Aceves v. Edmiston CA2/4

Filed 6/27/23 Aceves v. Edmiston CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
DAVID ACEVES, B314705
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCP01627)
v.
JOSEPH EDMISTON,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James C. Chalfant, Judge. Affirmed.
John Fu for Plaintiff and Appellant.
Richards, Watson & Gershon, Rebecca T. Green, Sarah E.
Gerst for Defendant and Respondent.
Appellant David Aceves was terminated by his employer,
the Mountains Recreation and Conservation Authority (MRCA),
after an investigation into complaints of misconduct. Aceves
appealed the termination. Following an administrative hearing,
the hearing officer upheld the termination decision. Aceves
petitioned the trial court for an administrative writ overturning
the termination decision pursuant to Code of Civil Procedure
section 1094.5. The court agreed with the hearing officer,
concluding that Aceves failed to prove that the decision to
terminate him was an abuse of discretion.
Aceves now appeals from the trial court’s denial of his writ.
He contends that the hearing officer based her decision on
inadmissible hearsay evidence and that MRCA failed to establish
a valid basis for his termination. We find no error. We therefore
affirm the trial court’s denial of Aceves’s petition.
FACTUAL AND PROCEDURAL HISTORY
I. Investigation and Termination
MRCA employed Aceves as a ranger for at least 15 years.
In August 2019, a female employee, D. Hatch, notified her
supervisor that Aceves had committed misconduct against her.
MRCA retained outside investigator Michael Hines to investigate
the alleged misconduct. During the investigation, Hines received
additional allegations of misconduct by Aceves. Ultimately, the
investigation identified seven allegations: (1) inappropriately
touching Hatch on July 31, 2019; (2) during the same incident,
asking Hatch inappropriate questions regarding her tattoos; (3)
using an inappropriate photo on an agency-issued cell phone as
the contact image for a female superior, J. Cabral; (4) making
inappropriate comments regarding Cabral; (5) leering at female
co-worker G. Gomez; (6) making inappropriate remarks to female
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co-workers between 2004 and 2009; and (7) giving fraudulent
information to Hines during the investigation.1
In September and October 2019, Hines and another
investigator interviewed 12 employees, including the three
complaining witnesses and Aceves, regarding the allegations of
misconduct. Hines also reviewed documents including emails
from August 2019 discussing the allegations, excerpts from the
MRCA Employee Handbook (Handbook) and Interim Ranger
Manual (Manual), and documentation of Aceves’s agreement to
abide by the Handbook’s rules of conduct. He also conducted a
walk-through of the office space where the incidents purportedly
occurred.
In his final report, Hines detailed his findings as to each
allegation. For allegations 1 and 2, Hatch reported that on July
31, 2019, Aceves walked up behind her in the office and used his
finger to pull the upper portion of her dress off her right shoulder,
exposing portions of her bra. Aceves then pulled up Hatch’s left
sleeve two to three inches above the elbow to see partially hidden
tattoos. After Hatch pushed his hand away and turned to face
him, Aceves stepped back and asked, “Oh, am I being too
touchy?” He also asked Hatch how many tattoos she had. Aceves
denied this conduct.
Allegation 3 contended that Aceves placed “an offensive
graphic,” specifically a photograph depicting the Wicked Witch of
the West from the Wizard of Oz, as the contact image for
supervisor Cabral on his agency-owned cell phone. Cabral
1This appeal concerns only allegations 1 through 5, as
those were ultimately sustained in Aceves’s termination appeal.
We therefore address allegations 6 and 7 only as necessary for
background.
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discovered the image on August 14, 2019 when she used Aceves’s
phone for work. When asked about this conduct during his
interview, Aceves stated that he used the photo because Cabral
was “toxic.” Similarly, allegation 4 contended that Aceves had
“used offensive language” in reference to Cabral. During his
interview, Aceves admitted referring to Cabral as a “bitch” to
male coworkers.
In allegation 5, Cabral reported seeing Aceves “leering
inappropriately” at coworker Gomez on August 14, 2019 and
“eyeing her up and down.” Cabral stated that she was seated
next to Aceves at the time and tried to get his attention. Another
employee, Sabas Quinonez, told the investigators that he saw
Aceves staring toward Gomez as she entered the office and that
Aceves told him later that day that Gomez was “beautiful.”
Aceves claimed he looked toward the door when Gomez entered
the office just to see who was entering.
