Opinion
G044397 Super. Ct. No. 30-2009-00301273
12-23-2011
VLADIMIR BELAN, Plaintiff and Appellant, v. ANAHEIM UNION HIGH SCHOOL DISTRICT, Defendant and Respondent.
Law Offices of Vincent J. Tien and Vincent J. Tien for Plaintiff and Appellant. Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff, Jack M. Sleeth, Jr., and Paul V. Carelli IV for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. Affirmed.
Law Offices of Vincent J. Tien and Vincent J. Tien for Plaintiff and Appellant.
Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff, Jack M. Sleeth, Jr., and Paul V. Carelli IV for Defendant and Respondent.
INTRODUCTION
Plaintiff Vladimir Belan was discharged from his instructional assistant position with defendant Anaheim Union High School District because he committed an assault on his wife, also an employee of defendant, during the schoolday on school property. After plaintiff pursued his administrative remedies and an administrative hearing was conducted, defendant's personnel commission upheld the decision to terminate plaintiff's employment. Plaintiff sought a writ of administrative mandate in the trial court. Exercising its independent judgment, the trial court found the weight of the evidence supported the finding plaintiff assaulted his wife, and refused to issue a writ.
We affirm. Plaintiff's arguments on appeal lack merit. Substantial evidence supported the trial court's finding. The administrative hearing officer and the trial court, in turn, applied the correct standards in reviewing defendant's decision to terminate plaintiff's employment. Neither the hearing officer nor the trial court improperly shifted the applicable burdens of proof. Any argument plaintiff's due process rights were violated because defendant failed to turn over evidence related to the charge that plaintiff had falsified his employment application is moot as that charge was dismissed. The trial court made the necessary findings.
FACTS
This summary of facts is based on the evidence presented at the administrative hearing before the personnel commission's hearing officer.
In 2008, plaintiff was married to Christina Loya. Both plaintiff and Loya were employed by defendant at Hope School. Hope School provides junior high, high school, and adult programs to moderately to severely disabled students. Loya's duties included teaching students "daily living skills." Plaintiff worked as an instructional assistant in a classroom. In April 2008, Loya was injured following "some kind of incident on the bus" and was placed on medical leave.
In June 2008, plaintiff and Loya were separated and were having a dispute regarding financial issues. Loya testified that plaintiff "just walked out" without paying rent or giving 30 days' notice under the lease and did not pay other expenses. Loya wanted money from plaintiff for half of the rent and utility bills. She sent him text messages demanding money for rent and utilities. She called him a pig in a text message. She threatened to turn him over to immigration because plaintiff was from Russia and had petitioned to become a United States citizen. Loya testified she reported to immigration officials that plaintiff had stated he did not love her and married her only because he wanted to become a citizen. She also wrote a letter withdrawing her application for plaintiff to become a citizen.
Plaintiff testified that Loya started blackmailing him on June 10, 2008, threatening that if he did not give her money, she would "turn [him] into immigration." She demanded $300 which increased to $675.
On the morning of June 11, plaintiff talked to Cherylin Lew, who was the assistant principal of Hope School. He showed Lew the text messages he had received from Loya and told Lew about some of the difficulties he and Loya were having. He told Lew that Loya wanted money and wanted to come on campus to get it. Loya called plaintiff while he was in Lew's office. Lew heard plaintiff tell Loya "fine go ahead." Lew cautioned plaintiff, "we need to try and keep this off campus. This is a personal issue." Lew asked plaintiff if he felt like he was able to work with the students that day. Although he was "pretty upset," plaintiff told Lew that he could work. She directed him to go to his assigned class.
Plaintiff testified that he had received a voice mail message from Loya at 11:28 a.m. that morning. The voice mail message stated: "You better get your ass over here and give me the money you owe me. If you don't I'm gonna go to the school." He testified he sent a text message to Loya that said, "okay, come over to the school." Plaintiff did not expect Loya to come to the school while he was working.
