Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS101651, Dzintra Janavs, Judge. Affirmed.
Law Offices of Ira M. Salzman and Ira M. Salzman for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gregory P. Orland, Deputy City Attorney, for Defendants and Respondents.
MALLANO, P. J.
Plaintiff, a police officer with the Los Angeles Police Department (Department), was discharged after he tested positive for tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana. He challenged his termination administratively and lost.
Plaintiff then filed a petition for a writ of administrative mandate in the trial court, arguing that he had not used marijuana but had tested positive for THC because his wife used hemp seeds and oil in preparing their food. The trial court, reviewing the evidence independently, disagreed and denied the petition.
We affirm the judgment because substantial evidence supports the trial court’s decision.
I
BACKGROUND
The following allegations, facts, and evidence are taken from the administrative hearing and the subsequent petition for a writ of administrative mandate.
The memorandum of understanding (MOU) between the Department and the Los Angeles Police Protective League, the bargaining unit for officers below the rank of lieutenant, states in article 3.4: “[T]hose individuals who fail to abide by the Law Enforcement Code of Ethics are disciplined or even terminated when appropriate. All members of the Police Department must be willing to accept a random urinalysis program as . . . a test in which the police officer is held to a higher standard than others in society.” Article 3.5, section 1(A) of the MOU provides: “. . . Illicit substance or drug abuse by members of the Department is unacceptable and censurable conduct worthy of strong administrative action. . . .”
The Department stresses a policy of “zero tolerance” with respect to illegal drug use by officers. The MOU provides that tenured officers will be tested on a random basis up to three times a year. The illicit substances for which officers are tested include “Cannabinoids (Marijuana).” THC, the psychoactive ingredient in marijuana, is a cannabinoid.
When an officer is tested for illicit drugs, he provides a urine sample that is subsequently divided, sealed, and labeled in two separate plastic containers. A portion of the contents of one container is tested by the Department’s scientific investigation division (SID). If the test is “positive” for THC — 50 “ng/ml” (nanograms per milliliter) — the officer is given an opportunity, at the city’s expense, to have a “split” of the sample tested by a reputable independent laboratory. The test results of the split sample are considered positive, and the SID test is confirmed, if the THC level is 15 ng/ml. A lower level is acceptable because, over time, THC, given its chemical composition, tends to adhere to the sides of the plastic container.
On August 11, 2004, plaintiff Cole Light, an officer with the Department for 15 and one-half years, was asked to provide a urine sample as part of the random testing process. He was “very cooperative.” The initial “screening” test performed by SID was positive at 58 ng/ml. A split sample was then taken from the second, unopened container and sent to an independent laboratory. The confirmation test was also positive, at 27 ng/ml.
In a formal written complaint, Light was charged as follows: “On or about August 18, 2004, you, while on duty, after providing a urine sample for analysis, tested positive for marijuana.” On March 11, 2005, an administrative hearing commenced before the Department’s board of rights (Board) and continued on a series of nonconsecutive days.
The Department presented evidence about the MOU, the drug testing process, and Light’s laboratory results.
The defense opened with Light’s testimony. He stated he had never smoked or ingested marijuana. Nor had he used “medical marijuana.” When asked if he would jeopardize his career and his family by using an illegal drug while an officer, Light replied, “I would not do that to my family, my kids. I’m the only income. I wouldn’t do it to the badge. If I wanted to get high, all I could do is call my doctor, and he could give me any narcotics I wanted.” Light has a wife and five children. He said that, since mid-July 2004, he had been taking between 1,600 and 2,400 milligrams of ibuprofen per day for pain caused by on-the-job injuries. His written materials for the position of “drug recognition expert” — a position he had held for eight years — indicated that ibuprofen could cause a “false positive” test result for THC. He performed a “Google search” on the Internet and found some information supporting the same theory.
Light’s wife, Lisa, also testified. She is a vegetarian and is concerned about the quality of the food her family eats. Shortly before July 2004, Lisa began using hemp seeds and hemp oil in the salads she makes for her family. She also adds hemp seeds to granola. The hemp products contain nutritional ingredients, such as essential fatty acids and a high level of protein. Lisa prepares a salad with dinner “99 percent of the time. Every night.” She buys hemp products at Whole Foods markets — hemp oil under the brand names Nutiva or Manitoba Harvest; hemp seeds under the brand name Manitoba Harvest only.
