LOUIS LOZANO, ET AL. VS CITY OF LOS ANGELES, A MUNICPAL CORPORATION AND CHARTER CITY WITHIN THE STATE OF CALIFORNIA, ET AL.

Tentative Rulings

Case Number: *******0168    Hearing Date: July 14, 2020    Dept: 82

Petitioners Louis Lozano and Eric Mitchell (“Petitioners”) petition for a writ of mandate directing Respondents City of Los Angeles and Michel Moore, Chief of Police (“Respondents” or “City”) to set aside City’s decision to terminate Petitioners from their positions as police officers with the Los Angeles Police Department (“LAPD” or “Department”).

Judicial Notice

Respondents’ Request for Judicial Notice, Exhibits 1-4 – Granted. (See Evid. Code ; 452(b), (h).) Petitioners expressly rely on City Charter sections 571 and 1070 in their opening brief. LAPD Manual Sections 1/090-1/098.10 and Charter section 574, which discuss powers and duties of the Chief of Police, are related to Petitioners’ arguments about City Charter sections 571 and 1070. (See Opening Brief (OB) 14-15.) No objection from Petitioners has been received to the request for judicial notice.

Respondents’ Objections to Petitioners’ Reply Brief – Sustained. See analysis below.

Factual and Procedural Background

The Robbery-In-Progress (211) Radio Call at Macy’s

On Saturday, April 15, 2017, Petitioners were LAPD officers working as partners in Southwest Division. Lozano had been an LAPD officer for eighteen and a half years and Mitchell had been an LAPD officer for nine and a half years. (AR 262-63, 357.) They were assigned to a foot beat responsible for community service and “quality of life issues” in the Crenshaw Corridor and Leimert Park areas. (AR 263, 282, 358-359.)

At approximately 5:51 pm, LAPD’s Communications Division broadcast that three black males on the second floor in the Macy’s at the Baldwin Hills Crenshaw Mall were involved in a possible robbery in progress (211) and fighting with store security. (AR 628-629, 596-597, 54.) Captain Darnell Davenport (Davenport), the patrol commanding officer at Southwest Division, was in the area and responded to the radio call. He was alone and needed back up. He advised Communications Division that he was at the location (Code 6) and requested an air unit. (AR 54-55.) These broadcast messages were recorded on Petitioners’ in-car video. (AR 52-54, 91, 596, 629.)

Petitioners were in their patrol car near the mall. According to a transcript of the in-car video, when Lozano asked “we’re not code 6, are we?,” Mitchell responded “we are” and “at the corner.” (AR 629.) Within moments of Davenport’s radio broadcast, Petitioners’ patrol car backed away from the mall and one of them said “I don’t want to be this help.” (AR 150-151, 629-630.) Instead of assisting Davenport, Petitioners broadcast their location (Code 6) within the Crenshaw Corridor. (AR 151.)

Davenport had been a LAPD officer for over 30 years as of the date he testified at the administrative hearing. (AR 46.) Southwest Division was very busy on April 15, 2017. There were more calls than there were police cars to respond. A homicide investigation had used up most of the Division's resources. (AR 50-51.) He responded to the Macy's robbery call while going to the homicide investigation (AR 49) and saw Petitioners' patrol car in the alley. (AR 53-54.)

Sgt. Gomez Attempts to Determine Why Petitioners Did Not Respond to Broadcasts

Back at the station, Sergeant Gomez also heard the radio call about the robbery in progress at the mall. (AR 49, 91-92.) Gomez noticed that Petitioners were on the Crenshaw Corridor and could possibly assist at the mall. (AR 93.) He thought it was peculiar that Petitioners went Code 6 on the Crenshaw Corridor at approximately the same time that Captain Davenport when Code 6 on the 211 robbery call. (AR 101.)