From his classroom, plaintiff saw Loya drive her Chevrolet TrailBlazer into the school's parking lot. Plaintiff asked the teacher in his classroom to notify the main office that Loya was on campus.
Plaintiff and Loya provided two different accounts of what happened next. Loya testified that she drove into the school's parking lot and plaintiff walked toward her. She stated, "[h]e opened his wallet and started laughing—I don't have any money for you." Loya testified that she was "hurt" and "wasn't going to mess with him," so she started driving out of the parking lot. Loya saw in her rearview mirror that plaintiff was running "really fast" to catch up with her. He put one hand on the car; he used the other hand to scratch her face and chest and to push her head while she was driving. She stopped the car "because [she] thought he was going to get hurt." Loya stated he also grabbed her arm and pulled her hair. Loya said that although she did not strike him, she pushed him with an "open hand" off the car. Plaintiff "cussed [her] out," and she drove away.
Plaintiff testified that he walked out of his classroom to speak with Loya. He asked her what she wanted, and she said, "where's my money." He told her that he did not have any money and wanted to file for divorce. Plaintiff testified Loya became aggravated and angry. She rolled down the window of the car and scratched him. He stated that "at the same kind of moment she accelerated the car and pushed [him] away and she just sped off." Plaintiff fell. He was afraid she might run over him with her car.
Meanwhile, the teacher in plaintiff's classroom contacted the school's main office about Loya driving onto the campus. Lew went to the classroom and the teacher told her that plaintiff was in the parking lot. Lew was more than 50 feet away from plaintiff when she saw him "kind of on his elbows" leaning into Loya's car through an open window; Lew could not see "what he was doing with his hands." Lew saw plaintiff stumble as Loya's car "sped off very quickly." Plaintiff turned around and walked toward Lew. He looked angry and said, "she just scratched me." Lew saw "fresh red marks across his face."
Lew escorted plaintiff to the nurse's office where pictures were taken of the scratches on plaintiff's face. Lew asked plaintiff whether he wanted to call the police; he said yes. The police came to the school and made a report.
Police officers went to Loya's apartment. Her daughter told the police officers that Loya was at the store and gave them Loya's cell phone number. The police officers called Loya and she told them to wait for her at her apartment. Photographs of Loya, which showed scratches on the left sides of her face and chest, were taken that day. Plaintiff testified that he did not scratch Loya or pull her hair; he stated that he "[n]ever touched her." He believed that her scratches were self-inflicted.
Donna Erickson, the school's principal, investigated the June 11, 2008 incident. Following her investigation, she recommended to the assistant superintendent of human resources disciplinary action against both plaintiff and Loya, as a single incident of assault is sufficient to justify the termination of employment. Loya's employment with defendant was terminated in October 2008.
BACKGROUND
I.
STATEMENT OF CHARGES AND RECOMMENDATION TO DEFENDANT'S
SUPERINTENDENT AND BOARD OF TRUSTEES TO DISCHARGE PLAINTIFF;
BOARD OF TRUSTEES TERMINATES PLAINTIFF'S EMPLOYMENT;
PLAINTIFF APPEALS TO PERSONNEL COMMISSION.
Defendant's assistant superintendent of human resources prepared a statement of charges underlying a recommendation that plaintiff be dismissed as an instructional assistant at Hope School. The statement of charges stated, inter alia, that plaintiff engaged in a physical altercation with another of defendant's classified employees.
The statement of charges also asserted plaintiff should be dismissed because he failed to disclose material facts regarding his criminal record on his employment application. That charge was later dismissed and its merit is not relevant to any issue raised on appeal. We therefore do not address it further.
