ERICK LUNDIN v. CITY OF HANFORD

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Court of Appeal, Fifth District, California.

ERICK LUNDIN, Plaintiff and Appellant, v. CITY OF HANFORD et al., Defendants and Respondents.

F059563

Decided: February 28, 2011

Law Offices of Bennett & Sharpe, Barry J. Bennett, Thomas M. Sharpe, Elaine M. Yama, Heather N. Phillips, and Katwyn T. Delarosa, for Plaintiff and Appellant. Griswold, LaSalle, Cobb, Dowd & Gin, Robert M. Dowd, Randy L. Edwards, and Mario U. Zamora for Defendants and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Plaintiff and appellant Erick Lundin was a police officer for the City of Hanford (City) in Kings County.   His employment was terminated for dishonesty and other rules violations based on allegations that he placed false information in a police report, was dishonest in an internal affairs investigation, and asked a person to lie.   Lundin denied the allegations and appealed termination.

After three days of hearing testimony, a hearing officer recommended that Lundin be reinstated, finding Lundin credible and discounting the testimony of the two principal witnesses against him.   The city manager rejected the hearing officer's recommendation and issued his own decision sustaining termination.   Lundin petitioned for a writ of mandate directing the city manager to reinstate him.   The trial court denied the petition and Lundin appeals.   We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

On April 27, 2006, Lundin responded to a report that a juvenile, S.H., had been kidnapped.   The same day, S.H.'s mother, P.H., reported S.H. as missing or a runaway.   Two days later, S.H. was located in Selma in Fresno County, and Lundin was asked to pick her up and interview her at the Hanford Police Department.   Lundin conducted a two-and-a-half-hour interview and learned that S.H. had been sexually assaulted.

Lundin's watch commander told him to take S.H. home and have her mother take photographs of her to show her injuries.   Lundin took a digital camera and drove S.H. home around 11:00 p.m. P.H. and S.H.'s grandmother were at the apartment when they arrived.   Three photographs of S.H. partially undressed were taken in her bedroom.   Who took the photographs was the primary focus of the termination proceedings and is the underlying factual dispute at issue in this appeal.   Lundin maintains that P.H. took the photos, but S.H. and P.H. insisted in the administrative hearing that Lundin took the photos.

While at the apartment, Lundin heard from dispatch that S.H.'s suspected kidnapper had been arrested in Selma.   Lundin drove to Selma and learned that Fresno County would be handling the sexual assault portion of the case because Fresno County was where the alleged sexual assault occurred.   Around 1:00 a.m., Lundin escorted Fresno County Sheriff's Deputy Michael Montanez back to S.H.'s residence so Montanez could take S.H. and her mother to Fresno for a sexual assault exam.   Lundin asked P.H. to step outside so he could speak with her.   P.H. later complained to the police that, after they stepped outside, Lundin told her to tell anyone who asked that she took the photographs of S.H. Lundin then left S.H.'s home, went back on patrol, and wrote a police report on the S.H. case.   In his report, Lundin wrote that he “had [S.H.'s] mother [P.H.] photograph any injuries she saw on [S.H.].”

Within a few days, P.H. went to the police department, accompanied by community crisis counselor Dee Avila.   P.H. told the police her concerns about Lundin having taken photographs of S.H. partially disrobed.   P.H. also reported that Lundin asked her to say she had taken the photos if anyone asked.

The police department initiated an internal affairs investigation against Lundin and placed him on administrative leave.   In the course of the investigation, S.H. was interviewed four times and P.H. was interviewed twice.   The investigator also interviewed Lundin, Montanez, S.H.'s grandmother, and Avila.

On April 10, 2007, Lundin received the results of the investigation and notice of proposed termination based on the determination that he had lied in his police report, asked P.H. to lie about who took the photos of S.H., and was untruthful during the internal affairs investigation.   Lundin requested a Skelly hearing, which was held before Police Chief Carlos Mestas.   (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.)   Mestas concluded that termination was appropriate.   Lundin appealed the termination decision pursuant to the memorandum of understanding between the City and the police officers' association (MOU), which gave Lundin the right to an evidentiary hearing before a neutral hearing officer.

