Perez v. City of Westminster , 5 Cal. App. 5th 358 ( 2016 )

Filed 10/20/16 Certified for Publication 11/9/16 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRIAN PEREZ,
Plaintiff and Appellant, G050718
v. (Super. Ct. No. 30-2009-00121208)
CITY OF WESTMINSTER et al., OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County,
Ronald L. Bauer, Judge. Affirmed.
John J. Gulino for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Melanie M. Poturica and Jeffery E. Stockley for
Defendants and Respondents.
* * *
INTRODUCTION
Brian Perez, an officer with the Westminster Police Department, was given
notice of intent to terminate his employment, based on an alleged lack of honesty and
cooperation in the investigation of a claim of police brutality. Perez appealed the
decision to terminate his employment, and the chief of police concluded the allegations
against Perez could not be sustained. Perez‟s employment was not terminated, but he
was removed from the SWAT team and the honor guard, and although he remained a
field training officer, he was not assigned any trainees. Perez sued for violation of his
rights under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code,
§ 3300 et seq.) (the Act). The trial court found the removal of Perez from the SWAT
team and the honor guard, and the failure to assign trainees to him as a field training
officer did not violate the Act. Perez appeals, and we affirm. Substantial evidence amply
supported the trial court‟s decision.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The facts underlying this case were set forth in a previous, unpublished
opinion (Perez v. City of Westminster (Mar. 8, 2011, G042965), which we quote here:
“On November 18, 2007, Perez, along with other City [(City of
Westminster)] police officers, responded to a disorderly conduct call outside a
Westminster bar. Perez observed a suspect being detained. The suspect later complained
a police officer (not Perez) struck him in the face.
“Perez was interviewed by [Cliff] Williams and [Mark] Groh [(supervisory
and/or management employees of the police department)] on November 25, 2007, as part
of the investigation of the excessive force complaint. Perez was not represented by
counsel at this interview, and was not given any warnings under Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda) or Lybarger v. City of Los Angeles (1985) 40 Cal. 3d 822
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(Lybarger). Perez advised Williams and Groh that he had not observed anyone striking
the suspect or using excessive force. Perez was then told a videotape of the incident
existed, which showed the suspect being struck by one of the officers, and also showed
Perez had been close to the incident. Perez was admonished to be „careful‟ how he
answered the questions, and was told „we gotta ask you a pointed question in here . . .
Don‟t think I‟m doubting your integrity—but I‟ve got to be specific with what we‟re
asking you on it . . . and the reaso[n] we‟re trying to pin you down on that, Brian, to be
perfectly honest with you, is your description of what you saw officer Stouffer do was
inconsistent with several other witnesses and the tape.‟
“Perez was again interviewed on December 10, 2007. At the second
interview, he had an attorney present, and was given the Miranda and Lybarger
warnings. In responding to the questions of the investigating officers, Perez again stated
he had not seen any act of excessive force used on the suspect, but that did not mean the
act had not occurred.
“On January 29, 2008, Perez received a notice of intent to terminate his
employment, reading, in part: „Though you were not the subject officer in the
administrative investigation your comp[l]ete and honest cooperation was required. Your
version of the November 18th arrest of Dr. Rubin is inconsistent with the other officers
present and the multiple video recordings of the parking lot where the arrest took place[;]
it is apparent you were in a position to witness the incident involving Dr. Rubin and
Officers Stouffer, Reyes, and Lumba.‟
“Perez appealed the decision to terminate his employment. On March 12,
2008, Chief of Police Hall sent a letter to Perez‟s attorney, reading, in relevant part:
„After careful consideration of information provided by you and Officer Perez . . . , along
with detailed review of the investigation report and video images, I have concluded there
is insufficient evidence to sustain findings that Officer Perez violated Westminster Police
Department Policy and Procedure by knowingly making false or misleading statements
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during an internal affairs investigation and failing to report improper activities by other
police personnel. Accordingly, the disposition of this matter will be one of “Not
Sustained.” [¶] This finding should not be misunderstood by Officer Perez as
exoneration or one of innocence. It is strictly my conclusion the department has failed to
meet the evidentiary burden necessary to sustain a finding of severe misconduct.‟
“Although Perez was returned to his employment, he was excluded from
the honor guard and the SWAT team, on the ground the internal affairs investigation was
causing him „obvious stress and upset and therefore it was not in [his] best interest to
continue on these assignments and programs.‟ [Andrew E.] Hall told Perez‟s attorney
that Perez did not have a promising career with the City‟s police department because he
was perceived as someone who would not cooperate. After the investigation, Perez was
never assigned to duty as a field training officer.