Hines concluded that all seven allegations were true. He
determined that Aceves lacked credibility regarding the subjects
of the investigation and detailed the bases for that finding. Hines
also found Hatch and Cabral credible, based on their detailed,
consistent accounts and corroborating evidence.
On November 7, 2019, MRCA issued a notice of proposed
discipline to Aceves. The notice stated that Hines had conducted
an investigation into “misconduct and violations” of the
Handbook allegedly committed by Aceves. Although Hines had
sustained all seven allegations, MRCA concluded that the
findings related to allegation 6 fell outside of the applicable
statutes of limitations and therefore “do not form a basis for the
proposed disciplinary action.” The remaining sustained
allegations were determined to be a violation of several sections
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of the Handbook and the Manual’s code of conduct. In light of the
sustained allegations 1 through 5 and 7, MRCA recommended
terminating Aceves and notified him of his right to appeal.
Aceves responded to the notice through counsel on
November 20, 2019. He denied the allegations except for
numbers 3 and 4. He proposed a written warning instead of
termination and asserted that the allegations were insufficient to
justify termination.
MRCA issued a notice of discipline on November 26, 2019.
In the notice, MRCA stated that it had carefully considered the
facts and Aceves’s response, and determined there would be no
change to the recommendation for termination. The notice also
informed Aceves that he would be terminated effective upon the
completion of the appeal period.
II. Administrative Appeal
Aceves submitted a written appeal and demand for
administrative hearing on December 1, 2019. The administrative
hearing was held before MRCA hearing officer Rorie Skei on
February 25, 2020. The hearing included testimony by Hines,
MRCA Deputy Executive Officer Tim Miller (who recommended
termination), Quinonez, and Aceves.
Skei issued a final decision on April 8, 2020, denying the
appeal and imposing the recommended termination. She stated
that she agreed with the conclusions of the investigator regarding
allegations 1 through 5.2 Specifically, Skei cited Hines’s
testimony regarding his experience in conducting over 200
internal investigations and his detailed testimony regarding the
2 Skei found the evidence related to allegation 7
inconclusive, and thus excluded that allegation from her decision
to impose the recommended termination.
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process of interviewing witnesses and determining credibility.
Based on Hines’ determinations, as well as her independent
review of the witness interview transcripts, Skei concluded that
Hatch and Cabral “had no motivation to lie about their
allegations, and accurately described interactions between them”
and Aceves. Skei noted that Aceves admitted allegations 3 and 4,
which violated the Handbook. Further, although Aceves denied
touching Hatch or leering at Gomez, Skei found his demeanor
“angry and defensive” and found his testimony was not credible.
Skei concluded that Aceves’s conduct violated MRCA’s
policies “against harassment, workplace equity, and workplace
standards. . . . Unwanted physical touching, leering, and asking
about private matters concerning a coworker’s body are
unacceptable and are grounds for termination.” Further, she
found that as a sworn peace officer, Aceves must “respect and
obey the chain of command”; thus, his conduct related to Cabral
was an attempt to undermine her supervisory authority and
therefore a “further basis for termination.”
III. Writ Proceedings
Appellant filed a petition for writ of administrative
mandamus pursuant to Code of Civil Procedure section 1094.5 on
May 8, 2020 against Joseph Edmiston, Chief Deputy Executive
Officer of the MRCA.3 He alleged that he had exhausted his
3 MRCA objected below that Aceves had wrongly named
Edmiston, the Executive Officer, as the respondent in his
petition, as Edmiston was not the administrative hearing officer
and the petition alleged no wrongdoing by him individually.
MRCA and Edmiston stipulated to having the trial court “decide
this case on the merits as if the MRCA was named as the
respondent.” The trial court proceeded accordingly and we do the
same.
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administrative remedies and that MRCA “has no grounds to
justify Petitioner’s termination.” He further alleged that MRCA’s
entire case was based on hearsay testimony from investigator
Hines, which was inadmissible except to support other admissible
evidence. Aceves also contended that even if the evidence was
admissible, it was insufficient to support his termination. Aceves
denied wrongdoing, except that he admitted “communicat[ing] his
opinion of Ms. Cabral as being a ‘bitch’ having a ‘toxic’
personality.” Aceves sought reversal of his termination and
reimbursement of lost wages.
MRCA filed a brief in opposition to the petition. It noted
several times that Aceves’s employment was at-will and he could
be terminated at any time, with or without cause. However,
because Aceves was charged with misconduct, MRCA provided an
administrative hearing in order to afford Aceves his appeal rights
as a public safety officer under the Public Safety Officers
Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.)
