerrero’s involvement in similar misconduct, the Board is left with no other choice but to recommend his termination. AR 487.

On August 8, 2017, Chief Beck certified and issued the order terminating Guerrero, effective July 17, 2017. AR 465.

E. Additional Evidence for Traditional Mandamus

Guerrero was informed by the Chief of Police that he was suspended without pay or benefits on July 17, 2017. Guerrero Decl. ¶2. He was ordered to appear before a Board of Rights, but he was not provided with an opportunity to appeal the Chief of Police’s final decision to terminate him after the Board’s recommendation. Guerrero Decl. ¶3. The Chief of Police’s order terminating him directed him to file a civil action if he wanted further review. Guerrero Decl. ¶3.

Guerrero was charged in the criminal court with felony battery and faced three years imprisonment. Guerrero Decl. ¶4. For various reasons, he pled “no contest” and received a reduced sentence of 30 days in jail. Guerrero Decl. ¶4.

F. Analysis

Petitioner Guerrero seeks traditional mandamus on the ground that the City’s administrative process violates POBRA section 3304(b), the Charter, and due process. Guerrero also seeks administrative mandamus on the grounds that the charges are not supported by the weight of the evidence and that the decision to terminate him was excessive.

1. Traditional Mandamus

Guerrero seeks traditional mandamus to argue that that the City’s administrative process violates section 3304(b), the Charter, and due process in that it fails to provide peace officers with an administrative appeal after the final punitive action to terminate an officer. Pet. Op. Br. at 13-14.

“No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” §3304(b).

No member shall be removed, or otherwise separated from the service of the department, except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges assigned as cause or causes after a full, fair, and impartial hearing before a Board of Rights. Charter §1070(a) (Pet. RJN Ex. B).

Guerrero relies on Morgado v. City and County of San Francisco, (“Morgado”) (2017) 13 Cal.App.5th 1 in support of his position. Pet. Op. Br. at 11. In Morgado, the court held that the City of San Francisco’s disciplinary procedure did not comply with section 3304(b) because the police commission hearing preceded the city’s decision to punish Morgado and did not provide the officer an administrative opportunity to convince the employer to reverse the decision. Id. at 12. The court rejected the argument that the police commission hearing satisfied the city’s section 3304(b) to provide an administrative appeal from a punitive action, explaining that the complaint against Morgado was a punitive action subject to administrative appeal, but Morgado’s termination also was a punitive action under the statute, from which he had the right to administrative appeal. Id. at 8. As a result, the court affirmed the lower court judgment directing the city to provide Morgado an “opportunity for administrative appeal” from the police chief’s decision to terminate his employment. Id. at 5, 16.

Guerrero argues that the Board of Rights process is similarly deficient in failing to provide a final administrative appeal hearing after the Police Chief issues an order terminating an officer following the Board’s determination. Pet. Op. Br. at 13. Guerrero notes that he was terminated by Chief Beck’s order after the Board of Rights hearing and never received an opportunity for administrative appeal from that order. Pet. Op. Br. at 14. He asserts that the Board of Rights hearing is not an administrative appeal of Chief Beck’s subsequent order of removal, and the City therefore violated section 3304(b).

As the City correctly notes (Opp. at 10), the court in Gonzalez v. City of Los Angeles, (“Gonzalez”) (2019) 42 Cal.App.5th 1034, 1046, recently held that LAPD’s Board of Rights hearing process is an administrative appeal that satisfies section 3304(b). The court distinguished Morgado as a case where San Francisco’s disciplinary procedure did not select or impose a specific disciplinary sanction until after the commission hearing, whereas LAPD identified removal as a specific sanction long before the Board of Rights hearing. Gonzalez, supra, 42 Cal.App.5th at 1046. The court noted that the Chief of Police has the power to terminate employees under the City Charter and notifies the accused officer that the penalty is termination well before a Board of Rights hearing. Id. at 1047. The Board hearing is an automatic administrative appeal from the Chief of Police’s decision to terminate the accused officer, and it complies with section 3304(b). Id. at 1047-48.

This court is bound by Gonzalez, and the fact that there is a petition for review pending in the Supreme Court does not affect its controlling authority. See CRC 8.1115. Reply at 5-6. Pursuant to Gonzalez, LAPD’s administrative appeal process complies with section 3304(b). It also complies with the Charter section 1070(a) because Guerrero was discharged after a finding of guilty after a Board of Rights hearing.

