Other - Writ Of Mandamus
MOORE MICHAEL CHIEF
CITY OF LOS ANGELES
LOS ANGELES POLICE DEPARTMENT
GAGE BRADLEY C
SADR MILAD C
GAGE BRADLEY CURTIS
AGUILERA DANIEL PHILLIP
PARK HOON SUK
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1/22/2021: Judgment - JUDGMENT [PROPOSED] JUDGMENT
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1/11/2021: Declaration - DECLARATION OF HOON S. PARK
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10/21/2020: Objection - OBJECTION PETITIONERS OBJECTION TO RESPONDENTS NOTICE OF LODGING RECORDS CONDITIONALLY UNDER SEAL PURSUANT TO CRC 2.551
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10/6/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE)
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9/18/2020: Minute Order - MINUTE ORDER (HEARING ON PETITION FOR WRIT OF MANDATE RULING ON SUBMITTED M...)
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6/4/2020: Brief - BRIEF PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITIONER'S FIRST AMENDED PETITION FOR PEREMPTORY WRIT OF MANDATE; MEMORANDUM OF POINTS & AUTHORITIES
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Case Number: *******0781 Hearing Date: September 15, 2020 Dept: 82
City of Los Angeles, et al.
Judge Mary Strobel
Hearing: September 15, 2020
Tentative Decision on Petition for Writ of Mandate: DENIED
Petitioner Nicole Mehringer (“Petitioner”) petitions for a writ of mandate directing Respondents City of Los Angeles, Los Angeles Police Department (“LAPD”), and Michel Moore, Chief of Police (collectively “Respondents” or “City”) to set aside the City’s decision terminating Petitioner’s employment as a Commander with LAPD.
Based on her actions on or about April 27, 2018, LAPD alleged that Petitioner committed misconduct and moved to terminate her employment. Petitioner was afforded a Board of Rights hearing to challenge her termination. The Board of Rights hearing commenced on October 3, 2018, and Petitioner faced four counts:
Count 1: On or about April 27, 2018, you, while off-duty, were drunk in a public place.
Count 2: On or about April 27, 2018, you, while off-duty, allowed an intoxicated subordinate to operate your city-owned vehicle.
Count 3: On or about April 27, 2018, you, while off-duty, failed to cooperate with on-duty personnel from the Glendale Police Department during your arrest and booking.
Count 4: On or about April 27, 2018, you failed to notify the Department that you were involved in a romantic relationship with a subordinate. (AR 5, 23-24.)
At the beginning of the hearing, Petitioner pled not guilty to Counts 1 through 3 and pled guilty to Count 4. (AR 24) After the hearing, the Board found Petitioner guilty on all four counts and recommended her termination. (AR 789, 794, 797, 800, 1046-1055.) The Chief of Police executed an order removing Petitioner from her position as commander with LAPD. (AR 1423.)
On March 13, 2019, Petitioner filed a verified petition for writ of mandate pursuant to CCP section 1085, and for extraordinary relief pursuant to Government Code section 3309.5. On July 18, 2019, Petitioner filed a verified first amended petition for writ of mandate pursuant to CCP section 1094.5, and for extraordinary relief pursuant to Government Code section 3309.5.
On June 4, 2020, Petitioner filed her opening brief (“OB”)” in support of the petition. The court has received City’s opposition, Petitioner’s reply, the administrative record, and the joint appendix. On July 27, 2020, the court continued the writ hearing from August 4, 2020, because the parties did not timely lodge the administrative record and joint appendix at least 15 days prior to the hearing.
Petitioner was a 22-year veteran with LAPD with the rank of Commander. (AR 158.) At the time of the incident on April 27, 2018, she had been working as the commanding officer at Employee Relations Group (“ERG”) for approximately one and a half years. (AR 158.) Before ERG, she was the commanding officer at Pacific Division. (AR 158.) At the time of the incident, Petitioner’s aide at ERG was Sgt. James Kelly (“Kelly”). (AR 285.) Kelly had worked at Pacific Division with Petitioner before and, while there, they had an unreported dating relationship from March 2016 to May or June 2017. (AR 285-86, 302.) Petitioner was not Kelly’s direct supervisor when they were dating in 2016-2017. (AR 286, 302.)
Sometime after Petitioner became the commanding officer at ERG, Kelly was also transferred to ERG. (AR 161.) Petitioner was part of the interview panel and made the final decision to hire Kelly at ERG. (AR 164.) Kelly eventually became Petitioner’s Aide at ERG, starting October 2017. (AR 159.) They restarted their dating relationship in March 2018. (AR 159, 286.) They never reported the dating relationship to the Department because Kelly was married. (AR 162, 287.) Petitioner testified that she did not report the relationship because “[i]t was embarrassing. It was an affair and he was married.” (AR 162.) Petitioner also didn’t think the relationship would last. (AR 236.)