(POBRA).4 Nevertheless, MRCA argued that it was not required
to produce evidence to support the reasons for the discharge,
thus, there “can be no prejudicial abuse of discretion.” In
addition, MRCA argued that substantial evidence supported the
termination decision.
The court held a hearing on the writ petition on May 25,
2021. The court noted that hearsay evidence was permissible
pursuant to the Manual section 3.7.14. Aceves’s counsel argued
that even though he could have been fired without cause, MRCA
could not rely on his at-will status as it terminated him for cause
based on the allegations, which were insufficient to support a
4All further statutory references are to the Government
Code unless otherwise indicated.
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termination. MRCA’s counsel argued that it had no burden of
proof to support its termination decision over an at-will employee
and that Aceves failed to meet his burden to show error.
The court denied the writ petition in a written ruling on
May 25, 2021. As an initial matter, the court found that
although Aceves brought his petition seeking a writ of
administrative mandamus under Code of Civil Procedure section
1094.5, the case was properly considered as seeking a writ of
traditional mandamus under Code of Civil Procedure section
1085.5 The court also found that Aceves was “an at-will employee
who was subject to termination at any time, with or without
cause.” As such, MRCA was only required to provide Aceves a
“name-clearing” appeal hearing under the POBRA. Given the
limited scope of the appeal hearing, the court concluded that it
did not have the power to reverse MRCA’s decision to terminate
Aceves; rather, the court “only has mandamus power to ensure
that MRCA followed its own rules and procedures (which are not
at issue) and to determine if substantial evidence supports the
five Allegations against Aceves for purposes of clearing his
name.”
Next, the court rejected Aceves’s argument that MRCA
could not use hearsay evidence to support the allegations against
him. The court found that the Manual dictated the procedures
for MRCA’s administrative appeals for at-will employees such as
Aceves, not the Rules of Evidence. The Manual expressly allowed
the consideration of “all relevant information.”
The court reviewed the MRCA policies implicated by
Aceves’s conduct. First, Handbook section 3.1 (general rules),
5 Aceves does not challenge this ruling on appeal.
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prohibits “unethical or illegal” conduct, including “(a) Any action
that negatively reflects upon or substantially hinders MRCA or
its functions; (b) Insubordination, including improper conduct
toward a supervisor . . .; and (c) Any type of harassment of other
employees. . . .” Second, Handbook section 3.4 (anti-harassment)
prohibits harassment, which is defined to include any conduct
that “has the purpose or effect of unreasonably interfering with
an individual’s work performance,” unwanted verbal and/or
physical sexual advances, “visual conduct, such as leering,” and
“physical conduct, such as touching.” Third, Handbook section
7.2 (technology and communication devices) requires employees
to use MRCA-owned devices, including cell phones, with “common
sense and sound judgment” and prohibits use “in a manner
prohibited in any other part of the Handbook.” Finally, Manual
Chapter 2 (law enforcement code of conduct), section 2.1.1,
explains that because of the “nature of their duties and
responsibilities and the special public trust they bear, law
enforcement personnel are subject to close scrutiny and are held
to additional standards of conduct. Section 2.1.2 also requires
law enforcement personnel to “[m]aintain decorum, command of
temper, and exercise patience and discretion at all times”;
conduct “himself/herself in a professional manner,” including by
refraining from using “[i]nappropriate harsh, violent, profane, or
insolent language”; and avoid “[c]onduct unbecoming an officer.”
Based on this framework, the court reviewed the evidence
presented for allegations 1 through 5 and found that each was
supported by substantial evidence. The court also found that the
harassing conduct in allegations 1, 2, and 5 violated the
Handbook sections 3.1 and 3.4, and the insubordination in
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allegations 3 and 4 violated the Handbook section 3.1 and the
Manual section 2.1.2.
The court concluded that Aceves was an at-will employee
and properly received an appeal hearing at which he was unable
to persuade MRCA to retain him. Accordingly, the court denied
Aceves’s petition. However, the court also noted that the
allegations against Aceves “were modest in nature and – with the
possible exception of his actions with Hatch – would not
constitute cause for dismissal without progressive discipline. . . .
[Aceves] has created a record showing that his conduct was not
egregious for purposes of his reputation and future employment.”
The court entered judgment for MRCA.
Aceves timely appealed.
DISCUSSION
I. Legal Standards
A. Standard of Review
Aceves filed his petition as a writ for administrative
mandamus pursuant to Code of Civil Procedure section 1094.5.