As for due process, Guerrero acknowledges that procedural due process is a flexible concept. Burrell v. City of Los Angeles, (1989) 209 Cal.App.3d 568, 576. Pet. Op. Br. at 14. Due process in a public employee termination requires written notice of the grounds for discipline, disclosure of the evidence supporting discipline, the right to present and confront witnesses, the opportunity to be heard at a meaningful time, the right to be represented by counsel, an impartial decision-maker, and a written decision. Brown v. City of Los Angeles, (2002) 102 Cal.App.4th 155, 175. Guerrero does not dispute that he received all of these enumerated rights, and he only argues that due process requires the appeal hearing to occur after Chief Beck’s termination. Pet. Op. Br. at 14. Gonzalez’s reasoning shows that Chief Beck terminated Guerrero before the Board hearing and affirmed the termination afterwards. This complied with due process.[3]

2. Administrative Mandamus

Petitioner Guerrero argues that the Board’s decision to terminate him was against the weight of the evidence. Contrary to the Board’s findings, he did not use poor judgment and timely reported his involvement in the incident. Pet. Op. Br. at 16; Reply at 6, 8.

a. The Video

Guerrero challenges the Board’s reliance on video surveillance footage in reaching its decision. The video was blurry and of low quality.[4] The physical confrontation was an evolving event and, while a video freeze may show the relative position of persons, it cannot show what an individual is observing at a particular moment. Further the video’s reduced frame rate exacerbates the likelihood for uncertainty, making the video jerky and fast. Guerrero relies on two California Supreme Court cases: (a) People v. Bowley, (1963) 59 Cal.2d 855, 862, in which the court stated that a photograph or film has no value without a foundation, which is usually provided by testimony of a person who was present when it was taken, and (b) People v. Gonzalez, (2006) 38 Cal.4th 932, 952, in which the court upheld the exclusion of a video to demonstrate lighting conditions because there was not an adequate foundation laid that the video showed lighting conditions at the time of the crime and the video would not assist the jury. Pet. Op. Br. at 15.

This argument has no merit. Any relevant evidence is permissible in an administrative hearing. §11513(c).[5] Guerrero’s administrative proceeding was not a jury trial and the video dis assist the Board in deciding the case. As the City argues (Opp. at 12), Sgt. Gillies explained how and from where he obtained the video (AR 236-38) and multiple witness confirmed that the video depicts the incident in question. AR 49-51, 56-58, 154-55, 198, 201-02, 285. Therefore, an adequate foundation for the video’s admission was laid. See AR 400. The video is relevant and its lack of quality goes only to its weight. Guerrero not only failed to object to the video, he also used photos from the video as his exhibits. AR 436. The Board specifically stated that it considered all the evidence (AR 364), and it was aware that the video only partial recorded the incident. The Board properly relied on the video.

b. The Proper Standard of Judging Guerrero’s Conduct

Guerrero argues that his conduct was objectively reasonable use of force under the Fourth Amendment, citing Graham v. Connor, (1989) 490 U.S. 386, 388. He notes that the determination of reasonable use of force must be judged from the officer’s perspective at the time, and not with the 20/20 vision of hindsight. The officer must make split-second judgments about the amount of force that is necessary in a particular situation and the inquiry is an objective assessment of reasonableness in light of the circumstances confronting the officer, without regard to the officer’s intent or motivation. Id. at 396-97. Pet. Op. Br. at 15-16.

This is the wrong standard of conduct. Guerrero was off duty and not acting as a police officer using force in the course of making an arrest, investigatory stop, or other seizure of a person under the Fourth Amendment. He was a citizen engaged in a physical altercation and is governed by the law of assault, battery, and self-defense. CALJIC 5.30 states the law of self-defense: a person being assaulted may defend himself if, as a reasonable person, he has grounds to believe that bodily injury is about to be inflicted on him. If so, he may use thee force reasonably necessary to prevent the injury which appears imminent. The circumstances must be sufficient to excite the fears of a reasonable person, and the fear of bodily injury must be imminent. People v. Humphrey, (1996) 13 Cal.4th 1073, 1082. See Opp. at 13.

c. Count 1

Guerrero argues that he did not “inappropriately [become] engaged in a physical altercation which caused permanent injury to Estrada.” AR 376. Guerrero acknowledges that Estrada was permanently injured. Therefore, the issue is whether Guerrero inappropriately became engaged in a physical altercation. Reply at 6.

