Opinion
H036187
11-15-2011
DAVID RODRIGUEZ, Plaintiff and Appellant, v. CITY OF SANTA CLARA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CV013374)
I. INTRODUCTION
Petitioner David Rodriguez was a police officer with the City of Santa Clara (City). City terminated his employment after investigating his role in a 2001 arrest. City's Civil Service Commission Board of Review (Board) upheld the termination decision. The superior court denied Rodriguez's petition for writ of administrative mandamus. (Code Civ. Proc., § 1094.5 (§ 1094.5).) Rodriguez appeals. The principal issue on appeal is whether the superior court was correct in reviewing the Board's penalty decision under the abuse of discretion standard of review. We conclude that the court was correct both in choosing the abuse of discretion standard and in concluding that there was no abuse of discretion. Accordingly, we shall affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Arrest of Barrett
The incident from which the instant matter arises occurred on October 19, 2001, when Officer Amy Jackson called for back-up to help her subdue Michael Barrett, whom she was attempting to arrest. Rodriguez and several other officers responded. Barrett was eventually subdued and taken into custody. Jackson prepared a written report of the incident. Rodriguez prepared a supplemental report in which he stated in part: "Upon arrival, I observed suspect Barrett lying supine on the east sidewalk of Lafayette Street north of Aldo. I observed that Officer Jackson was on top of . . . Barrett who was actively resisting and fighting Officer Jackson. I observed . . . Barrett flailing his arms and kicking his legs at Officer Jackson and other officers at the scene. I responded and assisted officers in using our body weight to prevent . . . Barrett from injuring Officer Jackson and other officers at the scene. I continually heard Officer Jackson shouting commands for suspect Barrett to quit fighting and to give her his hands, which he had concealed under his stomach, as he laid now prone on the sidewalk. [¶] I assisted Officer Jackson with pulling . . . Barrett's hands out from under his stomach. . . . Barrett continued to resist by kicking his legs and attempting to lift his body up as we attempted to keep him down. . . . During the struggle, I observed . . . Barrett bang his head . . . on the cement floor. Officers at the scene were finally able to handcuff Barrett with his hands behind his back."
Days later, two of the responding officers reported that they thought Rodriguez had used excessive force to subdue Barrett. One officer alleged that Rodriguez struck Barrett in the head, neck, and shoulder areas five or six times with his flashlight and kicked Barrett in the face four times. The other officer alleged that Rodriguez kicked Barrett in the face three times.
Rodriguez was placed on administrative leave and the Santa Clara Police Department (SCPD) initiated an investigation, which it completed in July 2002. Rodriguez was interviewed several times in the course of the investigation. During those interviews Rodriguez gradually elaborated upon the nature and amount of force he had used in attempting to subdue Barrett. He acknowledged using his flashlight as a means of restraint but denied striking Barrett with it. He also acknowledged that he stomped on Barrett's shoulder area in an attempt to pin the man to the ground. He denied intentionally kicking Barrett.
At the conclusion of the investigation, the SCPD investigator found that Rodriguez had used unnecessary or excessive force, not reported his use of force to his supervisor, failed to complete reports accurately and completely, made his report in a less than truthful or cooperative manner, and harmed and discredited his reputation and that of the SCPD.
B. City's Decision
On November 8, 2002, City issued a notice of final disciplinary action informing Rodriguez that his employment was being terminated effective November 15, 2002. The notice explained that City's action was being taken based upon Rodriguez's violation of five subdivisions of section 6.4 of City's Civil Service Rules and Regulations. Those violations were listed as: (1) dishonesty, (2) discourteous treatment of the public, (3) failure to observe departmental regulations, (4) failure of good behavior or acts incompatible with public service, and (5) failure to satisfactorily perform duties. The basis for the dishonesty charge was Rodriguez's "[t]estifying, making reports or conducting police business in a less than truthful and/or cooperative manner." The discourteous-treatment charge was based upon the alleged unnecessary or excessive use of force. The remaining three charges were based upon the unnecessary or excessive use of force, failure to report the use of force, failure to complete reports accurately and completely, conduct unbecoming of an employee, and neglect of duty, incompetence, or inefficiency.
C. The Board's Findings of Fact
Rodriguez appealed his termination to the Board. After a full hearing, the Board found, among other things, that "Rodriguez impacted or landed on Barrett's left shoulder area with full force," Rodriguez had used his flashlight in an attempt to control Barrett, Rodriguez "utilized his knees on Barrett's neck/shoulder area with his full body weight . . . stood up again and then dropped his knees on Barrett's left shoulder/neck area," and Rodriguez had "stomp/kicked Barrett with his foot more than once." The Board also found that Rodriguez had failed to report the use of the flashlight, the stomping, or the knee dropping on Barrett. He had failed to notify his supervisor on the night of the incident or as soon as possible of any uses of force and did not report that he had "stomped/stepped on Barrett" until November 2, 2001, during an investigative interview. The Board decided that the use of the flashlight and the foot stomps were unnecessary or excessive force. The Board also decided that Rodriguez's report was inadequate and that he did not cooperate with the investigation, exercised a "lack of candor," was dishonest, failed to report the use of force, and failed to complete his reports accurately and completely. His conduct during the investigation was "neglectful" and some of his testimony was "less than truthful." The Board sustained each of the City's five charges and concluded, "Any of these charges on their own would have been sufficient to sustain termination."
