Courson v. County of Los Angeles CA2/1 ( 2022 )

Filed 8/29/22 Courson v. County of Los Angeles CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
WILLIAM COURSON, B309524
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS174210)
v.
COUNTY OF LOS ANGELES
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mary H. Strobel, Judge. Affirmed.
Rains Lucia Stern St. Phalle & Silver, Elizabeth Silver
Tourgeman, Michael A. Morguess and Gidian R. Mellk for
Plaintiff and Appellant.
Peterson•Bradford•Burkwitz, Avi Burkwitz, Sherry M.
Gregorio and Gil Burkwitz for Defendants and Respondents.
_________________________
INTRODUCTION
The Los Angeles County Sheriff’s Department
(Department) suspended appellant William Courson for 30 days
without pay based on statements Courson made to undercover
FBI agent Leah Marx, some of which were captured on recordings
Marx surreptitiously made.
The statements came to light during a federal criminal trial
of other Department staff and received media attention. The
Department thereafter conducted an investigation and concluded
that Courson had “misrepresented and/or exaggerated the use of
force in the jails” in his statements to Marx which had brought
“discredit and undue embarrassment to [himself] and the
Department.”
Courson challenged the discipline and the Civil Service
Commission of the County of Los Angeles (Commission)
appointed a hearing officer, who held a two-day hearing and
issued proposed findings and conclusions, and a recommendation.
The Commission ultimately upheld the discipline. Courson filed
a petition for administrative mandate seeking to have the
Commission’s decision set aside. In the petition, Courson also
sought extraordinary relief pursuant to Government Code section
3309.5, arguing that he had not received timely notice of the
Department’s intent to discipline him, because, even though he
was notified within a year of the revelations in the federal
criminal trial and the associated publicity, his underlying
conduct—the statements to Marx—had occurred nearly five years
earlier. The County of Los Angeles (County) opposed the
petition. The trial court denied the petition for a writ of
administrative mandate and also denied extraordinary relief
under Government Code section 3309.5.
2
Courson appeals, contending that the notice of proposed
discipline was untimely, and that the Commission abused its
discretion by upholding such a severe disciplinary sanction. We
conclude that the Department timely notified Courson of the
proposed discipline and the Commission did not abuse its
discretion in upholding the 30-day suspension, and therefore
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Courson’s Interactions with FBI Agent Marx
Courson was hired by the Department in September 2007.
In August 2010, while assigned as a custody deputy sheriff at
Men’s Central Jail (MCJ), Courson met Marx, who began visiting
MCJ under the guise that she was interviewing inmates as part
of an investigation into human trafficking. In fact, Marx was
conducting an undercover investigation into allegations of
excessive use of force at MCJ.
Courson found Marx attractive and “wanted to sleep with
her.” Courson chatted with Marx at MCJ and the two began
communicating by e-mail and met on a couple of occasions
outside of MCJ for meals. They discussed Courson’s job and
incidents occurring at MCJ. Marx told Courson that she was
doing a research paper on different agencies’ use of force policies
as a school project and Courson provided Marx with a copy of the
Department’s defensive tactics manual and information about
some use of force incidents at MCJ.
According to testimony Marx later gave in a federal
criminal trial arising from the FBI’s investigation of the
Department, Courson told her that he had either used a
flashlight to hit an inmate unnecessarily or had wanted to do so.
Marx further testified that she had reported Courson’s
3
statements to her supervisor, which prompted Marx to begin
secretly recording her conversations with Courson. Marx
recorded her conversations with Courson on at least two
occasions when the two met for meals outside of MCJ.
B. The Department First Learns of an FBI Investigation
and Interviews Courson
In August of 2011, the Department discovered the FBI was
conducting a covert investigation of the Department regarding its
operation of MCJ, and had smuggled a cell phone to an inmate at
MCJ. On August 30, 2011, Department managers held meetings
with MCJ staff to ascertain if anyone had been contacted by any
member of the FBI. Courson came forward and told his unit
captain, Captain Ornelas, that he had been communicating with
Marx. At the administrative hearing, Courson testified he told
Captain Ornelas he had started talking with Marx because he
“just wanted to get in her britches,” and he disclosed to Captain
Ornelas the conversations that he had with Marx “[a]s much as I
remembered.”
Immediately after his meeting with Captain Ornelas,
Courson was interviewed by three investigators from the
Department’s Internal Criminal Investigation Bureau (ICIB)—
Sergeant Scott Craig, Sergeant Maricela Long, and Lieutenant
Steven Leavins. A recording of this interview was made.
