Cruz v. Personnel App. Bd. of the City of El Centro CA4/1 ( 2022 )

Filed 2/16/22 Cruz v. Personnel App. Bd. of the City of El Centro CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANTONIO CRUZ, D078681
Plaintiff and Appellant,
v. (Super. Ct. No. ECU000996)
PERSONNEL APPEAL BOARD OF
THE CITY OF EL CENTRO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Imperial County,
Jeffrey B. Jones, Judge. Affirmed.
Sutherland & Gerber and Katherine Turner for Plaintiff and Appellant.
Cole Huber, Elizabeth L. Martyn and Ronald J. Scholar for Defendants
and Respondents.
I.
INTRODUCTION
Antonio Cruz appeals from the trial court’s denial of his petition for
writ of administrative mandamus seeking to invalidate a decision of the
defendant Personnel Appeal Board of the City of El Centro (Board). The
Board adopted a hearing officer’s decision upholding the defendant City of
El Centro’s (City) termination of Cruz’s employment as a police officer.
On appeal, Cruz contends that the Board’s adopted decision is
inadequate under the standards for administrative agency decisionmaking
established by the California Supreme Court in Topanga Assn. for a Scenic
Community v. County of Los Angeles (1974) 11 Cal.3d 506 (Topanga). Cruz
requests that we remand the matter to the trial court with directions to order
the Board to provide “conclusive and clear findings” to ensure proper judicial
review of the termination of his employment.
We affirm the trial court’s ruling denying Cruz’s petition.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The incident underlying the termination of Cruz’s employment
On an evening in February 2015, Officer Cruz responded to a residence
to investigate a domestic dispute involving a possible battery. Additional
officers also arrived at the residence, including Officer James Thompson.
During the officers’ investigation at the scene, Officer Cruz became
aware of evidence that the alleged perpetrator, J.J., had inflicted domestic
violence upon the alleged victim, X.O. This evidence included a visible injury
to X.O.’s lip, which Officer Cruz observed. Officer Thompson also noticed that
X.O. appeared to have been crying, her shirt was torn, and the skin on her
neck was red, as if someone had grabbed her by the neck. While at the scene,
Officer Cruz concurred with Officer Thompson’s assessment that the incident
had involved domestic violence. Officer Thompson thought that it was
obvious that some type of physical incident had occurred. He informed
Officer Cruz that Officer Cruz should “do the DV,” before leaving the scene.
2
Officer Cruz, however, failed to arrest J.J. for a domestic violence
related offense, photograph X.O.’s injury, or provide X.O. with literature
pertaining to domestic violence, all in violation of City Police Department
(Department) policies.
B. The internal affairs investigation
Officer Thompson later learned that Officer Cruz had documented the
February 2015 incident as a verbal argument. Officer Thompson reported his
observations of the incident to his supervisor, and an internal investigation
ensued.
Sergeant Aaron Messick conducted the investigation. During his
investigation, Sergeant Messick interviewed Officer Cruz on two occasions.
During the first interview, while discussing the February 2015 incident, the
following colloquy occurred:
“Messick: Did [X.O.] appear as if she was crying?
“Cruz: I don’t recall.
“Messick: Was [X.O.’s] shirt ripped . . . ?
“Cruz. Not that I remember.
“Messick: Was her shirt wet?
“Cruz: I don’t remember.
“Messick: Did [X.O.’s] lip have a cut?
“Cruz: Yes.
“[Cruz’s] Attorney: Can you be more [specific] and bear in
mind we’ve just viewed the video[?1]
1 It appears that Cruz’s attorney was referring to video taken from
Cruz’s body worn camera.
3
“Messick: [O]kay[.]
“[Cruz’s] Attorney: [C]an you be more specific of what
specifically you observed at the night [sic] and also on the
video[?]
“Cruz: [O]kay that night I didn’t notice anything on her lip
any type of cut or anything.
“Unknown: [O]kay[.]
“[Cruz’s] Attorney: [A]nd then on further review of the
video what did you observe[?]