The statement of charges set forth the following facts supporting the charge: "On June 11, 2008, [plaintiff] requested through a text message that Ms. Christina Loya, also a classified employee at Hope School and his estranged wife, meet him at the Hope School parking lot to discuss an issue of money that Ms. Loya claimed [plaintiff] owed to her. Their discussion became confrontational and evolved into a physical struggle with both parties sustaining injuries. The altercation was reported to police and a crime report was taken that documents the evidence of physical injuries to both parties. Ms. Loya and [plaintiff] were summoned to appear in court regarding this incident. These actions violated Personnel Commission Rule 60.800.1.A.23, Board Policy 6417.02, 24 and 8700-R Civility-A which address assault or battery on students or employees of the school district. The actions also violated Personnel Commission Rule 60.800.1.A.18, and Board Policy 6417.02, 28 which address actions that are detrimental to the welfare of the school and the pupils thereof." The statement of charges asserted the assault of an employee represents a third-level offense of the "Classified Employee Progressive Discipline Board Policy 6417.02" and a first infraction of a third-level offense may result in the dismissal of an employee. The assistant superintendent recommended that defendant's board of trustees dismiss plaintiff from his employment because he "engaged in a physical assault of another employee of the District."
Defendant's board of trustees heard the charges and decided to dismiss plaintiff from employment for the reasons stated in the statement of charges. Plaintiff appealed to defendant's personnel commission, asserting that the board of trustees' decision constituted an abuse of discretion.
II.
HEARING OFFICER'S REPORT AND RECOMMENDED ORDER THAT
PERSONNEL COMMISSION DENY PLAINTIFF'S APPEAL
In response to plaintiff's appeal, defendant's personnel commission appointed a hearing officer who conducted a hearing at which plaintiff, Loya, Lew, and Erickson testified. Following the hearing, the hearing officer issued a 14-page "Report of the Hearing Officer and Recommended Order" (the report) which contained the hearing officer's recommendation that the personnel commission uphold the board of trustees' decision to terminate plaintiff's employment.
The report contains the following "Findings of Fact": "1. Appellant was discharged for engaging in a physical confrontation with an off-duty employee who was his estranged wife. [¶] 2. Appellant could have avoided the situation by advising school administrators that his wife told him that she was coming to the school and by refusing to meet with her when she arrived. [¶] 3. Appellant and his wife engaged in unwanted physical contact with each other."
The report contains a lengthy discussion of the hearing officer's concerns about Loya's and plaintiff's respective credibility, as follows: "The case against [plaintiff] primarily relies on the testimony of Loya. While there is a substantial amount of speculation by both parties about what the photographs reveal about who did what to whom, [defendant] argues that Loya's testimony reinforced by photographs tips the scales in favor of a finding that she was a victim. It makes this argument while admitting that, at least in some parts of her testimony, she lied, contending that what actually occurred is different from both Loya's and [plaintiff]'s testimony."
The report further states that based on the hearing officer's observation of Loya and the "tenor" of her voice mail and text messages to plaintiff, the hearing officer did not believe she would have "merely driven away if [plaintiff] had laughed at her demands," and "[i]t is far more likely that she was furious and would have reacted angrily at his failure to give her money, by slapping or pushing him before she drove off." The report states that Loya's account that plaintiff caught up with her car as she drove away, held onto the car, pulled Loya's hair, and grabbed her arm, is inconsistent with her conduct of thereafter going shopping instead of contacting the police. The report states: "It is likely that either before or after she received a call from the investigating police officer, she scratched herself and had the pictures taken so that she could claim to be the victim." The report notes, "[a] close examination of the photographs of Loya's injuries supports the conclusion that at least some of the scratch marks were self inflicted." The report further notes, however, that the scratches could also have been caused by plaintiff when he reached into the car.
The report also states: "The conclusion that Loya's testimony lacks credibility and that the photographs of her and [plaintiff] do not support her version does not end the matter. There remains the question of whether or not [plaintiff]'s testimony is credible." The hearing officer found plaintiff's behavior consistent with someone who had not committed a battery and was also consistent with someone who had just been slapped and scratched. The hearing officer further stated in the report, "[o]n the other hand, I do not believe that the abrasion to [plaintiff's] arm is consistent with the effect a moving car would have on a person who was standing next to the car. The appearance of the bruise and its location on the arm is more consistent with a bruise that was caused by the window post of the car striking the arm if [plaintiff] were reaching inside in the manner described by Loya. A falling person naturally uses his hand to break his fall. In order to credit [plaintiff] on this point, he would have had to turn his arm in an unusual or contorted way for the bruise to appear as it did in the photograph."