Sergeant Craig began the recording of the interview by
telling Courson “as far as we know, you’ve done nothing wrong
and we don’t want to talk to you about anything you might have
done wrong. We’re not investigating you for anything, okay?” He
then told Courson “[y]ou just been identified to us as a person
who may or may not have information relating to something
we’re investigating.” Courson told the investigators he had met
4
Marx when she came into the clinic where he worked at MCJ, he
had pursued a social relationship with her because he found her
attractive, and he and Marx had exchanged e-mails and met
outside of work possibly four times. Courson said that Marx
would ask him what was new and exciting at work and he told
her about incidents at MCJ, including one where an inmate was
strangled by his cellmates. He said he had provided Marx with
the name and booking number of inmates involved in incidents
he described, which Marx had requested because she was
ostensibly interviewing inmates for a human trafficking
investigation and wanted to know if the inmates had been
involved in any incident.
When asked what other information he had provided to
Marx, Courson indicated he had given her a copy of a defensive
tactics manual he had obtained from the Department’s Intranet,
because she had told him she was working on a school paper.
The investigators asked whether Marx had ever inquired about
specific deputies, and Courson responded that she had asked
about one.
The investigators asked Courson whether he “ever
witnessed any . . . incidents or behavior by deputy sheriffs or any
other personnel within the confines of Men’s Central Jail that
could be construed as or looked upon as civil rights violations?
[¶] . . . [¶] Brutality? Anything illegal that you witnessed?”
Courson answered “No” and stated that he would report such
incidents. Courson informed the investigators that he had told
them everything he remembered about his communications with
Marx. They asked whether Courson had ever passed notes or a
cell phone from the FBI to an inmate, or had taken a photograph
of an inmate for the FBI, and he answered, “No.”
5
Towards the end of the interview, Sergeant Craig asked
Courson, “Any burning things that you’re thinking of that we
haven’t asked you that you think we should know or that we
should ask?” and Courson responded, “No, sir, I’ve been trying to
think of more that I have forgotten, but I can’t think of anything.”
At the end of the interview, the ICIB investigators instructed
Courson to notify them immediately if he was contacted by the
FBI or Marx again, or if someone started threatening him “with a
subpoena or any other nonsense.” Investigator Craig clarified,
“I’m not talking about a federal grand jury subpoenaing you,
okay?”
C. Courson Testifies Before the Grand Jury and at the
Criminal Trial
At the time of his interviews with Captain Ornelas and the
ICIB investigators, Courson was not aware that Marx had
recorded some of his statements. Courson became aware of the
recordings in about July of 2013, when he testified before a
federal grand jury.
On June 4, 2014, Courson testified in a federal criminal
case against the three ICIB investigators who had interviewed
him—Sergeant Craig, Sergeant Long, Lieutenant Leavins—and
three other Department members. In the federal case, the
Department officers were accused of interfering in a federal
investigation. Courson testified about his personal conversations
with Marx from August 2010, as well as some specific incidents
that had occurred at MCJ.
He also testified that during a “Jail Ops” training he
received at the Department in 2008, he was taught an “unwritten
rule” that if an inmate fought with a deputy the inmate would go
to the hospital. Courson testified that he discussed this
6
unwritten rule with Marx. When asked by one of the criminal
defense attorneys, “Would you say that some of the things that
you were telling Leah Marx—would you say that maybe you were
pumping up or inflating a little bit of what some of these—some
of the things that you saw to kind of—to make yourself out as the
good guy?” Courson answered, “Exaggeration? Yes sir.”
Marx also testified at the trial, including about her
conversations with Courson. The record contains only one page
of her actual testimony; in that testimony, she stated in reference
to Courson, “[o]n one occasion, he made a statement about using
a flashlight when he wanted to versus rather he didn’t need to,
but he wanted to in regards to hitting an inmate with it.”
D. Media Coverage of the Trial and Courson’s
Testimony
A Los Angeles Times reporter wrote a detailed story about
Courson’s June 4, 2014, testimony during the federal trial and
published it that same date. The article summarized some of
Courson’s testimony, including that he had learned the
“unwritten rule” during a training session. It also indicated
Marx had testified that Courson told her he sometimes used his
flashlight to subdue inmates because he wanted to, not out of
need.1 The article included a link to one of the recordings made
by Marx, which included the following statements:
Courson: “They just zipped him up in a body bag and
wheeled him out the back door . . . eh, whatever . . . more room
for somebody else. . . . I’m looking at it, if they want to kill each
other off, why do I care?”