“Cruz: I noticed something that appeared to be a cut or a
blister on her lip after reviewing the video[.]
“Messick: Today?
“Cruz: Today.
“Messick: Okay.
“Cruz: Prior to this meeting.
“Messick: Okay so like a cut or a blister?
“Cruz: Um hum something to that [e]ffect.
“[Cruz’s] Attorney: Might . . . it been a burn?
“Cruz: Yes.
“Messick: Some type of injury?
“Cruz: Correct.
“Messick: On her lip okay, um but that night you didn’t
notice?
4
“Cruz: That night I did not.”
During the second interview, Sergeant Messick showed Officer Cruz a
portion of video footage from the February 2015 incident during which Officer
Cruz asked X.O. whether she had a cut on her lip and whether she wanted
Officer Cruz to pursue the domestic violence issue.2 Officer Cruz stated that
he did not remember noticing the cut prior to watching the video footage.
In a memorandum summarizing his investigation, Sergeant Messick
stated that Officer Cruz had falsely stated that he had not observed a cut on
X.O.’s lip on the night of the incident, despite video evidence demonstrating
that Officer Cruz had seen the cut at that time. With respect to Officer
Cruz’s statements concerning the incident during the investigation, Sergeant
Messick concluded in part:
“Officer Cruz provided misleading statements as to the
events that occurred during the call in question. It should
be noted Officer Cruz did in fact notice [X.O.’s] injury to her
lip on the night of the incident because he pointed out the
injury to [X.O.] by asking her to look at the cut on her lip
and then he asked her if she wanted him to press the
[domestic violence] issue as well. In addition to those
questions, Officer Cruz acknowledged he heard Officer
Thompson ask [X.O.] about an injury to her lip that
night. . . . It should be noted that [Officer Cruz] recalled
other details about the incident, such as the nature of the
argument between [J.J.] and [X.O.], and Officer Thompson
2 During his second interview with Sergeant Messick, Officer Cruz
acknowledged that, prior to his first interview with Messick, he had been
allowed to view the video from the February 2015 incident taken from his
body camera. However, Officer Cruz stated in his second interview that,
prior to his first interview, he had not reviewed the portion of the video from
the incident during which he asked X.O. about her lip. Officer Cruz
explained that he had not viewed this portion of the video “because I thought
we had covered all the main points that were gonna [sic] be questioned
through this investigation.”
5
asking [X.O.] about the cut on her lip, yet [Cruz stated that
he did not remember seeing] the obvious cut to [X.O.’s] lip
which both Officer Thompson and he pointed out. Nor did
he remember seeing [X.O.’s] ripped and wet shirt pointed
out by Officer Thompson and visible on the body worn
camera footage, or the redness on [X.O.’s] neck Officer
Thompson saw.”
Sergeant Messick also stated the following concerning his
investigation:
“Video[3] and Officer Thompson’s firsthand observations
showed there were signs of [J.J.] being the aggressor.
Video showed that [X.O.] had a cut to her lip, which both
officers saw and acknowledged at one point in their video.
[X.O.] also had a ripped and wet shirt. It was shown that
[X.O.] was either in denial or covering up for [J.J.] so he
would not be arrested.
“During the course of the investigation, it was determined
Officer Cruz was handling a call where some type of
domestic violence occurred. The video recorded from the
officers[’] body worn cameras showed that victim [X.O.] had
a torn shirt, it was wet, and that she had an injury to her
lip. Both [J.J.] and [X.O.] admitted to having some type of
domestic dispute.”
C. The City’s termination of Cruz’s employment
In January 2016, the City’s Chief of Police terminated Cruz’s
employment. In his termination letter, the Chief stated that Cruz had
violated the following Department polices:
Ҥ 340.3.5 (q) Failure to take reasonable action while on-
duty and when required by law, statute, resolution or
approved [D]epartment practices and procedures.
3 Sergeant Messick stated that he had reviewed footage from Officer
Thompson’s and Officer Cruz’s body worn cameras.