Ronald K. Siegal, a psychopharmacologist and an associate professor in the department of psychiatry at the University of California at Los Angeles, testified as Light’s expert. Dr. Siegal rejected Light’s contention that ibuprofen caused a false positive test result; instead, according to Siegal, Light had a “true positive exposure.” Dr. Siegal explained that hemp seeds do not contain any THC, but other parts of the hemp plant do. The seeds become contaminated with THC during harvesting. Compared to other hemp food products, hemp oil is the “most serious” source of THC. Dr. Siegal knew of between 12 and 24 cases a year of positive THC test results caused by the ingestion of hemp food products.
In preparation for his testimony, Dr. Siegal examined the laboratory reports on Light’s urine sample, read some investigative notes, and interviewed Light by telephone. Siegal testified that the information about Light’s dietary habits was “consistent with” and a “reasonable explanation” for his positive THC test. Toxicology tests have shown that, if a consumer follows the retailer’s package directions and ingests three to six tablespoons of the product per day, he or she will have a positive THC urine test the next day. For testing purposes, the THC level would peak about 11 hours after ingestion but would still produce a positive test result up to six days later. On cross-examination, Siegal said that a person who bought hemp seeds and oil from Whole Foods could “very easily” test positive for THC after ingesting them. The United States has no guidelines or regulations concerning the amount of THC in hemp food products.
The next witness was an employee in the Department’s toxicology unit. During a break in her testimony, the chairman of the Board, Captain Richard Meraz, stated that “we’re looking for expert rebuttal of what was presented by the defense’s expert.” The Department advocate responded, “We’re assuming that we have an expert.” Meraz said, “I hope we have an expert. Whoever our expert is. Whatever the Department has.”
After the Department presented the testimony of a lab technician on August 9, 2005, Light’s attorney argued that the Department had been given an adequate opportunity to present evidence and that the Board should call the case to a close. The board refused, indicating that it still wanted to hear expert testimony in response to the subjects raised by Dr. Siegal. Captain Meraz stated that the hearing would resume on September 20, 2005.
The hearing reconvened as scheduled. The Department announced that its expert was prepared to testify telephonically. Light’s attorney objected to telephonic testimony. The board overruled the objection. Gero Leson, who holds a doctorate in environmental science and engineering, testified that he owns a consulting firm and is a scientific advisor to the hemp industry. Dr. Leson had previously talked with the presidents of the companies that manufacture and sell hemp food products under the names Manitoba Harvest and Nutiva. Both companies used hemp seeds and oil from Canada; this testimony was confirmed by a declaration signed by an officer of each company. Leson stated that in Canada the hemp industry is required by law to test each “lot” of hemp seeds and oil at an independent government-certified laboratory. The THC level per lot cannot exceed 10 parts per million (ppm). Hemp farmers and processors in Canada must obtain a special license from the government. Processors are also required to keep records with respect to each tested lot, showing the THC results. Although hemp food products bought in the United States can cause high levels of THC in the body, those products are typically made with hemp seeds from China.
The declaration submitted by Manitoba Harvest stated that, dating back to the company’s inception in 1998, its hemp products “have always tested nondetectable for THC with a 1 ppm test limit.” In a 2004 survey of THC content by the Canadian government, the company’s “hemp seed nut” tested at .01 ppm; its oil tested at .5 ppm.
The declaration from Nutiva indicated that its hemp oil products in 2004 came from more than one Canadian source. One of the oils tested at “below 4 ppm” for THC; the other oil, which was a blend, had a THC level “less than 1 ppm.”
In his testimony, Dr. Leson relied in part on the test data from the companies. He assumed that, each evening, Light consumed (1) one tablespoon of hemp oil contained in salad dressing and (2) a half ounce of hulled hemp seeds sprinkled on the salad. Leson also assumed that Light ate 40 grams of granola — a “typical serving” — which would contain about eight grams of hemp seeds. Leson testified that, regardless of whether the hemp products came from Manitoba Harvest or Nutiva, he believed, with a “large margin of safety,” that it was “impossible” for the level of THC in Light’s urine sample to have been “produced by just the ingestion of hemp food.” Leson added that Light would have to ingest six to seven tablespoons of Nutiva hemp oil a day for 60 days to reach the level of THC found in his urine sample; it would take 10 times that amount of Manitoba Harvest oil.
