Wences v. City of Los Angeles

Opinion

Appellant Cesar Wences (Wences) appeals from the trial court’s denial of his petition for writ of administrative mandate brought pursuant to Code of Civil Procedure section 1094.5. Wences, a police officer, received an official reprimand from the Los Angeles Police Department (the Department) for using unauthorized tactics and inappropriately drawing his weapon during the course of an off-duty, officer-involved shooting. After his administrative appeal was denied, Wences filed a mandate petition in Los Angeles County Superior Court, seeking an order compelling respondents City of Los Angeles and Chief of Police William J. Bratton (collectively Respondents) to set aside the official reprimand and the sustained charges of misconduct against him. The trial court denied the petition on the grounds that there was substantial evidence to support the administrative decision. We conclude, however, that because the disciplinary proceedings against Wences substantially affected his fundamental vested right in his employment, the trial court was required to exercise its independent judgment on the evidence. We therefore reverse and remand the matter to the trial court for reconsideration under the proper standard of review.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. The Off-duty, Officer-involved Shooting

At the time of the relevant events, Wences had been employed by the Department for five years and held the rank of police officer II. On April 3,

Approximately 45 minutes later, Wences’s wife informed him that there were four individuals outside throwing “stuff’ at his truck. At that point, Wences believed that Rodriguez was one of the persons outside his home and was there to pursue her threat. Fearing for his and his family’s safety, Wences immediately went to his equipment bag and removed his personal firearm from its holster. He also instructed his wife to call the Long Beach Police Department and to make sure to advise them that he was an off-duty officer. Wearing civilian clothing, Wences opened the front door of his home and went outside onto his front porch. He did not look out any windows to assess the situation before arming himself or stepping outside.

When Wences walked onto his front porch, he immediately was illuminated by a motion sensor light. Once outside, he observed four individuals standing across the street approximately 90 feet away, but he did not have a full view because their bodies were partially obscured by his truck. The group began walking toward Wences in a threatening manner. Wences decided to leave his porch and walk toward the group because he wanted to place some distance between the suspects and his home and to better assess what they were doing behind his truck. As he approached, Wences held his firearm at his side in a “low ready” position, pointed downward at a 45-degree angle. Without identifying himself as a police officer, Wences ordered the group to “get back.” The group was startled upon seeing Wences’s gun and retreated to the other side of the street.

Unbeknownst to Wences, his wife had followed him outside. When Wences realized that his wife was standing adjacent to him, he instructed her to return to the house, and again, to call the police. In response, Rodriguez, who was one of the group members, said words to the effect, “What do you mean call

After Wences’s wife returned, the situation escalated. Rodriguez began advancing on the wife, calling her a “bitch” and grabbing her by the shirt. Wences was able to push Rodriguez back with his hand and she retreated behind the rest of the group. Rodriguez then returned with a shiny silver object in her hand, which Wences thought was a knife, but later learned was a fork. Rodriguez again advanced on Wences and his wife and thrust the object toward them in a stabbing motion. At that point, Wences believed that both he and his wife were in danger and feared for their lives. Wences fired a single warning shot into the grass to the right of Rodriguez. As soon as Wences fired the shot, Rodriguez fled.

Wences then turned his attention to the remaining suspects and detained them while waiting for the police to arrive. The Long Beach Police Department arrived shortly after receiving a “911” call from Wences’s nephew and took the three suspects into custody without incident. Rodriguez later was arrested and convicted of making terrorist threats. Wences was never treated as a suspect in the Long Beach Police Department’s criminal investigation, but rather as a crime victim.

Following this off-duty, officer-involved shooting, the Department convened a mandatory “Use of Force Review Board” to review Wences’s tactics, drawing and exhibiting of his firearm, and use of force during the incident. Pursuant to Department policy, the five-member Use of Force Review Board was responsible for making a finding of “in policy” or “out of policy” as to the drawing of the firearm and the use of force, and for making a recommendation to the chief of police of “no action,” “training,” or “administrative disapproval.”