6
Ҥ 340.3.5 (ad) Giving false or misleading statements, or
misrepresenting or omitting material information to a
supervisor, or other person in a position of authority, in
connection with any investigation or in the reporting of any
[D]epartment-related business.”
D. The administrative proceedings and Cruz’s initial petition for writ of
administrative mandamus
In September and December of 2016, a hearing officer held an
evidentiary hearing on Cruz’s appeal of the termination of his employment.
In March 2017, the hearing officer rendered a summary decision4 in
favor of the City upholding the City’s termination of Cruz’s employment.
Later that same month, the Board reviewed the decision and remanded
the matter to the hearing officer “for the purpose of allowing submittal of a
supplemental decision in which the [h]earing [o]fficer makes findings of fact.”
On March 29, 2017, the hearing officer issued a supplemental decision
upholding Cruz’s termination. In his decision, the hearing officer found in
relevant part:
“It was apparent throughout the testimony and
collaborative evidence presented by the City . . . that
Officer Antonio Cruz did not adhere to established protocols
of [d]omestic [v]iolence as mandated with [Department]
Policy [section] 320[5] and when questioned, he did not
recall and/or denied that [d]omestic [v]iolence had occurred
at the residence, thereby providing false or misleading
4 The two-paragraph decision did not contain any findings of fact.
5 The hearing officer quoted several of the provisions of this policy,
including those mandating the taking of witness statements, taking
photographs of the alleged victim’s injuries, providing the alleged victim with
a domestic violence informational handout, and taking “appropriate
enforcement action.”
7
statements as outlined within [Department] Policy [section]
340.3.5.”6
The hearing officer also found that Officer Cruz failed to pursue “an
arrest related to the domestic violence issue,” despite the fact that Officer
Thompson stated that domestic violence was suspected and the alleged victim
had suffered an apparent injury. In addition, the hearing officer found that
Cruz had failed to photograph the alleged victim’s injury or provide her with
domestic violence literature, as required by Department policy.
The hearing officer concluded:
“[B]ased upon the evidence, video footage, testimony by
Officer Antonio Cruz, Sergeant Messick and Police Chief
Eddie Madueno I find that the [City] has substantially
supported just cause for termination, as outlined within
[Department] [section] 340 – Disciplinary Policy.”
In May 2017, the Board issued an opinion reviewing the hearing
officer’s findings and upholding the hearing officer’s decision.
Cruz filed a petition for writ of administrative mandamus seeking
review of the Board’s decision.7 In November 2018, the trial court entered a
judgment vacating the Board’s decision and remanding the matter to the
Board. In its judgment, the trial court stated: “[The Board is] commanded
6 As noted in part II.C, ante, Department policy section 340.3.5 (q)
provides in relevant part: “Failure to take reasonable action while on-duty
and when required by law, statute, resolution or approved department
practices and procedures.”
In addition, as also noted in part II.C, ante, Department Policy section
340.3.5 (ad) provides in relevant part: “Giving false or misleading
statements, or misrepresenting or omitting material information to a
supervisor, or other person in a position of authority, in connection with any
investigation or in the reporting of any department-related business.”
7 This petition for writ of administrative mandamus is not in the record.
8
and directed that the new decision will not make, add or create new evidence
or factual findings beyond those set forth in the March 29, 2017 decision of
the hearing officer.”
In May 2019, the Board issued a summary decision adopting the
hearing officer’s March 29, 2017 decision and upholding the City’s
termination of Cruz’s employment.
E. Cruz’s July 2019 petition for writ of administrative mandamus
1. Cruz’s petition and supporting memorandum of points and
authorities
In July 2019, Cruz filed a petition for writ of administrative mandamus
against the City and the Board seeking a judgment vacating the Board’s May
2019 decision upholding the City’s termination of his employment.