At the hearing on March 28, 2008, S.H., P.H., and Avila testified.   About the night of April 29, 2006, S.H. stated, “We went to my room.   They was going to take pictures of me.   My mom was going to take pictures of me first, then my mom didn't know how to work the camera.   The cop came in.   He took the camera.   My mom was saying that she didn't know how to take the pictures, so he's the one that took the pictures of me.”   She further testified, “The cop took pictures of me.   He was telling my mom to look for any kind of bruises on me.”   S.H. did not remember how many photographs he took.   She did not recall anything about the internal affairs investigation interviews, although she was interviewed three times in May 2006 and again in July 2006.   S.H. did not recognize Lundin as the officer who had taken her pictures.

P.H. testified that the officer asked her to check S.H. for bruises and then gave her a camera to take photographs of the bruises.   She said, “I went into [S.H.'s] room and I tried to take a picture of my daughter's thigh and breast but I couldn't work the camera.   I mean, I tried, I zoomed in, but I couldn't work it.   So I went back out of the room.   I shut the door.   And I told him I can't work your camera.   And I gave the camera back.   So then he asked me, he says could I come in and take the pictures.   I said yes.”

P.H. indicated that Lundin took pictures of S.H. while she (P.H.) pointed out where the bruises were.   She did not recall the name of the officer who took photographs of S.H. and did not remember what he looked like.   P.H. testified that, when S.H. returned home with Lundin, “[S.H.] was high” on drugs.   P.H. said, “I can't remember a lot of what happened.”   P.H. also stated that, when Lundin returned with Montanez to take S.H. to Fresno, “[h]e said if anybody asks you who took the pictures, tell them you did.”

Avila, a senior case manager for a nonprofit organization that provides support for families in crisis, testified that P.H. had been her client in a parenting program.   She stated that P.H. called her after S.H. had been returned home and told Avila that she (P.H.) was concerned about a male officer taking pictures of S.H. disrobed.   P.H. called her the next day and told her that the officer had asked her to say that she had taken the pictures.

In the internal affairs investigation report and the city manager's written decision, Avila's statements were deemed important evidence to bolster P.H.'s credibility.   For example, the city manager wrote, “[P.H.'s] credibility is further bolstered by the fact that within an extremely short time frame she had expressed her concern and discomfort about Lundin ․ having taken photographs of her daughter to her parenting counselor Dee Avila.”   The trial court, however, did not find P.H. to be credible.   As a result, Avila's testimony about what P.H. had said to her was not credible evidence of who took the photographs or what Lundin said to P.H. after he asked her to step outside her apartment.

At the final day of hearing testimony on May 22, 2008, Lundin testified.   He stated, “I ․ told [P.H.] that I needed her to take photographs of her daughter to see if there was any bruises that can't be seen underneath the clothes that I needed her mom to get pictures of.”  “I instructed [P.H.] on how to operate the camera, and then [P.H.] and [S.H.] both went into [S.H.'s] bedroom while I waited outside of the bedroom.”

Lundin waited in the hallway while S.H. and P.H. were in the bedroom with the door closed.   He said that, after three to five minutes, “[P.H.] came to the door.”  “[She] had slowly opened the door like a crack, and then she was standing in the doorway.”  “She told me she was having problems operating the camera.   And I asked her if she wanted me to show her how to use it again and she said yes.   She asked me to step inside the room and at that point I said is everybody dressed.   And she was like yeah because I didn't know what was going on inside the room before I entered.”

Lundin then went into S.H.'s bedroom, showed P.H. how to use the camera a second time, and stayed in the room because “[P.H.] asked me to remain in the room while the pictures were being taken.”   Lundin testified that he faced the wall and could not see S.H. while P.H. took the photographs.   When he returned to S.H.'s residence with Montanez, he asked P.H. to step outside so he could tell her that Fresno County was taking over the investigation and a sexual assault exam would be conducted.

On November 12, 2008, the hearing officer issued an advisory opinion, finding that S.H. and P.H. were not credible.   He described nine instances of inconsistent or contradictory statements by S.H. and her mother and concluded that their testimony “must be discounted, if not disregarded, and thus, the City lacked sufficient evidence to prove that [Lundin] actually took the photographs.”   Having made “the factual finding that [Lundin] did not take the photographs of [S.H.],” he also concluded that the City failed to show that Lundin had lied in his police report or asked P.H. to lie.

