Opinion
F086777
12-17-2024
JON PAUL JAVELLANA et al., Plaintiffs and Appellants, v. CITY OF ARVIN et al., Defendants and Respondents.
Law Offices of Stephen J. Horvath and Stephen J. Horvath for Plaintiffs and Appellants. Hodges Law Group and Nathan M. Hodges for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BCV-22-101949 Thomas S. Clark, Judge.
Law Offices of Stephen J. Horvath and Stephen J. Horvath for Plaintiffs and Appellants.
Hodges Law Group and Nathan M. Hodges for Defendants and Respondents.
OPINION
THE COURT [*]
Police lieutenant Jon Paul Javellana and police officer Brett Jaffee (plaintiffs) filed a verified petition for a writ of mandate against the City of Arvin (City) after their employment was terminated. The petition sought to compel the City to provide them with (1) statements of the factual allegations and supporting evidence underlying the City's claim they violated a police department policy on efficiency and (2) due process hearings that comported with the case law interpreting Government Code section 3304, subdivision (b), a provision in the Public Safety Officers Procedural Bill of Rights Act (POBRA; § 3300 et seq.). The trial court denied the petition, concluding they were probationary employees who were not entitled to relief under section 3304, subdivision (b).
All undesignated statutory references are to the Government Code.
Section 3304, subdivision (b) states, "No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal."
On appeal, plaintiffs contend they were terminated for alleged misconduct that stigmatized their reputations and they are entitled to the requested notice of allegations and evidence along with constitutionally adequate due process hearings so they could clear their names. First, on the statutory claim, we conclude plaintiffs had not completed their probationary periods and, thus, were not entitled to "an opportunity for administrative appeal" under section 3304, subdivision (b). Second, on the constitutional claim, the evidence contained in the appellate record is insufficient to establish the terminations deprived them of a due process "liberty interest" that would entitle them to "name-clearing" hearings. Consequently, they have not established any error by the trial court in not addressing their due process theory was prejudicial-that is, they have not demonstrated a reasonable probability of a more favorable outcome if that theory had been considered.
We therefore affirm the judgment.
BACKGROUND
Petition _ for Writ of Mandate
On August 2, 2022, plaintiffs filed a verified petition for writ of mandate under Code of Civil Procedure section 1085 against the City, the police chief, Edwin Brock, and the city manager, Jeff Jones, alleging their statutory and constitutional due process rights had been violated.
All undesignated dates are in 2022.
The petition alleged, and the City admitted, that Javellana and Jaffee were employed by the City as an at-will and a probationary employee, respectively. Plaintiffs claimed that the City terminated them in "an intentional act of retaliation," motivated by "the retaliatory animus of the [c]ity [m]anager and the [c]hief of [p]olice." Javellana purportedly performed an audit of the police department and found various problems associated with the city manager and the police chief. Jaffee claimed he was subject to "racial discrimination" and "suffered severe retaliatory actions including a pretextual administrative investigation that alleged misconduct." Though Jaffe was cleared of wrongdoing, he was then subjected to "retaliatory conduct in the form of excessive written assignments and overly harsh criticism" of his work, and his supervising officers were allegedly directed to "bury [him] with reports." Nevertheless, Javellana believed Jaffee to be an "exemplary officer" and recommended to the police chief that "Jaffee should be returned to patrol because the allegations made against him were baseless." After this occurred, and Javellana's audit was purportedly leaked to the city manager and police chief, Javellana and Jaffee were each served a notice of termination.
Plaintiffs alleged that, after their termination, the City "refused to comply with ... section 3304[, subdivision (b)] and the well established case law interpreting the code"; ignored their requests for the factual allegations underpinning their terminations and the evidence supporting those allegations; and had not provided any form of due process. Plaintiffs further alleged the City's "actions have prevented plaintiffs from obtaining employment with other law enforcement agencies due to the negative work record created" by its actions.
Plaintiffs prayed for, relevant here, a writ of mandate commanding the City to provide "a statement of the factual allegations supporting the terminations and the evidence in support of the factual allegations pursuant to . section 3309.5[, subdivision] (d)(1)" and "due process hearings that comport with the case law interpreting . section 3304[, subdivision] (b) pursuant to . section 3309.5[, subdivision] (d)(1)."
Section 3309.5, subdivision (d)(1) states, "In any case where the superior court finds that a public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer."
Subsequent Litigation
The City's verified answer to the petition admitted "that [plaintiffs] were terminated from their positions within the City, and that both [plaintiffs] were at-will and probationary employees when they were terminated." It also stated that because plaintiffs "admit that they were probationary employees[,] . no administrative hearing was required prior to" their terminations under section 3304, subdivision (b).
