Opinion
B290293
05-07-2020
STATEWIDE UNIVERSITY POLICE ASSOCIATION, Petitioner and Appellant, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Respondent.
Mastagni Holstedt, Kevin A. Flautt, Ian B. Sangster, and Melissa M. Thom, for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Gabrielle H. Brumbach, Supervising Deputy Attorney General, and Victoria Jalili, Deputy Attorney General, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC617813) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael J. Raphael, Judge. Affirmed. Mastagni Holstedt, Kevin A. Flautt, Ian B. Sangster, and Melissa M. Thom, for Plaintiff and Appellant. Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Gabrielle H. Brumbach, Supervising Deputy Attorney General, and Victoria Jalili, Deputy Attorney General, for Defendant and Respondent.
Petitioner and appellant Statewide University Police Association (Association), which represents police officers serving the campuses of the California State University (CSU) system, appeals from a judgment denying its petition for a writ of mandate. The petition alleged the police department at the CSU Northridge campus was improperly enforcing a parking citation quota. We are asked to decide whether the trial court erred in concluding the Association did not prove the existence of a citation quota—a requirement that officers meet a fixed or variable minimum number of citations—within the meaning of pertinent provisions of the Vehicle Code.
I. BACKGROUND
In April 2016, the Association and three officers from the Department of Police Services at CSU Northridge (Department) sued the CSU Board of Trustees (University). The petition for a writ of mandate and request for declaratory relief, advanced solely by the Association (not the individual plaintiffs), alleged the Department had violated the Vehicle Code by enforcing a parking citation quota of 10 tickets per month per officer. The Association argued the Vehicle Code prohibits the Department from establishing this sort of parking citation quota.
A. Evidence Relied on by the Association
In seeking relief, the Association principally relied on deposition testimony given by Department officers. Four officers testified that beginning in or around 2013-2014 a member of the command staff, Captain Alfredo Fernandez, repeatedly stated at intra-Department leadership meetings that the Department had the "expectation" its officers would issue "double digit" parking citations each month. When one officer asked then Lieutenant Mark Benavidez (Benavidez) to clarify, Benavidez purportedly stated "ten or more" parking citations per month would satisfy the expectation.
In addition, the Association pointed to a pre-lawsuit communication written by an associate vice president for human resources at CSU Northridge in response to a "cease and desist" letter from plaintiffs' counsel. In her letter, the vice president disavowed any "parking citation quota system," but conceded "there is an expectation that officers maintain a consistent level of parking enforcement productivity."
The Association contended the quota was enforced primarily through disciplinary action in the form of Personal Evaluation Comment Cards. At his deposition and in his declaration supporting the writ petition, plaintiff Matthew Dunwoody (Dunwoody) testified that one month when he failed to meet the Department's expectation, an adverse comment card was placed in his personnel file even though he was on vacation for half of the month in question. The comment card issued to Dunwoody by his supervisor, in pertinent part, stated as follows: "After a review of March [2015]'s initiatives, I found that you were lacking in the area of 'parking enforcement.' This is a reminder that you should manage your time during your shift in order to meet Department expectations. I will be continuing to monitor your activities." In March 2015, Dunwoody was one of two officers who failed to issue at least 10 parking tickets that month.
Plaintiff Felix Anthony Vargas (Vargas) also received a comment card referencing parking enforcement. That card, in pertinent part, stated as follows: "During the month of February 2015, it was noted on 3 occasions you conducted zero parking violation/abatement details. As a result[,] you fell below Department expectations on parking enforcement. There is an expectation that all officers and supervisors maintain a consistent level of parking enforcement details/productivity. Officers are to be held accountable when expectations are not met." In February 2015, Vargas was the only officer who failed to issue at least 10 parking tickets that month. A few months later, in September 2015, Vargas received a Memorandum of Counseling when his performance the previous month on parking enforcement remained "below that of his peers"—in August, Vargas wrote the fewest number of tickets (three). The memorandum acknowledged that Vargas was being counseled about his "failure to comply" with the Department's parking enforcement policy even though he was on vacation for half of his assigned shifts in August 2015.
The third named individual plaintiff, Thomas Finnerty (Finnerty), also received a comment card from a supervisor regarding his parking enforcement performance. That comment card provided as follows: "On January 28, 2015, I was reviewing the end of the month parking citation recap. I noticed that your citation issuance level is below the average of all other sworn personnel. Starting the month of February, I would like to see you plan your day around meeting the three daily patrol expectations, traffic safety, parking enforcement, and community outreach." In January 2015, Finnerty was the only officer who failed to issue at least 10 parking tickets that month.
