Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 07CC06480, Derek W. Hunt, Judge.
Law Offices of Margaret A. Chidester & Associates, Margaret A. Chidester and Cathie L. Fields for Plaintiff and Appellant.
Reich, Adell & Cvitan, Marianne Reinhold, Carlos R. Perez and Natalia Bautista for Real Party in Interest and Respondent.
No appearance for Defendant and Respondent.
OPINION
SILLS, P. J.
The Board of Trustees of the Fullerton Joint Union High School District (the District) appeals from the judgment of the trial court denying its petition for a writ of mandate, by which it sought to reverse the decision of the Commission on Professional Competence (the Commission). The Commission found that Jose Manuel Maturino, a permanent certificated employee, should not be dismissed from employment and ordered his reinstatement. The Board contends the trial court failed to apply its independent judgment as required by section 1094.5 of the Code of Civil Procedure and the matter must therefore be reversed and remanded. We agree.
FACTS
In June 2006, the Board of Trustees of the Fullerton Joint Union High School District reassigned Jose Manuel Maturino from an assistant principal to a counselor and placed him on administrative leave based on his “immoral conduct” towards certain female District employees. The District filed charges and sought Maturino’s dismissal because he was “evident[ly] unfit for service” and he “violat[ed] or refus[ed] to obey the school laws of the state” or the regulations of the District. The statement of written charges alleged that in 2000, Maturino hugged and “rubbed the back and arms” of his secretary, Jeanne Simonian, on “numerous occasions.” This made Simonian “very uncomfortable,” and she considered retiring as a result. The charges also alleged that in 2003, Maturino caressed the arm of Angie Cencak, a teacher, and made several comments to her that made her feel “uncomfortable and embarrassed.” Cencak reported the comments to her principal, who reported them to the District’s human resources department. Maturino met with human resources personnel, and it was explained to him that “his comments made Cencak uncomfortable, and that she felt sexually harassed.” He discussed the meeting with his principal, Jennifer Leeman, who told him that “it was necessary to be careful with what he said, and that sexual harassment was not a joke.” Maturino also made inappropriate comments to Leeman, who believed he was trying to ask her out on a date.
The charges alleged that starting in 2003, Maturino made “numerous inappropriate comments” to a campus security supervisor, Cherry Barber. An example: “You look so lovely, I have to take a cold shower.” Maturino continued these comments “despite Barber’s obvious discomfort . . . .” During the 2005-2006 school year, Maturino’s inappropriate comments to Barber increased in boldness and frequency; he also began touching her inappropriately, such as hugging her, patting her cheeks and stomach, and rubbing her arms and neck. He frequently asked her to go out, and she invented an imaginary boyfriend to discourage him. Several times when they were alone, Maturino suggested they kiss; Barber refused.
The charges alleged that Maturino also made frequent comments to Pamela Cox, a teacher, about her appearance during the 2004-2005 school year. He visited her classroom during class time “on an almost daily basis . . . .” Cox was uncomfortable “because Maturino sat too close to her and was too friendly.” In April 2006, Maturino and Cox went on a field trip to New York with ten students, another teacher, and a male parent. During the trip, Maturino’s inappropriate and suggestive comments continued. After the trip, Maturino continued to come into Cox’s classroom. In May 2006, Cencak “straightened Maturino’s tie” at his request. He said “I’ll give you a half hour to stop that. It feels good.”
The four women filed written complaints. The District conducted an investigation and decided to terminate Maturino’s employment. Maturino requested a hearing, and the matter was referred to the Commission on Professional Competence (the Commission), comprised of an administrative law judge appointed by the California Office of Administrative Hearings, an assistant principal employed by the Orange Unified School District (chosen by Maturino), and a counselor employed by the Pomona Unified School District (chosen by the District). Maturino was placed on unpaid leave pending the dismissal hearing.
The Commission conducted a four-day hearing in February 2007. It issued a 32-page written decision analyzing the evidence and the credibility of each witness. It concluded that the District had not met its burden of proof to show cause to dismiss Maturino from employment. It found he did not engage in sexual harassment or violate or refuse to obey any rule, regulation, or order; his conduct was not immoral; and his conduct did not demonstrate that he was unfit for service or that dismissal was the appropriate discipline or action. Therefore, the Commission ordered that Maturino be “retained as a permanent certificated employee of the [District].”
The District filed a petition for a writ of mandate in the superior court under Code of Civil Procedure section 1094.5. At the hearing, the trial court commented, “This is filed as a petition for a peremptory writ of mandate respecting the firing of real party in interest, Mr. Maturino. [¶] I think I have to treat this actually as an administrative mandamus. Petition for writ of mandate normally is appropriate when the body or when the petitioner has claimed to have done everything necessary and the body refuses to act. So that you’ve shown you are entitled to a driver’s license or a passport or something like that. Everything is taken care of, and [the] body refuses to issue the passport or the driver’s license and you come for a writ of mandate; but this is administrative mandate.” The District agreed. After assuring the parties it intended “to read this record in detail at the conclusion of today’s hearing,” the trial court stated, “Remember, we are not here to test whether I as the trial judge would have come to the same conclusion as the [Commission] based on the same evidence. In other words, I don’t get to substitute my conclusions of fact or law for what the Commission should have done. [¶] The question is whether there was substantial evidence that supports what the Commission did, even if I personally would have come to a different result.”
The District pointed out that the court needed to exercise its independent judgment. The court stated if it agreed with the petition, it would send the case back to the Commission “to go and make their evaluation according to the principles that they’ve ignored.” The District again pointed out that the court had the jurisdiction to reverse the decision of the Commission, “because it is a de novo review, including reweighing the evidence and the credibility of the witnesses.” The District emphasized the court’s “authority to reweigh the evidence and the credibility.” The trial court responded it “never doubted [its] authority in this matter” and submitted the case.