The City reiterated this position in its opposition to the petition. The City also argued section 3304's protections did not apply because plaintiffs were terminated for merit-specifically, failing to meet the department's efficiency standards, which did not qualify as "punitive action" under section 3304, subdivision (b). The City also asserted a rejection during probation was not included in the personnel actions listed in section 3303 as punitive actions. The City cited a case concluding a deputy sheriff's rejection from permanent status for failing to meet minimum work standards "involved no deprivation of due process." (Swift v. County of Placer (1984) 153 Cal.App.3d 209, 215 (Swift).) The City's supporting declaration included six key documents, relevant portions of which we summarize below. First, the two notices of termination referred to violations of the department's efficiency policy. Javellana's notice stated:
Section 3303 states that, for purposes of POBRA, "punitive action means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment."
"You are hereby terminated from the position of Lieutenant at the Arvin Police Department. This decision to end the probationary period is clearly supported by the evidence and establishes a violation of applicable rules and policies on your part. Your actions demonstrate your disregard for the Policy section titled and numbered, EFFICIENCY 340.5.3 established by the Arvin Police Department. You have demonstrated a willingness to violate this policy without regard for your effect on your subordinates and the overall image of the department. Meeting the criteria set forth in Policy [section] 340.5.3. The Department cannot and will not tolerate your action.
"If you believe this action is not appropriate, you have the right to file an appeal with the Civil Service Board[.] Appeals must be in writing and must be filed with the City Manager within five (5) working days ...."
Jaffee's notice was nearly identical but referred specifically to subdivision (b) of policy section 340.5.3; mentioned "evidence documented in [his] evaluations"; and stated he had the right to file an appeal with the city manager within five business days. The appellate record does not show plaintiffs filed appeals within the stated time.
Second, section 1020.14 of the police department's policy manual stated procedures applicable to at-will and probationary employees and distinguished between (1) employees "released from employment for non-disciplinary reasons (e.g., failure to meet standards)" and (2) employees terminated "as a result of allegations of misconduct." Probationary employees in the former category could be released "without adherence to the procedures set forth in this policy or any right to appeal." In contrast, a probationary officer "subjected to an investigation into allegations of misconduct shall be entitled to those procedural rights, as applicable, set forth in the POBR ([§ § 3303, 3304])." Policy section 1020.14 also stated a probationary employee terminated for misconduct "shall not be deemed to have acquired a property interest in their position, but shall be given the opportunity to appear before the Chief of Police or authorized designee for a non-evidentiary hearing for the sole purpose of attempting to clear their name or liberty interest. There shall be no further opportunity for appeal beyond the liberty interest hearing and the decision of the Chief of Police shall be final."
Third, section 340.5.3 of the department's policy manual defined "efficiency" standards as (a) "[n]eglect of duty," (b) "[u]nsatisfactory work performance including but not limited to failure, incompetence, inefficiency, or delay in performing and/or carrying out proper orders, work assignments, or the instructions of supervisors without a reasonable and bona fide excuse," (c) "[c]oncealing, attempting to conceal, removing, or destroying defective or incompetent work," (d) "[u]nauthorized sleeping during on-duty time or assignments," (e) "[f]ailure to notify the [d]epartment within 24 hours of any change in residence address or contact numbers," and (f) "[f]ailure to notify the [d]epartment of [h]uman [r]esources of changes in relevant personal information (e.g., information associated with benefits determination) in a timely fashion."
Fourth, two letters dated May 13 from the City to plaintiffs' counsel responded to prior communications not in our record. The letters stated: "In accordance with [police department] policy 1020.14, [sections] 3303 and 3304, a probationary employee is not entitled to appeal. The City ... affords the opportunity to all probationary employees to make an appeal statement." The appeal could be made to either the police chief, Brock, or the city manager, Jones. The letters listed dates and times in which Jones would be available.
Plaintiffs' reply brief stated they were "entitled to due process hearings [under] section 3304[, subdivision] (b)" because they were terminated for cause. Plaintiffs asserted the threshold issue was whether the notices of termination alleged misconduct. They argued the notices plainly alleged willful misconduct by stating (1) the evidence establishes" 'a violation of applicable rules and policies on [plaintiffs'] part'" and (2) plaintiffs" 'demonstrate[d] a willingness to violate [the efficiency] policy without regard for [their] effect on [their] subordinates and the overall image of the department.'" Plaintiffs asserted these allegations plainly stigmatized their reputations and impaired their abilities to earn a living, which implicated a liberty interest protected by due process and was distinguishable from the bare rejection of the probationary deputy in Swift. Plaintiffs argued the City's offer to allow them to make appeal statements did not comport with due process.
Plaintiffs supported their arguments by presenting two letters, dated May 25, written by their counsel in response to the City's May 13 letters, stating plaintiffs could appeal to either the police chief or the city manager and providing dates when the city manager was available. Plaintiffs' counsel objected to the City's offer of an appeal before the police chief or the city manager because they were "biased" and could not "provide a fair and neutral hearing" in accordance with plaintiffs' right to due process. The letters requested the City provide "a hearing before the Civil Service Board."