Under the MOU, the hearing officer's opinion was advisory only.   The actual decision maker, City Manager Gary Misenhimer, was not bound to any findings of the hearing officer and was required to render a written decision, which was to be “final and conclusive.”   Misenhimer issued a decision based on his own review of the record, rejecting the hearing officer's findings and sustaining the decision to terminate Lundin's employment.   Misenhimer found that S.H. and P.H. were credible on the central issue of who took the photos, Lundin was inconsistent and lacked credibility on the same issue, and evidence supported a finding that Lundin asked P.H. to lie about who took the photos.

Lundin petitioned the trial court for a writ of mandate directing the City to set aside Misenhimer's decision and to reinstate Lundin.   The trial court found by a preponderance of the evidence that (1) Lundin took the three photographs of S.H.;  (2) he placed a false statement in his report by stating that the pictures had been taken by S.H.'s mother;  and (3) he did not tell the truth in his internal affairs investigation interview.   The court did not find P.H. to be credible, however, and did not find that Lundin asked her to lie.   Lundin's petition was denied.

DISCUSSION

Since this case involves the fundamental vested right to continued employment, the trial court was required to exercise independent judgment in reviewing the administrative decision.  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817, fn. 8;  Pipkin v. Board of Supervisors (1978) 82 Cal.App.3d 652, 661.)   We review the trial court's ruling for substantial evidence.   (Fukuda, supra, at p. 824.)   Thus, “[w]e review the whole record most favorably to the judgment to determine whether there is substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.”  (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)

Lundin's first argument relates to the presumption of correctness afforded in reviewing administrative proceedings.  “In exercising its independent judgment, a 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.)   Given that Lundin challenged the city manager's decision to terminate his employment, it follows that the city manager's findings were entitled to a strong presumption of correctness by the trial court.

Lundin argues, however, with respect to credibility findings at least, that the trial court should have afforded the presumption of correctness to the hearing officer's findings, not the city manager's, because the hearing officer observed the witnesses at the hearing.   Lundin cites no authority for the proposition that, whenever a hearing officer holds an evidentiary hearing and then a different agency decision maker issues a decision based on the administrative record, the presumption of correctness is taken away from the actual decision maker whose decision is being challenged and afforded to the hearing officer instead.   In this case, the hearing officer's opinion was advisory only and the city manager was not bound to any of the hearing officer's findings.   Since the city manager was free to reject the hearing officer's credibility findings,1 it makes little sense to require the trial court to afford the hearing officer's credibility findings a presumption of correctness.   To the contrary, “from the moment of the agency's rejection [of a hearing officer's proposed decision], it serves no identifiable function in the administrative adjudication process or, for that matter, in connection with the judicial review thereof.”  (Compton v. Board of Trustees (1975) 49 Cal.App.3d 150, 158.)

Lundin urges us to consider Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753 as support for his position.   In Flowers, a correctional officer was dismissed for misuse of property and dishonesty.  (Id. at p. 758.)   The officer appealed, a hearing was held before a hearing officer, the hearing officer recommended that he be dismissed, and the State Personnel Board concurred in the hearing officer's disposition.  (Id. at pp. 756, 758.)   In affirming the trial court's denial of the officer's petition for writ of mandate, the Flowers court correctly stated, “ ‘Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine․’ ”  (Id. at p. 759.)   The Flowers court continued, in dictum, “ ‘ “On the cold record a witness may be clear, concise, direct, unimpeached, uncontradicted, but on a face to face evaluation, so exude insincerity as to render his credibility factor nil.   Another witness may fumble, bumble, be unsure, uncertain, contradict himself, and on the basis of a written transcript be hardly worthy of belief.   But one who sees, hears, and observes him may be convinced of his honesty, his integrity, his reliability.” ’  [Citation.]”  (Ibid.)