Wences’s commanding officer, Captain Clay Farrell, recommended to the Use of Force Review Board that Wences receive formal training for his tactics and drawing of his weapon and no action for his use of force. However, after conducting an independent review of the incident, the Use of Force Review Board decided not to follow Captain Farrell’s recommendations. On February 21, 2006, the Use of Force Review Board found that

On March 3, 2006, Chief Bratton issued his own findings and recommendations to the “Board of Police Commissioners.” Chief Bratton agreed with the findings of the Use of Force Review Board and recommended to the Board of Police Commissioners that it do the same. On March 28, 2006, the Board of Police Commissioners adopted Chief Bratton’s findings and administratively disapproved Wences’s tactics and drawing and exhibiting of his weapon.

On March 29, 2006, the Department issued a personnel complaint against Wences. The complaint alleged that Wences utilized unauthorized tactics and inappropriately drew his weapon in connection with the off-duty shooting, which resulted in an “administrative disapproval” from the Board of Police Commissioners. Following the issuance of the personnel complaint, Wences’s commanding officers were responsible for making a penalty recommendation to Chief Bratton. The commanding officers recommended that Wences receive an official reprimand. On March 31, 2006, Chief Bratton agreed with the recommended penalty and signed an official reprimand for'Wences’s use of unauthorized tactics and inappropriate drawing of his weapon.

On April 14, 2006, Wences filed an administrative appeal. The specific relief that Wences sought was for the Department to reclassify the “out of policy” finding to “in policy” and to remove the official reprimand from his record. The administrative appeal was heard over a three-day period in November and December 2006. On January 3, 2007, the hearing officer issued his administrative decision, finding that the charges of unauthorized tactics and inappropriate drawing of a firearm by Wences should be sustained and that the penalty of an official reprimand should be upheld. On January 30, 2007, the office of the chief of police issued an order adopting the findings of the hearing officer and upholding the official reprimand.

On April 27, 2007, Wences filed a petition for writ of administrative mandate in Los Angeles County Superior Court. In his petition, Wences sought an order compelling Respondents to set aside the sustained charges of misconduct against him and the official reprimand. Wences contended that the

On March 26, 2008, the trial court called the matter for hearing. At the outset of the hearing, the court indicated that it intended to apply the substantial evidence test in ruling on the merits of the petition because the sole discipline imposed on Wences was a reprimand. Counsel for Wences argued that the independent judgment test should apply because, irrespective of the level of discipline imposed, the Department’s action impaired Wences’s fundamental right to defend his home and family from a criminal threat. The trial court, however, rejected Wences’s “home of the castle [ric] argument” as having “no application to the ability of a police officer’s employer to reprimand him.”

In its March 26, 2008 minute order, the trial court set forth its reasoning on the standard of review as follows:

“Despite the assumption of both of the parties to the contrary, there is no evidence before the court to support a standard of review which requires this court to use its independent judgment as to the weight of the evidence produced at the administrative hearing. The administrative proceedings did not potentially affect any fundamental right of petitioner. A police officer does not have a fundamental right not to be reprimanded by the law enforcement agency that employs him if it considers that he should have used alternative and less dangerous means of dealing with the situation in order to lessen, rather than escalate, the danger that deadly force would be used.

“A use of force review is a means by which a police department continues to train its police officers. The Department is entitled to deference from the court for the purpose of encouraging it to maximize public safety by continuously monitoring and attempting to improve the judgment and level of performance used by its police officers. The standard by which the court reviews the administrative decision is therefore to determine whether it is supported by substantial evidence contained in the administrative record.

“Wences contends that he cannot be ‘punished’ for exercising his statutory right to protect his home and family. The contention has no merit. Even if a reprimand is regarded as ‘punishment,’ the administrative decision does not deprive petitioner of any property or employment right, does not affect him

financially, and therefore does not authorize the court to exercise its independent judgment on the evidence pursuant to section 1094.5(c) of the Code of Civil Procedure.”

The trial court thus applied the substantial evidence standard of review, and denied Wences’s writ petition on the grounds that there was substantial evidence to support the administrative decision. On June 9, 2008, Wences filed a timely notice of appeal.

DISCUSSION

Among other arguments raised in his appeal, Wences asserts that the trial court erred in failing to apply the independent judgment standard of review to his petition for writ of administrative mandate. We agree, and accordingly, reverse on those grounds.

