Filed 4/24/20 Kravetz v. City of Los Angeles 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JUSTIN KRAVETZ,

  

Plaintiff and Appellant,

  

v.

  

CITY OF LOS ANGELES,

  

Defendant and Respondent.

         B292241

      (Los Angeles County

       Super. Ct. No. BS165812)

  
  

APPEAL from a judgment of the Superior Court of Los Angeles County, Amy D. Hogue, Judge.  Affirmed.  

Seki, Nishimura & Watase, Bill H. Seki and Kari C. Kadomatsu for Plaintiff and Appellant.  

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Scott Marcus, Chief, Civil Litigation Branch, Blithe S. Bock, Managing Assistant City Attorney, and Jonathan H. Eisenman, Deputy City Attorney, for Defendant and Respondent.

Justin Kravetz, a tenured officer of the Los Angeles Police Department, was terminated for, among other things, driving to and reporting for work while under the influence of narcotics. He brought an administrative mandate petition against the City of Los Angeles, in which he argued that the administrative decision rested on a flawed and insufficient record, and that his discharge constituted excessive discipline. The trial court denied the petition, and Kravetz appeals. We affirm the trial court’s order.

FACTUAL BACKGROUND

In early March 2015, Kravetz was assigned to the Department’s Valley Traffic Division (VTD). He had not worked for some time due to injuries suffered in an on-duty accident and subsequent surgeries, and was on IOD (injury on duty) status. On March 3, 2015, he was cleared by his doctor to return to work for “light duty.” Kravetz contacted his supervisor and explained that he wanted to transfer to a station closer to his home in Long Beach (about 50 miles away) because his physician had instructed him not to drive for more than 30 minutes at a time. The supervisor relayed this information to Captain McMahon, VTD’s commanding officer. A few days later, Captain McMahon spoke to Kravetz on the telephone to discuss his work restrictions and transfer request.

On March 10, 2015, Kravetz took several prescription medications, including Klonopin (a benzodiazepine), Adderall (which metabolizes to amphetamines), and Fentanyl (an opioid). Later, Kravetz drove from Long Beach and reported for work at VTD at about 6:00 p.m., disheveled but in uniform.

In the lobby, Kravetz informed the watch commander, Lieutenant Jones, that he had been ordered to report for duty. He handed the Lieutenant a form purporting to allow him to return to restricted duty and a letter Kravetz had completed himself, “advising that [he] was no longer assigned to VTD.” Lieutenant Jones had not expected Kravetz at work that day and contacted Captain McMahon, who instructed him to bring Kravetz to a meeting in his office.

According to his testimony at a later administrative hearing before the Department’s Board of Rights (Board), Captain McMahon’s meeting with Kravetz began at about 6:30 p.m. Lieutenant Jones was also present.

The Captain explained the transfer process to Kravetz several times during the meeting. He said Kravetz had “trouble grasping some of the more basic messages and oftentimes would respond with [what] somebody said . . . or something [that] just wasn’t quite accurate.” Captain McMahon observed that Kravetz “seemed confused,” his “speech was somewhat slurred,” his pupils were “blown out, overly dilated,” he was “fidgety, [and] scratching on scabs or cuts on his arms.” Kravetz was excused to complete some paperwork.

Captain McMahon believed Kravetz was under the influence of drugs and was concerned that he had driven to work intoxicated. His concern was shared by Lieutenant Jones, who described Kravetz’s behavior as unusually “fidgeting and agitated,” and said that Kravetz had scratched his arms throughout the meeting. Lieutenant Jones also observed that Kravetz’s face was “broken out [in a manner consistent with] drug users.”