On April 26, 2018, Kelly drove to Petitioner’s house in the morning. (AR 288.) Kelly then drove Petitioner to work in her city-owned vehicle that morning. (AR 169-170, 288, 795.) After work, they went on a dinner date to Mastro’s in Malibu. (AR 170, 288, 289.) Petitioner drove her city-owned car and arrived at Mastro’s at approximately 5:30 p.m. (AR 171.) Petitioner drank approximately one and a half drinks called Fashion Forward which contained bourbon at dinner. (AR 171, 172.) She also had some wine. (AR 172 [according to Petitioner, a “sip of wine”].) Kelly also had a couple of drinks and a couple of glasses of wine. (AR 289.)
After Mastro’s, they went to the Brand Street area in Glendale to continue their date. Again, Petitioner drove. (AR 172-73, 289.) They went to a bar and continued to drink alcohol and talk. (AR 181.) Petitioner again consumed bourbon-based drinks at the bar and became intoxicated. (AR 183.) She admitted that she “felt the effects of the alcohol.” (AR 184.) Kelly also continued to drink at the bar and became intoxicated. (AR 292.) Kelly admitted that he “drank too much.” (AR 292.)
Both Kelly and Petitioner later recounted that the last thing they remember before the incident is sitting at the table in the bar drinking and talking. (AR 184, 294.) Neither remembers leaving the bar, getting in the car, driving off, or getting involved in a minor traffic collision on Brand Street. (AR 183, 184, 185, 295.) Neither has any recollection whether Petitioner asked Kelly to drive. (AR 185-186, 294.)
At approximately 12:40 a.m., April 27, 2018, Glendale Police Department (“GPD”) Sgt. Victor Jackson (“Jackson”) came upon Petitioner’s car in the aftermath of a minor traffic collision on Brand Street. (AR 311.) Jackson testified to the following in the administrative proceedings. The car had collided with a parked car on Brand Street and was still running and in drive gear. (AR 312, 316.) Jackson used his flashlight to illuminate inside and saw that Kelly was sitting in the driver’s seat and appeared to be asleep with his seat belt on. (AR 313, 314.) Jackson also noticed Petitioner, whose entire body was curled up on the floorboard of the front passenger side and appeared to be sleeping. (AR 313, 321.) Jackson called for backup and six GPD Officers responded. (AR 314, 406.) The doors were locked so Jackson knocked on the doors and windows but Kelly and Petitioner were unresponsive. (AR 322.) GPD officers also chirped the sirens, used air horns, and banged on the roof announcing themselves as police officers but Kelly and Petitioner did not respond. (AR 325-326.) A tow truck operator pried open the doors. (AR 326.)
Petitioner was unconscious and smelled of alcohol. (AR 333, 334.) Jackson and another GPD officer, Officer Brown, carried her out and sat her on the curb. (AR 332-333.) Jackson wanted to separate Petitioner from Kelly because he suspected Kelly to be law enforcement and may be armed and upon waking may react unpredictably. (AR 332.) Petitioner woke up as she was being carried out of the car but was not coherent and was mumbling. (AR 333.) Jackson tried to talk to her as she sat on the curb and noticed that her eyes were unfocused, watery, and glassy; she looked beyond him instead of at him. (AR 336.) She also could not verbalize well and slurred her words. (AR 337.) Jackson initially assigned Officer Brown to stand by Petitioner to make sure she was okay and Officer Gonzalez took over shortly thereafter. (AR 339.) Jackson found out Petitioner was LAPD and asked her if they could get a ride for her to get home or call someone to help her. But Petitioner told Jackson she wasn’t leaving. (AR 338, 345.) She did not answer other questions Jackson posed such as where she worked. (AR 345.) Even though she was told not to stand, she tried to stand up multiple times. Each time she attempted to stand up, she needed help from the GPD officer next to her. (AR 344.) She told Jackson that he and other GPD officers worked for her. (AR 400.) Meanwhile, the GPD officers investigated Kelly for DUI and arrested him. (AR 400-401.)
Jackson formed an opinion that Petitioner was drunk, not able to care for herself, and uncooperative to a point where she needed to be handcuffed and arrested for public intoxication, a violation of Penal Code section 647(f). (AR 344, 345-346, 401, 412, 443.) As she was being handcuffed, Petitioner said something to the effect of “Get your fucking hands off me” or “Get your legal fucking hands off me.” (AR 407.)
When asked at the hearing why she was not awakened by the officers banging on the car, Petitioner testified: “I think it was a combination of things. I think, being up since 4:00 [a.m.], the stressful conversation [with Kelly in the bar], the alcohol made it difficult for them to wake me up. Once they woke me, I remained awake at the scene the entire time.” (AR 245.)