In his accompanying memorandum of points and authorities, Cruz
argued, “The Board abused its discretion by issuing a decision upholding
Cruz’s termination when the findings and evidence, in light of the whole
record, do not support this dishonestly [sic] or this level of discipline.” Cruz
supported this argument by contending that he had made “an honest
misstatement,” during the internal affairs investigation. Cruz further argued
that there was “no finding that [he] intended to lie,” and “no evidence of
intent to deceive by [Cruz].” (Boldface & capitalization omitted.) In support
of these contentions, Cruz pointed to testimony of Sergeant Messick during
the administrative hearing in which Messick stated that he could not point to
any evidence of Cruz’s intent to deceive during any portion of the internal
affairs investigation. Cruz argued further that the record demonstrated that,
at most, he had made an honest and understandable mistake about a matter
for which he had no motive to lie. In addition, Cruz noted that he had
acknowledged his error during his second internal affairs interview.
9
2. The Defendants’ joint opposition
The City and the Board filed a joint opposition in which they argued
that Cruz’s intent to deceive could be inferred from the circumstantial
evidence. Defendants argued in relevant part:
“Here the [a]dministrative [r]ecord unambiguously reflects
that [Cruz] provided misleading and dishonest statements
during the Department’s investigation. In [Cruz’s] first
interview he expressly denied noticing the cut on [X.O.’s]
lip on the night of the call. [Citation.] This statement is
contradicted by the statement of Officer Thompson
[citation] and [Cruz’s] own body worn camera recording
where he is heard saying to [X.O.] that she has a cut on her
lip and does she want him to press the [domestic violence]
issue. [Citation.] In short, [Cruz] told [Sergeant] Messick
one thing and then after being confronted with the truth in
the recording, told him another. The fact finders in this
matter have all heard [Cruz’s] excuses and explanations
first hand and they rejected them.”
The Defendants further argued that Cruz had failed to adequately
investigate the February 2015 incident as one involving potential domestic
violence, in violation of several Department policies. The Defendants noted
that Cruz failed to take photographs of the victim’s injuries, failed to contact
the reporting party, failed to provide the victim with domestic violence
literature and failed to make an arrest for a domestic violence crime.
Finally, the Defendants argued that termination was the appropriate
discipline given that Cruz “was dishonest and misled his superiors with
regard to what he observed on the domestic violence call for service.”
3. Cruz’s reply
In his reply, Cruz argued that the opposition “incorrectly outlines the
issues in the case.” Cruz argued:
“The [h]earing [o]fficer[’s] findings state that Cruz ‘did not
recall and/or denied that Domestic Violence had occurred at
10
the residence, thereby providing false or misleading
statements . . .’ and ‘[Cruz] responded with either false or
misleading statements.’ These conclusions are not a
finding of dishonesty. These conclusions are an ‘and/or’
decision based upon the investigator’s conclusion that there
was no finding of an intent to lie.”
Cruz also argued that, “The findings at issue do not address and do not
conclude that there was a lie.” Cruz further maintained there was evidence
in the record to support a finding that he harbored no intent to deceive,
specifically Sergeant Messick’s testimony at the administrative hearing that
Messick could not point to any evidence from the investigation of Cruz’s
intent to deceive.
F. The trial court’s December 14, 2020 decision denying Cruz’s July 2019
petition for writ of administrative mandamus
The trial court held a hearing on Cruz’s July 2019 petition in August
2020 and ordered the parties to each provide a proposed statement of
decision.8 Thereafter, the parties each filed a proposed statement of decision.
On December 14, 2020, the court entered a decision denying Cruz’s
petition in its entirety.9 The trial court described the issue presented by
Cruz’s petition as follows:
“The [p]etition frames the issue as a question of whether
termination is appropriate with a record that there was no
intentional misrepresentation or lie. [Cruz] asserts that he
made a mistake of fact, that the City did not find that
8 The record does not contain a reporter’s transcript of the hearing.
9 While the trial court’s December 14, 2020 decision states that it is a
“tentative” decision, it appears that the trial court intended for the December
14, 2020 decision to be its final decision, and the parties have treated it as
such. Accordingly, we deem the trial court’s December 14, 2020 decision to be
a final decision.
