Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. KS010789, Abraham Khan, Judge.
Oddenino & Gaule and John V. Gaule for Plaintiff and Appellant.
Best Best & Krieger, Cynthia M. Germano and Kevin R. Dale for Defendant and Respondent.
COOPER, P. J.
Plaintiff Michael Lorusso, a terminated employee of defendant City of Azusa (city), appeals from the judgment denying his petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5 (§ 1094.5), by which he sought to have his dismissal set aside. Plaintiff contends that (1) the trial court failed to apply the required independent judgment, weight of the evidence review to the administrative evidence, (2) the evidence did not support the findings that plaintiff engaged in conduct subject to discipline, (3) the court erred in disallowing testimony by a witness who had been absent from the hearing, and (4) the administrative proceedings were unfair.
We conclude that plaintiff’s primary contention, regarding the trial court’s use of an incorrect standard of review, is correct. We therefore reverse and remand for redetermination under the proper standard. This holding renders it premature and unnecessary to decide plaintiff’s evidentiary challenge to the findings of the agency and the court. However, we further determine that plaintiff’s remaining two contentions are unmeritorious.
FACTS
In August 2005, the city terminated plaintiff, a maintenance supervisor, on grounds he had participated in a private vendor’s submission of fictitious and fraudulent bids for a furniture purchase by the city, and that he had later made dishonest statements in the investigation of the incident. Plaintiff appealed the discharge to the city’s personnel board (board), which held a hearing over four days. The board issued a nine-page decision sustaining the discharge. In March 2006, the city council affirmed that decision, rendering it final. Plaintiff filed his petition for writ of mandamus two months later.
The charges against plaintiff, and the evidence offered before the board, concerned bidding to supply furniture to the city’s electrical department. The person admittedly culpable was Mary Ann Miller, a representative of a furniture company named Yocum. Plaintiff had known Miller from past dealings, and he introduced her to David Ramirez, the electrical department’s assistant director. Ramirez told Miller that the project in question required three competitive bids. Miller first submitted one on behalf of Yocum. She thereafter submitted two fabricated, higher bids, in the names of two other companies, neither of which had actually bid (and one of which had had its phone disconnected). The falsehoods came to light after Ramirez’s assistant sought to contact these other entities. On June 13, 2005, plaintiff informed Ramirez that Miller had confessed to plaintiff what she had done.
The principal evidence of plaintiff’s involvement came from Cathy Hanson, the city’s human resources director, and Tony Garcia, its purchasing manager, who together interviewed plaintiff on June 14, 2005. According to Hanson and Garcia, as well as a memorandum of the interview which they signed, plaintiff stated he had told Miller to get him the two additional bids. He had received the bids and had taken them to Ramirez’s department. According to Hanson and Garcia, plaintiff admitted that for a previous city purchase he had gotten competing bids from bidder Yocum; he had gotten “lazy and busy” and had allowed this.
Plaintiff refused to sign Hanson and Garcia’s memo, because he considered the admissions it attributed to him to be false. Before the board, he offered a different account of his involvement, contradicting Hanson and Garcia. The board, however, found them to be credible. Plaintiff also offered a letter from Miller to the city, admitting personal responsibility for the present bids. Plaintiff’s supervisor Bill Nakasone testified he had provided Hanson statements from Miller, disclaiming plaintiff’s involvement. In response, Hanson had become angry, and told Nakasone that the city manager (who later fired plaintiff) wanted him to get his “nose out of it.” Miller was not called to testify at the board hearing; plaintiff’s counsel explained that on advice of her attorney she would not testify if summoned.
In his petition for writ, plaintiff contended principally that (1) the evidence was insufficient to find him culpable, (2) under section 1094.5, subdivision (e), testimony by Miller should be admitted and considered, or the matter should be remanded for that purpose; and (3) the city failed fairly to investigate exculpatory evidence before initially discharging plaintiff. The trial court rejected these contentions, and rendered judgment for the city.
Subdivision (e) of section 1094.5 provides: “Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.”