Captain McMahon summoned Sergeant Fuqua, a drug recognition expert (DRE) then present at VTD. When Kravetz returned to Captain McMahon’s, office Sergeant Fuqua observed the interaction between the two men and formed the belief Kravetz might be under the influence of drugs. He observed that Kravetz “had dilated pupils in room light” (his had a diameter of “approximately eight millimeters,” but should have been between “a 2.0 to about a 4.0”). Kravetz “was real fidgety, and he was scratching his arms.” Sergeant Fuqua also observed “that periodically [Kravetz] would be on the nod, in other words he would bow his head down and close his eyes.” In Sergeant Fuqua’s opinion, Kravetz “was under the influence of a controlled substance or substances,” and was neither able safely to operate a motor vehicle nor perform the functions of a police officer, including carrying a firearm. He recommended that a second DRE evaluate Kravetz. To avoid an appearance of conflict, Captain McMahon summoned a DRE from outside his chain of command and contacted Sergeant O’Connor from the Department’s Internal Affairs Division (IAD), who came to VTD.

Sergeant Zucker, a DRE from another Division, arrived at VTD at about 10:00 p.m., and conducted an extensive DIE of Kravetz, including a field sobriety test. During that test, Kravetz was asked to count out 30 seconds in his head and then say “stop”; he took almost a full minute to complete this task. Kravetz had tremors in his eyelids and his pupils behaved strangely (i.e., there appeared to be constriction of his pupils consistent with use of an opiate at the same time a stimulant was causing the pupils to enlarge). Kravetz’s heart rate and blood pressure were elevated, and he was unable to stand on his left foot without putting his right foot down (Kravetz had been fitted for a brace on his right knee that day). When asked to touch his finger to his nose, Kravetz touched his eye. Based on his slow reaction times, and extremely poor balance and impaired motor skills, Sergeant Zucker opined it was unsafe for Kravetz to drive or perform the duties of a police officer, particularly handling a firearm (Kravetz was armed at the time).

After observing the DIE, Sergeant Fuqua reached the same conclusion as Sergeant Zucker. He observed that Kravetz had extremely poor balance, and he was unable to count out loud. Separately, the DREs opined to Sergeant O’Connor that Kravetz “was under the influence of some form of narcotic analgesic [an opiate] and a central nervous system stimulant.” Sergeant O’Connor also observed that Kravetz seemed “agitated” and had marks on his arm and face. After Kravetz failed the field sobriety test, Sergeant O’Connor asked him to provide a blood sample. Kravetz was not permitted to work or drive home.

A preliminary blood screening performed by the Department’s Scientific Investigation Division (SID) was performed in two stages. The first revealed that Kravetz’s blood contained an unspecified amount of opiate, an amphetamine and a benzodiazepine. The second stage confirmation test also performed by SID revealed the presence of hydrocodone (an opioid), but no benzodiazepine. A second test performed by the coroner’s office revealed the presence of amphetamine and phentermine. Kravetz was not advised of the results of the initial blood tests until an IAD investigation was conducted in July 2015.

Nor was Kravetz afforded an opportunity to have a third test performed on the sample by an independent laboratory, to which he was entitled under the operative Memorandum of Understanding (MOU). The MOU provides that drug abuse by an officer is “unacceptable and censurable conduct worthy of strong administrative action” which may subject the officer to “discipline[] or even terminat[ion] when appropriate.” (MOU, art. 3.5, § 1.A.1.) “An employee may only be required to submit to a field sobriety examination, [and] blood . . . test for the purpose of determining the presence of a narcotic . . . when: 1. The employee exhibits objective symptoms of being under the influence of . . . a narcotic or drug.” (Ibid.) In the case of a positive test result where, as here, an officer has been ordered to test “for cause,” the MOU requires the Department to notify the officer of the positive test result and, at the officer’s request, submit the sample to an outside laboratory for conclusive testing. (See MOU § 3.5.B.6 [“[e]mployees who test positive for one or more drugs based upon the confirmation test will be given an opportunity to have a portion of the sample retested by a reputable chemical laboratory at City expense.”)

During the IAD investigation, Kravetz was required to reveal his medical history and all prescriptions, under threat of insubordination. Kravetz objected, based upon privacy and other grounds. He was ordered to provide documentation explaining the presence of amphetamine, benzodiazepine, hydrocodone and phentermine detected in his system on March 10. Kravetz provided documentation identifying his prescriptions and results from a urine test he took on March 25, 2015.

PROCEDURAL BACKGROUND

A Board proceeding was convened in early July 2016. Kravetz was charged with five administrative offenses, two of which are relevant here: reporting to work unfit for duty and under the influence of narcotics (count 2), and driving to work while off duty and under the influence of narcotics (count 3).