11
[Cruz] lied, and that termination for a mistake is not an
appropriate level of discipline. [Cruz] asserts that the
adopted [d]ecision of the [h]earing [o]fficer includes written
findings that conclude that [Cruz] ‘did not recall and/or
denied that [d]omestic [v]iolence has occurred at the
residence, thereby providing false or misleading
statements . . .’ and that ‘he responded with false or
misleading statements.’ ”
After reviewing the parties’ contentions, the trial court concluded that
Cruz violated the Department’s policies pertaining to domestic violence
incidents, ruling in relevant part:
“Department [p]olicy requires officers handling domestic
violence calls to take photographs of any injuries, . . .
provide the victim with the Department’s handout
materials on domestic violence and make arrests for
violation of domestic violence laws, but it is undisputed
that [Cruz] took none of these required actions.”
The trial court stated, “While this violation alone warrants progressive
discipline, in the context of the larger incident, it contributes to the finding by
the Board that termination was appropriate.”
With respect to the “larger incident,” the trial court found that Cruz
had violated a Department policy precluding personnel from providing false
or misleading statements in connection with an investigation. After
describing Cruz’s two interviews with Sergeant Messick, the trial court
reasoned in part:
“[Cruz] asserts that he simply did not recall that domestic
violence had occurred at the residence, and further that
there is no evidence that the false/misleading statements
he gave at his interview were intentionally false. However,
[Cruz] gave affirmative answers to questions that were
demonstrably false, such as his assertion that he did not
notice a cut on [X.O.’s] lip on the night of the incident. It is
clear that [Cruz] did in fact notice the cut on that night,
12
and if he did not remember, then his answer should have
reflected that he could not recall rather than affirmatively
stating that he did not notice. It is clear that [Cruz’s]
statements in the first interview were false. [Cruz]
specifically stated ‘okay that night I didn’t notice anything
on her lip any type of cut or anything.’ [Citation.] [Cruz’s]
testimony indicates that reviewing the video just prior to
the interview was when he first noticed the lip injury and
again states, ‘That night I did not’ in response to a question
as to whether he noticed the injury at the scene. [Cruz]
maintained throughout the first interview that he did not
see any evidence of battery on the scene that night. [Cruz]
does admit that he heard Officer Thompson speak to [X.O.]
about the injury on her lip at the house. At the second
interview, he reviewed the entire video and saw himself
mention the lip injury to [X.O.] but maintains that he does
not remember noticing. [Cruz] asserts that he thought it
could have been a burn or a blister or had some other
source than a physical altercation. While [Cruz] asserts
that Messick’s testimony indicates that he did not consider
intent, Messick’s testimony does indicate that he did not
find [Cruz] credible based on his ability to detail particular
facts about the call but completely omits the lip injury from
his recounting. [Citation].”
The trial court further concluded that the “record supports the findings
that [Cruz] was dishonest. . . .” The court reasoned in part:
“It is not credible that [Cruz] remembers hearing Officer
Thompson mention the lip injury to [X.O.], but that he
specifically did not notice the cut himself. [Cruz’s]
assertion throughout the first interview was not that he did
not recall whether he saw the cut, but specifically that he
did not notice the injury on the night of the incident.
[Cruz’s] credibility is crucial to proper performance of his
duties . . . and the investigation showed his credibility to be
lacking.”
13
The trial court ultimately concluded that there was “ample evidence of
dishonesty and failure to properly investigate the domestic violence call,” and
denied Cruz’s petition in its entirety.
G. The appeal
On February 5, 2021, Cruz filed an appeal from the trial court’s
decision denying his petition for writ of administrative mandamus. Although
Cruz stated in his February 5, 2021 notice of appeal that the trial court’s
decision was entered on December 5, 2021, he attached the trial court’s
December 14, 2020 decision denying his petition for writ of administrative
mandamus.