D. The First Petition for Writ of Administrative Mandamus
Rodriguez petitioned for a writ of administrative mandamus, challenging the Board's decision. The superior court independently reviewed the evidence and concluded that the weight of the evidence supported all the Board's factual findings except its finding that Rodriguez had landed on Barrett's left shoulder area "with full force." As to the kicking or stomping, the superior court found that finding to be supported by the evidence because the Board had not found the kick or kicks to have been intentional. The superior court further found that the weight of the evidence supported the Board's findings that Rodriguez "did not report his use of force in his police report or orally" to his supervisor, and that he did not describe the kicking or stomping until the matter was under investigation. The superior court held that the evidence supported the Board's determination that Rodriguez's reports were inaccurate or incomplete but did not support the determination that he had used excessive or unnecessary force: "The [Board's] findings of fact supported by the evidence unequivocally establish that [Rodriguez] failed to report his use of force other than his use of body weight in his report in violation of City and Department policy. . . . The evidence taken as a whole, however, does not support the finding(s) that [Rodriguez] actually used 'unreasonable and excessive force' against Barrett although his overall conduct at the scene of the arrest of Barrett and thereafter did not reflect the high standards of the Department."
The superior court's decision with respect to the penalty was that it could have been tainted by the Board's unsupported conclusion that Rodriguez had used excessive force. Accordingly, the superior court ordered the petition for writ of mandate be granted "in part" and ordered: "The Board's penalty determination is set aside and the matter is remanded for reconsideration of the penalty to be imposed consistent with the findings of the Court."
E. The First Appeal
City appealed from the superior court's order partially granting the first writ petition. City challenged the superior court's conclusion that the Board's findings did not support the determination that Rodriguez had used excessive force. In an unpublished opinion, this court found no error in the superior court's determination of that point. (Rodriguez v. City of Santa Clara Civil Service Commission Board of Review (Oct. 15, 2008) H030557 [nonpub. opn.] pp. 15-16 .) As to the penalty, we agreed that "the Board should be given an opportunity to review its penalty determination in light of the trial court's findings." (Id. at p. 34.) The appellate disposition reads in full: "The judgment is affirmed. In affirming the remand order, we do not state any opinion with regard to the penalty to be imposed." (Ibid.)
F. The Remand Hearing
On remand, the Board considered the record of the prior hearing, the parties' briefs, the superior court and appellate opinions, and the arguments of counsel. The Board considered the established facts that Rodriguez stomped/kicked Barrett, used his flashlight in an attempt to control him, utilized his knees on Barrett's neck or shoulder area with his full body weight, and stood and dropped his knees on Barrett's left shoulder or neck area. With these facts in mind, the Board noted that SCPD regulations require employees to provide a written report when any employee strikes a subject "with their hand or any other object," force is used "beyond simple control holds or overcoming passive resistance," or force "results in injury or unconsciousness to a subject or any allegation of injury or unconsciousness." The Board also noted that employees are required to orally report any use of force to their immediate supervisor and that the SCPD manual prohibits officers from "making reports or conducting police business in a less than truthful and/or cooperative manner." In spite of these requirements and expectations, Rodriguez did not report his use of force against Barrett in his written report or orally to his supervisor. "Mr. Rodriguez exhibited a lack of candor and honesty in the face of accusations of excessive force. [Citation.] Mr. Rodriguez' failure to be totally honest in violation of City and Department policy is a serious matter."
In addressing Rodriguez's defenses, the Board noted that Rodriguez "is experienced in preparing written reports detailing his use of force" and that he is aware of the purpose of police reports. The fact that his use of force was found not to be excessive "does not excuse his failure to report the use of force and to be truthful. City and Department rules require that an officer report any and all force that is used and does not provide for an exception to this rule just because the force is determined not to be excessive."
The Board concluded that termination was appropriate. The Board considered the "serious nature" of the misconduct and "its impact on both Mr. Rodriguez' ability to effectively perform the duties of a police officer and its impact on the City." The Board noted that Rodriguez's supervisor now questioned Rodriguez's "honesty and integrity." His usefulness as a witness for the prosecution was limited by the effect this matter would have upon his credibility. Further, his failure to accurately report his use of force meant that City had not been aware that any force was used until after it received a complaint and conducted an investigation. "The City requires that employees, especially law enforcement employees, adhere to the highest standards of conduct and that they be truthful in their actions. Mr. Rodriguez failed to meet these standards. Mr. Rodriguez' failure to accurately and completely report his use of force, even though that force has been determined to not be excessive, is a serious offense for which this Commission believes termination is appropriate."
The prosecution would be bound to disclose the credibility issue to the defense in any case in which Rodriguez's testimony would be used. (See Brady v. Maryland (1963) 373 U.S. 83.)