After unsuccessfully attempting to contact Petitioners through Communications Division and directly, Gomez met Petitioners at a 7-Eleven store at 43rd and Crenshaw. (AR 101-102; see also AR 92-93, 637.) At the 7-Eleven, Gomez asked Petitioners, “Did you guys hear the backup that came out at Crenshaw Mall?.... It was a 211 in progress and Captain Davenport went Code 6 on it.” (AR 659, 103.) Mitchell told Gomez that he did not hear Davenport go Code 6. (AR 103, 659.) Lozano replied, "I heard him go Code 6, but I didn't hear the backup.” (AR 659, 103.) Petitioners discussed listening to the radio and Mitchell said the music in the park is loud on Saturdays. (AR 103-104, 660.) Gomez counselled them for not listening to the radio. (AR 104, 659-660.)

The following day, Gomez decided to review Petitioners' digital in-car video system (DICVS). Gomez learned that Petitioners were aware of the radio call and that the Division was extremely busy that day. He learned that Petitioners discussed their current location and drove away from the mall. Gomez believed that Petitioners broadcasted they were in the Crenshaw Corridor to appear to be involved in other police business. Gomez learned that Petitioners discussed his attempts to reach them and asked themselves why they were wanted at the mall and if it was to help. Gomez believed they failed to respond to Davenport's broadcast and lied to him about why they didn't respond. (AR 108-109.) After conferring with his chain of command, Gomez initiated a personnel complaint. (AR 132-133.)

Sgt. McClanahan’s Investigation

Sergeant Tracy McClanahan investigated the personnel complaint. (AR 149.) According to McClanahan’s testimony, Petitioners told McClanahan they did not respond to the Macy’s robbery call because Davenport did not request backup, did not put out a help call, and it was out of their area. (AR 152.) They also told McClanahan that both Captain Woodyard, the Southwest Area Commanding Officer, and Davenport had told them not to leave their area. According to McClanahan’s investigation, Woodyard and Davenport denied giving that instruction. (AR 153.) Woodyard said that Petitioners were able and expected to respond. (AR 154.) According to McClanahan, Lozano told her that he did not respond because he was waiting to see if a patrol unit was going to respond and he did not think Davenport was in danger. (AR 158.) McClanahan concluded that Petitioners heard the robbery call and decided not to respond. (AR 154-160.)

McClanahan also became aware that Petitioners were playing Pokémon Go on April 15, 12 2017, after Lt. Kalis advised her that she didn't understand terminology from the game Pokémon after listening to the DICVS audio. (AR 173.) McClanahan heard Petitioners describe "Norlax" on the DICVS. (AR 175, 640, 707 at 2:00:36.) "Snorlax" is a Pokémon figure. (AR 178.) McClanahan described the game as popping up little characters that can only be seen on a phone and points are acquired by chasing and capturing them. (AR 176.) McClanahan heard Petitioners mention 46th and Leimert which is where Snorlax popped up. (AR 177-178, 640, 707 at 2:09:40.) According to McClanahan, after she asked Petitioners why they drove to 46th and Leimert, Petitioners represented that they did not drive to that location to play Pokémon. (AR 219-221.) Lozano told her they were working extra patrol on Davenport's orders because of robberies in the area. Mitchell said that an event called Days of Dialogue was going to be held at Dulan's restaurant and they drove past because he was going to be setting up. Davenport told McClanahan that he did not tell them to go and there was no reason to do so. The video shows them at that location playing a video game, which also led McClanahan to conclude they made misleading statements to her. (AR 220-221.)

Board of Rights Hearing and Decision

Petitioners were charged with the following counts of misconduct, which were heard by a Board of Rights (BOR):

Charges against Mitchell:

Count 1. Or about April 15th, 2017, you, while on-duty, failed to respond to a robbery-in-progress radio call.

Count 2. On or about April 15th, 2017, you, while on-duty, made a misleading statement to Sergeant J. Gomez when asked why you did not hear the radio.

Count 3. On or about April 15, 2017, you while on-duty failed to respond over the radio when your unit was called.

Count 4. On or about April 15th, 2017, you, while on-duty, failed to handle an assigned radio call.

Count 5. On or about April 15, 2017, you, while on-duty were playing Pokémon Go while on patrol in your police vehicle.

Count 6. On or about October 2017, you, while on-duty, made false statements to a department supervisor during a complaint investigation.

Charges against Lozano:

Count 1. On or about April 15, 2017, while on-duty failed to respond to a robbery in progress radio call.