DISCUSSION
In addition to reiterating the issues noted above, plaintiff first contends that the trial court did not afford him the complete, independent judgment and weight of the evidence review of his termination to which he was entitled. We find this contention well taken, and we therefore remand the matter to the trial court for proper evidentiary review. In advance of that review, it is inappropriate to, and we do not, undertake our own assessment of the evidence. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659-660 (Barber); cf. Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824-825.)
1. Scope of Judicial Review.
Both parties agree that because the local administrative action affected plaintiff’s fundamental, vested right to his employment, the trial court was charged with exercising its independent judgment on the evidence before the board, and determining whether its findings and decision were supported by the weight of the evidence. (E.g., Strumsky v. San Diego Employees Retirement Assn. (1974) 11 Cal.3d 28, 44; 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs § 278, pp. 1079-1081.) In these circumstances, mere review of the decision for substantial evidence is insufficient. (E.g., Strumsky, supra, 11 Cal.3d at p. 44.) Rather, the court must afford a limited trial de novo, reweighing the evidence adduced before the agency as well as any further evidence properly admitted on the writ proceeding. (E.g., Brewer v. Dept. of Motor Vehicles (1979) 93 Cal.App.3d 358, 362.) On such review, the court must make its own determinations of witness credibility, rather than deferring to the agency’s. (Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010,1013-1016; see Barber, supra, 45 Cal.App.4th at p. 659.)
Plaintiff contends that the trial court did not follow these rules of review. Plaintiff is correct. The court’s expansive articulation of its review process at the hearing on the petition manifests departure from the duty to afford an independent review of the weight and significance of the evidence.
At the outset of the hearing, the court explained that it had to determine “whether or not the city acted arbitrarily or capriciously . . . without there being some substantial evidence before it from which it could make that determination.” After noting that both sides had presented evidence that could have been believed, the court stated, “The evidence before the administrative body was one that required them to draw conclusions and to make credibility calls and they did.” Concluding its explanation of its tentative ruling, the court referred to several standards of review, all of them less penetrating than independent judgment on the weight of the evidence. In response to plaintiff’s arguments, the court eschewed making its own determination from the evidence, and reiterated its embrace of substantial evidence review. And in announcing its decision, the court deferred to the board, twice posing the issue as being whether there was “no evidence” on which the board could have made its findings, and then characterizing the court’s function as being “to determine whether there was enough from which that finder of fact [the board] could find by a preponderance of the evidence that your client violated . . . .”
“And therefore in reviewing the record, which is before this court for determination as to whether this city abused its powers and, therefore, ma[d]e findings that there was absolutely no evidence from which they could make, this court . . . cannot find that the city abused its discretion in determining based on the record before it that these findings were shown by competent evidence and that therefore their decision to terminate you was in excess of their jurisdiction . . . .”
“[W]hat I’m being asked to do is not give you a trial de novo . . . .¶ . . . ¶ . . . I’m being asked . . . not to decide . . . would I have done what the city did. . . . [B]ecause I don’t have that same case presented to me as if I were the finder of fact. ¶ What I do have before me is the responsibility for deciding whether those finders of fact acted inappropriately in terms of the evidence before them . . . . I’m being asked . . . to review this record as if I were reviewing it on appeal and to determine from the record whether there was enough.”
From these expressions, we must conclude that the court treated this case as requiring a review of the board’s findings for support by substantial evidence (or possibly even less), rather than an independent reconsideration of the weight of the evidence, including independent resolution of conflicts within it. Although the court displayed familiarity with the evidence, it did not independently weigh that evidence, as required.
Accordingly, the matter must be remanded for reconsideration under the proper standard. As previously stated, this determination presently pretermits plaintiff’s challenge to the evidentiary soundness of the court’s decision. (Barber, supra, 45 Cal.App.4th at pp. 659-660.) It does not, however, require deferral of plaintiff’s remaining, independent challenges to the judgment
2. Exclusion of Testimony By Miller.
As set forth above (ante, fn. 1), in independent judgment cases subdivision (e) of section 1094.5 authorizes the court to admit for its review – or to remand for agency reconsideration in light of – relevant evidence that was improperly excluded from the administrative hearing, or could not with reasonable diligence have been produced there. Plaintiff contends that the trial court erred in declining his request under the statute that testimony by Mary Ann Miller be taken and considered. We review the ruling for abuse of discretion. (Armondo v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174, 1180.) We first recite the background of plaintiff’s request.