The Board of Rights determined that the charge was founded because Guerrero decided to walk in the same direction as Estrada, Jimenez, and Ewell, and this decision “was flawed” because Guerrero had “a multitude of options to get where Scarlett was waiting for him.” AR 375. The Board found that Guerrero failed to use the “reasonable judgment” expected of him, and that “this course of action was unnecessary and could have been avoided.” AR 376.

Guerrero argues that the Board’s recommendation was based on low quality video evidence that did not show much of the actual physical confrontation, disregarded Guerrero’s testimony that he reasonably acted in self-defense (AR 298-300), and relied on inconsistent testimony from the injured party and his friends (all of whom admitted to consuming large amounts of alcohol prior to the incident). AR 114, 141, 174, 206-08. Guerrero concludes that the Board of Rights’ conclusion of his guilt on Count 1 was against the weight of evidence. Pet. Op. Br. at 17.

Ironically, Guerrero relies on the video to argue that the Board’s reasoning does not support the charge. The Board acknowledged that “the security video clearly depicts that Raul Estrada, for the first four minutes and 50 seconds, was the antagonist in this incident.” AR 374. Guerrero notes that the entire incident took less than five minutes. AR 404. Guerrero testified that he had to walk in the same direction as the others in order to meet Nuno, who was picking him up. She told him that she was nearby Perch, the lounge to which Estrada, Jimenez, and Ewell were walking. AR 283-85. Nuno’s testimony was in accord because she told him to meet her at 3rd or 4th Street and Broadway. AR 219-20, 222. Guerrero concludes that the Department presented no evidence that he had “a multitude of options” to get to Nuno’s car, let alone evidence that he had a duty to select some other option. Reply at 6-7.

Guerrero testified that he felt the three men “were already much more ahead” when he started walking. AR 286. As can be seen on the video, they are quite a distance away when Guerrero starts walking. AR 404 (22:52:39). Jimenez then stops (AR 404 (22:52:40)), and Estrada and Ewell began walking back toward him. AR 404 (22:52:40). Estrada, Ewell, and Guerrero all meet Jimenez at the same time and Ewell appears to menace Guerrero to the curb, and Guerrero pushes Ewell away and ends up in the street. The subsequent action is obscured until Guerrero punches Estrada. AR 404 (22:53:00 et seq.) Reply at 7.

Guerrero concludes that he used good judgment in waiting for the three men to put some distance between the parties before walking in the only direction he could to reach Nuno in an expeditious manner. Had Jimenez not stopped, and had Estrada and Ewell not walked back toward Guerrero, the physical altercation would not have occurred. Guerrero thus did not engage in an “unnecessary and avoidable course of action.” Reply at 7.

The court disagrees. First, the video does not fully support Guerrero’s version. The video shows Guerrero jawing with Estrada and perhaps others as they walked away. It then shows Guerrero walking quickly towards them to catch up to them, not simply move in the same direction. Once he gets to them, the video shows Guerrero pushing Ewell without physical provocation. While the punches are not easily seen, they occur. Guerrero then runs away, turns, and yells something to the remaining two standing.

The Board did not discuss what Guerrero’s other options were because it was not necessary. Guerrero could have taken several actions that would have avoided the physical altercation. He could have walked more slowly rather than moving quickly to catch up. He could have waited longer than 15 seconds, calling Nuno if necessary to say he would be late. He could have crossed the street and re-crossed farther on past the group. He could have called Nuno to arrange for a different location pickup by Nuno. Guerrero does not explain why other courses of action were not viable. The Board rightfully noted that Guerrero failed to use the reasonable judgment that a person with his nine years’ experience as a police officer would have made to avoid further confrontations with individuals he knows and with whom he had already been in a heated argument. AR 479.

Guerrero further argues that he reasonably believed he was in imminent threat of bodily harm from both Estrada and Ewell and had the right to defend himself. He testified that he believed he was the victim of an assault. AR 298, 300. Pet. Op. Br. at 16; Reply at 6.

Guerrero argues that, although Jimenez, Estrada, and Ewell testified differently, they coordinated their testimony. Indeed, they admitted to speaking about the incident on several occasions before testifying at the Board of Rights hearing. AR 114, 141.

There also were inconsistencies in their testimony. Jimenez withheld Guerrero’s name when he filed a police report. Ewell testified that Guerrero aggressively approached them and yelled “fuck you” and “let’s fight”, but then admitted he withheld this information when interviewed by Sgt. Gillies. AR 141. Finally, Estrada had motive to instigate a confrontation with Guerrero, who used to pick on him in a high school math class. AR 206-08. Estrada also admitted that he filed a claim for damages with the City because he “wanted justice”. AR 174. Pet. Op. Br. at 17.