Kravetz acknowledged that on March 10, 2015, he took testosterone medication, Adderall (for ADHD), and Klonopin (for hypertension), and was wearing a fentanyl patch (for pain relief), all of which were prescribed medications.

Kravetz argued he was denied procedural protections to which he was entitled under Departmental policies and the MOU. He also argued his right to medical privacy was violated during the IAD investigation, and he was denied the opportunity to provide a medical explanation for the presence of controlled drugs in his system.

After considering the testimony of six witnesses and reviewing more than 20 exhibits, the Board found Kravetz guilty of the two offenses at issue, stemming from his intoxication at and on the way to work. The Board concluded Kravetz “placed [him]self, this Department, and more importantly the citizens of this community in jeopardy” by driving to work “under the influence of a controlled substance and arriv[ing] in uniform to [his] assignment still under the influence of a controlled substance.” Unanimously, the Board recommended that Kravetz’s employment be terminated, and the chief of police accepted that recommendation. Kravetz was terminated, effective April 4, 2016.

Kravetz filed a petition for a writ of mandate. He argued there was insufficient evidence to support the Board’s finding that he was intoxicated, because, under the MOU, he was entitled to have had his blood sample tested a third time, and could be deemed intoxicated only if he was unable to demonstrate to a physician that the drugs found in his system were not prescribed. Kravetz also maintained he was not properly found responsible for driving while intoxicated because no one at the Department “personally observed [him] drive a vehicle,” and it was not unlawful for him to drive “‘under the influence’ of his prescribed medications.”

The trial court found otherwise. It concluded that Kravetz had not demonstrated an entitlement to a third blood test, nor that he suffered prejudice as a result of the absence of that additional test, particularly because the Board did not base its conclusion that Kravetz was intoxicated solely on the blood tests. The court observed that Kravetz’s claim that the drugs in his system had been lawfully prescribed was not relevant. Rather, the question was “whether [Kravetz’s] use of narcotics impaired his ability to drive and his ability to perform his job functions.” On these issues the court found the evidentiary record contained sufficiently “persuasive evidence [Kravetz] was impaired and should not have been driving or reporting to work.” The petition for mandate was denied.

DISCUSSION

Kravetz contends that the trial court erred in denying his petition because: (1) the DREs’ observations were insufficient to support a finding that he was “intoxicated” (2) termination was an excessive discipline, and (3) the Department failed to comply with requirements of the MOU.

Standards of Review

Where, as here, the disciplinary action at issue involves a fundamental vested right, the trial court must independently review the administrative decision. (See Melkonians v. Los Angeles County Civil Service Com. (2009) 174 Cal.App.4th 1159, 1167 [“[d]iscipline imposed on public employees affects their fundamental vested right in employment”]; see Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 318 [right of employment as non-probationary police officer is both vested and fundamental].) However, in exercising its independent judgment, the court must also afford a strong presumption of correctness concerning the administrative findings. The party challenging the decision bears the burden of convincing the court that the administrative findings are contrary to the weight of evidence. (Gov. Code, § 11425.50, subd. (b); Fukuda v. City of Angeles (1999) 20 Cal.4th 805, 817.)

Once a trial court has conducted its independent review of an administrative decision, the appellate court is tasked to “review the record to determine whether the trial court’s findings are supported by substantial evidence.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10; Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 926.)

Sufficiency of the Evidence of Driving Under the Influence

Kravetz insists there is insufficient evidence to support the count for driving while under the influence, because no one “personally observed [him] inside of his vehicle in a condition that would prevent him from being unable to operate his vehicle in a safe and reasonable manner.” He is mistaken.

Kravetz admits he drove from Long Beach to VTD on March 10. The fact that no evidence was presented at the Board hearing that Departmental personnel actually observed Kravetz operating his vehicle is unimportant. Taken together, the informed opinions of seasoned police officers (at least two of whom had significant expertise in recognizing drug impairment) constitute ample evidence to support a conclusion that Kravetz was significantly impaired and would have been unable safely to operate a vehicle when he reported for duty.