The City's surreply argued (1) the notices of termination did not allege misconduct; (2) plaintiffs were terminated during their probationary period for failing to meet efficiency standards, which did not constitute punitive action under section 3304, subdivision (b); and (3) the City could reject probationers for lack of efficiency pursuant to section 19173 and other provisions in the State Civil Service Act.
Trial Court Proceedings
In May 2023, the trial court held oral argument on the petition and took the matter under submission. A reporter's transcript of the hearing is not part of the appellate record, but the clerk's entry in the register of action does not indicate any witnesses testified.
A few days after the hearing, the trial court filed a written ruling denying the petition. The ruling set forth the text of section 3304, subdivision (b) and the court's conclusion the plaintiffs were not entitled to relief under the statute because they had not completed their probationary period. Also, the ruling described some of the topics discussed at the hearing.
First, the trial court had raised the subject of "hearings which had been referenced in the notices, but which had allegedly not been provided by [the] City." The ruling stated that plaintiffs "confirmed that they did not contend they were separately entitled to such hearings on an estoppel theory independent of any statutory right to such hearing. To ensure that the record is clear, the Court would deny any non-statutory claim under this [p]etition seeking entitlement to an administrative hearing on an estoppel theory or otherwise."
Second, plaintiffs' attorney stated that all they "wanted was a hearing to clear their names." The trial court asked counsel whether the City "was willing on a voluntary basis to clarify the notices which were the subject of the [p]etition" and discussed with counsel "whether another type of administrative hearing pursuant to Arvin City Ordinances had been available to [plaintiffs] at the time of the subject notices and whether such administrative hearings were presently available to [plaintiffs]." The ruling stated the court (1) made no findings, rulings or orders related to these other hearings because they were "subjects .. beyond the scope of the [v]erified [p]etition" and (2) expressed "no opinion as to whether or not such administrative hearings are presently available to [plaintiffs]."
In June 2023, the trial court issued a judgment denying the petition for writ of mandate, and plaintiffs filed a timely notice of appeal.
DISCUSSION
I. ORDINARY MANDATE AND STANDARD OF REVIEW
Plaintiffs brought their petition for a writ of ordinary mandate under Code of Civil Procedure section 1085. (Cf. Ochoa v. County of Kern (2018) 22 Cal.App.5th 235, 241, fn. 5 [a decision to terminate officer after an evidentiary hearing is reviewable by administrative mandate under Code Civ. Proc., § 1094.5].)
"A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person." (Code Civ. Proc., § 1085, subd. (a).)
Section 1085 "seeks to enforce a mandatory or ministerial duty to act on the part of an administrative agency or its officers. [Plaintiffs] therefore had to show: (1) a clear, present, and usually ministerial duty to act; and (2) that they had a clear, present and beneficial right to have that duty performed." (Los Angeles County Prof. Peace Officers' Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 869.)
"[T]he petitioner bears the burden of pleading and proving the facts on which the claim for relief is based," and "[i]t is incumbent upon the petitioner ... to ... state a prima facie case entitling the petitioner to relief." (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153, 1155.)
In an appeal from the denial of a writ petition, we review the agency's action, not the trial court's decision. (Martis Camp Community Assn. v. County of Placer (2020) 53 Cal.App.5th 569, 593.) However, we apply the substantial evidence test to any factual findings made by the court, exercising independent judgment on any legal issues. (Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 53.)
Otherwise, our review is limited" 'to an examination of the proceedings to determine whether the [government agency's] actions were arbitrary, capricious, entirely lacking in evidentiary support or inconsistent with proper procedure. There is a presumption that the [government agency's] actions were supported by substantial evidence, and [petitioner/plaintiff] has the burden of proving otherwise. We may not reweigh the evidence and must view it in the light most favorable to the [government agency's] actions, indulging all reasonable inferences in support of those actions.'" (MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 368.)
II. CONTENTIONS OF THE PARTIES
A. Plaintiffs' Claim of Trial Court Error
Plaintiffs' opening brief frames the issue presented on appeal as follows: "Did the trial court err in denying [plaintiffs'] petition for writ of mandate seeking due process hearings that comport with the case law interpreting ... section 3304[, subdivision] (b)?" (Italics added.) The italicized words also appear in their petition's prayer for relief. The words can be interpreted in at least three ways.
One interpretation of the petition is that it only sought relief under the statute. This narrow interpretation was adopted by the trial court, which denied the petition, stating plaintiffs "are not entitled to relief under ... section 3304[, subdivision] (b)" because they had not completed their probationary period. The court explicitly declined to reach other issues because they were "beyond the scope of the Verified Petition."
