Filed 3/27/20 Seapker v. City Council of City of Carlsbad 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

STEVE SEAPKER,

Plaintiff and Appellant,

v.

CITY COUNCIL OF CITY OF CARLSBAD et al.,

Defendants and Respondents.

D074399

(Super. Ct. No.

37-2017-00020113-CU-WM-NC)

APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed.

Stone Busailah and Michael P. Stone, Muna Busailah, Robert Michael Rabe and Michael D. Williamson for Plaintiff and Appellant.

Liebert Cassidy Whitmore and Laura J. Kalty, David A. Urban, Stephanie Lowe; Office of the Carlsbad City Attorney and Walter Clement Chung, for Defendants and Respondents.

Appellant Steve Seapker appeals from a judgment denying his petition for a writ of mandate (Code Civ. Proc., § 1094.5) to compel respondent City Council of City of Carlsbad (the City Council) to set aside its decision terminating his employment and to adopt the hearing officer’s recommendation instead. He contends that because he did not receive a fair administrative hearing, the superior court erred by denying his petition. He also contends that respondents the City of Carlsbad (the City) and City of Carlsbad Police Department (the Department) improperly alleged that the hearing officer who presided over the administrative proceedings was biased against respondents, arguing the hearing officer’s comments to the respondents’ attorney were appropriate. Seapker further contends the City Council did not independently review the administrative record but rather deferred to the written arguments submitted by respondents’ counsel.

Respondents have moved to dismiss this appeal, contending Seapker raises no claim that the superior court’s judgment was erroneous, and he presents “no triable issue for this [c]ourt to consider.” We ordered this motion to be considered with the appeal. Respondents alternatively request we affirm the judgment, contending that Seapker forfeited the fair hearing issue by not raising it in the superior court, and the City Council properly found that the City proved the allegations against Seapker by a preponderance of the evidence. Further, respondents contend Seapker has failed to describe the relevant factual basis for his termination, and Seapker ignores the administrative record evidence but instead primarily tries to justify the hearing officer’s inappropriate and unprofessional comments made to respondents’ counsel. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Department’s Discipline of Seapker

In June 2013, the Department placed Seapker on a “performance improvement plan” (PIP). In July 2013, while Seapker was on the PIP, he stated in the presence of some detectives that he did not trust his superiors. As a result, the Department found that

he had violated the Department’s policy manual, policy No. 340.3.5(g), forbidding “[d]isparaging remarks or conduct concerning duly constituted authority to the extent that such conduct disrupts the efficiency of the Department or subverts the good order, efficiency and discipline of the Department or which would tend to discredit any member thereof.” In August 2013, Seapker referred to his two supervisors as “clowns” during a meeting. The Department therefore found he had violated policy No. 340.3.5(e), forbidding “[d]isobedience or insubordination to constituted authorities, including refusal or deliberate failure to carry out or follow lawful directives and orders from any supervisor or person in a position of authority.”

In a December 17, 2013 memorandum notifying Seapker of the Department’s intent to terminate him for his policy violations, a police captain wrote, “I cannot speculate what your motivation is for continually disrupting the workplace even after being advised on several occasions that you needed to correct your attitude and behavior. I can, however, see the damage your ongoing behavior is causing to the Carlsbad Police Department. It seems unlikely this pattern of behavior will end, as repeated corrective attempts have failed to change your conduct.”

Seapker requested and was granted an administrative appeal under Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 218. The Department subsequently notified him that he would be terminated effective January 31, 2014, based on the two sustained complaints as well as his prior misconduct.

Administrative Proceedings

Seapker testified in the administrative proceedings and admitted making the statements at issue. Several witnesses also testified over several days. The hearing officer found that in July 2013, Seapker criticized two of his supervisors. The hearing officer further found that in August 2013, Seapker referred to two of his supervisors as “clowns” during a PIP meeting. The hearing officer stated the Department “suddenly presented [Seapker] with four disciplinary actions, including a PIP,” in apparent “retaliation for Seapker having given adverse testimony” against two officers in the Department. The hearing officer reasoned that Seapker’s offending statements against his superiors resulted from the “severe stress he was under after having been given four disciplinary actions at the same time and being subjected to an invalid PIP that he did not understand while being faced with loss of employment if he did not complete the PIP to his supervisors’ satisfaction.” The hearing officer disagreed with respondents’ claim that Seapker was terminated based upon a pattern of conduct over many years, concluding “the past conduct does not support any punitive action.”