1It is unclear whether this refers to the portion of Marx’s
testimony included in the record and quoted above.
7
Courson: “[T]hey’re gonna get beat down by their own
people, more than likely worse than what we would normally do
to them, which is bad, because we send them to the hospital.”
Marx: “Like, why though?”
Courson: “Why what?”
Marx: “Why would you get sent to the hospital?”
Courson: “Because every time they fight with us, it’s like
an unwritten rule they go to the hospital.”
Courson: “We have a sergeant come for Jail Ops.”
Marx: “At the academy?”
Courson: “Mmm hmm.”
Marx: “Oh, and they kind of say like . . .”
Courson: “Well, after we graduate from the academy, you
go through I think it’s a week or two-week course of Jail Ops.”
Marx: “Oh, that’s right I remember you telling me that.”
Courson: “During that time, that’s when they tell you it’s
an unwritten rule that any inmate that fights with deputies goes
to the hospital.”
Marx: “Got it. Even if it’s not necessary, you do it — to
teach them a lesson, or what?”
Courson: “Pretty much.”
Two weeks later, on July 18, 2014, a National Public Radio
podcast discussed Courson’s testimony at the federal criminal
trial and played some of the recordings Marx had made.
E. The Department Investigates Courson’s Misconduct
that was Revealed in the Criminal Trial
The Department initiated an Internal Affairs Bureau (IAB)
investigation into Courson’s conduct on December 2, 2014.
Courson was interviewed by IAB investigators on January 19,
2015, and again on March 31, 2015. On June 1, 2015, the
8
Department served Courson with written notice that it was
suspending him without pay for 30 days for violating the
Department’s Manual of Policy and Procedures (MPP) sections 3-
01/030.05 (General Behavior)2 and 3-01/000.10 (Professional
Conduct)3 . As the basis for the alleged violations, the notice
asserted that Courson “brought discredit and undue
embarrassment to [himself] and the Department when, during
off-duty conversations with FBI [a]gent Leah Marx beginning in
or around August 2010, you misrepresented and/or exaggerated
the use of force in the jails” by (a) “telling [a]gent Marx that there
was an ‘unwritten rule’ in the jail that if an inmate fights with a
deputy, the deputy is to use enough force to send the inmate to
the hospital,” (b) telling Marx that a deputy can use force on an
inmate if the deputy perceives the inmate wants to fight,
(c) telling Marx “about using a flashlight to hit an inmate because
you wanted to, rather than actually needing to,”
(d) “exaggerat[ing] the amount of force and/or violence occurring
in the jail,” misrepresenting to Marx that he had firsthand
knowledge of uses of force, and suggesting to Marx that jail fights
were occurring every couple minutes, and (e) “telling [a]gent
2 Section 3-01/030.05 of the MPP provides, in relevant part:
“All Department members shall be held accountable for their
actions, conduct, and speech when these behaviors conflict with
Our Core Values, Mission, or Creed. Personnel who cause undue
embarrassment or damage the reputation of and/or erode the
public’s confidence in the Department shall be deemed to have
violated this policy.”
3
Section 3-01/000.10 of the MPP provides, in relevant part:
“A member shall not act or behave while on or off duty in such a
manner as to bring discredit upon himself or the Department.”
9
Marx that you do not care if an inmate kills another inmate.”
The letter also asserted that “[y]our aforementioned
misrepresentations and/or exaggerations regarding the use of
force in jails led to national media attention of the Department,
and caused you to testify in a federal trial regarding your
exaggerated statements and/or misrepresentations.”
F. The Administrative Hearing
Courson appealed the suspension to the Commission and
Richard Terzian was appointed as a hearing officer to make
findings of fact, conclusions of law, and a recommendation. A
hearing was held on September 28 and 29, 2016. During the
hearing, Courson testified he heard about the unwritten rule
during the training session “like during a break. People were
just standing around talking.” When asked whether the sergeant
who was doing the training mentioned the rule, he responded “I
do not recall. I could not swear to or say he was not present
during that moment.” He did not recall who mentioned the rule.4
Courson testified he told Marx he was trained that if he
“perceived a threat” from an inmate he was free to “engage” with
the inmate. Courson did not recall any conversation with Marx
about him using a flashlight on an inmate. He testified
concerning his descriptions of incidents at the jail, “I exaggerated
the amount I knew or had firsthand knowledge of rather than
just all hearsay, hearing stories from other people and I guess
passing them off as I knew about them or I seen them.” He did
4Courson testified that he understood the unwritten rule
to mean that, if an inmate fought with a deputy, the deputy
would use enough force to inflict injuries needing medical
treatment at the hospital.