Petitioner was transported to GPD jail approximately at 1:30 a.m. (AR 477.) Xzavia Atkins (“Atkins”) was the jail supervisor that night and first saw Petitioner approximately at 2 a.m. (AR 455, 456, 458.) Based on his interaction with Petitioner for the next three plus hours, Atkins formed an opinion that Petitioner was drunk. (AR 458-463, 517.) Atkins found Petitioner to be argumentative at times and passively uncooperative at times. (AR 464, 554.) For instance, Atkins observed that “once placed in the cell, [Petitioner] immediately went to the floor in, not a fetal position, but knees balled up and just cried as she sat there and refused to answer questions.” (AR 458.)
Before she was released, Petitioner gave two breath samples for blood alcohol concentration (“BAC”) tests, first sample at 6:18 a.m. and the second sample at 6:21 a.m. (AR 1202.) The test results showed that her BAC was 0.15% and 0.15% (g/210L). (AR 1202.) LAPD Criminalist Mandel Medina (“Medina”) testified that, using a retrograde extrapolation analysis, Petitioner’s BAC at 12:40 a.m. could have been in the range of 0.20 to 0.29%. (AR 584, 615-16.)
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 Petitioner’s 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 (Bixby).) 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.)
Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the weight of the evidence does not support the administrative findings. (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal. App. 2d 129, 137; Alford v. Pierno Significantly in this case, when an appellant challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [her] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) Los Angeles Superior Court Local Rules also require Petitioner, and City, to provide “a statement of facts which fairly and comprehensively sets forth the pertinent facts, whether or not beneficial to that party’s position, and each material fact must be supported by a citation to a page or pages from the administrative record.” (Local Rule 3.231(i)(2) [emphasis added].)
“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)
Petitioner pled guilty to Count 4. She does not challenge the guilty finding for Count 4.
Petitioner contends that Board relied upon inadmissible or insufficient evidence in sustaining Count 1. Specifically, Petitioner contends that Board relied on hearsay, speculation, or inadmissible Blood Alcohol Concentration (“BAC”) testimony. (See OB 7-11.) However, Petitioner does not discuss all relevant evidence upon which Board relied in its findings for Count 1. (See also OB 4-5.) In finding Petitioner guilty for Count 1, Board cited to extensive evidence that Petitioner was “drunk in a public place” on April 27, 2018. (See AR 789-794.) This evidence includes, but is not limited to, the following.
In her testimony, Petitioner admitted she drank one and half bourbon drinks and some wine at Mastro’s, and consumed bourbon-based drinks at the Glendale bar. (AR 171, 172, 183.) She admitted that she “felt the effects of the alcohol.” (AR 184.) Kelly, who was arrested for DUI, drank heavily that night. (See AR 292; see also AR 1210, Exh. 17 [video of field sobriety tests].) Neither Petitioner or Kelly remembers leaving the bar, getting in the car, driving off, or getting involved in a minor traffic collision on Brand Street. (AR 183, 184, 185, 295.)
Sgt. Jackson, who found Petitioner and Kelly in the car at 12:40 a.m., testified in the proceedings about his belief that Petitioner was intoxicated. Jackson noticed Petitioner’s entire body was curled up on the floorboard of the front passenger side and appeared to be sleeping. (AR 313, 321.) Petitioner was unconscious and smelled of alcohol. (AR 333, 334.) Jackson and other officers knocked on the doors and windows, and made other sounds, but Kelly and Petitioner were unresponsive. (AR 322-326.) A tow truck operator pried open the doors. (AR 326.)
Jackson and another GPD officer, Officer Brown, carried Petitioner out and sat her on the curb. (AR 332-333.) Video, which was broadcast on local news, shows the officers carrying Petitioner unconscious from the car. (AR 1210, Exh. 17 at :40-:50.) Jackson noticed that Petitioner’s eyes were unfocused, watery, and glassy. (AR 336.) Jackson formed an opinion that Petitioner was drunk, not able to care for herself, and uncooperative to a point where she needed to be handcuffed and arrested for public intoxication, a violation of Penal Code section 647(f). (AR 344, 345-346, 401, 412, 443.)
When asked at the hearing why she was not awakened by the officers banging on the car, Petitioner testified: “I think it was a combination of things. I think, being up since 4:00 [a.m.], the stressful conversation [with Kelly in the bar], the alcohol made it difficult for them to wake me up. Once they woke me, I remained awake at the scene the entire time.” (AR 245 [emphasis added].)
Based on his interaction with Petitioner for about three hours, jail supervisor Atkins, who testified in the proceedings, formed an opinion that Petitioner was drunk. (AR 458-463, 517.)