On February 17, 2021, Cruz filed an amended notice of appeal stating
that he was appealing from the trial court’s December 14, 2020 decision
denying his petition for writ of administrative mandamus, again attaching
the December 14, 2020 decision denying his petition for writ of
administrative mandamus.10
10 The December 14, 2020 decision denied Cruz’s petition for writ of
administrative mandamus in its entirety and thus constituted a final
appealable judgment. (See City of Calexico v. Bergeson (2021) 64 Cal.App.5th
180, 192 [a ruling denying a petition for writ of mandamus is “ ‘properly
treated as a final judgment’ ” when it “ ‘contemplate[s] no further action, such
as the preparation of another order or judgment [citation], and dispose[s] of
all issues between all parties’ ”].) In addition, we construe Cruz’s February 5,
2021 notice of appeal to have been taken from the December 14, 2020
decision because it is clear that Cruz intended to appeal from this decision,
notwithstanding the typographical error in Cruz’s February 5, 2021 notice of
appeal pertaining to the date on which the trial court’s decision was entered.
(See Cal. Rules of Court, rule 8.104(a)(2); Luz v. Lopes (1960) 55 Cal.2d 54, 59
[“notices of appeal are to be liberally construed so as to protect the right of
appeal if it is reasonably clear what appellant was trying to appeal from, and
where the respondent could not possibly have been misled or prejudiced”].)
Finally, because Cruz’s February 5, 2021 notice of appeal was filed less than
60 days after the trial court entered the December 14, 2020 decision, Cruz’s
14
III.
DISCUSSION
The Board’s decision complies with Topanga
Cruz contends that the Board’s adopted decision11 fails to provide
“[l]egally [a]dequate [f]indings,” and contains “[i]nadequate . . . [a]nalysis,” in
violation of Topanga, supra, 11 Cal.3d 506.
The legal sufficiency of the Board’s adopted decision presents a
question of law. Thus, we review Cruz’s contention de novo. (Telish v. State
Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487 [insofar as an appeal from
an administrative mandamus proceeding presents questions of law, our
review is de novo].)12
appeal is timely (see Cal. Rules of Court, rule 8.104) and we have appellate
jurisdiction over this matter. (See City of Calexico, supra, at p. 189 [“
‘Compliance with the time for filing a notice of appeal is mandatory and
jurisdictional’ ”].)
11 By “Board’s adopted decision,” we refer to the hearing officer’s March
29, 2017 decision as adopted by the Board in May 2019.
12 Defendants contend that Cruz failed to adequately preserve his
Topanga claim in the trial court. While Cruz alleged in his writ petition that
the Board’s adopted decision violated Topanga, he did not clearly present the
argument that he makes on appeal in his opening brief in the trial court.
However, notwithstanding any possible forfeiture, we exercise our discretion
to consider Cruz’s argument that the Board’s adopted decision violates
Topanga because the argument presents a pure question of law. (Meridian
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657 [“Appellate
courts . . . have the ‘discretion to address questions not raised in the trial
court when the theory presented for the first time on appeal involves only a
legal question determinable from facts that are (1) uncontroverted in the
record and (2) could not have been altered by the presentation of additional
evidence’ ”].)
15
A. Topanga and its progeny
In Topanga, our Supreme Court held that in administrative
proceedings for which judicial review is available pursuant to administrative
mandamus proceedings under Code of Civil Procedure, section 1094.5,13 “the
agency which renders the challenged decision must set forth findings to
bridge the analytic gap between the raw evidence and ultimate decision or
order.” (Topanga, supra, 11 Cal.3d at p. 515.) The Topanga court reasoned
that the requirement that the agency provide such findings serves several
purposes, including: “facilitat[ing] orderly analysis” by the agency; enabling
a “reviewing court to trace and examine the agency’s mode of analysis”;
enabling the parties to determine whether and on what basis to seek judicial
review; and “serv[ing] a public relations function by helping to persuade the
parties that administrative decision-making is careful, reasoned, and
equitable.” (Id. at pp. 516–517.) Although an agency’s findings “ ‘need not be
stated with the formality required in judicial proceedings’ [citation], they
nevertheless must expose the [agency’s] mode of analysis to an extent
sufficient to serve the[se] purposes . . . .” (Id. at p. 517, fn. 16.)