Count 2. On or about April 15th, 2017, you, while on-duty, failed to respond over the radio when your unit was called.

Count 3. On or about April 15th, 2017, you, while on-duty, failed to handle an assigned radio call.

Count 4. On or about April 15th, 2017, you, while on-duty, were playing Pokémon Go while on patrol in your police vehicle.

Count 5. On or about April 15th, 2017, you, while on-duty, made misleading statement to Sergeant J. Gomez when asked why you did not hear the radio.

Count 6. On or about October 20th, 2017, you, while on-duty, made a false statement to a department supervisor during a complaint investigation. (AR 8-10.)

Mitchell pleaded guilty to counts 1 and 3, and Lozano pleaded guilty to counts 1 and 2. (AR 8-10.) The BOR found Mitchell guilty of counts 1, 2, 3, 5, and 6 and not guilty of count 4. The BOR found Lozano guilty of counts 1, 2, 4, 5, and 6 and not guilty of count 3. (AR 8-10, 494-496.) The Board recommended that Petitioners be removed from their employment as police officers with LAPD. (AR 548.) The Chief of Police signed the order imposing the recommended penalty of discharge. (See AR 690.)

Writ Proceedings

On January 22, 2019, Petitioners filed a verified petition for writ of mandate pursuant to CCP sections 1085 and 1094.5.[1] On January 15, 2020, Petitioners filed their opening brief in support of the petition. The court has received Respondents’ opposition, Petitioner’s reply, the administrative record, and the joint appendix. The court has also received Respondents’ objections to reply brief and Petitioners’ response to the objections.

Standard of Review

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP ; 1094.5(b).)

Because Petitioners’ discharge concerns a fundamental vested right, the court exercises its independent judgment on the record. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, supra, at p. 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 (Morrison).) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

Analysis

Admissibility of In-Car Video Recordings

At the administrative hearing, Petitioners’ counsel objected to the use of in-car video as evidence because the two officers were unaware they were being recorded. Petitioners’ counsel relied on Special Order No. 45 issued by the Chief of Police and approved by the Police Commission in October 1999. (See AR 31-32, 551-553.) The BOR overruled the objection on the grounds that the use of in-car video as evidence was permitted by guidelines issued by the LAPD’s Professional Standards Bureau on August 27, 2015 if there is “evidence of criminal or egregious misconduct.” (AR 491-492, 688.) The BOR concluded that the evidence captured on the in-car video showed misconduct by Petitioners that “would certainly be classified as egregious.” (AR 492.)

In their opening writ brief, Petitioners contend that the BOR prejudicially abused its discretion in this evidentiary ruling because “the guidelines relied upon by the Board of Rights conflict with the rules outlined by the Police Commission and, therefore, lack force of law.” (OB 14.)

Special Order No. 45 (“SO 45”), titled “Digital In-Car Video System Use and Development – Pilot Program,” was issued by the Chief of Police on October 20, 2009, and approved by the Board of Police Commissioners that same date. SO 45 states in pertinent part: “The Digital In-Car Video System is being deployed in order to provide Department employees with a tool for crime documentation and prosecution, and not to monitor private conversations between Department employees.” (AR 551 [emphasis in original].)

On August 27, 2015, the commanding officer of LAPD’s Professional Standards Bureau, acting as “Deputy Chief,” issued Notice 13.5 to all LAPD commanding officers, with the following subject: “Guidelines for Reviews of Body Worn and Digital In-Car Video Recordings.” The notice was approved by Commander Sean Malinowski, chief of staff in the office of the Chief of Police. The notice stated in pertinent part: “Similarly, as specified in Special Order No. 45, 2009, Digital In-Car Video System Use and Deployment - Pilot Program, the DICV system was not deployed 'to monitor private conversations between Department employees.' If, however, a sensitive personal communication between employees is recorded, the personal communication will not be used to initiate a personnel complaint investigation or used against an employee in the adjudication of a personnel complaint, or during any subsequent hearings, unless there is evidence of criminal or egregious misconduct." (AR 688.)