The hearing officer in the report continued: "I conclude that Loya and [plaintiff] gave versions of what transpired that made themselves appear to be the innocent victims of the other's misconduct. The testimony of both participants in the altercation lacks credibility." The hearing officer stated that a review of the events leading up to plaintiff and Loya's altercation showed it was likely "anger got the best" of plaintiff. The hearing officer further stated: "Frustrated with Loya's repeated demands and threats, he engaged in at least some of the conduct alleged by Loya. One likely scenario is that after she slapped or pushed [plaintiff] when he laughed at her and said he wanted a divorce, he lost any self control he may have had and retaliated by grabbing her hair and/or her arm. At that point, Loya drove away, causing the bruise on [plaintiff]'s arm when it hit the door post, and causing him to stumble or fall. Therefore, I conclude that [defendant] has met its burden of proof that [plaintiff] engaged in the conduct alleged in the Statement of Charges."
The hearing officer also concluded defendant established by a preponderance of the evidence that plaintiff's discharge from employment "was in accord with the facts" and plaintiff did not establish by a preponderance of the evidence that defendant's board of trustees abused its discretion by terminating plaintiff's employment. The hearing officer further concluded plaintiff did not establish by a preponderance of the evidence that he was denied due process.
Plaintiff had asserted at the hearing that the board of trustees' decision might have constituted discrimination based on plaintiff's gender (male) or national origin (plaintiff is a Russian seeking United States citizenship). The hearing officer found plaintiff did not establish by the preponderance of the evidence that his discharge from employment was the product of discrimination against him because of his national origin or gender. Plaintiff does not raise any issue regarding discrimination in this appeal. We therefore do not discuss that contention further.
III.
DEFENDANT'S PERSONNEL COMMISSION ADOPTS HEARING OFFICER'S
RECOMMENDATION AND DENIES PLAINTIFF'S APPEAL OF DECISION TO
TERMINATE HIS EMPLOYMENT; PLAINTIFF FILES VERIFIED PETITION FOR
WRIT OF ADMINISTRATIVE MANDATE.
Defendant's personnel commission adopted the following resolution: "WHEREAS, the Personnel Commission has carefully considered the findings of fact and Proposed Decision filed by the Hearing Officer; and [¶] WHEREAS, BY THE Proposed Decision, the action of [defendant] dismissing the appellant, [plaintiff], from his position as a permanent Instructional Assistant Severely Handicapped is to be sustained; and [¶] IT IS RESOLVED that the finding of fact and the Proposed Decision of the Hearing Officer are adopted by the Personnel Commission as its decision in the case." (Boldface omitted.)
Plaintiff filed a verified petition for a writ of administrative mandamus under Code of Civil Procedure section 1094.5, seeking the issuance of a peremptory writ of administrative mandate that would direct defendant to, inter alia, reinstate plaintiff with backpay and benefits.
IV.
PLAINTIFF FILES MOTION FOR ISSUANCE OF WRIT OF ADMINISTRATIVE
MANDAMUS; THE TRIAL COURT DENIES THE MOTION.
Plaintiff also filed a motion for a writ of administrative mandate under Code of Civil Procedure section 1094.5. The trial court continued the hearing on the motion to provide the parties the opportunity to submit briefs addressing the following questions: "The charge at issue was that [plaintiff] engaged in a 'physical altercation.' The hearing officer found that [plaintiff] engaged in 'unwanted physical contact.' [¶] Is engaging in unwanted physical contact sufficient to constitute a physical altercation? [¶] What physical contact did the hearing officer find occurred? [¶] If the hearing officer concluded that Loya's testimony lacked credibility but did not state in what specifics he believed her testimony, can the court infer that he believed any of it? If so, in what respects? [¶] What conduct can the court find is referenced by the hearing officer's statement that 'he [plaintiff] engaged in at least some of the conduct alleged by Loya?'" The parties filed supplemental briefs in response to the court's inquiries.