The facts do not support self-defense. On the car phone, Guerrero referred to Estrada as a "faggot fraternity brother". Guerrero had no fear of Estrada and no need to defend himself. Guerrero was angry before he arrived at the corner of 5th and Broadway because he had spent so much effort to retrieve his wallet and i.d. Once he arrived, he remained angry, not fearful, and he had contempt for Estrada. He described Estrada as having his "chest puffed out".

His anger intensified when Estrada interjected when Guerrero berated Jimenez. When Estrada argued with him, Guerrero told Jimenez: "If you care about your cousin get him out of here." AR 272. The implication is that Guerrero – who was much larger than Estrada and had Marine training --believed he easily could defeat Estrada in a fight, Guerrero even turned his back on Estrada in the video, even though he testified that Estrada had challenged him to a fight. Opp. at 14.

Guerrero did not walk away, and rather moved quickly to catch up to the others. Jimenez testified that Guerrero had no need to defend himself because no one physically threatened him. AR 60. Ewell testified that Guerrero was "super aggressive" like he was "on some type of substance." AR 122. The City notes that Jimenez and Ewell, not Estrada, tried to block Guerrero. This shows who the was the aggressor in the physical confrontation. Guerrero had no intention of retreating even though he clearly had that option. Guerrero pushed Ewell and punched Estrada twice. None of the other three committed any assault. These are not the facts of self-defense. Opp. at 13-14.[6]

The weight of the evidence supports Guerrero’s guilt on Count 1.

d. Count 3

The Board found that Guerrero failed to notify the Department of a significant off-duty altercation in a timely manner. AR 378-80.

The Department’s policy is to notify any reportable incident in a timely manner.[7] The Board correctly concluded that a police officer with Guerrero’s experience should know that the act of striking an individual with two punches is probable cause to believe a felony battery had occurred and therefore raises the obligation to notify the Department as a possible felony suspect. AR 483. Guerrero admitted that he did not report the incident to the chain-of-command until approximately 5 p.m. the next day. AR 328.

Guerrero testified that he believed he was the victim of a misdemeanor crime that he was not required to report. AR 278, 324, 482. As the City notes, his testimony suggests that he was not going to report the incident at all. Opp. at 15. Guerrero had the opportunity to report when he arrived at Topanga Station after Nuno dropped him off, but he failed to do so. AR 484. He did not do so until he was notified of the severity of Estrada’s injuries, called his union representative, and called his lawyer. Only then did Guerrero call his supervisor at 5:00 p.m.

In reply, Guerrero argues that there is no evidence what a “timely” report to a supervisor is. Reply at 9. Apart from the fact that this issue is waived for being raised for the first time in reply (Regency Outdoor Advertising v. Carolina Lances, Inc., (“Regency”) (1995) 31 Cal.App.4th 1323, 1333), timeliness is dependent on circumstances. Waiting until the next day to report an incident is not reasonable, particularly where the officer is motivated to report only because the incident has been reported by someone else and will reach his supervisors’ ears anyway.

Guerrero argues that he explained that he waited to report because he was the victim of a crime and wanted to have representation. AR 301. He notes that an employee is entitled to union representation under the Meyers-Milias-Brown Act where “significant purpose of [a] meeting is to obtain facts to support disciplinary action that is probable or that is being seriously considered.” Alfred M. Lewis, Inc. v. N.L.R.B., (9th Cir. 1978) 587 F.2d 403, 410. Reply at 9. Guerrero’s union rights are irrelevant. He failed to report the incident; he was not asked to meet with an investigator to discuss the incident.

The weight of the evidence supports Guerrero’s guilt on Count 3.

3. The Penalty

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake, supra, 47 Cal.App.3d at 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly, supra, 15 Cal.3d at 217-18. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale, supra, 7 Cal.3d at 515.

Guerrero argues that the penalty of termination was excessive. He was off-duty at the time of the incident and, given the uniqueness of the events, his conduct did not result in harm to the public service and is unlikely to recur.

Guerrero notes that his career with the Department also was exemplary. For example, he received 45 commendations, including nine citizen commendations, discussing his diligence, good police work and compassion to the community. AR 383. He was officer of the quarter in the Topanga Station. AR 383. His commanding officer wrote a favorable note to the Board. AR 384. Lt. Warner Castillo provided significant character witness testimony on Petitioner’s behalf. AR 389. In his 22 years with the Department, this was only the second time Lt. Castillo felt the need to provide character witnesses testimony to the Board of Rights. AR 390. He testified to Petitioner’s great work ethic and that he is a good family man. Id. Pet. Op. Br. at 17-18.