Throughout the decision, however, the Flowers court described the trial court's task as review of the findings of the board, not the hearing officer.   (See Flowers v. State Personnel Bd., supra, 174 Cal.App.3d at p. 758 [“we are bound to consider the facts in the light most favorable to the Board, giving it every reasonable inference and resolving all conflicts in its favor”].)   It just happened in that case that the board agreed with the hearing officer's findings.   Under those circumstances, we do not read Flowers to imply that the hearing officer, rather than the board, was entitled to deference with respect to credibility findings.   Despite the Flowers court's emphasis on live testimony, we doubt that the court would have mandated deference to the hearing officer if the actual decision maker-the board-had disagreed with the officer.   As a result, we reject Lundin's argument that the presumption of correctness should have been afforded to the hearing officer rather than the city manager.

Here, the trial court wrote that it “reviewed the hearing officer's decision with great care and gave great deference to the credibility determinations of the hearing officer.”   This was more than enough.

Lundin's primary contention is that substantial evidence did not support the trial court's finding that S.H. was credible and Lundin was not credible on the central issue of who took the photographs.   Respondents ask us to deem Lundin's substantial-evidence challenge waived because he failed to set out all material evidence in his opening brief, citing Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738.   Since Lundin mentioned S.H.'s testimony and interview statements in his opening brief, we conclude that Lundin has not waived his argument.   However, on the merits, we reject Lundin's contentions and conclude that substantial evidence supported the trial court's judgment.

The trial court applied the correct standard of review, exercising independent judgment in reviewing the record.   In doing so, it “was free to make its own determination of the credibility of witnesses․”  (Pittsburg Unified School Dist. v. Commission On Professional Competence (1983) 146 Cal.App.3d 964, 977.)   In crediting S.H. over Lundin, the court wrote, it was “persuaded that despite its concerns as to the credibility of the minor in her past contacts with law enforcement and the ability by the minor to recall the events on the night of April 29, 2006, her consistent insistence that petitioner took the three photographs of her is worthy of belief.”   The court cited five times in the hearing testimony where S.H. said that Lundin took the photos.

The court also observed that S.H. “consistently state[d] in each of the [internal affairs investigation] interviews that [Lundin] took the three disputed pictures of her.” 2  With respect to Lundin, the court “carefully reviewed the hearing transcript and [did] not find credible the officer's statements that he waited in the hallway for three to five minutes before the mother opened the door a crack to tell him that she was having problems operating the camera, that when he entered the room the daughter was fully dressed, at no time during the picture taking did he see the minor unclothed, and he did not take the pictures.”

For substantial evidence review, “neither conflicts in the evidence nor ‘ “testimony which is subject to justifiable suspicion ․ justif [ies] the reversal of a judgment․” ’  [Citations.]   Testimony may be rejected only when it is inherently improbable or incredible, i.e., ‘ “unbelievable per se,” ’ physically impossible or ‘ “wholly unacceptable to reasonable minds.” ’  [Citations.]”  (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.)   In this case, S.H.'s testimony regarding who took the photographs was not improbable, unacceptable, nor physically impossible.

S.H.'s testimony and prior consistent statements that Lundin took the photographs, plus Lundin's improbable explanation of the same event, were substantial evidence to support the trial court's finding.   Lundin's contention on appeal simply amounts to rearguing the evidence.   As a result, we reject Lundin's substantial-evidence challenge.

DISPOSITION

The judgment is affirmed.   Costs are awarded to respondents.

Wiseman, Acting P.J.

WE CONCUR:

Levy, J.

Cornell, J.

FOOTNOTES

FN1. A procedure in which the agency decision maker is free to reject the findings of the hearing officer does not violate due process.  (Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560, 571-572.)   In Boctor, the court held that an agency decision maker “may properly reject the advisory decision of the hearing officer,” limited only by the requirement that the decision “must not be arbitrary or capricious.”  (Id. at p. 572.).  FN1. A procedure in which the agency decision maker is free to reject the findings of the hearing officer does not violate due process.  (Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560, 571-572.)   In Boctor, the court held that an agency decision maker “may properly reject the advisory decision of the hearing officer,” limited only by the requirement that the decision “must not be arbitrary or capricious.”  (Id. at p. 572.)

FN2. Lundin also argues that the trial court improperly confused statements made at the hearing with out-of-court statements.   We see no basis for this argument.   The trial court distinguished between hearing testimony and prior interview statements..  FN2. Lundin also argues that the trial court improperly confused statements made at the hearing with out-of-court statements.   We see no basis for this argument.   The trial court distinguished between hearing testimony and prior interview statements.