G. The Instant Petition for Writ of Administrative Mandate
Rodriguez again petitioned for writ of administrative mandamus. The initial dispute before the superior court was whether the court should apply the abuse of discretion standard of review or whether it was bound to apply its independent judgment in reviewing the Board's decision. The superior court chose the abuse of discretion standard, the choice of which, the court believed, was "outcome determinative." The court noted that the Board's conclusion was based upon "a failure to properly report[,] that there was evidence of dishonesty and a violation of departmental rules." Termination on those grounds was not, the court held, an abuse of its discretion. Rodriguez appeals from that decision.
III. DISCUSSION
A. Standard of Review for the Superior Court
The threshold question is whether the superior court was correct in reviewing the Board's decision for abuse of discretion. Rodriguez argues that the superior court adopted the abuse of discretion standard because it improperly applied the collateral estoppel doctrine. According to Rodriguez, City waived the collateral estoppel argument by not raising it before the Board, and, in any event collateral estoppel does not apply because the issues are different. Rodriguez maintains that, absent application of collateral estoppel, the independent judgment standard would have applied. City argues that the only issue before the Board on remand was whether termination was an appropriate penalty for the misconduct the superior court had found to exist and judicial review of a penalty decision is for abuse of discretion. We agree with City.
In a section 1094.5 proceeding involving a fundamental vested right, where the petitioner maintains that the findings are not supported by the evidence, the superior court exercises its independent judgment on the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; § 1094.5, subd. (c).) The superior court examines the evidence in the administrative record, resolves evidentiary conflicts, and assesses credibility to arrive at its own findings of fact. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45.) But the superior court exercises its independent judgment only with respect to the culpability component of the administrative decision. The selection of the penalty by the administrative body is not a factfinding exercise; it is an exercise of discretion. Thus, once the superior court has determined that the administrative body properly found the facts to support the misconduct determination, "the imposition of the appropriate penalty for that misconduct is left to the sound discretion of the agency." (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 53.)
In ruling upon the first petition for writ of mandate, the superior court reviewed the whole record and exercised its independent judgment in concluding that Rodriguez had not used excessive force in attempting to subdue Barrett but that he had committed misconduct in failing to completely, accurately, and truthfully report his use of force. The only remaining question was whether the Board had abused its discretion in selecting the penalty. In general, when ruling upon a petition for writ of administrative mandamus, the superior court may deny the petition, grant the petition and issue the writ (§ 1094.5, subd. (f)), or it may enter an interlocutory order remanding for further proceedings before entering a final order (Voices of Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 529). It appears that here the superior court did not issue an interlocutory remand order. Rather, the court granted the petition by vacating the Board's decision and specifically directing the Board to reconsider the penalty in light of the superior court's findings. The superior court's order was undisturbed by the intervening appellate opinion, which affirmed "the remand order."
Section 1094.5, subdivision (f) provides that the superior court "shall enter judgment either commanding respondent to set aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in the light of the court's opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent."
An interlocutory remand is not a final order and would not have been appealable. (Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424, 1430-1431; Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 502.)
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Whether we characterize the problem as collateral estoppel or law of the case (cf. People v. Shuey (1975) 13 Cal.3d 835, 848), the issue of whether Rodriguez had committed misconduct had been decided. Thus, Rodriguez's arguments pertaining to that point are irrelevant to the issue before the Board. Given the directions contained in the writ, the Board's only job was to follow the directive of the superior court, namely, to reconsider "the penalty to be imposed consistent with the findings of the Court." And it is well-settled that in a mandamus proceeding to review an administrative order, the penalty chosen by the administrative body is reviewed for abuse of discretion. (Osburn v. Department of Transportation (1990) 221 Cal.App.3d 1339, 1344.)
B. Standard of Review for the Appellate Court
The appellate court uses the same standard as the superior court, reviewing the Board's penalty for manifest abuse of discretion. (Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652.) "In determining whether an agency abused its discretion in assessing a particular penalty, a court will look to 'whether reasonable minds may differ as to the propriety of a penalty imposed.' [Citations.] Judicial interference with the agency's assessment of a penalty 'will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.' " (Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 54.)
C. Analysis
As has been previously stated, " 'In reviewing the exercise of this discretion we bear in mind the principle "[c]ourts should let administrative boards and officers work out their problems with as little judicial interference as possible. . . ." Such boards are vested with a high discretion and its abuse must appear very clearly before the courts will interfere. [Citations.] The "overriding consideration" in cases of public employee discipline "is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, '[h]arm to the public service.' " ' (Talmo v. Civil Service Com. [(1991)] 231 Cal.App.3d [210] at p. 230.)" (Cummings v. Civil Service Com., supra, 40 Cal.App.4th at pp. 1652-1653.)
We find no abuse of discretion by the Board in this case. Termination of a police officer who failed to report his use of force, responded incompletely or untruthfully, lost the confidence of his immediate supervisor, and violated City and SCPD rules and regulations in a way that could affect public confidence in City's law enforcement procedures, is not an arbitrary or capricious decision.
IV. DISPOSITION
The order of the superior court denying the petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) is affirmed.
Premo, J. WE CONCUR:
Rushing, P.J.
Elia, J.