The hearing officer concluded as a matter of law that no evidence existed to show the Department and the City had just cause to terminate Seapker; accordingly, they violated the federal Constitution’s equal protection clause by treating him disparately from another officer, identified as “Officer H,” who was given a much lighter punishment for making false, misleading or malicious statements. The hearing officer recommended that Seapker receive a two-week suspension and be reinstated in good standing without loss of pay or reference to this disciplinary action in his personnel records.

The City Council’s Review

The City Council reviewed the hearing officer’s recommendation and rejected it, finding that the City had proved by a preponderance of the evidence that Seapker’s termination was warranted because of his violations of the Department’s policies as well as his history of poor performance and discipline: “In addition to the City Council’s decision to revoke the hearing officer’s recommendation and to uphold the City’s decision to terminate Seapker’s employment based on the preponderance of the evidence presented during the hearing, the City Council also finds that the hearing officer overlooked and disregarded many of the key facts and evidence in his report and recommendation. Several of the hearing officer’s findings contradicted witness testimony, including Seapker’s own testimony and admissions. The hearing officer did not cite to the administrative record or explain how he weighed the City’s evidence in making several of his factual determinations.” (Some capitalization omitted.)

The City Council also concluded that the hearing officer demonstrated bias against the City, stating it was “troubling that the hearing officer and Seapker’s attorney spent time together off the record during the hearing breaks on several occasions, across several hearing dates. The hearing officer’s role is to serve as a neutral third party and his pattern and practice of smoking with Seapker’s attorney places doubt as to his impartiality. [¶] The City Council specifically rejects Seapker’s attorney[‘s] intentional misrepresentation that there was only one place for the hearing officer and Seapker’s attorney to smoke at the city facility where the hearing was conducted. Video and still photography demonstrated that there were numerous locations at said facility where a person could smoke . . . . Further, it was understood that on at least one occasion, Seapker’s attorney was engaged in ex-parte communications (discussing subpoenas) while smoking with the hearing officer.” (Some capitalization omitted.)

The City Council decided “[b]ased on the entire administrative record, the briefs filed . . . [and] the arguments of counsel” to revoke the hearing officer’s recommendations and “[u]phold[] the City’s decision to terminate Seapker’s employment.” In rejecting Seapker’s claim he had received disparate treatment, the City Council distinguished Officer H’s case: “The only similarity was the section of the Department policy violated; the factual basis that supported the violations were not identical. Being disrespectful to a peer is different than being disrespectful to your supervisors within the chain of command. However, the act supporting the violation is only an element of the overall determination when deciding what level of discipline to impose. There are other factors to consider, such as the likelihood of the conduct being repeated, as well as the totality of the individual [sic] involved. [¶] Officer H’s employment history and performance was not the same as Seapker’s. Officer H did not have prior sustained Internal Affairs complaints nor did he had [sic] negative performance issues. Seapker’s employment history had sustained Internal Affair[s] complaints and had numerous negative performance related issues which were well documented.” The City Council relied on case law holding that when a public agency imposes punishment, there is no requirement that charges similar in nature must result in identical penalties. The City Council concluded the hearing officer was inappropriate in some comments made to respondents’ attorney during the administrative proceedings.

Writ Proceedings

In Seapker’s verified petition for a writ of mandate, under a section titled, “Relief Sought,” he asked the superior court to “[r]eject the City Council order, which is not supported by the weight of substantial evidence, and accept the order of the [h]earing [o]fficer’s recommendations, which is supported by substantial evidence.” Seapker acknowledged that his attorney and the hearing officer frequently smoked together during breaks, but claimed that only one smoking area was provided. Seapker also claimed that respondents’ attorney’s “suspicions of what was discussed between Seapker’s counsel and the [h]earing [o]fficer on breaks is pure speculation, an attack on [Seapker’s] counsel, and it was not in any manner supported by the evidence in the original administrative record.” Seapker claimed that during the City Council meeting, respondents’ attorney improperly relied on a video recording not included in the administrative record that showed Seapker and the hearing officer together in the smoking area.

The superior court in a detailed order denied Seapker’s petition. It initially pointed out that Seapker in his moving papers “only asks the court to ‘reject the City Council order, which is not supported by the weight of substantial evidence[.]’ However, it appears from other portions [of] the brief that [Seapker] also contends the City Council did not proceed in a manner required by law because it made findings regarding the [h]earing [o]fficer’s bias, determined that the [h]earing [o]fficer committed ‘legal errors,’ and failed to consider the entire administrative record.” The superior court concluded that Seapker “did not meet his burden of demonstrating that the City Council prejudicially abused its discretion by failing to proceed in a manner required by law.”

