Case Number: ES016252    Hearing Date: August 08, 2014    Dept: NCB

9. ES016252
ELFEGO RODRIGUEZ v CITY OF BURBANK
Hearing on Petition for Writ of Administrative Mandamus
Status Conference

This matter arises from an internal affairs investigation into the conduct of police officers during the interview of a suspect, Jose Noe Alvarenga, in 2007. The police officers, including the Petitioner, Elfego Rodriguez, were interviewing an individual they suspected of engaging in armed robbery of the Porto’s Bakery in Burbank. However, the police officers were interviewing the wrong person because the person they wished to interview was an individual with a different middle name, Jose Luis Alvarenga. At the time of his arrest Mr. Alvarenga claimed that police officer Gunn punched and choked him during their interview.
The first initial internal affairs investigation of claims of misconduct in connection with the conduct of the police officers during the investigation of the Portos robbery occurred in 2008 and was closed without any officer being disciplined. However, in 2010, an officer disclosed new information that the officers had lied during the 2008 investigation and a second investigation was opened. During the investigation, it was disclosed that Mr. Alvarenga was one suspect who may have been abused by officers. In an interview of Mr. Alvarenga, he disclosed for the first time that Officer Rodrigues, who arrested him at his home along with Officer Gunn, also engaged in physical abuse. As a result of this second investigation, the Burbank Chief of Police, Scott LaChasse, issued to Petitioner Rodriguez a notice of proposed termination based on the use of excessive force, the failure to report the use of excessive force, and the lies used to cover up the misconduct.
Pursuant to the collective bargaining agreement, the matter was then submitted to an arbitrator, Michael Prihar, who issued an opinion and advisory award that there was just cause for the termination of the Petitioner’s employment. On October 26, 2012, the City Manager, Mike Flad, adopted the arbitrator’s opinion and advisory award.
Thereafter, the Petitioner filed a writ of mandate on December 21, 2012 to request that the Court direct the Respondent to set aside the termination of his employment.

The Respondent’s decision to terminate the Petitioner’s employment may be challenged through a petition for writ of mandate. The petition is governed by the standards of CCP section 1094.5. Under section 1094.5, the trial court inquires into whether the agency “proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” CCP section 1094.5(b).
The trial court exercises its independent judgment when reviewing the administrative decision; however, in exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings. Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817. 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. Id.

The Petitioner attempts to meet his burden with two arguments:

1) the Respondents abused their discretion when they terminated the Petitioner’s employment more than one year after the allegation of misconduct; and
2) the Respondent’s finding that the testimony of the suspect, Jose Noe Alvarenga, was more credible than the testimony of three Burbank police officers is devoid of evidentiary support.

1. Delay in Termination of Employment
The Petitioner argues that the notice of termination was issued beyond the required time period. The time period is identified in the Peace Officers Procedural Bill of Rights Act (“POBRA”), which is enacted at Government Code sections 3300 to 3313. Initially enacted in 1976, POBRA sets forth a list of basic rights and protections which must be afforded all peace officers by the public entities which employ them. Mays v. City of Los Angeles (2008) 43 Cal. 4th 313, 320-321. It is a catalogue of the minimum rights the Legislature deems necessary to secure stable employer-employee relations. Id. The various procedural protections provided by POBRA “balance the public interest in maintaining the efficiency and integrity of the police force with the police officer’s interest in receiving fair treatment. Id.
Section 3304 provides a number of procedural rights for public safety officers who may be accused of misconduct in the course of their employment. Subdivision (d) identifies a limitations period, which requires punitive action to be undertaken within one year of the public agency’s discovery of the misconduct. Mays, 43 Cal. 4th at 320-321. Section 3304(d) states that no punitive action shall be undertaken for any act, omission, or other allegation of misconduct if the investigation is not completed within one year of the public agent’s discovery. Id.
The Petitioner argues that the misconduct was discovered in 2007 when the suspect, Jose Noe Alvarenga, made the complaint of excessive force. The Petitioner made this argument to the arbitrator, who did not find it to have merit. The following is a summary of the arbitrator’s findings on pages 27 and 28 of the AR.
The arbitrator found that the Respondent did not have knowledge of the Petitioner’s use of excessive force during the 2007 Internal Affairs Investigation. Instead, the 2007 internal affairs investigation concerned the claim that another officer, Sergeant Neil Gunn, had used excessive force when he struck Jose Noe Alvarenga in the face.
The arbitrator found that the Respondent first discovered the misconduct when Jose Noe Alvarenga provided information about the Petitioner in an interview on June 11, 2009. The subsequent 2010 Internal Affairs Investigation was completed by March 21, 2010 and the Petitioner was notified on June 11, 2010 of his termination. The termination on June 11, 2010 occurred one year from the discovery of the misconduct on June 11, 2009.