The Association additionally relied, in its reply papers, on a statement made in a declaration by Benavidez that was submitted by the Department in opposition to the request for writ relief (discussed further post). With regard to parking ticket issuance statistics, Benavidez had declared as follows: "Since I have been a supervisor, I review the number of citations that each individual I supervise writes each month and calculate the average for everyone. For example, if I supervise four individuals and they write an average of 8 parking citations a month, I might speak to an officer who wrote under the average about being more productive depending on the various demands on his or her time over the course of the month." The Association contended this statement was evidence the Department had a quota based on the average number of tickets issued.
B. The Department's Opposition and Evidence
The Department's opposition papers and accompanying evidence explained parking enforcement is a required duty for the Department's patrol officers, corporals, and sergeants. Declarations submitted by the Department's chief and former and current members of her command staff averred the Department did not have a parking citation quota; officers were expected to spend part of each shift engaged in parking enforcement but were never required to issue a specific number of parking citations.
The declarations further averred neither the chief nor any member of her command staff had ever ordered Department officers to issue a certain number of parking tickets per month. Benavidez's declaration denied he ever told another officer that officers were required to write at least 10 parking citations every month because the Department's chief "was adamant that no specific number be placed on the requirement that officers engage in parking enforcement activities."
Declarations and deposition testimony by lower ranking officers, including testimony by plaintiffs Dunwoody and Yolanda Abundiz (Abundiz), affirmed that none of the Department's leaders ever stated to the rank and file that they were required to issue a minimum number of parking citations each month. Testimony by the Department's leadership on the absence of a parking citation quota was also supported by the written Daily Directed Patrol Plan, which did not require officers to issue a particular number of parking citations each month or meet an average number of citations each month.
The chief and her command staff also explained in their declarations that comment cards were not used generally as a form of discipline and were not used to enforce a quota on parking citations. Comment cards, according to the Department's written policy on the subject, are "a tool to acknowledge exceptional performance and to provide constructive feedback regarding a negative incident, allowing documentation of the event so it will not be forgotten or overlooked during the evaluation period." The cards are not retained after the applicable evaluation period, are purged within one to three months after the completion of the officer's performance evaluation, and are not considered when an officer is up for promotion. (In 2016, following receipt of his comment card, Dunwoody was promoted to sergeant.)
The chief, who had been leading the Department since 2002, declared that during her tenure "[o]nly three officers have ever received a comment card encouraging them to engage in greater parking enforcement duties." Those three officers were plaintiffs Finnerty, Vargas, and Dunwoody in 2015.
The comment cards given to the individual plaintiffs were issued after the Department began working with a new data service provider in January 2013. The new provider allowed the Department to compile statistics on parking citations issued by each officer. Department argued that the data collected by the new service provider showed that comment cards were not used generally to enforce any purported quota. As for the cards issued to Finnerty, Vargas, and Dunwoody, the data, according to the Department, showed they were used merely to encourage greater diligence by officers whose efforts at parking enforcement were underwhelming in both absolute and comparative terms.
In 2013, 2014, and 2015, a majority of officers fell below the Department's annual average for parking citations. For example, from May to December 2013, the Department issued 1,582 parking citations, yielding an average of 93 tickets per officer. Nine out of 17 officers fell below the average in 2013. Among the officers falling below the average were Dunwoody (20 tickets) and Vargas (26 tickets). Similarly, in 2014, the average number of parking citations for 16 officers was 155. Eleven officers fell below that average, including Dunwoody (85), Vargas (44), and Finnerty (4). In 2015, 11 out of 19 officers, including Vargas (119) and Finnerty (76), issued fewer than the average number of parking citations (167); that year, Dunwoody issued more tickets (186) than the average.
During the eight-month period from May 1 to December 31, 2013, neither Dunwoody nor Vargas issued 10 or more parking citations in any month. Neither officer, however, received a negative comment card during that time period for a lack of effort in parking enforcement. During that same period, seven other officers failed to meet the purported 10 ticket per month minimum at least twice, with one officer missing the purported minimum five times. None of these other officers received a negative comment card.