10
this because he wanted to impress Marx. When asked whether
he had told Marx he did not care if an inmate kills another
inmate, Courson responded “[i]t’s very possible.” He also
testified, “[t]he only way I’ve ever said I don’t care if anyone kills
anyone is in relation to gang members. I don’t care if gang
members kill each other.”
The hearing officer issued a report titled “Proposed
Findings of Fact, Conclusions of Law and Recommendation” on
December 2, 2016. His proposed findings included the following:
Fact No. 5: “[Courson] told [a]gent Marx that there was an
unwritten rule of the Department that if an inmate attacked a
deputy, that inmate would be beaten so severely so as to require
hospitalization without making it clear that he had never been
taught such a rule by the Department and was basing it on what
other deputies had told him in casual conversations.”
Fact No. 6: “[Courson] told [a]gent Marx that it would be
sufficient justification to exercise force on an inmate based on a
perception that the inmate is ready to attack, without explaining
the use of force gradations he had been taught which would
justify use of such force and which are shown in [e]xhibit 30.”
Fact No. 7: “[Courson] told [a]gent Marx that he wanted to
use his flashlight to strike an inmate when in fact he had only
used a flashlight once under circumstances justifying such use of
force.”
Fact No. 8: “[Courson] exaggerated the amount of violence
in the jail without having firsthand knowledge of same and
having witnessed use of force by a deputy against an inmate only
once under apparent circumstances of limited violence.”
11
Fact No. 9: “[Courson] told [a]gent Marx that he did not
care if an inmate killed another inmate without making it clear
that he was only expressing a view about gang members.”
The hearing officer concluded that, based on the foregoing
findings, Courson had “brought discredit to himself and the
Department by exaggerating and misrepresenting the use of force
in the jails in violation of [s]ection 3-01/030.05 of Department
Manual of Policy and Procedures,” and had “brought undue
embarrassment, damaged the reputation and eroded public
confidence in the Department in violation of [s]ection 3-01/000.10
of Department Manual of Policy and Procedures.” (Underscoring
omitted.) However, the hearing officer concluded that the 30-day
suspension was excessive and recommended that the suspension
be reduced to 15 days.
The Commission remanded the matter back to the hearing
officer for additional analysis regarding his recommendation to
reduce the length of the suspension. On January 31, 2017, the
hearing officer issued an amended report, titled “Proposed
Findings of Fact, Conclusions of Law and Recommendation
(Remand).” In this amended report, the hearing officer made the
same factual findings and reached the same legal conclusions as
in his initial report. However, he added an explanation that he
recommended decreasing the suspension to 15 days for the
following reasons: (1) Courson did not make any public
statements other than his trial testimony; (2) most of Courson’s
contact with Marx was during private communications, and the
Department did not contend that it was improper for Courson to
have a social relationship with Marx; (3) Courson’s
communications to Marx did not cause the FBI to commence its
investigation of the Department, and the issue of unlawful
12
violence by jail deputies had been public before Courson’s trial
testimony; (4) the Department’s decision-maker, Chief Eric
Parra, incorrectly “believed that [Courson’s] initial comments to
[a]gent Marx in the jail caused the FBI to ‘open a case on the
Sheriff’s Department’ based on those statements”; (5) Courson
had worked for the Department for eight years without any other
discipline; (6) Courson immediately informed his supervisors
when the Department asked if anyone had been contacted by the
FBI and was “forthright throughout the subsequent Internal
Affairs interviews;” (7) Chief Parra evidently relied heavily on
the public perception of Courson’s statements, but Courson’s only
public statements came during his trial testimony, and there was
much other adverse publicity about the conditions at the jail; and
(8) the 30-day suspension seemed excessive when compared to
the maximum penalties for other types of offenses, such as
“ ‘inappropriate display of a weapon’ ” or “ ‘deceitful business
transactions.’ ”
On April 4, 2017, the Commission served notice of its
proposed decision to accept the hearing officer’s findings and
recommendation to reduce the suspension to 15 days. The
Department objected to the reduction of the suspension. On
October 17, 2017, the Commission announced a new proposed
decision to uphold the Department’s request for a 30-day
suspension. Courson filed an objection to the Commission’s new
proposed decision. On May 2, 2018, the Commission issued its
final decision imposing a 30-day suspension.