“On March 20, 2008, Perez filed a written claim with the City pursuant to
Government Code section 945.4. The City did not respond. Perez filed a complaint on
April 8, 2009.”
The trial of this case was bifurcated, and heard by the court. In the first
phase of the trial, the court found that Perez‟s rights under the Act were violated during
the November 25, 2007 interview. The court also found that the decision to remove
Perez from his SWAT team and honor guard assignments, and the decision to not assign
any trainees to him, did not violate the Act.
During the second phase of the trial, the court found no evidence that the
violation of Perez‟s rights under the Act during the November 25, 2007 interview was
malicious or done with the intent to injure Perez. The court therefore denied Perez any
monetary relief. The court did, however, find that injunctive relief, in the form of
training to be provided to all Westminster Police Department supervisors regarding the
appropriate procedures for interrogation of officers under the Act, should be granted.
The court then entered a judgment of dismissal.
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DISCUSSION
The issue presented by Perez is whether the trial court erred in finding that
the City of Westminster neither violated the Act nor denied Perez‟s right to due process
by removing him from his SWAT team and honor guard assignments, and by refusing to
assign trainees to him. We review the trial court‟s decision under the substantial
evidence rule. “When a trial court‟s factual determination is attacked on the ground that
there is no substantial evidence to sustain it, the power of an appellate court begins and
ends with the determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the determination, and when
two or more inferences can reasonably be deduced from the facts, a reviewing court is
without power to substitute its deductions for those of the trial court. If such substantial
evidence be found, it is of no consequence that the trial court believing other evidence, or
drawing other reasonable inferences, might have reached a contrary conclusion.”
(Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 873-874.)
Government Code section 3303 provides procedural safeguards to public
safety officers who are subjected to interrogation that could lead to punitive actions:
“When any public safety officer is under investigation and subjected to interrogation by
his or her commanding officer, or any other member of the employing public safety
department, that could lead to punitive action, the interrogation shall be conducted under
the following conditions. For the purpose of this chapter, punitive action means any
action that may lead to dismissal, demotion, suspension, reduction in salary, written
reprimand, or transfer for purposes of punishment.”
Government Code section 3304 prohibits punitive action against a public
safety officer for exercising his or her rights under the Act, and requires that an
administrative appeal be permitted when punitive action is taken: “(a) No public safety
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officer shall be subjected to punitive action, or denied promotion, or be threatened with
any such treatment, because of the lawful exercise of the rights granted under this
chapter, or the exercise of any rights under any existing administrative grievance
procedure. [¶] . . . [¶] (b) No punitive action, nor denial of promotion on grounds other
than merit, shall be undertaken by any public agency against any public safety officer
who has successfully completed the probationary period that may be required by his or
her employing agency without providing the public safety officer with an opportunity for
administrative appeal.” (Gov. Code, § 3304, subds. (a), (b).)
A violation of the Act may be challenged in the trial court. The court may
grant injunctive or other extraordinary relief if it determines a violation of the Act has
occurred. (Gov. Code, § 3309.5, subd. (d)(1).) The court may also award civil penalties
if it finds that the public safety department or its employees violated the Act maliciously
and with the intent to injure the public safety officer. (Id., § 3309.5, subd. (e).) Further, a
violation of the Act may entitle a public safety officer to administrative relief if he or she
has suffered an adverse employment decision. (Lybarger v. City of Los Angeles (1985)