In 2014, Dunwoody issued 10 or more tickets in a calendar month only five times; Vargas issued 10 or more tickets in a month only once; and Finnerty never issued 10 or more tickets in a month. None of these officers, however, received an adverse comment card in 2014. During that same period, 11 other officers failed to meet the purported 10 ticket per month minimum at least twice, with one missing the purported minimum six times. None of these other officers received an adverse comment card.
Finnerty, Vargas, and Dunwoody each received their comment cards in 2015 following a review of their respective parking enforcement performances in January, February, and March. In January, Finnerty issued two parking tickets (the fewest that month), while his fellow officers averaged 16 citations. Three other officers in January fell below the average, but they did not receive a comment card. In February, Vargas issued a total of seven parking tickets, which was below average for the month (28). Although Vargas's total was the lowest for the month, seven other officers also fell below the average; none of those other officers received a comment card. In March, Dunwoody issued six parking citations; his total, which was the second lowest, was below average for that month (19). Five other officers in March fell below the average, but none received a comment card.
C. The Trial Court Finds Insufficient Evidence of a Quota
At a hearing on the petition, counsel for the Association took the position that a comparison of officer performance based on the average number of citations issued constituted a prohibited quota under the Vehicle Code. The trial court questioned whether a quota was instead a "specific number you have to hit," rather than a "comparison." As the colloquy between the court and counsel continued, the Association maintained the average number citations issued per officer could constitute a quota and the court stated "I get that." The court stated it would consider the issue of averages and relative comparisons as a quota when taking the matter under submission.
As alluded to previously, the Association's average-based argument was not the quota theory advanced in its petition (i.e., that the Department required parking enforcement personnel to issue at least 10 citations per month). The averages argument first appeared in the Association's reply papers. We do not hold this method of presentation forfeited the argument.
The trial court later issued a written ruling finding the Association had not carried its burden to show the University "imposed a parking citation quota on its officers." In making that finding, the court expressly considered whether there was evidence of a predetermined numerical quota (e.g., "an 'expectation' of 'double digits,' i.e., 10 tickets per officer per month'") or a quota in the form of a comparison of officer performance measured against an average number of tickets issued.
The court found the testimony proffered by the Association in support of the existence of a fixed number quota unconvincing because the supporting officer testimony merely conveyed "an impression they obtained" about the existence of a purported quota. The court also rejected the theory that there was a quota based on averages because the University's "detailed and coherent" evidence "explain[ed] the genesis of the numerical data and how it was applied" was merely as "a measure of relative performance." In other words, the court found that "the numerical data were used to gauge relative productivity, nothing more." The court entered judgment for the University from which the Association now appeals.
II. DISCUSSION
The Association does not challenge the trial court's finding that it did not prove the Department established a predetermined 10-parking-citations-per-month quota. Instead, the Association contends reversal is required solely because the trial court did not understand the Vehicle Code also prohibits using the average number of parking citations issued by all officers as a quota that an individual officer is required to meet. The record, however, is to the contrary. The trial court understood the pertinent provisions of the Vehicle Code and made a sound factual finding that there was insufficient evidence the Department was using parking citation statistics to establish a required average-based quota for officers to meet.
A. Standard of Review
The Association contends the standard of review should be de novo because the resolution of the appeal turns on the proper interpretation of Vehicle Code parking citation quota statutes. As already foreshadowed, however, that is not the right framing. The trial court did not misunderstand, nor is there any dispute on appeal, that a quota can take the form of an average number of citations issued threshold that parking enforcement personnel must meet. Rather, the question is one of evidence—whether there is a solid, credible grounding for the trial court's conclusion that the record evidence did not establish officers were required to issue a certain number of parking citations in comparison to the average number of citations issued by other officers to avoid suffering discipline. That is a substantial evidence question. (Hayes v. Temecula Valley Unified School Dist. (2018) 21 Cal.App.5th 735, 746.)