Before the administrative hearing, plaintiff asked the city to subpena Miller as a witness. But the city’s attorneys (who handled the hearing as well as this appeal) informed plaintiff’s counsel that in their view the board did not have the power to “command non-employees to appear before it.” At the hearing, plaintiff introduced a letter that Miller had written to the city in June 2005, apologizing for submitting the fraudulent bids, and Nakasone’s summary of a contemporaneous conversation he had had with Miller, according to which she had claimed responsibility, to plaintiff’s exclusion, for both instances of additional bids. Miller had explained her motivations, and stated she would be glad to appear and amplify her statements. She signed this statement, but she did not appear at the hearing. After the city’s counsel argued that “we really don’t know she would testify under oath,” plaintiff’s attorney responded that Miller had not come “on advice of her own attorney,” and, “We don’t have subpoena power to get her here.” Nonetheless, in its decision the board averred that plaintiff had been entitled under the City’s rules to subpena Miller, and expressed puzzlement about why he had not done so.
Although not the subject of plaintiff’s present complaint, the city’s conflicting positions about the availability of process to compel Miller’s attendance are troublesome. Beyond that, however, the trial court’s refusal to require Miller’s testimony was not an abuse of discretion. Plaintiff made no offer of proof, as to what Miller could be expected to say in addition to her unsworn statements, which the board admitted and considered. And although plaintiff claims that the trial court’s references to the record not needing augmentation reflect an improper scope of review, we construe those references as simply indicating that further evidence from Miller was not shown to be necessary.
3. Fair Hearing.
Appellant finally contends, as he did below, that he was denied fair procedure and a fair hearing, because the board relied on Personnel Director Hanson’s one-sided view of the case, as manifested by the memorandum of plaintiff’s interview, and also because the “Skelly officer,” who investigated the matter and recommended discharge, ignored evidence favoring plaintiff. In support of this claim, plaintiff stresses the following. (1) Assistant City Manager Robert Person, the Skelly officer, did not interview plaintiff, or Miller, or secretary Karen Clear (who testified that she, not plaintiff, had delivered the bids to Ramirez). Person testified he did not want to speak with Miller when she phoned him, because he felt he had all relevant documentary evidence, including the Hanson-Garcia memo (but not Nakasone’s memo and Miller’s letter). (Plaintiff did report his position on the charges to Person in writing.) (2) City Manager Francis Delach, who discharged plaintiff, was unaware of Miller’s version and her communication with Nakasone. (Delach testified this was insignificant, because he trusted his staff, Hanson and Garcia, and their memorandum.) (3) As with Delach, the members of the board were familiar with Hanson, and so must be considered not disposed to incline against her. (4) Yet Hanson told Nakasone at the outset to keep his nose out of the matter.
The term Skelly officer connotes a representative of the public employer to whom an employee threatened with discipline may state his or her position, as required by Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215.
Upon consideration of the administrative record, we agree with the trial court that these factors did not deprive plaintiff of fair procedure and a fair trial. Plaintiff received a thorough hearing, at which his version of the transaction, and the witnesses supporting it, were heard from. We do not perceive that the board members were partial to the city. In fact, they pointedly questioned Person about his lack of interest in Miller’s account. As for the involvement of city officials who favored discharge (Person and Delach), that circumstance naturally attends a municipal discharge. But appellant enjoyed the protection from unbalanced investigation and charges that due process provides: a fair and thorough hearing.
DISPOSITION
The judgment is reversed, and the matter is remanded to the superior court, with directions to redetermine, under the independent judgment test, plaintiff’s contention that the Personnel Board’s findings are not supported by the evidence, and to render judgment accordingly. Plaintiff shall recover costs on appeal.
We concur: RUBIN, J., EGERTON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section six of the California Constitution.