In applying Topanga, courts have stated that “[a]dministrative agency
findings are generally permitted considerable latitude with regard to their
precision, formality, and matters reasonably implied therein.” (Southern
Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d
938, 954 (Southern Pacific Transportation Co.).) Further, pursuant to
Topanga, “An agency’s findings under Code of Civil Procedure section 1094.5
‘do not need to be extensive or detailed.’ [Citation.] ‘In addition, findings are
to be liberally construed to support rather than defeat the decision under
13 It is undisputed that the administrative proceedings in this case are
subject to judicial review pursuant to Code of Civil Procedure section 1094.5.
16
review.’ [Citation.]” (Young v. City of Coronado (2017) 10 Cal.App.5th 408,
421 (Young), italics omitted.) In Alpha Nu Assn. of Theta XI v. University of
Southern California (2021) 62 Cal.App.5th 383 (Alpha Nu. Assn. of Theta XI),
the Court of Appeal explained the application of the doctrine of liberal
construction in this context:
“ ‘ “ ‘[W]here reference to the administrative record informs
the parties and reviewing courts of the theory upon which
an agency has arrived at its ultimate finding and decision it
has long been recognized that the decision should be upheld
if the agency “in truth found those facts which as a matter
of law are essential to sustain its . . . [decision].” ’ ” ’
(Environmental Protection Information Center v. California
Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459,
516; see also Kifle-Thompson v. State Bd. of Chiropractic
Examiners (2012) 208 Cal.App.4th 518, 521 & fn. 2, 530–
531 [State Board of Chiropractic Examiners complied with
Topanga in revoking chiropractor’s license as sanction for
engaging in six separately defined varieties of
‘unprofessional conduct,’ where Board found chiropractor
had conspired in formation of sham medical corporations
and participated in insurance fraud; it ‘require[d] no great
analytic leap’ for Court of Appeal to conclude from these
findings that chiropractor had committed all six varieties of
unprofessional conduct].)” (Id. at pp. 413–414.)
B. Application
Cruz contends that the Board’s adopted decision violates Topanga for
two reasons. First, Cruz notes that the Board found that he “did not recall
and/or denied that [d]omestic [v]iolence had occurred at the residence,
thereby providing false or misleading statements as outlined within
[Department] Policy [section] 340.3.5.” Cruz contends that the “ ‘and/or’
conclusion is legally inadequate.” While Cruz contends that “[i]t is an error of
law to accept . . . two separate, alternate findings,” he points to no case law
holding that alternative findings are improper, and we are aware of none. On
17
the contrary, as discussed above, we must afford an administrative agency
“considerable latitude,” with regard to the “precision, formality, and matters
reasonably implied” from the agency’s findings. (Southern Pacific
Transportation Co., supra, 191 Cal.App.3d at p. 954.) Further, the Board’s
key finding that “bridge[s] the analytic gap between the raw evidence and
ultimate decision or order” (Topanga, supra, 11 Cal.3d at p. 515) is that Cruz
made “false or misleading statements”; that is the act that is prohibited in
Department Policy section 340.3.5. (See Department Policy, § 340.3.5 (ad)
[prohibiting “[g]iving false or misleading statements, or misrepresenting or
omitting material information to a supervisor, or other person in a position of
authority”].) Cruz fails to demonstrate the legal significance of whether he
made such false or misleading statements by stating that he did not recall
whether domestic violence had occurred and/or by denying that domestic
violence had occurred.14 Accordingly, we reject Cruz’s contention that the
Board committed “an error of law,” by adopting a decision with “two separate,
alternative findings.”