The trial court issued a written decision denying the petition for writ of mandate. In the decision, the court stated: “By writs of mandate, the trial court essentially determines whether the administrative body has simply failed to act when it should have acted. If so, it orders that the act be taken without any further proceedings. In acting on a petition for administrative mandamus, the trial court determines whether the administrative body has done its job inadequately or incompletely. If that is the case, it sends the matter back with instructions to get it right. [¶] If there were substance to the Board’s criticism that the Commission neglected what it sees as the central issue of ‘immoral conduct,’ that would be more sensibly dealt with by administrative mandamus: returning the matter for the appropriate evaluation. The Commission’s report, however, explicitly evaluated the factual record in terms both of sexual harassment and immoral conduct. Treating this as an administrative mandamus for that evaluation, therefore, would be redundant. [¶] So the matter is therefore before this court on a writ of mandate.”
The trial court noted that both parties based their arguments on the credibility or lack of credibility of the witnesses before the Commission. It then pointed out that the Commission “specifically commented” on the credibility of each witness. “By contrast, this court did not have the advantage either of observing the witnesses’ demeanor or testing the quality of their evidence by its own questions. Moreover, this court, having reviewed the record, does not detect any obvious abuse by the Commission members – either in terms of their treatment of the witnesses or their evaluation of the issues. Finding an abuse of discretion under those circumstances would itself be an abuse.” The court ordered that the Commission’s order retaining Maturino as a permanent certificated employee would remain in effect. It also ordered the District to pay Maturino’s attorney fees and costs.
The District appealed from the trial court’s judgment denying the petition. It also filed a petition for writ of supersedeas, seeking to stay the execution of the trial court’s judgment pending appeal. This court granted a stay of the judgment. Subsequently, this court lifted the stay as to the payment of back pay and attorney fees and costs but continued the stay of Maturino’s reinstatement to his former position.
DISCUSSION
The District contends its petition was for administrative mandate, not traditional mandate, and Maturino’s right to employment was a fundamental vested right. Thus, it argues, the trial court was required to exercise its independent judgment on the evidence when reviewing the findings of the Commission, which it failed to do. We agree.
Code of Civil Procedure section 1094.5 governs writs of administrative mandamus. Such a writ seeks trial court review of “the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer . . . .” (§ 1094.5, subd. (a).) The trial court reviews the administrative proceeding for, inter alia, a “prejudicial abuse of discretion,” which is established if “the findings are not supported by the evidence.” (§ 1094.5, subd. (b).)
All statutory references are to the Code of Civil Procedure unless otherwise noted.
When reviewing a decision of the Commission on Professional Competence, the trial court “shall exercise its independent judgment on the evidence.” (Ed. Code, § 44945.) “[I]n 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.” (§ 1094.5, subd. (c).)
The exercise of independent judgment is a “limited de novo review upon the administrative record,” in which the trial court “weigh[s] the evidence, resolving on its own any conflicts,” and is “free to make its own determination of the credibility of witnesses . . . .” (Pittsburg Unified School Dist. v. Commission on Professional Competence (1983) 146 Cal.App.3d 964, 976, 977.) After performing such a review, the trial court must arrive at its own independent findings of fact. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45.)
In Fukada v. City of Angels (1999) 20 Cal.4th 805, the Supreme Court explained that the exercise of independent judgment does not require the trial court to completely disregard the work of the administrative board whose decision is under review. After an extensive review of the history of the independent judgment procedure, the Supreme Court rejected the position “under which agency determinations and findings would be entitled to no weight at all,” and explained the proper role of the administrative findings: “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.” (Id. at pp. 812, 817.)
The “strong presumption of correctness,” however, is not the same as a substantial evidence review and does not relieve the trial court of its obligation to make its own findings. “[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. . . . [T]here is no inconsistency in a rule requiring that a trial court begin its review with a presumption of the correctness of administrative findings, and then, after affording the respect due to these findings, exercise independent judgment in making its own findings.” (Fukuda v. City of Angels, supra, 20 Cal.4th at pp. 818-819.)
The trial court in the case before us exhibited confusion about its role on a writ of administrative mandate affecting a fundamental vested right. Although the court called the proceeding one in administrative mandamus during its oral comments, it decided it should be treated as traditional mandamus in its written decision. More importantly, however, the trial court’s oral and written comments indicated a fundamental misunderstanding of the exercise of independent judgment. Contrary to its statement that “I don’t get to substitute my conclusions of fact or law for what the Commission should have done,” the responsibility for factual determinations is squarely on the trial court. (Barber v. Long Beach Civil Service Comm. (1996) 45 Cal.App.4th 652, 659.) And rather than making its own credibility determinations, the trial court deferred to the Commission on credibility and reviewed the record only for “obvious abuse.”
The role of an appellate court on an appeal from a proceeding in administrative mandamus is to determine whether the factual findings of the trial court are supported by substantial evidence. (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314.) But the trial court here made no independent findings. In other words, the trial court’s failure to apply the correct test “goes to the heart of this case and precludes our ability to reach the merits of the appeal.” (Barber v. Long Beach Civil Service Comm. supra, 45 Cal.App.4th at p. 659.)
DISPOSITION
The judgment is reversed and the matter is remanded. The trial court is directed to conduct a new trial on the petition using the correct standard of review. The stay of Maturino’s reinstatement shall remain in effect until the remittitur issues, at which point the trial court shall stay his reinstatement if permitted by law. The petition for a writ of supersedeas is dismissed as moot.
The District is entitled to costs of appeal.
WE CONCUR: RYLAARSDAM, J., FYBEL, J.