However, the trial court found that this action was properly
considered as a writ of traditional mandamus under Code of Civil
Procedure section 1085, a decision that Aceves does not contest.
We perform the same function as the trial court in a traditional
mandamus action, and therefore we review the agency’s decision
and not the trial court’s findings. (Khan v. Los Angeles City
Employees’ Retirement System (2010) 187 Cal.App.4th 98, 105–
106.) We consider the record to determine whether MRCA
abused its discretion, “namely, whether its decision was
arbitrary, capricious, entirely lacking in evidentiary support,
unlawful, or procedurally unfair.” (Ibid., citing Bright
Development v. City of Tracy (1993) 20 Cal.App.4th 783, 795.)
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The petitioner bears the burden of proving that the
agency’s decision was invalid and should be set aside. (California
Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10
Cal.4th 1133, 1154.)
B. “Name-clearing” Hearing under the POBRA
The POBRA “provides a catalogue of basic rights which
must be afforded all peace officers by the public entities which
employ them.” (Riveros v. City of Los Angeles (1996) 41
Cal.App.4th 1342, 1358 (Riveros).) At issue here is section 3304,
which provides, in relevant part: “(b) No punitive action . . . shall
be undertaken by any public agency without providing the public
safety officer with an opportunity for administrative appeal.”
Although probationary and non-tenured employees may be
discharged at-will and without good cause, there is an exception
where that dismissal is based on charges of misconduct which
could stigmatize his or her reputation or make it difficult to
obtain other law enforcement jobs. (Riveros, supra, 41
Cal.App.4th at p. 1358; see also Phillips v. Civil Service Com.
(1987) 192 Cal.App.3d 996, 1001.) Under those circumstances,
the employee has a “liberty” interest implicating the due process
protections of the Fourteenth Amendment to the United States
Constitution, which requires the employer to provide an
opportunity for the “name-clearing appeal” pursuant to section
3304, subdivision (b) before the termination becomes effective.
(Riveros, supra, 41 Cal.App.4th at p. 1358, citing Phillips v. Civil
Service Com., supra, 192 Cal.App.3d at p. 1001; Lubey v. City and
County of San Francisco (1979) 98 Cal.App.3d 340, 345-346.)
“The limited purpose of the section 3304 appeal is to give
the peace officer a chance to establish a formal record of the
circumstances surrounding his termination and try to convince
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his employer to reverse its decision, either by showing that the
charges are false or through proof of mitigating circumstances.”
(Riveros, supra, 41 Cal.App.4th at p. 1359, citing Binkley v. City
of Long Beach (1993) 16 Cal.App.4th 1795, 1806 (Binkley).)
These protections do not abrogate the public entity’s right to
terminate a non-tenured officer’s employment at will. (Riveros,
supra, 41 Cal.App.4th at pp. 1359-1360; Barnes v. Personnel
Department (1978) 87 Cal.App.3d 502, 505-506.) Nor does it
place a burden of proof on the employer at the hearing to provide
evidence sufficient to sustain the charges. (Riveros, supra, 41
Cal.App.4th at pp. 1360-1361 [rejecting the contention that the
employer bears the burden of proof at a section 3304 hearing];
Binkley, supra, 16 Cal.App.4th at p. 1809 [same].)
II. Analysis
Aceves contends that MRCA “could not meet its burden of
proof” to establish allegations 1 through 5 because its entire case
was based on inadmissible hearsay evidence. Specifically, he
notes that MRCA relied principally on testimony by Hines
regarding his investigatory interviews, rather than direct
testimony from eyewitnesses or alleged victims. Aceves concedes
that the hearing “was an informal administrative hearing,”
where “hearsay is technically admissible,” but argues that “such
evidence can not stand on its own but be [sic] used only to support
other admissible evidence.”
Aceves is incorrect in several respects. First, he contends
that hearsay was improperly admitted during his hearing. Both
the hearing officer and the trial court rejected this argument,
finding that hearsay is admissible in an administrative appeal
pursuant to the Manual, section 3.7.14 and that the rules of
evidence do not apply. Section 3.7 of the Manual sets forth the
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applicable procedures for a hearing against an MRCA officer,
such as Aceves. Section 3.7.14 provides, “The hearing shall be
conducted without regard to the formal rules of evidence and all
relevant information pertaining to the complaint and the
proposed discipline may be considered in reaching the decision.”
Aceves does not address this section of the manual or the trial
court’s findings in his opening brief on appeal, and he did not file
a reply brief.