This narrow interpretation seems compatible with the following statement in plaintiffs' opening brief: "The trial court erred in ruling that the [plaintiffs] were not entitled to relief under [section] 3304[, subdivision] (b) because they had not completed their probationary periods." In contrast, the narrow interpretation could be viewed as inconsistent with other statements in plaintiffs' opening brief, such as their references to due process hearings and liberty interest hearings and the request that this court direct "the trial court to issue the writ of mandate ordering the City to provide constitutionally adequate due process hearings." We do not adopt the narrow interpretation of the petition employed by the court, which limits the issues addressed to relief under the statute. (See Code Civ. Proc., § 452 ["In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties."].) As a result, we will consider whether plaintiffs are entitled to due process hearings.
A second interpretation is that plaintiffs are contending due process is satisfied only if the "due process hearings" they requested met the requirements applied to an "administrative appeal" conducted under section 3304, subdivision (b). This interpretation equates constitutional due process requirements with the statutory requirements. We do not reach the legal question about the specific hearing procedures that must be followed because, as discussed below, plaintiffs have not shown they are entitled to a due process hearing. (See parts D. &E., post.)
A third and broader interpretation of plaintiffs' arguments is that they are seeking to impose due process standards for "liberty interest" hearings that are discussed in judicial decisions that also discuss section 3304, subdivision (b). This interpretation is supported by plaintiffs' references to Gray v. City of Gustine (1990) 224 Cal.App.3d 621 (Gray) in (1) their May 25 letters to the City, (2) the reply brief they filed in the trial court, and (3) their appellants' opening brief . The latter two documents quote the following statements about a public employee's liberty interest that this court made in Gray:
"A public employee's right to a hearing may arise where a termination or demotion is based on charges of misconduct which cause stigma to one's reputation or which impair one's ability to earn a living. (Paul v. Davis (1976) 424 U.S. 693, 701-702, 710; Board of Regents v. Roth (1972) 408 U.S. 564, 573; Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 346.) Deprivation of a liberty interest entitles the employee to an opportunity to refute the charge and to clear his or her name. The right to a hearing under such circumstances is a remedy mandated by the due process clause of the Fourteenth Amendment. (Codd v. Velger (1977) 429 U.S. 624, 627.)" (Gray, supra, 224 Cal.App.3d at p. 629.)
We adopt a broad interpretation of the petition and appeal and consider plaintiffs' claim to a hearing on both statutory and due process grounds. (See Code Civ. Proc., § 452.) In particular, we will evaluate whether the City based the terminations on charges of misconduct that stigmatized their reputations or impaired their ability to earn a living. (See Part E., post.) If so, the due process clause will entitle plaintiffs to liberty interest hearings that would give them an opportunity to refute the charges and clear their names.
B. The City's Contentions
Our adopting a broad interpretation of the petition and appeal does not work to the City's detriment because its respondents' brief addresses the issues raised by that interpretation. As to the application of the statute, the City contends plaintiffs do not have a right to a section 3304, subdivision (b) hearing because they were terminated during their probationary period. As to the application of the due process clause, the City contends (1) plaintiffs are not entitled to "name clearing" hearings because their terminations were not based on misconduct and did not stigmatize plaintiffs and (2) plaintiffs previously rejected the City's offer for "name clearing" hearings and should not be allowed to seek such a remedy now.
III. SECTION 3304, SUBDIVISION (b) IS INAPPLICABLE
Whether section 3304, subdivision (b) applies to the facts of this case presents a question of law because the relevant facts are not disputed. The verified pleadings agree that Javellana was an at-will employee and Jaffee was a probationary employee.
The statutory right to an "opportunity for administrative appeal" is provided to officers who have "successfully completed the probationary period that may be required by [the] employing agency." (§ 3304, subd. (b).) We conclude the statute unambiguously means that an officer who has not completed the probationary period is not entitled to an administrative appeal. Therefore, the right to an administrative appeal under section 3304, subdivision (b) does not extend to Jaffee.
Whether an at-will employee like Javellana is considered not to have "completed the probationary period" presents a question of statutory interpretation not raised by plaintiffs. As a result, they have not presented reasoned argument or a citation to authority supporting the conclusion that Javellana was an at-will employee. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [failure of appellant to present meaningful argument and citation to authority treated as forfeiting the point].) Thus, we treat the issue as forfeited and need not decide whether the statute should be construed to treat an at-will employee as the equivalent of an employee serving a probationary period. (See generally Piroglu v. Coleman (D.C. Cir. 1994) 25 F.3d 1098, 1104 ["Probationary employment is ordinarily considered employment at will."].)
Consequently, we reject plaintiffs' claim that "[t]he trial court erred in ruling that [plaintiffs] were not entitled to relief under [section] 3304[, subdivision] (b) because they had not completed their probationary periods."