The superior court stated it was “persuaded that the City Council’s finding was reasonable and supported by the weight of the evidence. Moreover, the Court has reconsidered the evidence and finds that [Seapker] violated Department Policy[.]” The superior court ruled that the City Council’s finding of bias was based on evidence in the administrative record. It also concluded, “As for the argument that the City Council failed to consider the entire administrative record, [Seapker] has not presented evidence showing this to be the case. The City Council received the parties’ briefs before the hearing. . . . The briefs cited to portions of the administrative record. . . . The City Council’s written resolution states that the Council reviewed the administrative record.

. . . The resolution also cites to various portions of the record.” Finally, the court reiterated it had made an “independent review of the evidence,” and concluded that although the City Council found that the hearing officer committed legal errors and demonstrated bias against the City, “resolution of the merits of these issues is not germane to the instant writ proceeding. Even if those issues were germane, the Court is unable to conclude that the City Council did not proceed in the manner required by law by considering the [h]earing [o]fficer’s evidentiary rulings and bias.”

DISCUSSION

Seapker requests that we remand this matter with directions that the City Council reconsider the hearing officer’s report and recommendation, revoke its finding of bias, and independently review the administrative record.

In ruling on a petition for a writ of administrative mandate, a superior court reviews the administrative record to determine whether: (1) the administrative agency exceeded its jurisdiction; (2) there was a fair trial; and (3) there was any prejudicial abuse of discretion. (§ 1094.5, subd. (b).) In reviewing an agency’s factual findings in cases involving a fundamental right, a trial court ” ‘exercises its independent judgment upon the evidence.’ ” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8; Johnson v. Housing Authority of City of Oakland (2019) 38 Cal.App.5th 603, 612.) This means that a trial court determines whether the agency’s findings are supported by the “weight of the evidence.” (§ 1094.5, subd. (c); Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.)

The appellate court reviews the trial court’s findings for substantial evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144, fn. 10; Alberda v. Board of Retirement of Fresno County Employees’ Retirement Assn. (2013) 214 Cal.App.4th 426, 433-434.) In doing so, we “resolv[e] all evidentiary conflicts and draw[ ] all legitimate and reasonable inferences in favor of the court’s decision.” (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627.) The trial court “must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 817.)

Seapker in his opening brief mainly challenges respondents’ claims the hearing officer was biased. However, we need not address this issue because the City Council and the superior court, in rejecting the hearing officer’s recommendation, relied on substantial evidence of Seapker’s violation of Department policy. Specifically, Seapker testified he committed the violation. In fact, he concedes on appeal that during the administrative proceedings he was “primarily contesting the penalty, not the rationale for the discipline itself.” Accordingly, even setting aside the City Council’s finding the hearing officer was biased, the ruling that Seapker committed the violations would remain unchanged. We point out that Seapker does not present any argument that the City Council abused its discretion in the punishment it imposed on him; therefore, any such claim is forfeited. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [” ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.’ “].) ” ‘The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.’ ” (Williamson v. Bd. of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)

Seapker maintains that the City Council “did not very carefully go through the administrative record. . . . because if they [sic] had done so, certainly there would have been something different found during that review and put into the Council Resolution, which would allow one to distinguish it from the proposed decision prepared by [counsel for respondents].” Seapker concludes that when the City Council “prepared its Resolution, it did not do so independently, but merely cut and paste the City’s proposed decision as its own. The City Council must have felt an obligation to do so, because it had already determined it had ‘doubts as to the hearing officer’s impartiality.’ For the same reason, the Council completely ignored the entire report and recommendations prepared by the hearing officer when the resolution was drafted.” Seapker provides no evidentiary basis or legal analysis to support this contention, and it is therefore forfeited. “If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived.” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246, fn. 14; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115.)

In any event, we are required to infer all findings in favor of the judgment. ” ‘A fundamental principle of appellate practice is that an appellant ” ‘must affirmatively show error by an adequate record . . . . Error is never presumed . . . . “A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .” ‘ ” ‘ ” (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.) As noted, the superior court stated it had independently reviewed the administrative proceedings and concluded substantial evidence supported the City Council’s findings and penalty. Seapker has presented no evidence or legal arguments to persuade us the superior court erred.

DISPOSITION

The judgment is affirmed. Respondents the City of Carlsbad and the City of Carlsbad Police Department are entitled to their costs on appeal.

O’ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.