Prior to the continued hearing on the motion, the trial court had issued a tentative ruling which stated: "The ruling is in [defendant's favor only because of the 'strong presumption favoring correctness' and the fact that there is sufficient evidence to support the hearing officer's ruling. The difficulty is determining whether the hearing officer believed the evidence which supports the ruling. [¶] In the 5 page 'DISCUSSION BY THE HEARING OFFICER' over 2 pages are spent explaining why the person assaulted was not credible. Almost as much time is spent explaining why [plaintiff] was not credible, although his reasons for questioning the credibility of [plaintiff] are curious. He seemed to base much [of] his conclusion as to [plaintiff]'s credibility on [plaintiff]'s exercise of poor judgment in meeting with Loya. The hearing officer never states what he specifically believed happened. The closest he came to a description of the events is phrased in the language 'One likely scenario . . . .' This court infers that is what he found happened. However, such a decision should not have to be left to inference."
In response to the tentative ruling, plaintiff filed a request for a statement of decision addressing the following issues: (1) whether the ruling was in defendant's favor only because of the strong presumption favoring correctness; (2) whether the independent judgment test applies in this action; (3) whether the hearing officer believed the evidence which supports the ruling; (4) whether the hearing officer stated what he specifically believed happened; (5) whether the court may infer that plaintiff committed unwanted touching of another; (6) whether defendant proceeded in the manner required by law; (7) whether the personnel commission's decision is supported by the findings; and (8) whether the personnel commission's findings that plaintiff committed unwanted touching is supported by the weight of the evidence.
At the hearing on the motion, the trial court stated that the tentative decision would become its final ruling. The court also stated: "As far as your request for a statement of decision, I'll answer each one of these questions. The answer to question number one is no; to number two, yes; number three, yes; number four, no; number five, the question is a false question because it's not a matter of whether I may infer. Of course I may infer anything I want to infer within the evidence. But it's really I have to interpret the decision, not infer what the facts are. Even if I were to infer to the extent that you have to infer who inflicted what injuries, it would be against [plaintiff]; six, yes; seven, yes; eight, yes."
Judgment was entered in favor of defendant and defendant was awarded costs. Plaintiff appealed.
DISCUSSION
I.
STANDARDS OF REVIEW
Code of Civil Procedure section 1094.5 provides, in relevant part, the following instructions for a trial court when considering a petition for a writ of administrative mandamus: "The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. [¶] . . . Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., § 1094.5, subds. (b) & (c).) The trial court is to exercise its independent judgment on the evidence in cases where the final administrative decision affects a fundamental vested right. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8 (Fukuda).) Discipline imposed on public employees affects their fundamental vested right in their employment, making the independent judgment test applicable. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52.)
"In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda, supra, 20 Cal.4th at p. 817.) "[T]he presumption provides the trial court with a starting point for review—but it is only a presumption, and may be overcome. Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency's findings." (Id. at p. 818, italics added.)
On appeal, we review the trial court's findings for substantial evidence. (Fukuda, supra, 20 Cal.4th at p. 824.)
II.
SUBSTANTIAL EVIDENCE SUPPORTED THE FINDING PLAINTIFF ASSAULTED LOYA.
In his opening brief, plaintiff's substantial evidence challenge is limited to the hearing officer's finding that plaintiff assaulted Loya, which the trial court found was supported by the weight of the evidence. Plaintiff argues that the hearing officer "expressly found that Loya's account of the incident was not credible."
Plaintiff conceded, in the supplemental brief he filed in the trial court, that unwanted physical contact within the meaning of the report is synonymous with assault. Plaintiff does not argue otherwise on appeal.