Lieutenant Jones, an LAPD officer for more than 34 years, was the first person to observe and interact with Kravetz when he arrived at VTD at about 6:00 p.m. on March 10, 2015. Almost immediately, Lieutenant Jones escorted Kravetz to Captain McMahon’s office, and remained for the meeting. He believed Kravetz was under the influence, based on his observation of Kravetz’s “fidgety” behavior, his repeated scratching at his arms, and facial blemishes consistent “with [those observed on] drug users.” Captain McMahon, whose meeting with Kravetz began at about 6:30, observed that the officer’s speech was slurred, his pupils were “overly dilated,” he seemed confused and he had difficulty grasping what the Captain said. Two expert DREs evaluated Kravetz, one within less than an hour after Kravetz arrived at the station, and the other at about 10:00 p.m. Each independently concluded Kravetz was under the influence of narcotics and could not safely operate a vehicle. Simply put, the evidence is more than sufficient to support the finding that Kravetz drove under the influence of narcotics.

Excessive Discipline

Kravetz contends that evidence of his intoxicated driving is insufficient to support the discipline imposed because that evidence would not have been sufficient to prove he committed a violation of the Vehicle Code. The premise itself is questionable: it is not at all clear that the evidence would not support a criminal conviction. Regardless, the standard of proof to impose discipline on an on-duty officer is not proof beyond a reasonable doubt, but proof by a preponderance. (Compare L.A. Charter, § 1070, subd. (l) [disciplinary charges need only be proven by a preponderance of evidence] with, e.g., People v. Rivera (2019) 7 Cal.5th 306, 333 [criminal charges must be proven beyond a reasonable doubt].) Further, “‘[t]he 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. [Citations.]’” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) “‘“[I]n reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter; nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court’s own evaluation of the circumstances the penalty appears to be too harsh. [Citation.] Such interference . . . will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion.” [Citation.]’” (Ibid.) “‘If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.’” (City of Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 634.)

Here, Kravetz drove to VTD in uniform, intoxicated and on an expired license, and reported for work under the influence of a controlled substance. This evidence was sufficient to justify the Board’s recommendation that Kravetz be “removed from his position” as an officer of the Department. The trial court said it well: “[C]onsidering the severity of the harm that could have been caused by [Kravetz], the evidence supporting the Department’s charges, and the care with which the Board weighed the evidence,” it is clear that the Department did not abuse its discretion by discharging Kravetz.

Failure to Allow an Independent Test

Kravetz contends that the Board erred in failing to adhere to the MOU’s “For Cause” testing protocols, and in relying on the “mere observations” and opinions of Captain McMahon, Lieutenant Jones and two DREs. While it is true that the Department did not comply with the MOU in this respect, Kravetz forfeited the issue, and in any event has failed to demonstrate prejudicial error.

As to forfeiture, we agree with the trial court. Kravetz forfeited the claim that the Department violated the MOU by failing to object at the Board hearing to the admission of purportedly incomplete evidence reflecting only the results of two tests conducted by the Department.

Regardless, Kravetz has failed to demonstrate prejudice. (See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570 [an error is only prejudicial if the ultimate result would likely have differed had it not been made].) Perhaps, as Kravetz argues, an independent blood test might have shown that the drugs in Kravetz’s system were prescribed by his physician and that he had not exceeded the prescribed dosage. However, even so, the key issue (as the trial court recognized) was whether Kravetz drove while under the influence of narcotics. It did not matter whether the drugs causing his impairment were prescribed and appropriately dosed. As we have stated, there was more than sufficient evidence to support the finding of impairment.

Second, the Board’s recommendation was not based solely (or even primarily) on the results of the two positive drug tests. The Board (and later, the trial court) found sufficient evidence to support its disciplinary recommendation, even without test results, based on the collective objective observations of expert officers that Kravetz was unable to perform the duties of a police officer as a result of his intoxication.

In sum, there is no basis to conclude that Kravetz would have achieved a different result had there been a third and independent blood test.

//

//

//

//

//

//

//

//

DISPOSITION

The order denying the petition for writ of mandate is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

CURREY, J.