In her interview with LAPD, Petitioner admitted that she was drunk in a public place in violation of Penal Code section 647(f). (AR 1205; Exh. 12 Audio at 27:56-28:38.) Petitioner stated, “that’s humiliating to even answer that, but yes … I would qualify for that.” (Ibid.) At the hearing, Petitioner changed her position on whether she violated section 647(f), apparently after consulting a criminal lawyer. (See Oppo. 2, fn. 2.) Nonetheless, the admission at the interview, which occurred 13 days after the incident, was noteworthy and Board found it truthful. (AR 793-794.) Exercising its independent judgment, the court also finds Petitioner’s admission at the interview to be credible and strong evidence that, as a factual matter, she was intoxicated and drunk in a public place on April 27, 2018.
Thus, Board’s finding of guilt for Count 1 was based on Petitioner’s own admissions, the video evidence, the testimonies of Jackson and Atkins, and undisputed evidence about how Petitioner and Kelly were found unconscious at the scene of the accident, with Petitioner’s car still running. None of the foregoing evidence was hearsay, speculation, or otherwise inadmissible.
Exercising its independent judgment, the court finds that the weight of the evidence strongly supports Board’s findings that Petitioner was drunk in a public place on April 27, 2018. As discussed below, Petitioner’s arguments to the contrary are not persuasive.
Petitioner contends that Board’s findings for Count 1 were improperly based on hearsay in Glendale Police Department (“GPD”) police reports, Exhibits 2 and 5, and purported hearsay testimony of Sergeant Jackson. (OB 7-8, citing AR 808-809 and AR 443-444.)
Hearsay evidence is allowed in administrative hearings, although its use may be limited by proper objection. For instance, under the Administrative Procedures Act, “hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” (Gov. Code ; 11513(d).) “Although uncorroborated hearsay evidence cannot, by itself, support an administrative finding, hearsay evidence together with other reliable evidence may support a finding.” (Gill v. Mercy Hospital (1988) 199 Cal.App.3d 889, 910.) “[F]ailure to object permits an agency to consider hearsay for all purposes.” (Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1061.)
(See Oppo. 12, citing AR 33, 34, 41, 43, 52.) In reply, Petitioner does not respond to the argument and apparently concedes she did not properly object to the police reports as hearsay. Petitioner makes no argument that the police reports lack foundation. (See Reply 2-3.) If no hearsay objection was made, Board could rely on the police reports for any purpose.
Moreover, even if the police reports could be construed as hearsay, and even if Petitioner properly objected, Petitioner does not show a prejudicial abuse of discretion. (See CCP ; 1094.5(b).) Board did not rely solely on the police reports, and Board’s findings suggest that the police reports simply corroborated or explained other direct evidence, including Jackson’s testimony and Petitioner’s admissions. (See AR 789-790.) Given the other strong evidence of Petitioner’s guilt for Count 1, Petitioner does not show that consideration of the police reports solely for hearsay purposes could possibly impact the result.
Contrary to Petitioner’s position, Sergeant Jackson’s testimony that he determined Petitioner violated section 647(f) was not hearsay. Jackson was present at the scene; observed Petitioner’s objective signs of intoxication; and helped carry her from the car. He formed his own opinion that Petitioner was drunk. (AR 345-346.)
Petitioner also argues that the Board drew improper inferences from Jackson and Atkins’ testimony, citing a few selected portions of their testimonies. (OB 8-9 citing AR 332, 376, 379, 480, 525, 526, 810-812.) As discussed above, Jackson was clear in his opinion that Petitioner was drunk based on his own observations. (AR 345-346.) As for Atkins, he too testified based on his own observations that Petitioner was drunk. (AR 458-463, 517.) When read in context, Petitioner’s record citations do not show that Board relied on speculation.
In its findings for Count 1, Board “noted” that the Los Angeles County Sheriff’s Department Breath Alcohol Analysis report, Exhibit 10, indicated that Petitioner was administered BAC tests at 6:18 a.m. and 6:21 a.m., which showed that her BAC was 0.15% and 0.15% (g/210L), above the legal limit. (AR 793; AR 1202.) Board also noted that it heard testimony from LAPD Criminalist Mandel Medina (“Medina”) that, using a retrograde extrapolation analysis, Petitioner’s BAC at 12:40 a.m. could have been in the range of 0.20 to 0.29%. (AR 793; see AR 584, 615-16.) Board stated that it “weighed all of this evidence individually and collectively and believed it paints a clear picture of [Petitioner’s] condition that night.” (AR 793.)
Petitioner contends, citing Exhibit 10 and Medina’s testimony, that “the testing device was not working properly.” (OB 10.) Exhibit 10 shows that the test operator, Jose Gutierrez of GPD, obtained a “blank error” result at 6:09, prior to testing Petitioner. (AR 1203.) Exhibit 10 also suggests that the operator conducted “blank tests” at 6:17 and 6:19, before the tests on Petitioner, and the device apparently worked fine. (AR 1202.) Medina did not conduct the test. Although he testified that a “blank error” could possibly mean there was something wrong with testing device “at the time that test was attempted,” he did not testify that the blank error meant the device was broken. (AR 604-605.) Petitioner did not obtain testimony from the test operator. He does not show, with record citation, that the testing device was not working properly.