The hearing officer did not state that he found all of Loya's testimony incredible. Instead, he stated Loya and plaintiff "gave versions of what transpired that made themselves appear to be the innocent victims of the other's misconduct" and each of them had credibility problems. The hearing officer clearly relied on what he considered to be credible portions of Loya's testimony in finding that plaintiff had assaulted her; the hearing officer also expressed doubt the assault occurred exactly as Loya had described. Plaintiff has not offered any legal authority, and we have not found any, that the hearing officer was required to specifically identify each portion of Loya's testimony he found credible. Certainly, portions of Loya's testimony, coupled with the photographic evidence of scratches on her face and chest, supported the hearing officer's finding.
Plaintiff argues Lew's testimony established that he could not have assaulted Loya in the manner in which Loya described because Lew saw him with his elbows resting on the car, which would have made it impossible for him to launch an attack. Lew testified she was more than 50 feet away when she saw defendant leaning on his elbows into the car through an open window; she stated she could not see what plaintiff's hands were doing at the time. Lew's testimony is not inconsistent with a finding that plaintiff committed an assault upon Loya.
Plaintiff further argues the assault finding is unsupported because it would be impossible for him to commit the assault as described by Loya as occurring while she was driving the car. The hearing officer was not required to accept or reject Loya's testimony in whole; instead, as the hearing officer clearly did here, the hearing officer was free to accept those portions of her testimony that he found credible and reject those portions he found incredible. Here, the hearing officer accepted Loya's account to the extent she claimed plaintiff assaulted her.
The finder of fact is permitted to disregard portions of a witness's testimony deemed untruthful but accept other portions deemed truthful. Juries are routinely instructed with CACI No. 107 which states in relevant part: "Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also, two people may see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony. [¶] However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said. On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest."
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Although the trial court was critical of the report as vague and confusing in parts, the court found the weight of the evidence supported the finding that plaintiff assaulted Loya. The trial court stated that it believed Loya's testimony and might not share the hearing officer's skepticism regarding Loya's credibility in describing the assault.
In our review of the record, we conclude Loya's testimony and the photographic evidence submitted at the hearing constitute substantial evidence that plaintiff assaulted Loya. We find no error.
III.
THE TRIAL COURT DID NOT APPLY THE WRONG STANDARD OF REVIEW.
Plaintiff argues the trial court "misapplied the standard of review." In its oral statement of decision, the trial court expressed the correct understanding that it was to apply the independent judgment standard of review to the personnel commission's decision to uphold plaintiff's employment termination. The trial court also stated its conclusion the weight of the evidence supported the finding plaintiff assaulted Loya. The court added that notwithstanding the requirement that it afford the hearing officer's assault finding a strong presumption of correctness, the trial court would have believed Loya's testimony and found plaintiff committed an assault upon her.
Plaintiff asserts, "the trial court should have given due weight to [the hearing officer]'s express finding that the incident did not occur as alleged. Accordingly, . . . simply supplying the missing finding without evidentiary support constitutes abuse of discretion." Plaintiff's argument is without merit. The hearing officer expressly found plaintiff committed an assault upon Loya. That the hearing officer expressed doubt as to Loya's account of some of the details of the assault does not undermine his ultimate finding that plaintiff committed an assault. We find no error.
IV.
NEITHER THE HEARING OFFICER NOR THE TRIAL COURT "IMPROPERLY
SHIFTED THE BURDEN OF PROOF."
Plaintiff argues the hearing officer improperly shifted the burden of proof from defendant to plaintiff, as evidenced by the following statement in the report: "The conclusion that Loya's testimony lacks credibility and that the photographs of her and [plaintiff] do not support her version does not end the matter. There remains the question of whether or not [plaintiff]'s testimony is credible."