Section 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. A trial court’s review of an adjudicatory administrative decision is subject to two possible standards of review depending upon the nature of the right involved. (Code Civ. Proc., § 1094.5, subd. (c).) If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28 , 32 [ 112 Cal.Rptr. 805 , 520 P.2d 29 ]; Bixby v. Pierno (1971) 4 Cal.3d 130 , 143 [ 93 Cal.Rptr. 234 , 481 P.2d 242 ].) The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings. (Bixby v. Pierno, supra, at p. 143.) If, on the other hand, the administrative decision neither involves nor substantially affects a fundamental vested right, the trial court’s review is limited to determining whether the administrative findings are supported by substantial evidence. (Strumsky v. San Diego County Employees Retirement Assn., supra, at p. 32; Bixby v. Pierno, supra, at p. 144.)

Whether an administrative decision substantially affects a fundamental vested right must be determined on a case-by-case basis. (Bixby v. Pierno, supra, 4 Cal.3d at p. 144.) A right may be deemed fundamental “on either or both of two bases: (1) the character and quality of its economic aspect; [or] (2) the character and quality of its human aspect.” (Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770 , 780 [ 163 Cal.Rptr. 619 , 608 P.2d 707 ].) “The ultimate question in each case is whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgement by a body lacking judicial power. [Citation.]” (Id. at p. 779,

It repeatedly has been held that “[discipline imposed on public employees affects their fundamental vested right in employment,” and therefore, when a public employee challenges an employer’s disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment on the evidence. (Melkonians v. Los Angeles County Civil Service Com. (2009) 174 Cal.App.4th 1159 , 1167 [ 95 Cal.Rptr.3d 415 ]; see Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899 , 902 [ 4 Cal.Rptr.3d 325 ]; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44 , 52 [ 76 Cal.Rptr.2d 356 ]; Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560 , 572-573 [ 55 Cal.Rptr.2d 861 ]; McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125 , 129 [ 8 Cal.Rptr.2d 548 ]; Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494 , 500 [ 210 Cal.Rptr. 788 ]; Estes v. City of Grover City (1978) 82 Cal.App.3d 509 , 514-515 [ 147 Cal.Rptr. 131 ].) The disciplinary action at issue often is the termination of employment. (See, e.g., Melkonians v. Los Angeles County Civil Service Com., supra, at p. 1161 [discharge of deputy sheriff]; Jackson v. City of Los Angeles, supra, at p. 902 [discharge of police officer]; Kazensky v. City of Merced, supra, at p. 49 [discharge of city mechanics]; Schmitt v. City of Rialto, supra, at p. 496 [discharge of police officer].) However, courts also have held without distinction that the independent judgment standard applies to actions involving other forms of discipline. (See, e.g., Boctor v. Los Angeles County Metropolitan Transit Authority, supra, at p. 563 [demotion of transit authority employee]; McMillen v. Civil Service Com., supra, at pp. 127-128 [12-day suspension of city ambulance driver].) On the other hand, the parties do not cite, nor are we aware of, any case which addresses the precise issue presented here: whether a different standard of judicial review should apply in an administrative mandamus proceeding where the challenged discipline is solely a reprimand as opposed to a more severe penalty.

In deciding that the independent judgment standard of review did not apply to Wences’s mandamus action, the trial court reasoned that the official reprimand did not .implicate any fundamental vested right held by Wences because the “administrative decision does not deprive [him] of any property or employment right, [and] does not affect him financially.” The trial court thus focused its analysis on the amount of harm that actually resulted from the reprimand and found that there was no immediate financial impact on Wences. However, the California Supreme Court has made clear that, in considering whether a right is fundamental for purposes of ascertaining the appropriate standard of review, the focus must not be on the “actual amount of harm or damage in the particular case,” but rather on the “nature of the