40 Cal. 3d 822, 829-830 (Lybarger).)
The trial court found it to be undisputed that at Perez‟s interview on
November 25, 2007, the City of Westminster failed to provide Perez with a Lybarger
advisement,1 a Miranda v. Arizona (1966) 384 U.S. 436 advisement, or an advisement
that he had the right to be represented by counsel at the interview. The trial court further
found that the November 25 interview was not a routine investigation within the normal
1
In Lybarger, supra, 40 Cal.3d at page 825, the California Supreme Court
annulled an administrative decision disciplining a police officer for failing to cooperate in
an investigation into possible criminal misconduct. The court concluded that although
the officer did not have an absolute right to refuse to answer potentially incriminating
questions posed by his employer (id. at p. 827), the failure to advise the officer that his
silence could be deemed insubordination, and that his statements could not be used
against him in a criminal proceeding, violated Government Code section 3303, former
subdivision (g) (Lybarger, supra, at pp. 829-830).
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course of Perez‟s duties; a routine investigation would not be subject to the protections of
Government Code section 3303. These findings were supported by the results of the
interviews already conducted regarding the incident; the 50/50 chance that Perez‟s
responses during the interview could subject him to punitive action; and the fact Perez‟s
interviewers complied with some, but not all, of the requirements of section 3303. None
of the parties challenges these findings.
The trial court next found that, before his December 10, 2007 interview,
Perez was provided with all the necessary advisements under the Act. The minute order
states: “It appears that [Perez]‟s counsel correctly no longer contends that there was error
here.” Perez does not challenge this finding on appeal.
The trial court‟s final finding is the one that is at issue in this case. “[Perez]
contends that his . . . rights [under the Act] were infringed in this process of termination,
reinstatement, and removal of collateral duties. He argues that he was disciplined in
violation of Government Code sections 3304(a) and 3304(b). There is no evidence to
support this claim. The Skelly [(Skelly v. State Personnel Bd. (1975) 15 Cal. 3d 194)]
process is largely irrelevant here, as it is not a right guaranteed by [the Act].
Furthermore, no adverse or retaliatory action was taken against Perez because of his
exercise of his Skelly rights. Certainly, [Perez] cannot consider his reinstatement, which
was the direct result of the Skelly hearing, to be adverse action. Nor was the reduction of
collateral assignments a . . . violation [of the Act] or a retaliatory act taken because of the
assertion of Skelly rights. Chief Hall testified that he removed those assignments because
he „had lost a great deal of confidence in the plaintiff.‟ There is no contrary direct or
indirect evidence in this record.”
Perez was not subject to any punitive action, as that term is defined by
statute. “For the purpose of this chapter, punitive action means any action that may lead
to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for
purposes of punishment.” (Gov. Code, § 3303.) Although Perez was initially threatened
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with termination of his employment, that action was rescinded by the chief of police.
The punitive actions alleged by Perez were his removal from the SWAT team and honor
guard, and the refusal to place a trainee with him as a field training officer.
The SWAT team and honor guard were collateral assignments, not formal,
full-time assignments. Removal from those collateral assignments was not considered
discipline, but was part of the chief of police‟s “normal management of the department.”
The memorandum of understanding between the City of Westminster and the police
bargaining unit provides that the nonassignment of a trainee to a field training officer is
not a disciplinary or punitive action. The removal of Perez‟s collateral duties did not
result in a reduction of salary, which is normally required to establish a punitive action.
The loss of prestige or the loss of the ability to earn overtime pay is not sufficient. (See
Benach v. County of Los Angeles (2007) 149 Cal. App. 4th 836, 845 [officer did not
violate any departmental policy, but supervisor concluded his continued presence “was
not conducive to a cooperative, productive working relationship”; officer‟s reassignment
without loss of pay or rank was not punitive action, despite officer‟s “assertion that his
work as a detective is less heroic than his job as a pilot”]; Orange County Employees
Assn. v. County of Orange (1988) 205 Cal. App. 3d 1289, 1293 [trial court‟s finding that
transfer of facility director without “any financial loss—no reduction in pay or decrease
in benefits” was not punitive was supported by substantial evidence].)
Indeed, two months after the decision was made not to terminate Perez‟s
employment, he received a scheduled pay raise, although the chief of police could have
taken action to stop the pay increase.