Guerrero concludes that termination is unwarranted in light of his service to the Department, his positive performance and work ethic, and his positive evaluations from his superiors. Reply at 10-11.

a. Circumstances of the Misconduct and Harm to Public Service

The circumstances of the misconduct and harm to public service are serious. Guerrero is guilty of punching a man unconscious in the street, causing permanent vision loss in one eye (Count 1), fleeing the scene (not charged as such, but proven), and failing to timely report the incident (Count 3). As the City argues, Guerrero – who was not drunk -- displayed poor judgment which led to his involvement in a physical altercation in which he punched Estrada unconscious. Guerrero’s misconduct resulted felony battery charges against him[8] and a claim for damages against the City. Jimenez, Ewell, and Estrada were all aware that Guerrero was a police officer. Guerrero’s misconduct brought disrepute to the Department and exposed the City to civil damages.

Guerrero’s failure to timely report the incident shows a disregard for his duty. He intended not to report the incident at all. He decided to report it only after he had been notified the next morning of the seriousness of Estrada's injuries. He knew a police report would be filed and contacted his union representative and an attorney. Only then did he untimely notify his superiors.

Guerrero argues that the Department’s concern that he did not alert a supervisor until after he learned that Estrada was in the hospital depends on information that could only have been learned the next morning. Pet. Op. Br. at 16. Guerrero misses the point, which is that Guerrero was motivated to report the incident only when he learned that Estrada would do so. Even then, he spoke to an attorney and a representative before reporting it at 5:00 p.m. the next day.

b. Likelihood of Reoccurrence

Guerrero does not believe he did anything wrong and claims self-defense. To the contrary, Guerrero’s actions show that his misconduct is likely to recur if he gets angry. Guerrero does not acknowledge any wrongdoing. The video shows that he triumphantly ran away and yelled something. Ewell testified that Guerrero was “hooting and hollering” as if he had just won a fight and said “that’s right fuckers” before running away. AR 124. These facts show that Guerrero is likely to repeat his misconduct.[9]

The Department justifiably lost trust in Petitioner Guerrero to act reasonably as a police officer. Encounters with intoxicated or otherwise unstable individuals are an unavoidable part of a police officer's duties. Guerrero’s termination was not a manifest abuse of discretion.

F. Conclusion

The petition for writ of mandate is denied. The Department’s counsel is ordered to prepare a proposed judgment, serve it on Guerrero’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for March 5, 2020 at 9:30 a.m.


[1] All further statutory references are to the Government Code unless otherwise stated.

[2] Guerrero request judicial notice of: (1) Charter section 574 (Ex. A); and (2) Charter section 1070 (Ex. B). The requests are granted. Evid. Code §452(b).

In a separate request, Guerrero seeks judicial notice of the Petition for Review in Gonzalez v. City of Los Angeles, et al., S260084 (Ex. A). The existence of the requested document, but not the truth of its contents, is judicially noticed. Evid. Code §452(d); Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551 (judicial notice of findings in court documents may not be judicially noticed).

[3] As a result of the City’s compliance with section 3304(b), Guerrero’s claim for damages under section 3309.5 is moot. Pet. Op. Br. at 18.

[4] The court has viewed the video.

[5] Section 11513(c) provides:

 

"[An administrative hearing] ... need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions."

[6] The court does not find the purported witness inconsistencies and Estrada’s additional motive to be significant.

[7] Guerrero disputes whether he testified that he knew there was a Department policy to “immediately report” (AR 301), but he does not disagree that he had a duty to timely report. Reply at 8.

[8] Guerrero argues that the Board speculated on the outcome of the District Attorney’s charges against him. Reply at 12. Perhaps so, but the harm is done by the filing of charges against a police officer, no matter the outcome.

[9] The Board found that Guerrero has a prior sustained complaint from four years before the incident in which he failed to timely report an incident. AR 397. Guerrero does not deny this sustained complaint, but he contends that it is not in the record. Therefore, it is impossible for the court to understand its impact. Reply at 12. It appears that the pertinent portion of Guerrero’s personnel record is not in evidence. Nonetheless, this is an issue that Guerrero should have presented in his opening brief and it is waived. Regency, supra, 31 Cal.App.4th at 1333.