B. The Trial Court Correctly Found the Evidence Does Not Establish Use of an Impermissible Parking Citation Quota
Three provisions of the Vehicle Code are relevant to the disposition of this appeal. Vehicle Code section 41602 prohibits law enforcement agencies from requiring its personnel to meet arrest quotas: "No state or local agency employing peace officers or parking enforcement employees engaged in the enforcement of this code or any local ordinance adopted pursuant to this code, may establish any policy requiring any peace officer or parking enforcement employees to meet an arrest quota." Section 41600, as relevant for our purposes, defines an "arrest quota" as "any requirement regarding the number of . . . citations issued[ ] by a peace officer[ ] or parking enforcement employee, or the proportion of those arrests made and citations issued by a peace officer or parking enforcement employee, relative to the arrests made and citations issued by another peace officer or parking enforcement employee, or group of officers or employees." Taken together, these statutes prohibit requiring parking enforcement personnel to meet quotas in either of two forms: (1) a specific predetermined number of citations that should be issued or (2) a number of citations that will vary based on a comparison to the relative performance of other personnel. At the same time, however, the Vehicle Code expressly allows law enforcement agencies to consider the number of citations issued "in evaluating the overall performance of a peace officer or parking enforcement employees." (§ 41603.)
Undesignated statutory references that follow are to the Vehicle Code. --------
The Association argues the trial court misinterpreted the Vehicle Code by failing to comprehend parking citation quotas can be based on a variable average comparison, not just a specific, predetermined number. The trial court, however, did understand the statutory scheme correctly. Both in its remarks during the hearing to consider the Association's petition, and in its subsequent written ruling, the court addressed and analyzed evidence put forward by the Association in support of both of its quota theories—a fixed number (10 tickets per officer per month) and a floating requirement tied to an average number of tickets issued during a particular time period.
The resolution of this appeal therefore does not turn on a question of statutory interpretation (except, perhaps, insofar as we focus on what it means for a law enforcement agency to "establish any policy requiring any peace officer or parking enforcement employees to meet an arrest quota" (§ 41602, italics added)). Rather, the question is whether the Association made a sufficient evidentiary showing that the Department's calculation and consideration of parking citation statistics amounted to use of an impermissible "averaging" quota or instead, as the trial court found, a benchmark providing some insight into overall officer performance. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153 ["In a petition for writ of mandate, . . . the petitioner bears the burden of pleading and proving the facts on which the claim for relief is based"].)
The Association did not make such a showing. Neither the Daily Directed Patrol Plan nor any of the comment cards at issue evidence the existence of a quota within the meaning of the Vehicle Code. The chief of the Department and her command staff testified they never ordered Department officers to issue a certain number of parking tickets per month. This testimony was supported by declarations and deposition testimony by lower ranking officers, including plaintiffs Dunwoody and Abundiz. Evidence further established that comment cards were not punitive in nature, either as a matter of policy or practice (Dunwoody was promoted to sergeant after receiving his).
More important, the statistical evidence weighed strongly against a finding that there was an average-citation-based quota. Over the course of three years, 2013-2015, only three comment cards were issued to officers regarding a deficiency in parking enforcement efforts even though a majority of the officers for each of those years fell below the annual average for parking citations. During 2013 and 2014, the three plaintiff-officers plus a number of their colleagues regularly fell below the monthly average for issued tickets, as well as below the alleged 10 ticket per month minimum, yet no comment cards were issued to any officer whose performance fell below either type of alleged quota. In 2015, a total of three comment cards were issued related to parking enforcement—one each in January, February, and March. In each of those months however, there was more than one officer whose performance fell below the monthly average. In other words, when the comment cards issued to the individual plaintiffs are placed in a larger historical and statistical context, there is no significant correlation to any average citation calculations run by the Department.
The only significant evidence arguably to the contrary, relied on heavily by the Association in the trial court and in this court, is the Benavidez declaration. But that reliance is unavailing for two reasons. First, on substantial evidence review, the question is not whether there is substantial evidence that would support a conclusion contrary to the trial court's but whether there is substantial evidence that supports the conclusion the court did draw. (See, e.g., Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) As already discussed, there is. Second, and regardless of the standard of review, the conditional phrasing of the Benavidez declaration (that he "might" speak to an officer falling below an average number of citations issued depending on the officer's other duties) does not establish a required quota. Rather, it is merely an indication that one Department supervisor was willing to consider parking citation statistics as one factor in making an overall assessment of an officer's performance, which is what the Vehicle Code expressly permits. (§ 41603 ["No state or local agency employing peace officers or parking enforcement employees engaged in the enforcement of this code shall use the number of arrests or citations issued by a peace officer or parking enforcement employees as the sole criterion for promotion, demotion, dismissal, or the earning of any benefit provided by the agency. Those arrests or citations, and their ultimate dispositions, may only be considered in evaluating the overall performance of a peace officer or parking enforcement employees"].)
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
MOOR, J.