Instead, as he did below, Aceves cites section 11513,
subdivision (c) to support his hearsay argument. However, as the
trial court found, that section is part of the Administrative
Procedure Act, which applies to state agencies, not to local
agencies such as MRCA. (See §§ 11500, subd. (a) [defining
“agency” as including “the state boards, commissions, and
officers”], 11501; see also Allen v. Humboldt County Bd. of
Supervisors (1963) 220 Cal.App.2d 877, 883 [“The Administrative
Procedure Act applies only to those state agencies enumerated
therein and does not apply to local agencies.”].) Aceves makes no
showing that the trial court’s finding was error and provides no
other authority or explanation suggesting how the statute is
applicable to these proceedings. Similarly, his reliance on cases
involving administrative hearings in other contexts is not
persuasive. (See Ashford v. Culver City Unified School Dist.
(2005) 130 Cal.App.4th 344, 347, 349 [rejecting use of
unauthenticated videotape where school district had evidentiary
burden to present admissible evidence in support of the charges
against employee]; Desert Turf Club v. Board of Supervisors
(1956) 141 Cal.App.2d 446, 455-456 [reversing decision by board
of supervisors to deny a horse racing permit based on moral
objections rather than evidentiary findings].) We therefore find
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no error by the MRCA hearing officer in considering hearsay
evidence during the section 3304 appeal.
Second, the record does not support Aceves’s contention
that the entirety of MRCA’s case was based on hearsay evidence.
In fact, Aceves admitted the factual bases for allegations 3 and 4
regarding Cabral. Hines also testified as to his own conduct
during the investigation and detailed non-hearsay evidence he
reviewed, including the photo on Aceves’s phone and the relevant
workspace areas where the misconduct purportedly occurred. In
addition, Quinonez, who identified himself as a friend of Aceves,
testified as an eyewitness and refuted several of the claims made
by Aceves.
Third, Aceves’s claim that MRCA had the burden of proof to
provide evidence in support of his termination ignores the scope
and purpose of the section 3304 appeal hearing. As detailed
above, the purpose of the hearing is to provide Aceves with his
right under the POBRA to “establish a formal record of the
circumstances surrounding his termination and try to convince
his employer to reverse its decision.” (Riveros, supra, 41
Cal.App.4th at p. 1359.) It does not alter MRCA’s ability to
discharge an at-will employee; thus, there was no evidentiary
burden for MRCA to meet. (Id. at pp. 1360-1361; Binkley, supra,
16 Cal.App.4th at p. 1809.) Aceves has cited no authority to
support his contention regarding the burden of proof and we need
not consider the argument further. (See, e.g., Cahill v. San Diego
Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“When an
appellant fails to raise a point, or asserts it but fails to support it
with reasoned argument and citations to authority, we treat the
point as waived.”].)
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Aceves has not met his burden to establish any abuse of
discretion by MRCA in his termination. Notably, he does not
raise any procedural challenge to his termination or section 3304
hearing, nor does he dispute that he was an at-will employee. He
contends that allegations 1 through 5 lacked substantial evidence
and could not support his termination, but this argument again
improperly assumes that MRCA had the burden of proof. It did
not, and Aceves has not shown how MRCA abused its discretion
in terminating him from his at-will employment. We additionally
reject Aceves’s contention that the hearing officer lacked
substantial evidence to sustain allegations 1 through 5. Aceves
admitted allegations 3 and 4, simply arguing that the conduct
was not severe enough to warrant termination. With respect to
allegations 1, 2, and 5, the hearing officer’s decision to sustain
those allegations was amply supported by the evidence presented,
including the witness statements collected by Hines and his
testimony at the hearing. Aceves’s citation to evidence
supporting his version of events, which the hearing officer largely
rejected as not credible, does not alter that conclusion. Similarly,
Aceves’s claim that the evidence would be insufficient to establish
a state law claim for harassment or insubordination is also
irrelevant, as he was terminated for conduct in violation of the
Handbook, not state law. Aceves has made no showing that his
conduct did not violate the Handbook and Manual in the manner
that MRCA claimed.
Finally, Aceves’s suggestion that the trial court raised the
issue of at-will employment sua sponte in denying the writ
petition is meritless. MRCA argued precisely that point in its
brief below and the parties both addressed it during oral
argument.
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We therefore affirm the trial court’s order denying
appellant’s writ petition.
DISPOSITION
The judgment is affirmed. Respondent may recover its
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
MORI, J.
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