Filed 7/16/20 Fernandez v. L.A. County Civil Service Comm. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

VICTOR FERNANDEZ,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY CIVIL SERVICE COMMISSION,

Defendant;

LOS ANGELES COUNTY SHERIFF’S DEPARTMENT,

Real Party in Interest and Respondent.

B292658

(Los Angeles County

Super. Ct. No. BS167333)

APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed.

The Gibbons Firm and Elizabeth J. Gibbons for Plaintiff and Appellant.

Law Offices of William Balderrama and William Balderrama for Real Party in Interest and Respondent.

____________________

Victor Fernandez was a deputy with the Los Angeles County Sheriff’s Department. The Department fired him after he put his handgun in his pocket, got drunk, blacked out, drove into a utility pole, was found unconscious by the local police department at 2:00 a.m., and pleaded guilty to a criminal charge. Fernandez sought a writ of mandate in the trial court, requesting the court set aside his discharge. The court denied the writ because it found the discharge accorded with the Department’s written policies.

Substantial evidence supported the court’s decision. We affirm.

I

Fernandez was hired as a deputy sheriff in 2006. On the night of May 24, 2013, while off duty, Fernandez drove his personal car to meet a friend at a bar. He took his gun with him in the car and locked it in the glove compartment while inside. He then consumed “a very substantial amount of alcohol.”

Nonetheless, Fernandez decided to drive. He got his gun and put it in his right front pants pocket. Then he blacked out and drove his car into a utility pole.

Someone called the Downey Police Department around 2:00 a.m. on what was now May 25, 2013. When officers arrived, they found the car running and locked with Fernandez unconscious behind the wheel, the grip of his gun visibly protruding from his front pants pocket. The officers called for backup, and someone recognized Fernandez as a deputy sheriff. They notified the Sheriff’s Department, and several deputies joined the crowd. For over an hour, they tried and failed to rouse Fernandez by sounding police sirens and horns.

The drunk Fernandez and his visible gun posed a predicament. The officers decided against forcing entry into the car because of the gun and Fernandez’s impaired and unpredictable state. Instead they devised an intricate plan to extricate him. First the deputies obtained a spare key to the car from Fernandez’s girlfriend. With ballistic shields and a Taser at the ready, they unlocked the car, extracted the unresponsive Fernandez, removed his gun, and secured the car. Paramedics were ready at the scene to attend Fernandez, who began to respond but was “very, very out of it” and “speaking gibberish.”

An ambulance took Fernandez to a hospital, where a preliminary screening test measured a blood alcohol content of 0.281 percent at 4:54 a.m., about three hours after the initial police call. Fernandez refused to submit to additional tests.

The legal alcohol limit is 0.08 percent. In other words, Fernandez was three and a half times over the limit.

Downey police officers arrested Fernandez for driving under the influence of alcohol. On May 25, 2013, the Department relieved Fernandez of duty and assigned him to his home.

On October 17, 2013, Fernandez pleaded no contest to a violation of Vehicle Code section 23152, subdivision (a), which prohibits driving under the influence of alcohol. He was placed on 36 months’ summary probation, ordered to pay restitution fines, and ordered to attend a DUI first-time offenders program. His driver’s license was suspended.

On September 25, 2014, the Department served Fernandez with a letter notifying him of its intention to discharge him and advising him of his right to respond. Fernandez exercised this right. After an internal investigation and review, the Department determined discharge was appropriate due to violations of five sections of the Department’s Guidelines for Discipline and Education-Based Alternatives. For two of those violations—“[o]ff-duty drunk driving with collision: [b]elligerent/uncooperative with law enforcement” and “[u]nable to/[d]id not exercise reasonable care and/or control of firearm due to intoxication”—the Guidelines specify discharge as an appropriate penalty. In addition, the Guidelines expressly state that “some misconduct . . . immediately renders the individual unsuitable for continued employment. In these cases, other options, including discharge, must be considered.”

Fernandez’s discharge was effective April 6, 2015. He appealed to the Los Angeles County Civil Service Commission, which held a hearing on January 11, January 25, and April 11, 2016.

At the hearing, witnesses who interacted with Fernandez the night of the incident testified he was “cooperative,” “remorseful,” “distraught and somber,” “embarrassed and shocked” about the events of that night. Several deputies testified to Fernandez’s good character and to their belief his treatment was unfair.

A Department chief testified to why the Department chose discharge, listing Fernandez’s worrying memory loss, non-cooperation with testing, and safety concerns of driving severely intoxicated and with a gun. The chief acknowledged Department discipline is meant to be progressive and corrective, but Fernandez’s conduct had been so egregious that it warranted discharge because of the difficult situation it created for both the Downey police and the Department.

II

We review a trial court’s review of an administrative decision for substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824 (Fukuda).)