Petitioner also contends that the Board improperly relied on Medina’s testimony that Petitioner’s BAC could have been in the range of 0.20 to 0.29% at 12:40 am. (OB 9-11, citing AR 570-571, 597-600, 604, 608-609, 622.) Petitioner’s arguments and record citations are relevant to the weight that should be given to Medina’s expert testimony, not the admissibility. As discussed above, other strong evidence supports Board’s findings for Count 1. Board did not rely solely on Medina’s testimony about his retrograde extrapolation analysis. Exercising its independent judgment, the court finds that Medina’s testimony supports Board’s finding of guilt for Count 1, although it is not conclusive or even necessary to the finding of guilt.
Penal Code Section 647(f)
Petitioner suggests that Board was required to find, for Count 1, that she violated Penal Code section 647(f). (OB 3.) However, Petitioner does not develop that argument or cite to the relevant LAPD rules at issue. On the merits, Petitioner’s argument is unpersuasive. Petitioner contends that “[d]rinking alcohol alone does not violate any rule.” (OB 3.) However, Count 1 alleged conduct unbecoming of a high-ranking LAPD officer that brought disrepute to LAPD in front of the public and GPD. Petitioner also does not dispute that she could be disciplined for such conduct. Board was not required to find that Petitioner specifically violated Penal Code section 647(f) to sustain Count 1.
Although a finding under section 647(f) was not required for Count 1, the weight of the evidence (summarized above) nonetheless supports, for purposes of an administrative proceeding, that Petitioner was willfully under the influence of alcohol; when she was under the influence, she was in a public place; and she was unable to exercise care for her own safety or the safety of others.
Based on the foregoing, the weight of the evidence strongly supports Board’s findings that Petitioner, while off duty, was drunk in a public place on April 27, 2018.
In finding Petitioner guilty of Count 2, Board cited evidence that Petitioner gave Kelly, her aide, keys to her city-owned vehicle and that Petitioner allowed Kelly to drive her vehicle that morning to work. (AR 795.) Board cited Petitioner’s testimony that, whether sober or intoxicated, she was responsible for the vehicle. (AR 796.) Board found that Petitioner, as a commanding officer, had a responsibility for Kelly’s welfare and that excessive alcohol consumption did not relieve her of that duty. (AR 796-797.)
In response to these findings, Petitioner contends, citing evidence, that her “keys stayed in her purse the entire night”; “the vehicle could be started without giving permission to Kelly to drive”; and Kelly had a set of keys to the car. (OB 11, citing AR 251, 233.) Petitioner also contends, without citing supporting evidence, that “[a]fter [Petitioner] fell asleep, Kelly unilaterally decided to drive her car.” (OB 11.) No direct evidence supports this assertion. Rather, since neither Petitioner nor Kelly remembered getting in the car, Petitioner infers that Kelly “unilaterally” decided to drive. Board made a different inference – that Petitioner, as the commanding officer and person responsible for the car, allowed Kelly to drive while intoxicated.
Board’s findings for Count 2 are supported by the weight of the evidence. There is insufficient evidence that Petitioner was unable to walk to the car or enter the car herself. Moreover, since Petitioner was the commanding officer and person responsible for the car, and since Petitioner allowed Kelly to drive her to work that morning, the evidence supports that Petitioner allowed Kelly to drive, both as a general matter and on the night of April 27, 2018. Petitioner does not dispute Board’s findings that, whether sober or intoxicated, she was responsible for the vehicle and that her intoxication did not relieve her, as the commanding officer, of the responsibility for Kelly’s welfare. (AR 796-797.)
The weight of the evidence supports Board’s findings that Petitioner, while off-duty, allowed an intoxicated subordinate to operate her city-owned vehicle on April 27, 2018.
Board found that Petitioner failed to cooperate with on-duty personnel from the Glendale Police Department during her arrest and booking on April 27, 2018. (AR 797-800.) The weight of the evidence supports this finding. Board relied on audio evidence, which Petitioner does not address in her writs briefs, in which Petitioner could be heard making derogatory comments to a GPD officer and suggested that Petitioner made multiple attempts to stand despite being told to remain seated. (AR 798-799.) In addition, both Sgt. Jackson, the officer in charge at the scene, and Mr. Atkins, jail supervisor, believed Petitioner was uncooperative. (AR 344, 464.) Significantly, in her investigative interview, Petitioner herself admitted that she was not cooperative that night, based on her viewing of the videos of herself. (AR 1205, Exhibit 12, Audio, 38:57 - 39:08.)