Petitioners do not dispute that the in-car video provided evidence of egregious misconduct.[2] (See OB 14:18-28.) Rather, Petitioners challenge the BOR’s evidentiary ruling based on the following argument: “Los Angeles City Charter Section 571(b)(1) gives the Commission the power to ‘issue instructions to the Chief of Police concerning the exercise of the authority conferred on the Chief of Police by the Charter, other than the disciplinary authority conferred by Section 1070.’ There is nothing in Charter Section 1070, describing the Chief's disciplinary authority, which can be read to authorize him to promulgate rules concerning the use of in-car videos which are contrary to the rules adopted by the Police Commission.” (OB 14-15.)

Petitioners’ reliance on Charter sections 571(b)(1) and 1070 is not persuasive. Section 571(b)(1) gives the Board of Police Commissioners (“Police Commission”) the power to issue instructions to the Chief of Police concerning matters other than the Chief’s disciplinary authority under section 1070. Section 571(b)(1) would only apply if the Police Commission had issued instructions invalidating Notice 13.5 or otherwise stating that the Chief of Police cannot approve notices such as Notice 13.5. Petitioners submit no evidence of such instructions issued by the Police Commission. Nor do Petitioners identify any language in section 1070 that prevented the Chief of Police from issuing Notice 13.5.

In the opening brief, Petitioners seem to contend that the Chief of Police lacked authority to issue Notice 13.5 because it “conflicted” with SO 45. (OB 14.) However, Petitioners do not identify a conflict. SO 45 was issued in October 2009 as part of a “pilot program.” While SO 45 states that the DICVS is not being deployed to monitor private conversations between Department employees, it is implied that the DICVS would necessarily record some conversations of Department employees. SO 45 states nothing about the circumstances in which in-car video could be used in disciplinary proceedings against Department employees. Notice 13.5, issued nearly six years later, provides guidelines for reviewing DICVS recordings and allows for use of DICVS recordings in personnel complaints if there is evidence of “criminal or egregious misconduct.” Since SO 45 is silent on the use of DICVS recordings in personnel complaints, Notice 13.5 does not conflict with SO 45.

In reply, Petitioners argue that “there is no evidence that the Chief of Police issued or approved Notice 13.5.” (Reply 6.) This argument is not persuasive. The Chief of Police had authority to issue the guidelines set forth in Notice 13.5. (See Charter Sec. 574; LAPD Manual Sections 1/090-1/098.10.) Notice 13.5 was issued by a “Deputy Chief,” was approved by the Office of the Chief of Police, and was sent to all commanding officers. It is reasonably concluded that the Chief of Police, either impliedly or expressly, approved of Notice 13.5. The court also notes that the Chief of Police executed the order of discharge in this matter, after a BOR decision that specifically relied on Notice 13.5. (See AR 690.)

In reply, Petitioners argue, for the first time, that the in-car video recording was inadmissible pursuant to Penal Code section 632. (Reply 4-5.) In support, Petitioners cite Rattray v. City of National City (9^th Cir. 1994) 36 F.3d 1480, which analyzed Penal Code section 632. Respondents object that Petitioners improperly raise these arguments for the first time in reply. The court agrees. “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Contrary to Petitioners’ argument in response, this rule applies both in the trial court and on appeal. (See e.g. Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333.) Petitioners provide no explanation for failing to raise an argument related to Penal Code section 632 in their opening brief, and they do not show good cause for the court to consider an entirely new reply argument.

The court disagrees with Petitioners’ contention, in response to the objection, that section 632 was “simply” “additional legal authority” to support arguments made in the opening brief. (Response 4.) Penal Code section 632 has no relevance to Petitioners’ moving arguments made under the City Charter. Respondents have not addressed Penal Code section 632 in their “objections” and have not waived the procedural defect. Accordingly, the court does not reach Petitioners’ reply arguments related to Penal Code section 632.

Even if the court were to consider this argument, Petitioners do not show, with evidence, that their communications were “confidential” within the meaning of section 632(c). Although Petitioners claim that they were unaware that the DICVS recorded their conservations while on patrol on April 15, 2017, it is implied from SO 45 and Notice 13.5 that DICVS could “unintentionally” record personal communications of officers. (See AR 551, 688.) The DICVS recording of Petitioners’ communications was a “circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (; 632(c).)