G. Proceedings in the Superior Court
On July 13, 2018, Courson filed a verified petition for writ
of mandate and for extraordinary relief. In the first cause of
action, brought under Code of Civil Procedure section 1094.5,
13
Courson sought review of the Commission’s final administrative
decision, arguing that the decision was not supported by the
findings, that the findings were not supported by the weight of
the evidence, that he was denied fair hearing, and that the
discipline imposed was an abuse of discretion. In the second
cause of action, Courson sought extraordinary relief under
Government Code section 3309.5, which is part of the Public
Safety Officers Procedural Bill of Rights Act (POBRA; Gov. Code,
§ 3300 et seq.), and a peremptory writ of mandate under Code of
Civil Procedure section 1085, based on his claim he was not
provided a fair hearing on his challenge to the discipline imposed
against him. In the third cause of action, Courson sought
extraordinary relief under Government Code section 3309.5 and a
peremptory writ of mandate under Code of Civil Procedure
section 1085, based on his claim he did not receive notice of the
proposed discipline within the one-year limitations period set
forth in Government Code section 3304, subdivision (d)(1).
On October 7, 2020, the superior court denied Courson’s
petition. The court first addressed Courson’s contention that the
Department’s notice of its proposed disciplinary action was not
timely under Government Code section 3304, subdivision (d)(1).
Quoting from Pedro v. City of Los Angeles (2014) 229 Cal.App.4th
87, 104 (Pedro), the court indicated “[t]he one-year limitations
period ‘begins to run when a person authorized to initiate an
investigation discovers, or through the use of reasonable diligence
should have discovered, the allegation of misconduct.”
The court then found that the Department did not discover,
with reasonable diligence, the statements made by Courson to
Marx which became the grounds for the suspension until those
statements were disclosed on June 4, 2014, at the federal
14
criminal trial and in the related media reports. The court next
addressed the five findings made by the hearing officer and
adopted by the Commission in support of the suspension, and
concluded they were supported by the weight of the evidence.
The court then concluded that those five findings supported the
conclusions that Courson had violated the two Department
policies.
The court next rejected Courson’s defense that he had been
disciplined in retaliation for testifying at the federal trial, finding
that Courson had failed to support this defense with sufficient
argument or evidence. Finally, the court concluded that the
Commission did not abuse its discretion in imposing a 30-day
suspension.
On November 4, 2020, the superior court entered judgment
and served notice of entry of judgment. Courson filed his notice
of appeal on December 15, 2020.
DISCUSSION
Courson appeals the trial court’s denial of his petition for
extraordinary relief under Government Code section 3309.5.
That section allows a peace officer to seek relief for an alleged
violation of POBRA. He argues that the Department is barred
from imposing the discipline because it did not notify him of the
charges within the applicable one-year limitations period set
forth in POBRA, and specifically in Government Code section
3304, subdivision (d)(1). This is not a challenge to the
Commission’s findings, as Courson did not raise the limitations
period in the administrative hearing process; Courson instead
raised this issue for the first time in his petition for extraordinary
15
relief under Government Code section 3309.5.5 Courson also
appeals the trial court’s denial of his petition for administrative
mandate, arguing that the Commission abused its discretion in
imposing a 30-day suspension because that level of discipline was
too harsh.6
A. Statute of Limitations
Courson’s argument that the Department did not timely
notify him of the proposed discipline is based on the one-year
limitations period set forth in Government Code section 3304,
subdivision (d)(1). That section provides in relevant part:
“Except as provided in this subdivision and subdivision (g), no
punitive action, nor denial of promotion on grounds other than
merit, shall be undertaken for any act, omission, or other
allegation of misconduct if the investigation of the allegation is
not completed within one year of the public agency’s discovery by
a person authorized to initiate an investigation of the allegation
5 In Gales v. Superior Court (1996) 47 Cal.App.4th 1596,
1603, 1604, the court held that a peace officer can seek to enforce
the limitations period set forth in Government Code section 3304,
subdivision (d)(1) through a petition under Government Code
section 3309.5, while concurrently challenging the disciplinary
action at issue through a petition for writ of mandate under Code
of Civil Procedure section 1094.5. (See Alameida v. State
Personnel Bd. (2004) 120 Cal.App.4th 46, 54 [noting a peace
officer can raise the statute of limitations set forth by Gov. Code,
§ 3304, subd. (d)(1) in either the administrative proceeding or a
petition under Gov. Code, § 3309.5].)
6 In this appeal, Courson does not challenge the findings
made by the Commission, or its legal conclusion that he had
violated Department policies.
16
of an act, omission, or other misconduct. This one-year limitation
period shall apply only if the act, omission, or other misconduct
occurred on or after January 1, 1998.”