Petitioner’s arguments and record citations are not persuasive as to Count 3. (See OB 11-12, citing AR 336-337, 380, 407, 433, 390-394, 515.) The issue is not whether Jackson or Atkins found Petitioner to be uncooperative for the entire incident, for all questions asked, or whether Petitioner used profanity. The evidence, summarized above, clearly supports Board’s finding that Petitioner was unconscious while GPD officers engaged in “shotgun cocking” and joked by using pepper spray. (AR 799.) Thus, Petitioner’s contention that she was responding to this alleged hostile behavior is not supported by the record.
The weight of the evidence supports Board’s findings that Petitioner failed to cooperate with on-duty personnel from the Glendale Police Department during her arrest and booking on April 27, 2018.
Petitioner’s Due Process / Fair Hearing Arguments
Petitioner argues that she was denied a fair trial because City either concealed or did not produce certain evidence until mid-hearing. (OB 12-14.) Petitioner also contends that the Board prejudicially abused its discretion in its ruling on her Pitchess motion, and that Board’s ruling deprived her of a fair hearing, including with respect to the penalty phase of trial. (OB 14-16.)
The common law doctrine of fair hearing requires “at a minimum, some meaningful opportunity for the adversely affected individual to be heard in his defense.” (Ezekial v. Winkley (1977) 20 Cal. 3d 267, 278.) “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) The administrative agency must follow its own procedures. (See Id. at 239.)
Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “[I]t cannot be said that a violation of [an agency’s procedures] establishes a denial of due process in every case…. Rather the question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard before impartial judges.” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497.) A court will not issue a writ of administrative mandate unless the petitioner shows that the agency’s error “prejudicially affect[ed] the petitioner's substantial rights.” (Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)
Alleged Concealment of Witnesses and Evidence
Petitioner contends that LAPD waited until the day Petitioner was to testify to produce videotapes of the April 27, 2018, incident. (OB 13, citing AR 1205, 146-153.) Some of this cell-phone footage was included in the news clip, submitted as Exhibit 17, which Petitioner had prior to the hearing. (See AR 1210.) Nonetheless, Petitioner contends that this procedure was “unfair and prejudicial because it did not provide an opportunity to be prepared.” (OB 13.) These arguments are not persuasive because Petitioner does not show that Board violated its rules, and because Petitioner does not show she was prejudiced. Petitioner was given time to review the video footage during a break at the hearing, and Board also offered a continuance of the hearing. (AR 145-153, 265-272.) Petitioner had a weekend to review the videos in question. (AR 268.) Petitioner did not request a further continuance. A rule cited at the hearing suggests that Board could admit the evidence, but should grant a “reasonable continuance” if one is requested. (See AR 267, citing Board Manual section 395.) Even assuming that a procedural violation occurred when City did not produce the videos in discovery, Petitioner does not show any prejudice. Petitioner already had the Channel 11 News Footage (Exhibit 17), which shows important parts of the same videos. In her writ briefs, Petitioner fails to show that she lacked sufficient time to prepare and was prejudiced.
A similar analysis applies to Administrative Order No. 15, which Petitioner claims was unfairly produced at the hearing. (OB 13:12-16.) As a commanding officer in LAPD, Petitioner should have been familiar with this order, which was issued in September 2016. (AR 1256-72.) Notably, Petitioner cites to the order in her discussion of the penalty. (See OB 15:22-24 and 17, citing AR 1259.) Petitioner also did not request a continuance to the extent her counsel believed additional preparation was needed. (See AR 176-177.) Petitioner also makes no reasoned argument that she was prejudiced.
With respect to the BAC testimony, Petitioner contends: “[I]n the middle of the hearing, … for the first time, [Petitioner] and her counsel learned that the Board was calling a Forensic expert. Initially he was to testify the following day. While the day of testimony was later extended, it created prejudice to [Petitioner] because she needed to hire a lawyer familiar with BAC evidence who did not know all of the other testimony during the hearing and thus could not cross examine on all issues.” (OB 13, citing AR 348-349.) Petitioner does not show she requested a further continuance or that she was prejudiced. Petitioner admits she obtained a lawyer “familiar with BAC evidence.” Petitioner was allowed to call her own expert, Dewayne Beckner, in response. (AR 693-732.)
Petitioner also argues that some other recordings were not produced by City “in violation of the rules and due process.” Petitioner refers to recordings that were allegedly made by GPD officers (Brown and one other officer), and recordings that Atkins and Jackson did not make but Petitioner contends should have been made. (OB 13-14, citing AR 225, 255, 209-213, 374-375, 485-487, 491, 498-501.) Petitioner cites no evidence that LAPD or City had such recordings and did not produce them to Petitioner. She cites no LAPD or Board rule that required City to obtain this evidence from GPD. Petitioner admits that Atkins, a GPD employee, and Jackson did not make the recordings. Thus, her procedural objection with respect to Atkins and Jackson is unclear and unpersuasive. Petitioner does not show any procedural violation with respect to these recordings or any prejudice.