Trial courts exercise independent judgment when reviewing administrative decisions affecting a vested, fundamental right. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143 (Bixby); see Code Civ. Proc., § 1094.5, subd. (c).) Permanent employees have a vested interest in their employment. (Lee v. Bd. of Civil Service Comrs. (1990) 221 Cal.App.3d 103, 108.)

In exercising their independent judgment, courts afford administrative findings a strong presumption of correctness, and the party challenging the decision bears the burden of showing the findings are contrary to the weight of the evidence. (Fukuda, supra, 20 Cal.4th at p. 817.) Courts will not interfere with an agency’s discretion or substitute their wisdom for the agency’s unless the agency’s actions have no reasonable basis in law or any substantial basis in fact. (Bixby, supra, 4 Cal.3d at pp. 150–151.)

The trial court properly applied its independent judgment to the evidence regarding Fernandez’s discharge. Its statement of decision carefully laid out the evidentiary basis for its decision. This evidence included the Department’s Guidelines for Discipline, the Commission’s undisputed findings, and the testimony of nine witnesses, including Fernandez, at the hearing.

Fernandez does not dispute the facts regarding the May 25, 2013 incident. He argues only these facts do not justify discharge. He claims the Department failed to comply with its disciplinary guidelines in choosing to discharge him, the Civil Service Commission abused its discretion by affirming the discharge, and the trial court erred in upholding the Commission’s decision.

The Commission’s discretionary choice of penalty was not an abuse of discretion. (See Lake v. Civil Service Com. (1975) 47 Cal.App.3d 224, 228.) The court correctly acknowledged the Department’s expertise regarding its policies, their importance, and appropriate penalties. (See Cadilla v. Bd. of Medical Examiners (1972) 26 Cal.App.3d 961, 967.) It explained the Commission acted within the scope of its discretion and within the Department’s Guidelines in upholding Fernandez’s discharge “based on the egregious level of his intoxication, the alcohol-related unreasonable and unsafe handling of his gun, the level of effort necessary to extract Fernandez from his car, and the embarrassment and loss of reputation the [Sheriff’s Department] suffered from the involvement of the [Downey Police Department].”

Fernandez argues the court’s denial must be reversed because “[s]ubstantial evidence does not support the conclusion that discharge is appropriate.” He characterizes his treatment as “an unfair midstream rule change” and claims the Department was required to choose corrective and progressive discipline short of discharge.

This argument fails because the text of the Department’s Guidelines lists discharge within the range of appropriate discipline for Fernandez’s behavior.

Section 3-01/025.45 of the Guidelines provides discharge as a disciplinary option for failure to exercise reasonable care of a firearm due to intoxication. The Department’s Manual of Policies and Procedures elaborates that armed off-duty employees “shall not consume any intoxicating substance to the point where the employee is unable to or does not exercise reasonable care and/or control of the firearm.” The Department may presume an employee’s inability to exercise this care with a blood alcohol content over 0.08 percent.

In addition, the Guidelines include a discrete heading titled “Non-Progressive Discipline” describing “some acts of misconduct, which by their nature, are not appropriate for progressive discipline.” Examples include “behavior which is illegal or places the individual or the Department in violation of federal, state or local laws . . . .” The following section goes further: “[w]here an employee’s off-the-job conduct is related to and impacts the Department’s operation or the employee’s ability to perform competently, discipline up to and including discharge may be warranted.”

The court explained discharge was within the appropriate penalty range based on the language of the Guidelines. Fernandez was intoxicated to the point he could not exercise reasonable care of his firearm, to put it mildly.

Driving drunk also is illegal behavior. Fernandez knows this. He pleaded no contest to violating Vehicle Code section 23152, subdivision (a).

Fernandez diverted resources from both the Downey police and the Sheriff’s Department, which jointly labored to remove the armed and inebriated Fernandez safely from his car. Fernandez harmed the Department’s reputation with the local police and the public. Law enforcement must deal firmly with internal conduct like this to avoid becoming a laughingstock.

Fernandez’s offense did not require discharge, but the court properly deferred to the Commission’s expertise.

Substantial evidence supported the court’s denial of Fernandez’s writ of mandate.

III

Fernandez also argues disparate treatment. He says the Department was more lenient with other deputies disciplined for similar conduct. This argument fails because there is no legal requirement similar charges must result in identical penalties. (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230.)

Testimony showed the Department’s reputation in recent years “has been significantly tarnished.” The May 25, 2013 incident was “unique,” “egregious,” and “thoroughly embarrassing” to the Department. Whether the Department let past deputies off lightly is unclear from the record but irrelevant: the Department is free to decide it has been too lenient in the past and must do better in the future.

DISPOSITION

We affirm and award costs to the respondent.

WILEY, J.

We concur:

GRIMES, Acting P. J.

STRATTON, J.