“The statute contemplates an investigation taking place for
up to one year after the discovery of the alleged misconduct
before an officer is notified that discipline may be imposed.”
(Pedro, supra, 229 Cal.App.4th at p. 103.) In Pedro, the court
held that the term “ ‘discovery,’ ” as used in Government Code
section 3304, subdivision (d)(1), should be interpreted to
incorporate the common-law “discovery rule.” (Pedro, supra, at
pp. 105-106.) The court reasoned that the California courts have
consistently interpreted the term “discovery” in the context of
limitations periods to incorporate the discovery rule, and the
Legislature is presumed to have known about the courts’
interpretation. (Ibid.)
As the Pedro court explained, “[t]he discovery rule charges
a plaintiff with presumptive knowledge of information that would
have been revealed if he or she had conducted a reasonable
investigation after becoming aware of or suspecting an injury
caused by wrongdoing.” (Pedro, supra, 229 Cal.App.4th at
p. 104.) “ ‘In other words, plaintiffs are required to conduct a
reasonable investigation after becoming aware of an injury, and
are charged with knowledge of the information that would have
been revealed by such an investigation.’ (Fox [v. Ethicon Endo-
Surgery, Inc. (2005)] 35 Cal.4th [797,] 807-808 . . . .)” (Ibid.)
The Pedro court articulated the application of the discovery
rule in this context as follows: “We therefore hold that the one-
year limitations period under Government Code section 3304,
subdivision (d)(1) begins to run when a person authorized to
initiate an investigation discovers, or through the use of
17
reasonable diligence should have discovered, the allegation of
misconduct.” (Pedro, supra, 229 Cal.App.4th at p. 106.) “The
date that a person in the exercise of reasonable diligence should
have discovered the facts is a question of fact.” (Ibid.; Haney v.
City of Los Angeles (2003) 109 Cal.App.4th 1, 8.) An appellate
court applies the substantial evidence test in reviewing such
factual findings made by a trial court in adjudicating a petition
under Government Code section 3309.5.7 (Shafer v. Los Angeles
County Sheriff’s Dept. (2003) 106 Cal.App.4th 1388, 1396.)
There is no dispute that the Department first discovered on
June 4, 2014, when Marx and Courson testified at the federal
criminal trial and there was a news report about their testimony,
that Courson had engaged in the behavior which ultimately
became the basis for the 30-day suspension. Specifically, Marx’s
and Courson’s testimony disclosed for the first time the facts that
led the Department later to find that Courson had exaggerated
and misrepresented the use of force in the jails, including by
discussing the “unwritten rule” with Marx, exaggerating his
knowledge of uses of force in his discussions with Marx, and
telling Marx he had used a flashlight to strike an inmate without
need or had wanted to do so. The recordings made by Marx,
7 Citing California Teachers Association v. San Diego
Community College District (1981) 28 Cal.3d 692, 699, Courson
argues that “as here, when the facts do not conflict . . . , a
reviewing court is not bound by the trial court’s determination.”
California Teachers Association does not apply here, however, as
it involved an issue of statutory interpretation, not a factual
determination. (Ibid.) In any event, the date that the
Department should have discovered the allegation of misconduct
by Courson is a disputed factual issue.
18
which were made public on the same day, also disclosed that
Courson had suggested to Marx that he had been taught the
unwritten rule by the Department’s training staff, had told Marx
he did not care if an inmate killed another inmate, and had said
to her that it would be sufficient justification for a jail deputy to
use force on an inmate based on the deputy’s perception that the
inmate was ready to attack.
The Department provided Courson with notice of the
proposed discipline on June 1, 2015, less than a year after
Courson and Marx testified at the federal criminal trial.
Courson contends that under the discovery rule, the
limitations period of Government Code section 3304, subdivision
(d)(1) commenced on August 30, 2011, when Courson disclosed to
the Department that he had been communicating with Marx.
Under Pedro, the limitations period “begins to run when a person
authorized to initiate an investigation discovers, or through the
use of reasonable diligence should have discovered, the allegation
of misconduct.” (Pedro, supra, 229 Cal.App.4th at p. 106.)