Based on the foregoing, Petitioner does not show that LAPD concealed any evidence. She also does not show that Board violated any rule or that Petitioner was prejudiced with respect to evidence first produced at the hearing.
In the proceedings below, Petitioner brought a Pitchess motion seeking production of personnel records of numerous former, retired, or current LAPD officers. (See AR 1308-1334, 1345-1395.) Petitioner asserted that this evidence was relevant to the penalty phase of trial, and also might have a “small amount of relevance” to the guilt phase. (See AR 9-10, 14.) Board held two in camera reviews in response to the motion. (See AR 983-1043.) Board denied the Pitchess motion, finding that the personnel records were not relevant or material to the Board proceedings. (Oppo. 17; see also AR 983.) Board also ruled that it would not conduct in camera review for pending complaints or for complaints closed more than five years prior to the Board proceedings. (AR 965.)
Petitioner contends that the Board applied an incorrect legal standard when it ruled on her Pitchess motion. (OB 14-15.) Petitioner also contends that Board prejudicially abused its discretion when it did not allow the Pitchess motion to be heard before the guilt phase of trial and when Board refused production of any Pitchess information for the penalty phase. (OB 15-16; Reply 5-7.)
The following legal standard applies to a Pitchess motion. “When a defendant seeks discovery from a peace officer's personnel records, he or she must ‘file a written motion with the appropriate court’ (Evid. Code, ; 1043, subd. (a)) and identify the proceeding, the party seeking disclosure, the peace officer, the governmental agency having custody of the records, and the time and place where the motion for disclosure will be heard (id., subd. (b)(1)). In addition, the Pitchess motion must describe ‘the type of records or information sought’ (Evid. Code, ; 1043, subd. (b)(2)) and include ‘[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records’ (id., subd. (b)(3)). The affidavits may be on information and belief and need not be based on personal knowledge (Santa Cruz, supra, 49 Cal.3d at p. 86), (People v. Mooc (2001) 26 Cal.4th 1216, 1226-27.)
“If the trial court concludes the defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents ‘potentially relevant’ to the defendant's motion. (Santa Cruz, supra, 49 Cal.3d at p. 84.) Evid. Code, ; 1045, subd. (b)), ‘out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present’ (id., ; 915, subd. (b); see id., ; 1045, subd. (b) [incorporating id., ; 915]). Subject to statutory exceptions and limitations, discussed below, the trial court should then disclose to the defendant ‘such information [that] is relevant to the subject matter involved in the pending litigation.’ (Id., ; 1045, subd. (a).)” (Mooc, supra at 1226.)
There are several limitations on disclosure. Specifically, as relevant here, the trial court shall exclude from disclosure “Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought” and “Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code ; 1045(b).)
Petitioner contends that the Board held Petitioner to a higher standard than required by the Pitchess statutes because Board, according to Petitioner, did not accept her counsel’s allegations on information and belief. (OB 15, citing AR 984, 990.) Petitioner does not provide a comprehensive discussion of the Board’s ruling. Board conducted in camera review, which disproves Petitioner’s assertion that Board did not accept allegations in the Pitchess motion made on information and belief. (See AR 983-1043.) City also cites evidence that Board indicated that Petitioner did not have to produce supporting documents to prove the allegations before getting an in camera review. (AR 907, 924, 992.) Petitioner provides no response to that evidence in reply.
Petitioner also does not show prejudice from the Board’s ruling. LAPD rules state that, among other factors, one factor in a penalty decision is the “[c]onsistency of the penalty with those imposed upon other employees for the same or similar offenses.” (AR 1259 [emphasis added].) Given this rule, the court disagrees with City’s assertion that a comparison to other officers’ penalties is always irrelevant. (See Oppo. 17.)
However, the consistency factor only applies if the other officer was found guilty of similar misconduct. Petitioner does not show in her discussion of the Pitchess motion that she sought personnel records for officers who were charged and found guilty of the same or similar offenses. (See OB 15-16.) Petitioner was not charged with a DUI. Especially for officers who were not of similar rank, Petitioner does not show that a DUI should be considered the “same or similar” to the charges against her. Petitioner was a high-ranking LAPD officer who was found guilty for being drunk in public and requiring a substantial law enforcement response from a neighboring police department. Petitioner does not sufficiently discuss the evidence she already possessed about penalties imposed on other officers that could be relevant to her penalty.