Last, the Department purchased Manitoba Harvest and Nutiva hemp oil as well as Manitoba Harvest hemp seeds from Whole Foods and sent them to a government-certified laboratory in Canada to be tested for THC. The result for each of the three samples was less than 1 ppm. These results were submitted in a written report and were confirmed by the telephonic testimony of the “instrument technician” in Canada who conducted the tests.
On September 23, 2005, both sides presented closing argument. Captain Meraz then summarized the evidence, stating at the end, “Therefore, it is the conclusion of this Board that Officer Light’s positive drug test results were caused by his use of the controlled substance marijuana.” On October 17, 2005, Captain Meraz read the Board’s penalty decision into the record, finishing with the statement, “Therefore, it is the unanimous conclusion of this Board that we recommend to the Chief of Police that your employment as a police officer for the Los Angeles Police Department be terminated.” On November 15, 2005, the chief of police accepted the Board’s recommendation and removed Light from his position.
On February 9, 2006, Light filed in the trial court a petition for a writ of administrative mandate against the city and the chief of police (see Code Civ. Proc., § 1094.5), alleging that his discharge was an abuse of discretion, and he was accordingly entitled to reinstatement. In a supporting memorandum of points and authorities, Light argued that the weight of the evidence did not support his termination. He lodged the three-volume administrative record with the trial court. The city and the chief of police (collectively the city) filed opposition papers, asserting that the Board did not abuse its discretion, and the discharge was supported by substantial evidence.
The matter was heard on September 5, 2007. After giving counsel time to read its tentative ruling, the trial court entertained argument. At the conclusion of the hearing, the court stated that the petition was denied and that the tentative would be filed as the court’s statement of decision. On October 10, 2007, the court entered judgment in favor of the city. Light appealed.
II
DISCUSSION
Light argues on appeal that the trial court’s decision is not supported by substantial evidence. We disagree.
A trial court may issue a writ of administrative mandate if an agency has (1) acted in excess of its jurisdiction, (2) deprived the petitioner of a fair hearing, or (3) committed a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).) “Abuse of discretion is established if the [agency] has not proceeded in a manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Ibid.)
Because a discharge affects an employee’s “fundamental vested right” in employment, a trial court exercises its independent judgment in reviewing an agency’s findings of fact. (Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 498–500.) Under the independent judgment test, a trial court may weigh the evidence and assess the credibility of witnesses in determining whether the agency’s findings are supported by a preponderance of the evidence, although the agency’s findings are entitled to a strong presumption of validity. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 808, 811–822; Governing Board v. Haar (1994) 28 Cal.App.4th 369, 377–378; 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, §§ 278, 286, pp. 1190–1191, 1201–1202; Code Civ. Proc., § 1094.5, subds. (b), (c).) On appeal, we review the trial court’s findings of fact to determine whether they are supported by substantial evidence. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52; 8 Witkin, supra, § 278, p. 1191.)
Under the substantial evidence test, “‘[t]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the trial court’s findings. . . . ‘We must therefore view the evidence in the light most favorable to the prevailing [parties], giving [them] the benefit of every reasonable inference and resolving all conflicts in [their] favor . . . .’” (Estate of Leslie (1984) 37 Cal.3d 186, 201, citations omitted.) “‘[T]he focus is on the quality, not the quantity of the evidence. Very little solid evidence may be “substantial,” while a lot of extremely weak evidence might be “insubstantial.”’” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 589.) The testimony of a single witness may be sufficient. (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1144.)
Here, the trial court’s statement of decision recited in part: “At the Board of Rights [hearing], Petitioner denied ever purposely ingesting marijuana. Mrs. Light testified that she fed her husband hemp products, in the form of oil, seeds, and granola. Petitioner called Dr. Ronald K. Siegel, a psycho-pharmacologist with training in toxicology, who testified that it was possible that the consumption of some hemp products would result in enough THC in your system to render a positive drug test.