IV. NAME-CLEARING HEARINGS DIFFER FROM ADMINISTRATIVE APPEALS
POBRA does not define the term" 'administrative appeal'" or the phrase" 'opportunity for an administrative appeal.'" (Joseph v. City of Atwater (2022) 74 Cal.App.5th 974, 984.) Section 3304.5 provides: "An administrative appeal instituted by a public safety officer under this chapter shall be conducted in conformance with rules and procedures adopted by the local public agency." There are, however, minimum procedural protections that must be provided to comply with POBRA. In Joseph, we summarized a Fourth District decision addressing those minimum protections:
"A compliant administrative appeal require[s] (1) an independent reexamination of the decision, (2) the reexamination be conducted by someone who was not involved in the initial determination, (3) the independent administrative decision maker to set forth findings to bridge the analytical gap between the raw evidence and the ultimate decision, (4) the hearing to 'be treated as a de novo proceeding at which no facts are taken as established' and (5) the proponent of a particular fact to bear the burden of establishing it." (Joseph v. City of Atwater, supra, 74 Cal.App.5th at p. 988, citing Caloca v. County of San Diego (2002) 102 Cal.App.4th 433, 443-444.)
In comparison to these statutory minimums, the minimum constitutional (i.e., due process) protections for a police officer with a property interest (as opposed to a liberty interest) in an employment benefit are" 'written notice of the grounds for the disciplinary measures; disclosure of the evidence supporting the disciplinary grounds; the right to present witnesses and to confront adverse witnesses; the right to be represented by counsel; a fair and impartial decisionmaker; and a written statement from the fact finder listing the evidence relied upon and the reasons for the determination made.'" (Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, 175.)
Here, plaintiffs do not claim a property interest in continued employment but argue they had a liberty interest protected by the due process clause. As a general rule, "a probationary (or nontenured) civil service employee .. may be dismissed without a hearing or judicially cognizable good cause." (Lubey, supra, 98 Cal.App.3d at p. 345.) Under this general rule, the rejection from permanent status of a probationary deputy "involved no deprivation of due process." (Swift, supra, 153 Cal.App.3d at p. 215.) An exception to the general rule applies when the probationary employee is deprived of a liberty interest protected by the due process clause-that is, "where the probationary employee's job termination, or dismissal, is based on charges of misconduct which 'stigmatize' his reputation, or 'seriously impair' his opportunity to earn a living [citation], or which 'might seriously damage his standing and associations in his community.'" (Lubey, at p. 346.)
When a probationary employee is deprived of a liberty interest, the due process clause entitles the employee to an opportunity to refute the charge and clear his or her name. (Lubey, supra, 98 Cal.App.3d at p. 346.) In general, the employee "must be afforded '" 'notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective.'" '" (Ibid.; see Holmes v. Hallinan (1998) 68 Cal.App.4th 1523, 1531.) The specific type of hearing appropriate to the case is determined under the following principle:
"[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Mathews v. Eldridge (1976) 424 U.S. 319, 335; see Murden v. County of Sacramento (1984) 160 Cal.App.3d 302, 311.)
In this appeal, we do not reach the specific requirements applicable to a name-clearing hearing because, as explained next, plaintiffs have not demonstrated the terminations deprived them of a due process liberty interest that would entitle them to name-clearing hearings.
V. RIGHT TO A NAME CLEARING HEARING
We conclude that plaintiffs have not demonstrated their entitlement to liberty interest hearings such that there is no reasonable likelihood that a trial court would find in their favor.
A. Prejudice
Though we conclude the trial court erred by failing to address plaintiffs' request for due process liberty interest hearings, plaintiffs must also affirmatively demonstrate prejudice-a miscarriage of justice. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Robert v. Stanford University (2014) 224 Cal.App.4th 67, 72 [appellant carries the burden to demonstrate a miscarriage of justice]; see Cal. Const., art. VI, § 13 [error as to "any matter of pleading" or "procedure" must result in "a miscarriage of justice"].) In civil matters, prejudice usually is established by showing a reasonable probability of a more favorable result absent the error. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574; see Code Civ. Proc., § 475.)
Below we explain our conclusion that plaintiffs failed to present evidence sufficient for a trier of fact to find in favor of their liberty interest claim and, thus, they failed to establish a reasonable probability of a more favorable result absent the trial court's failure to address their due process theory. Consequently, the error, if any, in failing to address that theory was harmless.
We do not reach the City's alternate ground for affirmance, which asserts plaintiffs waived any right to a liberty interest hearing because the City offered them the opportunity to request hearings. "Waiver is an issue of fact" (In re Marriage of Kelkar (2014) 229 Cal.App.4th 833, 916) that the trial court did not resolve in this case. Therefore, we cannot evaluate whether there was substantial evidence to support the court's finding on the issue of waiver.
B. Fourteenth Amendment Due Process Liberty Interests
Harm to future employment prospects sufficient to trigger due process protections for liberty interests is generally cognizable under the "reputation-plus" or "stigma-plus" theories. (See Lamb v. Millennium Challenge Corp. (D.C. Cir. 2020) 498 F.Supp.3d 104, 113-114; see also Haymon v. District of Columbia (D.C. Cir. 2022) 610 F.Supp.3d 101, 115 [discussing historical development of the two theories].)
