Gonzalez v. City of L. A.

42 Cal.App.5th 1034

256 Cal.Rptr.3d 191

Caesar GONZALEZ, Plaintiff and Respondent,

v.CITY OF LOS ANGELES et al., Defendants and Appellants.

Kosal Uch, Plaintiff and Respondent,

v.City of Los Angeles et al., Defendants and Appellants.

B287125

B287249

Court of Appeal, Second District, Division 3, California.

Filed December 3, 2019

Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant City Attorney, Paul L. Winnemore and Matthew A. Scherb, Deputy City Attorneys, for Defendants and Appellants.

Stone Busailah, Michael P. Stone and Muna Busailah, Pasadena, for Plaintiff and Respondent Caesar Gonzalez.

Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski, Santa Monica, and Christopher D. Nissen, Long Beach, for Plaintiff and Respondent Kosal Uch.

EGERTON, J.

The City of Los Angeles (City) and Chief of Police Charlie Beck (Chief Beck) appeal from trial court judgments granting petitions for writ of mandate filed by former Los Angeles Police Department (LAPD) sergeants Caesar Gonzalez and Kosal Uch. The trial court ordered the City to vacate Gonzalez’s and Uch’s terminations and provide them with the opportunity for an administrative appeal. In this consolidated appeal, we conclude the City’s provision of a hearing before the Board of Rights was the administrative appeal Government Code section 3304, subdivision (b) requires.¹ We reverse the judgments.

BACKGROUND

1. LAPD Proceedings (Gonzalez)

In October 2010, when Gonzalez was an LAPD sergeant living in San Bernardino County, the San Bernardino Sheriff’s Department (sheriff’s department) began a criminal investigation into allegations that in April 2010 Gonzalez supplied alcohol to a minor (his second cousin by marriage), and had sex with her. After the sheriff’s department interviewed Gonzalez in September 2010, he informed his LAPD supervisor, Lieutenant David Crew, that he had given the sheriff’s department a voluntary statement about providing alcohol to a minor, but Gonzalez did not tell Lieutenant Crew about the sex charge until sometime later. In October 2010 Gonzalez reported the alcohol charge, but not the sex charge, on the initial department complaint form (number CF 10-00392). The criminal investigation was closed later without filing charges.

During LAPD’s investigation into the alcohol and sex allegations, the Internal Affairs Group interviewed Gonzalez and other witnesses, and obtained from the sheriff’s department statements by the minor and her mother. The LAPD investigator prepared a 20-page report, submitted in June 2011 and approved in December 2011. The report listed four allegations: (1) providing alcohol to a minor, (2) sexual intercourse with a minor, (3) attempt to engage in an intimate relationship with a minor, and (4) engaging while off-duty in conduct unbecoming to an officer. The report summarized the evidence, and described the investigation and the criminal investigation in San Bernardino. Gonzalez denied he had sex with the minor, but did not dispute that she drank alcohol with his knowledge. The investigator was unable to determine if Gonzalez and the minor had sex, as there was no physical evidence and no witnesses, and the victim reported the alleged sex five months later.

In March 2012, Gonzalez’s commanding officer, Captain Don Schwartzer, adjudicated the allegations, sustaining all but the allegation of sex with a minor, which he classified as unresolved. Captain Schwartzer concluded: "It has been determined that Sergeant Gonzalez committed acts that merit 10 Suspension Days and his tour at Internal Affairs is not being extended, as a result he will transfer to another Division outside of Professional Standards Bureau."

After Gonzalez filed a Skelly response² including additional information, LAPD conducted a supplemental investigation led by Detective Christina Frus, who held additional interviews and obtained and reviewed additional evidence. A 31-page supplemental report retained the first two allegations (providing alcohol to, and having sex with, a minor) and modified the third allegation to state that Gonzalez, while off-duty, unnecessarily placed himself in a compromising position. The supplemental report added six new allegations against Gonzalez: (4) failure to report the criminal investigation in a timely manner, (5) submitting an official complaint form he knew or should have known was inaccurate, (6) omitting critical alleged misconduct from an official complaint form, and (7), (8), and (9), three separate instances of providing misleading information to LAPD.