From Petitioner’s writ briefs, only the alleged misconduct of Commander Prokop and Assistant Chief Jorge Villegas, two high-ranking officers, appears to have even remote similarity to the charges against Petitioner. Petitioner describes Villegas as engaging in “sex with subordinate; drinking; vandalism.” (OB 15, citing AR 944-951, 965.) Petitioner refers to materials that purportedly concern Villegas or his wife, submitted as AR 1424-1503, but she provides no foundation or context for those materials. (OB 16:19-21.) The materials appear to relate to a family law proceeding. While the court recognizes it is unlikely there could be complete consistency between the facts of charged misconduct, Petitioner has not shown the Villegas behavior sufficiently similar to that of Petitioner. Petitioner does not show that Villegas was found guilty of failing to disclose a relationship with a subordinate, of being drunk in public, allowing a subordinate to drive her city vehicle while drunk, or with other misconduct similar to the charges for which Petitioner was found guilty.
Petitioner describes Prokop as engaging in two DUIs, including one while driving a city vehicle and fleeing the scene after another DUI. (OB 15, citing AR 928-930, 934.) However, Petitioner does not show, with record citation, that Prokop was found guilty of such misconduct. (See AR 929 [“no formal charges were filed”]; see also AR 1317.)
Petitioner made similar DUI allegations against a Lieutenant Ruiz, but indicated that a writ was pending to restore Ruiz’ rank as captain. (AR 1317.) Given the pending writ, the lower rank, and lack of similarity of the alleged charge, Petitioner does not show a prejudicial abuse of discretion in Board’s ruling as to Ruiz.
Moreover, consistency with penalties imposed on other officers was only one of many factors for LAPD to consider in imposing a penalty. (AR 1259.) Other factors include (1) “[t]he nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities”; (2) “[t]he employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position”; (3) “[t]he effect of the offense on the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee/s work ability to perform assigned duties”; (4) “[t]he impact of the offense on public trust and the Department's reputation”; and (5) whether the employee has accepted responsibility for her actions. (AR 1258-59.) In light of the seriousness of the misconduct, the negative impact on LAPD’s reputation, Petitioner’s high rank, her failure to take full responsibility, and Board’s rationale as to penalty, Petitioner does not sufficiently develop an argument of how she was prejudiced by any perceived errors in Board’s ruling on the Pitchess motion.
Petitioner’s argument that the Board did not allow the motion to be heard for the guilt phase is incorrect. Because of timing issues, Petitioner chose to save the motion only for the penalty phase. (AR 679, 683.) Petitioner’s contention that the LAPD “advocate chose to conceal the Motion from the Board” is not supported by her record citation. (OB 15, citing AR 682.) Nor does Petitioner show prejudice from the Board’s ruling on the Pitchess motion only for the penalty phase. In her writ briefs, Petitioner fails to show any probability that evidence from the Pitchess motion could impact the result on the guilt phase.
Based on the foregoing, Petitioner does not show that Board abused its discretion in its ruling on the Pitchess motion, or that Petitioner was prejudiced by any perceived error in Board’s ruling.
“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.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.) “The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721.)
Petitioner contends that the penalty of discharge was excessive because Petitioner made changes to her life in response to LAPD’s allegations; Chief Sherman made positive statements about Petitioner; and Petitioner had a 22-year career with LAPD and received numerous commendations and strong performance evaluations. (OB 3, 17.) Petitioner also contends that she was deprived of evidence, in the Pitchess proceedings, that “many male employees of the LAPD who were involved in DUI's or DUI's with hit and runs remain on the Department after making positive changes to their lives.” (OB 17.)
Given Petitioner’s long career with LAPD, commendations, and performance evaluations, a lesser penalty may have been possible. However, Petitioner committed very serious misconduct. She was a commanding officer who reported to the Chief of Police. Her irresponsible behavior on April 27, 2018, jeopardized public safety and Kelly, a subordinate, and also brought disrepute to LAPD in front of GPD and the general public. She failed to disclose to LAPD a romantic relationship with Kelly, a subordinate, which could reasonably cause LAPD to question her honesty, judgment, and decision-making. Nor did Petitioner take responsibility for all of her misconduct. Discharge was a reasonable penalty.
The petition is DENIED IN FULL.
 In her writ briefs, Petitioner has not made any arguments to support a claim under Government Code section 3309.5. Accordingly, Petitioner has waived argument on that claim. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not raised or briefed].)
 The court cites the APA for illustration only. The APA does not govern the Board proceedings. Petitioner cites to a hearsay rule in Board of Rights Manual section 363.40. (OB 8.) Petitioner has not cited to a copy of the Board rule in the record, requested judicial notice of the rule, or supplied the court with a copy. Petitioner does not show, with citation to authority or legal argument, that the Board’s hearsay rule should be interpreted differently from the APA rule.
 Petitioner cites to Exhibit 12 and AR 1205, an audiotape of Petitioner’s interview. It appears Petitioner meant to refer to cell-phone videos that are included in the record as Exhibits 20-23.
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