The trial court found that the “Department did not
discover, with the exercise of reasonable diligence, the allegation
of misconduct against [Courson] prior to his testimony on June 4,
2014 at the federal trial.” This finding is supported by
substantial evidence.8 Even though Captain Ornelas and the
8 Courson argues that this court may review the issue de
novo because the trial court’s determination “was based on the
undisputed facts in the ICIB transcript and circumstances
surrounding the genesis of the interview.” The substantial
evidence test applies regardless of whether the trial court made
findings based on oral or documentary evidence. (Desert Outdoor
19
ICIB investigators learned on August 30, 2011, that Courson had
communicated with Marx, they were not aware what Courson
had told Marx about the “unwritten rule,” that he had told Marx
that it would be sufficient justification for a jail deputy to use
force on an inmate based on the deputy’s perception that the
inmate was ready to attack, that he had embellished his
knowledge of uses of force, that he had told Marx he had, or
wanted to, use a flashlight to strike an inmate without needing to
do so, or that he told Marx he did not care if an inmate killed
another inmate. It was not until the federal criminal trial that
this information was disclosed.
As the trial court noted, the ICIB investigators asked
Courson both specific and open-ended questions about his
communications with Marx, and yet Courson did not disclose that
he made the statements that would later be the basis for the
disciplinary action. Courson informed the investigators that he
had told them everything he remembered about his
communications with Marx. The investigators asked Courson
whether he had ever witnessed any incidents or behavior by
personnel at MCJ “that could be construed as or looked upon as
civil rights violations” or “brutality,” and whether he had
witnessed anything illegal, and Courson responded “No.”
The trial court further found that Courson “did not disclose
any information that could suggest he made the allegedly
exaggerated statements at issue in the [n]otice of [s]uspension,
including about an ‘unwritten rule’ to send inmates to the
hospital.” This finding is supported by substantial evidence.
Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 868 &
fn. 1.)
20
Nothing that Courson disclosed to the investigators suggested
that he made inaccurate statements to Marx or that he claimed
that any illegal behavior had taken place at MCJ. Courson
argues that the disclosures he admitted making to Marx—giving
her information about use of force incidents and providing her a
copy of the defensive tactics manual—were “red flags which
would cause one to investigate further what other use of force
policies or customs he might have unwittingly disclosed.” This
argument fails because the discipline was based on statements by
Courson that were inaccurate or lacked context, and nothing he
disclosed on August 30, 2011, suggested this type of behavior by
Courson. There simply was nothing at that time that rose to the
level of an “allegation of misconduct.” (Pedro, supra, 229
Cal.App.4th at p. 106.)
Citing Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th
at p. 808, Courson argues that the Department had to overcome a
presumption that its investigation would have uncovered the
allegation of misconduct, and the Department could only rebut
this presumption by showing “ ‘the inability to have made earlier
discovery despite reasonable diligence.’ ”
This argument fails because, as the trial court properly
concluded, the Department did not discover, with the exercise of
reasonable diligence, the allegation of misconduct against
Courson, prior to June 4, 2014. In other words, the Department
was not under any obligation to investigate potential misconduct
by Courson until June 4, 2014. As the Supreme Court concluded
in Fox, the discovery rule requires a party “to conduct a
reasonable investigation after becoming aware of an injury.” (Fox
v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 808, italics
added; see Pedro, supra, 229 Cal.App.4th at p. 104 [under the
21
discovery rule, a party must conduct “a reasonable investigation
after becoming aware of or suspecting an injury caused by
wrongdoing”].) Here, there was substantial evidence to support
the trial court’s finding that, on August 30, 2011, and any other
time prior to June 4, 2014, the Department had no reason to
suspect the “injury” that ultimately led to the disciplinary action.
Quoting from Morris v. Williams (1967) 67 Cal.2d 733,
Courson also argues that “the evidence of the investigative efforts
is in the Department’s possession” and that therefore the
Department “ ‘has the burden of going forward with the evidence
on the issue although it is not the party asserting the claim.’ ”
(Id. at p. 760.) This argument fails as the details of the
Department’s investigation of Courson are contained in the
administrative record, which was equally available to Courson
and the Department. Furthermore, Courson was aware of what
he disclosed to the Department and what he knew.9
Courson argues that the manner in which the ICIB
investigators interviewed him was not reasonable or effective
because they did not adequately prepare, did not give him the
type and amount of notice required by POBRA, and intimidated
him.10 The trial court concluded that the ICIB investigators
acted with reasonable diligence and substantial evidence
9
Courson argues that the investigators should have
reviewed his e-mails with Marx, but the record does not contain
any e-mails or references to the content of any e-mails.
Furthermore, the investigators indicated they planned to review
his e-mails and texts with Marx, and there is no evidence that
they did not do so.
10 Courson failed to raise these arguments to the trial
court.