The Supreme Court formulated both theories in Board of Regents v. Roth, supra, 408 U.S. 564 (Roth). In Roth, the plaintiff was hired by a state university as a nontenured assistant professor for a fixed term of one academic year. (Id. at p. 566.) By statute, he was classified as a probationary employee. (Id. at p. 566, fn. 2.) When he was not rehired, he sued, alleging the university's refusal to renew his contract deprived him of a protected liberty interest without sufficient due process. (Id. at p. 573.) The Supreme Court rejected that claim but observed that "[t]here might be cases in which a State refused to reemploy a person under such circumstances that interests in liberty would be implicated," such as where "[t]he State, in declining to rehire the respondent, [made] any charge against him that might seriously damage his standing and associations in his community"- i.e., damaged his reputation-or where "the State, in declining to reemploy the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities"- i.e., stigmatized him. (Ibid.)
In Paul v. Davis, supra, 424 U.S. at p. 694, the plaintiff sued two police chiefs for violating his civil rights after his photograph was included in a flyer of active shoplifters circulated to local merchants. (Id. at pp. 694-696.) At the time, the plaintiff had been charged with shoplifting but the charge had not been resolved. (Id. at p. 696.) The district court dismissed the complaint, concluding the alleged facts did not establish a deprivation of any right secured by the Constitution. (Ibid.) The Supreme Court agreed and clarified that alleged defamation by a government official, "standing alone and apart from any other governmental action with respect to him," did not state a claim for relief under either 42 United States Code section 1983 or the Fourteenth Amendment. (Davis, at p. 694.) Rather, this defamation by the government official had to be accompanied by the loss or distinct alteration of a legal status, such as a loss of government employment. (Id. at pp. 705-706, 710-711.)
Federal courts subsequently developed overlapping theories sometimes called the" 'reputation-plus'" and" 'stigma-plus'" theories, respectively. (See Haymon v. District of Columbia, supra, 610 F.Supp.3d at p. 113 [noting Roth and Davis as progenitors of the two theories].)
The reputation-plus theory requires showing "the conjunction of official defamation and adverse employment action." (O'Donnell v. Barry (D.C. Cir. 1998) 148 F.3d 1126, 1139-1142 (O'Donnell).) "Although government defamation alone is not actionable, defamation in the course of termination is." (Lamb v. Millennium Challenge Corp., supra, 498 F.Supp.3d at p. 1140.) The defamation must"' "seriously damage[] his standings and associations in the community." '" (Peter B. v. Central Intelligence Agency (2016) 174 F.Supp.3d 308, 314.)"' "Although the conceptual basis for reputation-plus claims is not fully clear, it presumably rests on the fact that official criticism will carry much more weight if the person criticized is at the same time demoted or fired." '" (Ibid.)
The stigma-plus theory requires "the combination of an adverse employment action and 'a stigma or other disability that foreclosed [the petitioner's] freedom to take advantage of other employment opportunities.'" (O'Donnell, supra, 148 F.3d at p. 1140.) Unlike the reputation-plus theory, a stigma-plus claim "does not depend on official speech, but on a continuing stigma or disability arising from official action." (Ibid.)
Federal circuit courts of appeal have all adopted various, often overlapping, forms of these tests. (See, e.g., Chaudhry v. Aragon (9th Cir. 2023) 68 F.4th 1161, 1170 [applying three-part stigma-plus test] (Chaudhry); Pasqua v. County of Hunterdon (3rd Cir. 2018) 721 Fed.Appx. 215, 219 [applying stigma-plus test couched in terms of "defamation"]; Brown v. Montoya (10th Cir. 2011) 662 F.3d 1152, 1167 [applying stigma-plus test couched in terms of "defamation"]; Doe v. Michigan Dept. of State Police (6th Cir. 2007) 490 F.3d 491, 501-502 [applying the stigma-plus test couched in terms of "defamation"]; Bledsoe v. City of Horn Lake, Miss. (5th Cir. 2006) 449 F.3d 650, 653 [applying seven-part stigma-plus test] (Bledsoe); Cannon v. City of West Palm Beach (11th Cir. 2001) 250 F.3d 1299, 1301 [applying five-party stigma-plus test utilizing elements of tort of defamation]; Doe v. Dept. of Public Safety ex rel. Lee (2nd Cir. 2001) 271 F.3d 38,50, revd. on other grounds sub nom; Connecticut Dept. of Public Safety v. Doe (2003) 538 U.S. 1, 5-8 [collecting cases for the proposition that the circuit has "applied the 'stigma plus' test many times"]; Townsend v. Vallas (7th Cir. 2001) 256 F.3d 661, 669-670 [applying three-part stigma-plus test]; O'Donnell, supra, 148 F.3d at pp. 1140-1141 [applying reputation-plus test]; Margoles v. Tormey (7th Cir. 1981) 643 F.2d 1292, 1298 [citing circuit cases applying the stigma-plus test].)