“Dr. Gero Leson, a scientific advisor to the hemp industry regarding contamination of their products with THC, in telephonic rebuttal testimony, testified he coordinated scientific studies on THC in industrial hemp which evaluated the correlation between daily intake of THC with metabolites in urine. Dr. Leson also testified that THC levels have dropped dramatically since 1999, with a concomitant drop in the risk for positive drug tests as a result of ingestion of hemp products. After evaluating Petitioner’s eating habits and the supply train for the hemp products which the Light family consumed, Dr. Leson concluded it was ‘impossible’ for Petitioner’s positive test to have been caused by the ingestion of hemp products.
“The Department also purchased the products Mrs. Light testified her family consumed. These products were tested and found to contain less than 1 part per million of THC. Dr. Leson testified this could not have caused a positive drug test in the amounts consumed. [¶] . . . [¶]
“Petitioner filed [the] within Petition on 02/09/06. [¶] . . . [¶]
“Petitioner argues the Board abused its discretion because it allowed the testimony of Gero Leson and its findings were not supported by the evidence. [¶] . . . [¶]
“As to Leson’s testimony, there was no abuse of discretion.
“Leson was called as a rebuttal witness, and as noted supra, testified via telephone that since the late 1990s, he had worked with companies that grow, process and market hemp food and bodycare products. . . . He had coordinated scientific studies, including one which investigated the impact of ingesting THC by hemp oil on the urine levels of the THC metabolite. . . .
“The Board of Rights Manual, Rule 240, 12th Edition, Oct. 2005, provides that the Dept. may call rebuttal witnesses. Under CA law, rebuttal testimony is proper when it is offered as impeachment to meet evidence on a point put in dispute i.e. specific statements of fact to which the defense has testified. People v. Mendibles (1988) 199 Cal.App.3d 1277, 1304. Leson was testifying regarding the specific scenario placed at issue by the defense — the possibility that Petitioner’s positive drug test resulted from the ingestion of hemp products. This was proper rebuttal testimony.
“It was also proper for the Board to consider Leson as an expert. An individual is qualified to testify as an expert witness if ‘. . . he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates.’ Evid. Code § 720(a). Based on Leson’s testimony about his knowledge and experience in the hemp industry, he was qualified to testify as an expert.
“Nor was the admission of Leson’s telephonic testimony as abuse of discretion. In C & C Partners v. Dept. of Indus. Relations (1999) 70 Cal.App.4th 603, 612, the Court of Appeal found that the petitioners in that case had not been prejudiced by the admission of telephonic testimony as they had the opportunity to cross-examine the inspector. Likewise here, Petitioner was given the opportunity to cross-examine Leson at length. . . .
“Leson’s testimony was properly considered by the Board.
“The Board’s finding that Petitioner was guilty of testing positive for marijuana is supported by the weight of the evidence in the record.
“The record shows that the amount of THC in Petitioner’s urine sample was 58 nanograms per milliliter . . ., which is above the cut-off level of 15 nanograms per milliliter in the Dept.’s Memorandum of Understanding. Given this evidence, and Leson’s testimony, the documents and affidavits from the hemp product companies . . ., and the Dept.’s own investigation into the THC levels in the products consumed by Petitioner, the Board did not abuse its discretion in concluding that Petitioner’s positive drug tests were caused by his use of marijuana. [¶] . . . [¶]
“Here, the Board considered Petitioner’s exemplary work history and reviewed his personnel records, but nonetheless determined that, ‘the very nature of obtaining and ingesting drugs compromises a police officer’s integrity, trustworthiness, and credibility.’ . . . The Board’s decision was not an abuse of discretion.”
Our task on appeal is to ensure that the trial court’s decision is supported by substantial evidence. Applying the substantial evidence test to the trial court’s exercise of its independent judgment, we conclude, based on our own discussion of the evidence (see pt. I, ante), that the trial court’s decision is amply supported. To the extent Light attacks Dr. Leson’s credibility and his purported bias in favor of the hemp industry, it was within the province of the trial court, not this court, to weigh those aspects of Leson’s testimony. (See Fukuda v. City of Angels, supra, 20 Cal.4th at pp. 808, 811–822; Governing Board v. Haar, supra, 28 Cal.App.4th at pp. 377–378.)
III
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., DUNNING, J.
Judge of the Orange County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.