The Petitioner argues that the Respondent discovered his misconduct in 2007 for the purposes of section 3304(b) because the time period runs from the allegation of misconduct. The Petitioner relies upon case law interpreting the statute of limitations in tort actions, e.g., Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395 (finding that a plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof). This is based on the principles identified in Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, which held that a plaintiff’s discovery of a cause of action is based both on the plaintiff’s actual knowledge as well as “knowledge that could reasonably be discovered through investigation of sources open to her.”
The Petitioner offers no legal authority holding that the standard for the discovery of tort claims in civil law applies to the administrative procedures regulated by POBRA or to investigations of peace officer misconduct.
In Mays v. City of Los Angeles (2008) 43 Cal. 4th 313, 321-322, the Supreme Court analyzed the language of section 3304(d). The Supreme Court found that the fundamental purpose of section 3304(d) is to place a one-year limitation on investigations of officer misconduct. Id. The one-year period runs “from the time the misconduct is discovered.” There is no language that suggests that the time period runs from when the misconduct should have been discovered. There is no citation to tort law to indicate that the legal principles identified in Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103 apply to the investigation. Instead, the one year time period begins to run when the misconduct is discovered.
It is reasonable to have different standards for discovering tort claims versus discovering police misconduct. A tort claim is traditionally brought by the victim of the wrongdoing, e.g., the person who suffers the injury. However, the investigation into police misconduct is not brought by the victim of the wrongdoing, e.g., the individual whose rights were violated when the police officers used excessive force. Instead, the investigation is brought by a public entity that must rely upon and filter through the statements of third parties to make a determination whether to begin an investigation of police misconduct. Accordingly, it is reasonable to start the time period from when the public entity discovers the misconduct, as opposed to when it should have or could have discovered the misconduct.
Here, the Respondent discovered the Petitioner’s misconduct during the interview with Jose Noe Alvarenga on June 11, 2009. The interview with Jose Noe Alvarenga on December 31, 2007 only reported the use of excessive force by Neil Gunn. Accordingly, the time period began to run on June 11, 2009 because this is when the Respondent discovered the Petitioner’s misconduct.
The Respondent performed an investigation and then notified the Petitioner that his employment was terminated on June 11, 2010. Since this was within one year from the discovery of the misconduct on June 11, 2009, the Respondent complied with section 3304(d) by issuing the punitive action within one year from discovering the misconduct.

Therefore, the Petitioner has not met his burden of convincing the Court that the administrative findings are contrary to the weight of the evidence. The Respondent did not violate Government Code section 3304(d) when it issued the notice of termination on June 11, 2010 because it issued the punitive action within one year from discovering the misconduct during the interview with Jose Noe Alvarenga on June 11, 2009.

2. Credibility of Jose Noe Alvarenga
The Petitioner also argues that Jose Noe Alvarenga’s testimony was not credible and that it was an arbitrary decision to find that Jose Noe Alvarenga’s testimony was more credible than the testimony of three police officers. The Petitioner relies upon inconsistencies in the account of Jose Noe Alvarenga to support this argument, e.g., Mr. Alvarenga’s account of how many times he was struck changed.
The arbitrator considered and rejected this argument on pages 19 to 22 of the AR. The arbitrator noted that Jose Noe Alvarenga was wrongfully identified as a suspect and threatened with incarceration and separation from his wife and daughters. The arbitrator found that in these circumstances, it is readily understandable that an individual may not accurately remember all the details of an incident that involved physical violence.
Further, the arbitrator noted that Jose Noe Alvarenga had no motive to lie because he was not seeking any financial gain, e.g., Jose Noe Alvarenga did not bring a civil claim for monetary damages. In addition, the arbitrator analyzed in detail the testimony of the three officers and found significant inconsistencies regarding the events. Also, the police officer’s testimony that no one had used excessive force against Jose Noe Alvaranga was disputed by images of Jose Noe Alvarenga’s face in photographs that Jose Noe Alvaranga had taken of his injuries. Also, the arbitrator noted that the police officers had a motive to lie because one had engaged in excessive force and the others knew that they would be subject to discipline for failing to report the assault.
This review of the record reveals that it was not an arbitrary decision to find that Jose Noe Alvarenga’s testimony was more credible than the testimony of the three police officers. Instead, the finding that Jose Noe Alvarenga’s testimony was more credible than the testimony of the three police officers is supported by the evidence.

Therefore, the Petitioner has not met his burden of convincing the Court that the administrative findings are contrary to the weight of the evidence. The finding that Jose Noe Alvarenga’s testimony was more credible than the testimony of the three police officers is supported by the evidence.

Accordingly, the Court denies the Petition for a Writ of Mandate because the Petitioner has not demonstrated that the Respondent engaged in prejudicial abuse of discretion when it made the decision to terminate his employment.