POBRA

Petitioners contend that Respondents violated the Public Safety Officers Procedural Bill of Rights (“POBRA”) because “Sergeant Gomez questioned them [at the 7-Eleven when] he was conducting an investigation that could, and did, lead to punitive action.” (OB 16.)

Section 3309.5 of POBRA makes it “unlawful for any public safety department to deny or refuse to any public safety officer the rights and protections guaranteed to him or her by this chapter.” (; 3309.5(a).) POBRA establishes procedural rights, including a right to representation, when a police officer “is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action.” (Gov. Code ; 3303.) The statute does not apply, however, “to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer.” (Id. ; 3303(i); see Steinert v. City of Covina (2006) 146 Cal.App.4th 458, 461-462.)

Section 3303(i) “is intended to cover innocent preliminary or casual questions and remarks between a supervisor and officer. It was included to avoid claims that almost any communication is elevated to an ‘investigation.’” (City of Los Angeles v. Sup.Ct. (1997) 57 Cal.App.4th 1506, 1514.) 

The parties cite the following evidence relevant to Petitioners’ POBRA claim. On April 15, 2017, while at the station, Sergeant Gomez also heard the radio call about the robbery in progress at the mall. (AR 49, 91-92.) He headed for his car to back up Davenport but ran into Sergeant Tim Morris in the parking lot. Morris agreed to go. Another unit broke away from the shooting crime scene and responded to Macy's. (AR 92-93.)

Gomez noticed that Petitioners were Code 6 on the Crenshaw Corridor; “there were no comments” on Petitioners’ Code 6 incident; and they could possibly assist at the mall. (AR 92-93.) Gomez testified that he requested that the Communications Division radio Petitioners (call sign 3FB2) to ask them to respond to the mall. (AR 93-94.) Lozano testified that he did not hear a call for 3FB2 to respond to the mall. (AR 287; see also AR 629-631.) At the BOR hearing, Gomez listened to the recording and admitted he did not hear himself asking Petitioners to backup Davenport. (AR 111.)

At 1804 hours, Sergeant Gomez called Communications and asked “Did 3FB2 respond, acknowledge.” (AR 92-93, 637.) This query was recorded on the in-car video. Both Petitioners can be heard asking "for what?” (AR 100, 637.)

When asked about the purpose of his meeting with Petitioners at the 7-Eleven, Gomez testified that he thought it was peculiar that Petitioners went Code 6 on the Crenshaw Corridor at approximately the same time that Captain Davenport when Code 6 on the 211 robbery call. (AR 101.) Gomez “wanted to find out what happened” and “why … they didn’t respond.” (Ibid.) At the 7-Eleven, Gomez first asked Petitioners, “Quick question. We’re still trying to wrap my head around all this. What your guys’ role here is just to keep the [peace] up and down.” (AR 102, 658.) Later, Gomez asked Petitioners, “Did you guys hear the backup that came out at Crenshaw Mall?.... It was a 211 in progress and Captain Davenport went Code 6 on it.” (AR 659, 103.) Mitchell told Gomez that he did not hear Davenport go Code 6. (AR 103, 659.) Lozano replied, "I heard him go Code 6, but I didn't hear the backup.” (AR 659, 103.) Petitioners discussed listening to the radio and Mitchell said the music in the park is loud on Saturdays. (AR 103-104, 660.) Gomez testified that he accepted this explanation: “If there’s loud noise and you can’t hear the radio, I have nothing to say.” (AR 103; see also AR 105.)

Gomez, thinking Petitioners simply had not heard the radio, counseled them for not listening to the radio. (AR 104, 659-660.) After Lozano repeated that they did not hear the request for backup, Gomez counseled that “[Captain Davenport] was the only one there, even if it was not a backup, it would probably be a good idea to stop by and see … what’s happening.” (AR 660-661.) Gomez also instructed Petitioners to “put out [i.e. Code 6] your specific location” when they make contact with a citizen. (AR 661-662.) Before leaving, Gomez asked Petitioners, “you guys have any questions about my concerns?” (AR 662.)