On September 19, 2012, Captain Schwartzer adjudicated the expanded allegations and sustained them all. In an eight-page supplemental letter of transmittal, he recommended that allegation (2), sexual intercourse with a minor, be reclassified as sustained, based on the evidence and information obtained in the supplemental investigation. Captain Schwartzer evaluated the evidence (the minor reported they had sex and Gonzalez denied it) and found Gonzalez’s story unreasonable. Captain Schwartzer also described the evidence supporting the new allegations that Gonzalez failed to report and provided incomplete and inaccurate information. He recommended: "As a result of the supplemental administrative investigation, the Department Sustained Allegation 2 from the original complaint investigation and Sustained Allegations 4 through 9. It has been determined that Sergeant Gonzalez committed acts that merit REMOVAL."

Also on September 19, 2012, Commander Richard Webb of the Internal Affairs Group reported that he had reviewed the investigation, the supplemental report, and the supplemental adjudications. After consulting with the Professional Standards Bureau, he made a military (modified) endorsement of the complaint, recommending sustaining the first allegation (providing alcohol to a minor) and the second allegation (sex with a minor), and consolidating all the allegations of misleading statements into a single third allegation, which he also recommended be sustained. Commander Webb and Captain Schwartzer both recommended the penalty of "BOARD OF RIGHTS FOR REMOVAL " to Chief Beck.

That same day, Chief Beck signed a disciplinary complaint adopting Commander Webb’s and Captain Schwartzer’s recommendation of removal, temporarily removed Gonzalez from duty (although loss of compensation would not begin for 30 days), and "[d]irect[ed] [Gonzalez] to a Board of Rights with the proposed penalty of removal from your employment with the Department." Captain Schwartzer sent a letter informing the commanding officer of operations of the "CHANGE IN PERSONNEL COMPLAINT PENALTY," describing Chief Beck’s concurrence with the changes in the military endorsement: "The Allegations listed have been properly classified as SUSTAINED and the original penalty outlined in the original Letter of Transmittal has been changed from 10 suspension days to a BOARD OF RIGHTS/REMOVAL ."

Gonzalez’s hearing before the Board of Rights (Board) began on April 23, 2013. After the first day of testimony, the Board suggested amendment of the third allegation to identify specific misleading statements. On April 30, 2013, Chief Beck served Gonzalez with an amended disciplinary complaint that divided the third allegation into two separate allegations: (3) misleading information on Gonzalez’s complaint face sheet, and (4) misleading statements in Gonzalez’s Skelly response.

During seven more days of testimony, the Board heard from numerous witnesses (including the minor and Gonzales), examined exhibits, and reviewed interviews conducted during the investigation. On August 13, 2013, the Board reported a unanimous verdict of guilty on (1) providing alcohol to a minor, (2) sexual intercourse with a minor, and (3) providing misleading information on the complaint form. The Board found Gonzalez not guilty of misleading statements on the Skelly response, as no evidence was presented to support the allegation. After deliberation, the Board concluded removal was the appropriate penalty, and conveyed its decision to Chief Beck. Chief Beck executed a removal order on August 29, 2013, effective October 20, 2012. The order was served on Gonzalez on September 4, 2013, and advised Gonzalez of the time limit for seeking judicial review under Code of Civil Procedure section 1094.5.

2. LAPD Proceedings (Uch)

A minor female reported that on March 3, 2015, she and a friend drove up to park in an area with a view of the valley. While she was having consensual sex with her friend in the back seat of his car, a man opened the car door, pointed his phone flashlight at her, and recorded her, saying he was a police officer and would arrest them for having sex in public. She was wearing only her bra. The man continued to record her while she got dressed, and then made her and her friend pick up trash. He left without giving her a ticket. The minor went home and told her mother, who called the LAPD to report that someone had impersonated a police officer. When Uch’s commanding officer learned that Uch wanted to go to the minor’s address to take care of the complaint, he became concerned because Uch had had "prior ... issues up in those hills," including an earlier complaint by two males Uch had confronted in the same area. An initial complaint (CF No. 15-000581) alleged conduct unbecoming an officer.

Sergeant Malcom Collier investigated, interviewing Uch and both minors, and obtaining Uch’s audio files, photographs, and cell phone records. (Uch said he had used his cell phone when he believed his department camera had failed.) Following the investigation, the complaint was amended to make four allegations related to the March 2015 incident, the first three concerning Uch’s invasion of the minor’s privacy, and the fourth concerning his command to pick up other people’s trash.³ Two additional allegations concerned Uch’s deletion of digital media from his department camera and his cell phone "sometime after March 3, 2015."

Uch’s commanding officer,...