Perez does not cite any case in which the loss of additional, overtime pay
was recognized as a punitive action under the Act. The cases cited by Perez involved the
loss or decrease in the peace officer‟s salary. (Baggett v. Gates (1982) 32 Cal. 3d 128
[peace officer reassigned to a lower paying position]; White v. County of Sacramento
(1982) 31 Cal. 3d 676 [transfer to a lower paying position]; Orange County Employees
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Assn. v. County of Orange, supra, 205 Cal.App.3d at p. 1294 [“transfer unaccompanied
by other actions adverse to the officer” is not punitive]; McManigal v. City of Seal Beach
(1985) 166 Cal. App. 3d 975 [reassignment resulted in a loss of pay]; Doyle v. City of
Chino (1981) 117 Cal. App. 3d 673 [police chief‟s pay was cut and he was later
dismissed].)
The chief of police testified that he had authorized Perez‟s removal from
the SWAT team, not as punishment, but because he had lost confidence in Perez‟s
honesty and ability to work cooperatively with others.
“Q Do you know why Officer Perez was removed from SWAT?
“A I had lost my confidence in Officer Perez a great deal because of the
events. And even though I hadn‟t sustained the misconduct allegations in the internal
affairs investigation, I had lost confidence, a great deal of confidence, in Officer Perez.
[¶] . . . [¶]
“Q So let me ask you this: would you agree that removing Officer Perez
from the SWAT team was a negative employment act? [¶] . . . [¶]
“The witness: I think any movement of an officer can be perceived by the
officer as negative, if it is something they don‟t want to do. [¶] But it wasn‟t done
punitively, it wasn‟t done as punishment. But I can perceive—but I would understand
why an officer would say that any movement that they didn‟t want was a negative thing.
“ . . . [¶] Q Well, I mean, in fact, it was punitive, wasn‟t it? You removed
him because you had lost confidence in him, you didn‟t want him to be a SWAT member
any longer? [¶] . . . [¶]
“The witness: In my mind, there is a philosophical distinction. He wasn‟t
being punished for misconduct; he was being removed from a closely knit team where
there was to be a high level of trust, that works in, you know, very precarious
circumstances. I think there is a different level there.
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“ . . . [¶] Q Did you learn from any members of the SWAT team at the time
that they didn‟t have trust in Officer Perez?
“A I didn‟t interview any of the SWAT team members, no. [¶] But the
recommendation of discipline had come from two sergeants, one lieutenant and one
captain, the recommendation, the belief that he had been dishonest and the
recommendation that he be terminated. So there was a lot to be overcome.”
Similarly, the chief of police authorized Perez‟s removal from the honor
guard, stating, “because I lost confidence in him, and I thought there was compelling
information he hadn‟t been truthful in the initial investigation. [¶] And the honor guard is
an important ceremonial duty. It bestows honor. And I didn‟t think it was an appropriate
place to have him, at that moment.”
The chief of police testified he had not removed Perez from the honor guard
or the SWAT team or as a field training officer because he had exercised his rights under
the Act.
The notification that the intent to terminate Perez‟s employment was not
sustained was placed in his personnel file. The chief of police‟s letter to Perez‟s attorney
that “[t]his finding should not be misunderstood by Officer Perez as exoneration or one of
innocence. It is strictly my conclusion the department has failed to meet the evidentiary
burden necessary to sustain a finding of severe misconduct” was not placed in Perez‟s
personnel file. Indications that Perez had been removed from the SWAT team and honor
guard would not be maintained in his personnel file.
Under the memorandum of understanding between the City of Westminster
and the police bargaining unit, Perez had the opportunity to file a grievance regarding his
removal from the SWAT team and honor guard, but had never done so.
The evidence supporting the trial court‟s finding was more than substantial.
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DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
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Filed 11/09/2016
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRIAN PEREZ,
Plaintiff and Appellant, G050718
v. (Super. Ct. No. 30-2009-00121208)
CITY OF WESTMINSTER et al., ORDER GRANTING REQUEST
FOR PUBLICATION
Defendants and Respondents.
Respondent City of Westminster has requested that our opinion, filed on
October 20, 2016, be certified for publication. It appears that our opinion meets the
standards set forth in California Rules of Court, rule 8.1105(c)(2) and (6). The request is
GRANTED. The opinion is ordered published in the Official Reports.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
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