On cross-examination, Gomez testified that he ran the incident history for Petitioners’ Code 6 location on Crenshaw Corridor, which indicated that “they were not responding to a radio call.”[3] (AR 113.) Petitioners’ counsel asked Gomez whether Petitioners’ Code 6 on Crenshaw Corridor caused him concern. Gomez responded that it did cause concern, explaining: “Because we have a high priority call that has a potential to create a dangerous situation for a single man unit at the call. And if they are assigned to that FB car and assigned that area, they should be able to respond.” (AR 114.) Petitioners’ counsel asked, “Did you think at that point it was appropriate for them to be Code 6 just in the area, as opposed to on a call, when there is a 211 in progress going on across the street when the captain was there by himself?” (AR 114-115.) Gomez felt it was inappropriate for Petitioners to go Code 6 in that circumstance and he responded to have a conversation with them. (AR 115.)

The day after the meeting at 7-Eleven, Gomez decided to review Petitioners' DICVS, which led to the internal investigation. (AR 108-109, 132-133.)

In their opening writ brief, Petitioners contend that Respondents violated POBRA because “Sergeant Gomez clearly believed that he had radioed a back-up order to Lozano and Mitchell” and “he arranged to meet them at the 7-Eleven to find out why they had ignored that radio call.” (OB 15.) In reply, Petitioners contend that “ignoring a call for backup is tantamount to disobeying an order and was one of the charges the officers faced.” (Reply 8.) Thus, Petitioners argue that Gomez, when he went to the 7-Eleven, was investigating Petitioners based on a suspicion of ignoring his backup call and, in effect, insubordination.

The BOR interpreted the evidence differently. It found that the conversation at 7-Eleven “was in the normal course of Sergeant Gomez’ duty through Gomez’ counseling, instruction and was routine and expected of a supervisor.” (AR 492-493.) BOR also indicated that it had relied on the DIVCS recording and a transcript thereof. (Ibid.) BOR cited language from City of Los Angeles v. Sup.Ct. (1997) 57 Cal.App.4th 1506, 1514 that section 3303(i) was included in POBRA “to avoid claims that almost any communication is elevated to an ‘investigation.’”

In City of Los Angeles, a fatal accident occurred while a Filipino officer (Labio) was on duty. Shortly after the accident, supervising officers were told by a citizen that a male Filipino officer had driven past the site of the traffic accident, and gone to a doughnut shop, without stopping to render aid, a serious offense. The supervising officers checked a deployment log and determined that Labio was the only Filipino officer on duty. They went to the doughnut shop and were told that a male Filipino officer had been there at about the time of the accident. The supervising officers also determined that Labio did not have permission to use a City vehicle that evening. (Id. at 1510.)

Without informing Labio he was under investigation, one of the supervisors, Lieutenant Martinez questioned Labio concerning his whereabouts and use of the City vehicle during his shift. The Court of Appeal also described these additional relevant facts: “When Lieutenant Martinez questioned Officer Labio, he knew that passing by the scene of the accident without stopping to render aid was a serious offense and that the officer could face disciplinary action if the allegation were sustained. Lieutenant Martinez testified that if passing by the scene of the accident were a felony, at the time he interviewed Officer Labio he would have had probable cause to take him in custody…. When Lieutenant Martinez questioned Officer Labio, he also realized the matter would have to be forwarded to the department's internal affairs division (IAD). Following the interview, Lieutenant Martinez filed a personnel complaint with the IAD.” (Id. at 1511.)

Based on these facts, the Court of Appeal concluded that the City violated POBRA. The Court stated: “There probably are cases in which routine questions and remarks begin to shade into an investigation to which subdivision (i) does not apply. We need not decide just where that point is reached because it is clear that under our test an investigation was underway in this case.” (Id. at 1514.)

Here, in contrast to the “clear” facts showing an investigation had commenced in City of Los Angeles, Gomez’s purpose in meeting with Petitioners at the 7-Eleven is more consistent with counseling or “routine or unplanned contact” that would be expected of a supervisor.

As Gomez testified, the robbery call was “high priority” and also unfolded rapidly. After Davenport requested an air unit, “for the next five, seven minutes it was chaotic.” (AR 91.) Gomez initially headed to his car to respond himself, only to return after Sergeant Morris indicated he would go. (AR 92-93.) The speed at which the situation unfolded tends to suggest that the meeting at 7-Eleven was unplanned or routine counseling, and not part of an investigation into Petitioners’ conduct.