Second, Cruz contends that “inadequate evidence and analysis,”
supports the Board’s finding that Cruz “did not recall that domestic violence
had occurred at the residence.” (Boldface & capitalization omitted.) Cruz
presents two distinct arguments in support of this contention. First, he
argues that the Board’s decision did not refer to sufficient “evidence” or
provide adequate “detail” in support of this finding. However, Topanga does
not require that an agency recite evidence or detail in support of its decision,
14 As discussed in the text, post, the Board impliedly found that Cruz had
falsely stated that he did not recall that domestic violence had occurred, and
there is nothing in the Board’s adopted decision suggesting that it
determined that a truthful failure to recall would support termination of
employment.
18
it requires an agency to “set forth findings . . . .” (Topanga, supra, 11 Cal.3d
at p. 515, italics added.) The Board’s adopted decision states, “It was
apparent throughout testimony and collaborative evidence presented by the
City . . . that Officer Antonio Cruz did not adhere to established protocols of
[d]omestic [v]iolence as mandated with [Department] Policy [section] 320 and
when questioned, he did not recall and/or denied that [d]omestic [v]iolence
had occurred at the residence, thereby providing false or misleading
statements as outlined within [Department] Policy [section] 340.35.” This
constitutes a sufficient finding under Topanga. To the extent that there is
any ambiguity in the finding, we are required to construe the finding in favor
of upholding the agency’s decision. (See, e.g., Young, supra, 10 Cal.App.5th
at p. 421; Alpha Nu Assn. of Theta XI., supra, 62 Cal.App.5th at pp. 413–414
[stating that the doctrine of liberal construction applies to judicial review of
the adequacy of administrative agency’s findings].) Further, while Cruz
challenges the legal sufficiency of the Board’s adopted decision, he does not
contend that there is insufficient evidence in the record to support the
Board’s findings.15 Thus, we need not outline all of the evidence that
supports such findings in this opinion.16
15 The Topanga court made clear that a party challenging an
administrative agency decision may ask that a reviewing court “scrutinize
the record and determine whether substantial evidence supports the
administrative agency’s findings.” (Topanga, supra, 11 Cal.3d at p. 514,
italics added.) However, as noted in the text, Cruz makes no such argument
on appeal. His only contention is that the Board’s decision is insufficient
under Topanga. We reject that argument for the reasons stated in the text.
16 In any event, the evidence pertaining to the underlying incident
summarized in part II.A, ante, and the evidence pertaining to the internal
affairs investigation summarized in part II.B, ante, supports the Board’s
finding that Cruz made false or misleading statements to a superior.
19
Cruz also argues that a finding that he did not recall whether domestic
violence had occurred would suggest that the “matter was one of a mistake
[rather than] intentional dishonest[ ]y.”17 We are not persuaded. A false
denial of one’s ability to recall an event does support a finding of intentional
dishonesty. (Cf. People v. Johnson (1992) 3 Cal.4th 1183, 1219 [noting that “a
witness’s claim of lack of memory [may] amount[ ] to deliberate evasion,” and
discussing the law that applies when a “witness’s ‘I don’t remember’
statements are evasive and untruthful”].) Because, as Cruz states in his
brief, one of the Board’s alternative findings was that “[Cruz] ‘did not recall
that [d]omestic [v]iolence had occurred at the residence, thereby providing
false or misleading statements as outlined in [Department] Policy [section]
340.3.5,’ ” the Board impliedly found that Cruz had been dishonest in stating
that he did not recall whether domestic violence had occurred. Thus, we
reject Cruz’s contention that the Board’s alternative finding as to his lack of
recall did not support a finding that Cruz made a false or misleading
statement.
17 Cruz argues: “[T]he statement that [Cruz] ‘did not recall’ does not
support the conclusion that [Cruz] provided false statements or that [Cruz]
provided misleading statements.” He also contends:
“Failure to recall is different than providing false or
misleading statements. Actively providing false statements
and providing misleading statements is not the equivalent
of forgetting something.”
20
IV.
DISPOSITION
The December 14, 2020 judgment denying the petition for writ of
administrative mandamus is affirmed.
Cruz is to bear costs on appeal.
AARON, J.
WE CONCUR:
MCCONNELL, P. J.
HALLER, J.
21