Our Supreme Court has not adopted any specific theory or clarified the approach California courts should take in analyzing liberty interest due process claims. In Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, our Supreme Court, quoting Roth, determined that" 'an at-will [public] employee's liberty interests are deprived when his discharge is accompanied by charges "that might seriously damage his standing and associations in his community" or "impose[] on him a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities." '" (Katzberg, at p. 305; see also Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d at p. 346 (Lubey).) Thus, our Supreme Court left open application of either the stigma-plus or reputation-plus theories.
We need not provide more than this non-exhaustive survey because plaintiffs fail to argue or suggest how we should analyze their liberty interest claim.
We also need not analyze how, if at all, the fact that stigma-plus claims are often brought within a 42 United States Code section 1983 claim affects the stigma-plus test. (See, e.g., Chaudhry, supra, 68 F.4th at p. 1170; Bledsoe, supra, 449 F.3d at p. 653.)
C. Plaintiffs Fail To Demonstrate A Due Process Liberty Interest
a. Plaintiffs Do Not Provide Adequate Argument Showing A Cognizable Due Process Liberty Interest
Plaintiffs quote our decision in Gray, supra, 224 Cal.App.3d at p. 629, which recites the general test found in Roth, Lubey, and Katzberg. But plaintiffs fail to explain how the charges in their notices of termination meet either the reputation-plus test, i.e., seriously affected their reputation in their community, or the stigma-plus test, i.e., seriously impaired them from finding future employment in law enforcement. (Katzberg v. Regents of University of California, supra, 29 Cal.4th at p. 305.)
Rather, plaintiffs provide only the conclusory argument, with no citation to the record or legal authority, that the allegations in the notices of termination "plainly cause stigma and impair [p]etitioner's ability to earn a living as police officers." Plaintiffs provide no factual argument showing how the notices of termination caused that result. Plaintiffs cite no legal authority that the determinations stated in the notices of termination are stigmatizing.
Plaintiffs' attempt to distinguish this case from Swift, supra, 153 Cal.App.3d 209 is unpersuasive. There, a probationary peace officer was denied permanent status because he did not "demonstrate[] all the qualifications necessary to be a deputy sheriff, i.e., failure to meet minimum work standards." (Id. at p. 215.) The appellate court found that "Swift's rejection involved no deprivation of due process" because "no charge of misconduct was made against [him]." (Ibid.) But even granting plaintiffs' argument that the notices of termination state allegations more egregious than the allegations leveled at Swift, establishing this distinction does not prove the notices of termination were stigmatizing.
Given" '[w]e are not bound to develop [plaintiffs'] arguments for them'" (Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956), and conclusory arguments are meritless on appeal (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [argument on appeal forfeited if it features "conclusory arguments" or is unsupported by an adequate record]), we cannot conclude that plaintiffs carried their burden to demonstrate a reasonable probability of a more favorable result, i.e., that they are entitled to due process liberty interest hearings.
b. Plaintiffs Failed To Introduce Evidence Sufficient To Show A Due Process Liberty Interest
For our purposes, both the stigma-plus and reputation-plus tests share at least this common element: the charges must cause some cognizable harm, which we define more fully below. (See, e.g., Chaudhry, supra, 68 F.4th at p. 1170 [three-part test requiring denial of a tangible interest, e.g., in employment]; Bledsoe, supra, 449 F.3d at p. 653 [seven-part test requiring that charges were "stigmatizing"]; Cannon v. City of West Palm Beach, supra, 250 F.3d at p. 1301 [same with respect to five-part test].) Plaintiffs have not introduced evidence of tangible harm to their reputation in the community or their liberty to obtain future employment in the law enforcement field.
The first way a charge might trigger due process protections is if it "can be characterized as an accusation or label given the individual by his employer which belittles his worth and dignity as an individual and, as a consequence is likely to have severe repercussions outside of professional life." (Orloff v. Cleland (9th Cir. 1983) 708 F.2d 372, 378.) For example, allegations of" 'moral turpitude' such as dishonesty or immorality are sufficient to implicate a liberty interest." (Ibid.)
To meet the required level of egregiousness, the allegations must go beyond mere accusations of incompetence. (Gray v. Union County Intermediate Education District (9th Cir. 1992) 520 F.2d 803, 806 [charges of "insubordination, incompetence, hostility toward authority, and aggressive behavior," though unflattering, did not "import serious character defects such as dishonesty or immorality," and thus were insufficient to state a due process claim]; Wheaton v. Webb-Petett (9th Cir. 1991) 931 F.2d 613, 617 [holding that "charges of incompetence or inability to get along with others do not" implicate a liberty interest]; see also Stretten v. Wadsworth Veterans Hospital (9th Cir. 1976) 537 F.2d 361, 366 [explaining that the need for constitutional due process protections is not particularly strong for general disputes over an employee's workplace performance].)