Gomez was curious why Petitioners were Code 6 on Crenshaw Corridor, near the mall, at approximately the same time Davenport went Code 6 on the robbery call. (AR 101.) Gomez believed, apparently mistakenly, that he radioed Petitioners to respond to the mall, and he ran the incident history for Petitioners’ Code 6 location. Gomez “wanted to find out what happened” and “why … they didn’t respond.” (Ibid.; see AR 93-94, 111, 113.) It does not follow that Gomez suspected Petitioners of misconduct. There could be any number of reasons, consistent with Petitioners’ duties as foot beat officers, that they would be Code 6 on Crenshaw Corridor at the time of the robbery call. Their failure to respond to the robbery call could also be explained by minor performance issues, such as their use of the radio in loud locations, that could be addressed through training or counseling, and that would not lead to punitive action. (See Steinert v. City of Covina (2006) 146 Cal.App.4th 458, 463 [No POBRA violation due to casual conversation because “Curley believed that the misdesignation of a proper search and the failure to include the individual's name in a report was exactly the kind of situation that merited not a written reprimand but a verbal direction to correct these procedural problems in the future.”].)

On the whole, Gomez’s testimony, as well his statements on the DICVS recording, do not suggest that he believed he was starting an investigation into Petitioners’ conduct or that he had information that Petitioners had engaged in potential misconduct. At the 7-Eleven, Gomez first asked Petitioners, “Quick question. We’re still trying to wrap my head around all this. What your guys’ role here is just to keep the [peace] up and down.” (AR 102, 658.) This question suggests that Gomez was inquiring generally into Petitioners’ work and assignment, and not attempting to investigate potential misconduct. When Petitioners indicated that they did not hear a backup call because of loud noise, Gomez accepted that explanation. (AR 103; see also AR 105.) He did not press Petitioners for additional details about why they did not respond to the robbery call. Rather, he counseled them on not listening to the radio, as well as making sure to “Code 6” a specific location when they have contact with a citizen. (AR 103-104, 659-662.)

Gomez’ testimony on cross-examination does not convince the court that a POBRA violation occurred. (See AR 113-115.) While Gomez wanted to find out why Petitioners did not respond to the call, he did not have information of potential misconduct, had not started an investigation, and was simply performing routine counseling as expected of a supervisor. The court also finds it significant that Gomez did not view the DICVS recording prior to the meeting at 7-Eleven.

Exercising its independent judgment, the court concludes that the weight of the evidence supports BOR’s finding that the conversation at 7-Eleven “was in the normal course of Sergeant Gomez’ duty through Gomez’ counseling, instruction and was routine and expected of a supervisor” and that this meeting did not violate POBRA. (AR 492-493.)

BOR’s Administrative Findings

Other than BOR’s rulings on the admissibility of the in-car video and the alleged POBRA violation, Petitioners have not challenged the findings made by BOR on the charges against them. Accordingly, Petitioners do not show BOR’s findings are not supported by the weight of the evidence.

Penalty

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.” (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

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 circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

“[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer's duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

Here, Petitioners contend that “the officers’ conduct of playing a video game on duty hardly warrants termination.” (OB 17.) However, Petitioners were also found guilty of failing to respond to a robbery in progress radio call; making misleading statements to Sergeant Gomez; and making false statements in an internal investigation. In selecting the penalty, the BOR reasoned that “it is inherent in every police officer to respond and assist as quickly as possible to help another police officer or community member under any circumstances.” (AR 546.) In failing to respond to the robbery call, Petitioners “demonstrated a severe negative attitude and disdain towards Captain Davenport.” (ibid.) BOR also reasoned that Petitioners “were disingenuous and deceitful in their remarks throughout the Board, and their overall behavior is inconsistent with the values and principles expected of our police officers who serve this community.” (AR 547.)

Petitioners’ misconduct was egregious and harmed the public service. Discharge was a reasonable penalty.

Conclusion

The petition is DENIED.