22
supports this finding. Most importantly, the investigators asked
questions, both specific and open-ended, which could have elicited
from Courson information about the communications that
ultimately led to the disciplinary action. Courson did not disclose
the information, however, and nothing that he did disclose
suggested that he had made inaccurate or exaggerated
statements to Marx. At that time neither Courson nor the
Department were aware of the recordings made by Marx, so
Courson was the only available source for the Department to find
out what he had said to Marx. Courson suggests that the
investigators should have interviewed Marx, but this was clearly
not a viable option since they believed she was part of an FBI
investigation of the Department.
In sum, the trial court correctly concluded that the
Department did not discover, with the exercise of reasonable
diligence, the allegation of misconduct against Courson prior to
June 4, 2014, when Courson and Marx testified at the federal
criminal trial and the Los Angeles Times published an article
about their testimony. Therefore, the notice provided by the
Department that it was taking disciplinary action, which was
served on Courson on June 1, 2015, was timely under
Government Code section 3304, subdivision (d)(1).
B. The 30-day Suspension
Courson contends that the 30-day suspension issued by the
Commission was an abuse of discretion because it was too harsh
under the circumstances.11
11As mentioned above, in this appeal Courson does not
challenge the factual findings made by the Commission in
23
“ ‘[I]n a mandamus proceeding to review an administrative
order, the determination of the penalty by the administrative
body will not be disturbed unless there has been an abuse of its
discretion.’ [Citations.]” (Skelly v. State Personnel Board (1975)
15 Cal.3d 194, 217.) “Neither an appellate court nor a trial court
is free to substitute its discretion for that of the administrative
agency concerning the degree of punishment imposed.” (Barber v.
State Personnel Bd. (1976) 18 Cal.3d 395, 404; accord, County of
Los Angeles v. Civil Service Com. of County of Los Angeles (2019)
40 Cal.App.5th 871, 877 [“The court may not substitute its own
judgment for that of the Commission, nor ‘disturb the agency’s
choice of penalty absent “ ‘an arbitrary, capricious or patently
abusive exercise of discretion’ ” by the administrative agency’
[citation], but must uphold the penalty if there is any reasonable
basis to sustain it”].)
We review de novo whether the Commission abused its
discretion in imposing a given penalty. (Pasos v. Los Angeles
County Civil Service Com. (2020) 52 Cal.App.5th 690, 700.)
“[T]he overriding consideration . . . 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.’ [Citations.] Other
relevant factors include the circumstances surrounding the
misconduct and the likelihood of its recurrence. [Citation.]”
(Skelly v. State Personnel Board, supra, 15 Cal.3d at p. 218;
accord, Pasos v. Los Angeles County Civil Service Com., supra, 52
Cal.App.5th at p. 701 [quoting Skelly].) Discipline can be
support of the suspension, nor its conclusion that he had violated
the Department’s policies.
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justified to “preserve [an agency’s] image in the community.”
(Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 107.)
We conclude that the Commission’s decision to impose a 30-
day suspension on Courson was not an abuse of discretion.
Courson’s statements to Marx, which were made public at the
federal criminal trial and in the media, caused harm to the public
service because they cast Courson and the Department in a
negative light. For example, Courson’s statements to Marx and
his testimony at trial suggested that he had been taught by the
Department’s training staff about the “unwritten rule,” but
during the administrative proceeding he admitted that in fact he
had heard about the rule during a break in a training session and
he did not recall who mentioned the rule.
Courson argues that he did not “cause[ ] ‘harm to the public
service’ ” because he “neither caused the FBI investigation, the
Department’s negative publicity, nor the obstruction trial during
which Courson testified.” This argument fails because the
publicity surrounding Courson’s statements added to the
negative publicity regarding the Department. His statements
also brought discredit to him personally, with obvious potential
for impacting his effectiveness as a law enforcement officer.
With respect to the “ ‘circumstances surrounding the
misconduct’ ” Courson points out that he “believed the
relationship was purely social, he had no ax to grind with the
Department in doing so, had no reason to believe his discussions
were recorded, and was forthcoming and truthful with the
Department.” However, the fact remains that Courson made
inappropriate statements to a law enforcement officer from a
different agency, and did so in pursuit of personal goals. While
Courson did disclose that he had communicated with Marx, and
25
he did cooperate in the Department’s investigations, he did not
voluntarily disclose his inaccurate statements, which only came
to light because of the federal trial.
In conclusion, the Commission’s imposition of a 30-day
suspension was not an arbitrary, capricious or patently abusive
exercise of discretion.
DISPOSITION
We affirm the trial court’s judgment in favor of the County
on Courson’s petition for writ of mandate and for extraordinary
relief. The County is awarded its costs on appeal.
NOT TO BE PUBLISHED
KELLEY, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
26