Reading the report as a whole, it simply does not reflect the conclusion that the hearing officer found none of Loya's testimony was credible. Instead, the report reflects the hearing officer's belief the truth of exactly what had happened between Loya and plaintiff lay somewhere between their two versions of the incident. The hearing officer was only required to make a finding as to whether plaintiff assaulted Loya and the hearing officer concluded plaintiff had committed such an assault. He thus accepted some of Loya's testimony as truthful and rejected other portions of her testimony as untruthful. The record does not show the hearing officer shifted the burden to plaintiff to prove that an assault did not occur.
The trial court too applied the correct standard of review by exercising its independent judgment and determining the weight of the evidence supported the finding plaintiff committed an assault upon Loya. We find no error.
V.
PLAINTIFF'S CONTENTION DEFENDANT VIOLATED HIS DUE PROCESS RIGHTS BY FAILING
TO PROVIDE THE MATERIAL UPON WHICH THE CHARGES WERE BASED IS MOOT.
Plaintiff contends, "[defendant]'s own policy, Board Policy 6417.02, reflects the prevailing public policy that the materials upon which disciplinary action is based be provided to the employee prior to termination. Despite [plaintiff's] request, [defendant] did not provide the documentation upon which they relied to support the charges prior [to] the termination. . . . The record demonstrates that such material existed and that [defendant] flatly refused to provide copies to [plaintiff]. Accordingly, [plaintiff] was denied a fair hearing and [defendant] failed to proceed in the manner required by law."
Plaintiff's argument appears to be based on defendant's failure to produce documents in connection with the charge, originally included in the statement of charges, that plaintiff had falsified his employment application in addition to assaulting Loya. As the falsification of the employment application charge was dismissed at the administrative hearing, any failure on defendant's part to produce evidence in connection with that charge is moot.
Plaintiff does not contend that defendant failed to provide him with copies of any material upon which the assault charge was based. The record shows that other than the photographs of plaintiff and Loya, the determination of the merit of the assault charge was entirely based on oral testimony presented at the administrative hearing; plaintiff does not contend defendant failed to provide copies of any photographs it relied upon at the administrative hearing.
VI.
THE TRIAL COURT DID NOT FAIL TO MAKE "NECESSARY FINDINGS."
Plaintiff argues: "An appellate court will also reverse the trial court judgment if the trial court has failed to make a necessary factual determination. [Citations.] [¶] As indicated by the trial Court's ruling . . . , it could find no proper basis to make the finding that [plaintiff] engaged in the conduct alleged." Plaintiff cites page 14 of the reporter's transcript in support of his argument, which contains the trial court's statements criticizing the report as vague in parts, expressing the trial court would have believed Loya's testimony, and addressing the issues plaintiff had raised in his request for a statement of decision. Page 14 of the reporter's transcript states the following:
"The Court: Okay. But see, here's the problem for you [plaintiff's counsel]. If [the hearing officer] hadn't said any of that, I looked at the record, I would have just said I believe her, that's the end of it. He made it more complicated to support his decision because he didn't say that. But if you were to ask me okay disregard his statements about credibility, then you make a call on credibility, I would, and I would say she wins. So you would lose anyway. I mean, the fact that he made it so vague is to your benefit, not to the benefit of [defendant].
"[Plaintiff's counsel]: But there's no—
"The Court: Well, no, no, no. We're done. We're done.
"[Defendant's counsel]: Thank you, Your Honor.
"The Court: So the ruling is as indicated. As far as your request for a statement of decision, I'll answer each one of these questions. The answer to question number one is no; to number two, yes; number three, yes; number four, no; number five, the question is a false question because it's not a matter of whether I may infer. Of course I may infer anything I want to infer within the evidence. But it's really I have to interpret the decision, not infer what the facts are. Even if I were to infer to the extent that you have to infer who inflicted what injuries, it would be against [plaintiff]; six, yes; seven, yes; eight, yes. [¶] Okay."
Neither plaintiff's appellate briefs nor the portion of the record upon which plaintiff relies to support his argument identifies any finding the trial court erroneously failed to make. We find no error.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
FYBEL, J. WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.