In Dickey, for instance, two police officers brought administrative mandamus actions to challenge a retirement board’s denial of their applications for full salary disability benefits. (Dickey, supra, 16 Cal.3d at pp. 747-748.) The issue before the Supreme Court was whether the administrative decision substantially affected a fundamental vested right so as to require the trial court to review the officers’ petitions under the independent judgment standard of review. Focusing on the financial impact of the officers’ injuries, the retirement board argued that the right to full salary disability benefits was not fundamental “in the light of the actual disabilities incurred—three weeks disability in [one officer’s] case and disability requiring work on light duty in [the other officer’s] case—” because all that was at stake was the monetary “difference between full salary disability benefits and regular workers’ compensation benefits.” (Id. at p. 750.) The Supreme Court rejected such argument, reasoning that “the crucial question is not the actual amount of harm or damage in the particular case but the essential character of the right in human terms. Thus, the critical area of focus is the nature of the right . . . .” (Id. at p. 751.) The court concluded that the right to full salary disability benefits was “indeed ‘fundamental’ as it directly affects an employee’s ability to continue to support his family while incapable of working due to injury received as a result of his employment.” (Ibid.) Because the administrative decision implicated the fundamental right to disability benefits, irrespective of the actual benefits to be paid, the trial court was required to exercise its independent judgment on the evidence. (Ibid.)

In considering whether disciplinary proceedings substantially affect a fundamental right, courts similarly have focused on the essential character of the right rather than the actual amount of economic harm. For example, in Estes v. City of Grover City, supra, 82 Cal.App.3d 509 , a police officer sought judicial review of an administrative decision that suspended him for three days and reduced his pay grade by two steps based on a finding of misconduct. Recognizing at the outset that the officer had a fundamental vested right in his employment, the Court of Appeal focused its inquiry on “whether the vested and fundamental nature of the right to public employment encompasses the right to employment without substantial open-ended reduction in pay grade.” (Id. at p. 514.) In examining the nature of such right, the court noted that it could not simply “ ‘ “weigh the economic aspect of it,” ’ ” which in the officer’s case was a pay cut of $49 per month, but also had to consider “ ‘ “the effect of it in human terms and the importance of it to the individual in the life situation.” ’ ” (Id. at pp. 514-515.) The court reasoned that “[p]ay grade [was] certainly important in ‘the fife situation’ to a modestly compensated public employee,” and that the discipline imposed on the officer could adversely impact his future earnings beyond the $49

In considering what forms of discipline constitute “punitive action” under the Bill of Rights Act, courts have held that “punitive action, sufficient to trigger an officer’s administrative appellate rights, may exist when action is taken which may lead to the adverse consequences ... at some future time.” (Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985 , 996 [ 107 Cal.Rptr.2d 664 ], first italics omitted.) There is no required showing that an adverse consequence “has occurred or is likely to occur.” (Id. at p. 997.) Instead, it is sufficient if the challenged action “ ‘may lead’ to such consequences in the future. [Citation.]” (Ibid.; see also Gordon v. Horsley (2001) 86 Cal.App.4th 336 , 348 [ 102 Cal.Rptr.2d 910 ] [written reprimand criticizing deputy sheriff for inappropriately drawing his firearm was “punitive action” because it would “almost certainly have an impact on his future opportunities for advancement in the sheriff’s department”]; Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209 , 1222 [ 85 Cal.Rptr.2d 660 ] [citizens review board’s nondisciplinary finding of misconduct against deputy sheriffs was “punitive action” because it would “be considered in future personnel decisions affecting [the] deputies and may lead to punitive action”]; Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347 , 353 [ 188 Cal.Rptr. 689 ] [police commission’s report that an officer-involved shooting violated department policy was “punitive action” because of “its potential impact on the [officers’] career opportunities”].) Notably, regardless of its actual impact, a written reprimand is considered to be per se punitive in nature under the Bill of Rights Act, thus giving rise to the right to an administrative appeal. (White v. County of Sacramento, supra, 31 Cal.3d at p. 683; Gordon v. Horsley, supra, at p. 347.)

The judgment is reversed and the matter is remanded to the trial court with directions to reconsider Wences’s petition for writ of administrative mandate under the independent judgment standard of review. Wences shall recover his costs on appeal.

Woods, Acting P. J., and Jackson, J., concurred.

Respondent’s petition for review by the Supreme Court was denied December 2, 2009, S176993.