Here, plaintiffs do not explain how the charges of inefficiency rise to this level. "Inefficiency" is similar to "incompetence," which, under the above authorities, is alone insufficient to trigger due process protections. Nor does plaintiffs' reliance on the notices of termination's language" 'without regard for your effect on your subordinates and the overall image of the department,'" even if harsh, elevate the gravity of the charges beyond those in Gray v. City of Gustine or Wheaton, which were held not stigmatizing.
Plaintiffs introduced no evidence or argument demonstrating why the language in the notices of termination, in a prospective employer's eye, would seriously impair their employability as opposed to indicating a dispute over plaintiffs' workplace performance, which presumably would not bar future employment. (See Shuer v. County of San Diego (2004) 117 Cal.App.4th 476, 485 [officer's termination for" 'failure to satisfactorily complete the duties of her job'" though vague "is not stigmatizing and is no more damaging to reputation than any dismissal based on a claimed failure to perform in a position," and "cannot require the holding of a liberty interest hearing"].)
We note that the "efficiency standards" cited in the notices of termination, codified in department policy 340.5.3, list multiple acts demonstrating a lack of efficiency. These include acts as benign as "[u]nauthorized sleeping during on-duty time or assignments" and failing to notify the department of a change in residential address or contact numbers within a day to more egregious acts such as "[n]eglect of duty" or "[c]oncealing, attempting to conceal, removing, or destroying defective or incompetent work." The latter could, possibly, constitute egregious charges barring future employment, but plaintiffs never argued or introduced evidence attempting to show that a prospective employer would understand, or that they were in fact terminated for, alleged misconduct falling under the latter versus the former category.
In the employment context, the second way the charges may trigger due process protections is if they cause" 'a complete prohibition of the right to engage in a calling'" rather than a" 'brief interruption' in one's ability to pursue an occupation or profession." (Dittman v. California (9th Cir. 1999) 191 F.3d 1020, 1029; see also Roth, supra, 408 U.S. at p. 572 [the Fourteenth Amendment's guarantee of a liberty interest includes the right "to engage in any of the common occupations of life"]; Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz. (9th Cir. 1994) 24 F.3d 56, 65, fn. 4 ["[I]t is well-recognized that the pursuit of an occupation or profession is a protected liberty interest that extends across a broad range of lawful occupations"].)
Thus, California's Second District Court of Appeal concluded that a childcare contractor debarred from contracting with the state for three years had a due process liberty interest entitling it to a fair hearing on the decision to debar it from contract eligibility. (Golden Day Schools, Inc. v. State Depart. of Education (2000) 83 Cal.App.4th 695, 711.) Similarly, New Mexico denied an attorney applicant due process when it failed to provide adequate protections after refusing to allow him to practice law in the state on the grounds that he lacked the requisite "moral character." (Schware v. Board Of Bar Examiners (1957) 353 U.S. 232, 234-235, 247.) But the federal government did not violate a cook's due process rights by barring her from working at a specific military base because she remained "free to obtain employment _ with any other employer." (Cafeteria &Restaurant Workers Union, Local 473 v. McElroy (1961) 367 U.S. 886, 896.)
Though the petition stated that the City's "actions have prevented [plaintiffs] from obtaining employment with other law enforcement agencies due to the negative work record created by the City's actions," our record lacks any evidence to support this claim.
Plaintiffs' verified statement in the petition is not evidence in an ordinary mandamus proceeding. (Code Civ. Proc., § 1085.) Because ordinary mandamus proceedings contemplate a full trial on the factual issues (see Code Civ. Proc., §§ 1090, 1091, & 1094), "plaintiff's verified petition is like a complaint in a civil action and, in the absence of proof, there is no basis upon which to sustain allegations which are not admitted." (California Standardbred Sires Stakes Com., Inc. v. California Horse Racing Bd. (1991) 231 Cal.App.3d 751, 763; Lotus Car Ltd. v. Municipal Court (1968) 263 Cal.App.2d 264, 271.)
Plaintiffs introduced no evidence that the type of charge brought in this case- failure to meet the department's efficiency standards without regard for the department's image or the effect on subordinates-foreclosed their ability to obtain employment with other law enforcement agencies. We do not know, for example, whether this type of charge is considered particularly grave in the law enforcement profession, effectively guaranteeing plaintiffs' rejection from, or substantially hindering, future law enforcement employment. Given the absence of any evidence suggesting any prohibition against plaintiffs finding future employment, there is no reasonable probability that a trial court would find that these charges would impair petitioner's ability to work as police officers.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
[*]Before Pena, Acting P. J., Smith, J. and Snauffer, J.