Bautista v. County of Los Angeles

• Decision Date: 09 November 2010
• Docket Number: No. B219035.,B219035.
• Citation: 190 Cal.App.4th 869,118 Cal.Rptr.3d 714,10 Cal. Daily Op. Serv. 15, 104
• Court: California Court of Appeals Court of Appeals
• Parties: Emir BAUTISTA, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

190 Cal.App.4th 869

118 Cal.Rptr.3d 714

10 Cal. Daily Op. Serv. 15,104

2010 Daily Journal D.A.R. 18,159

Emir BAUTISTA, Plaintiff and Appellant,

v.COUNTY OF LOS ANGELES et al., Defendants and Respondents.

No. B219035.

Court of Appeal, Second District, Division 7, California.

Nov. 9, 2010.

**715 Lackie Dammeier & McGill, Russell M. Perry and Michael A. McGill, Upland, for Plaintiff and Appellant Emir Bautista.

Lawrence Beach Allen & Choi, Paul B. Beach and Scott E. Caron, Santa Ana, for Defendants and Appellants County of Los Angeles Sheriff's Department and Sheriff Lee Baca.

PERLUSS, P.J.

*871 Emir Bautista was terminated as a sworn peace officer by the Los Angeles County Sheriff's Department (Department) for engaging in a personal relationship with a known prostitute and heroin addict in violation of the Department's prohibited-association policy. On appeal Bautista challenges the trial court's denial of his petition for writ of mandate seeking to reverse the decision of the Los Angeles County Civil Service Commission (Commission) approving his discharge and the **716 court's order granting summary judgment for the Department and Los Angeles County Sheriff Lee Baca on Bautista's federal civil rights claim (42 U.S.C. § 1983) (section 1983). Bautista contends the Department's prohibited-association policy, as applied to him, violated his right to freedom of association under the First and Fourteenth Amendments to the United States Constitution, as well as his statutorily protected federal civil rights. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Sheriff's Department's Prohibited-Association Policy

Bautista was hired as a deputy sheriff by the Department in October 1996 and, until his termination, had not been subject to any discipline. When he was hired, Bautista received a copy of the Department's Manual of Policy and Procedures (Policy Manual), which included section 3-01/050.90, the Department's prohibited-association policy: "Members shall not knowingly maintain a personal association with persons who are under criminal investigation or indictment and/or who have an open and notorious reputation in the community for criminal activity, where such association would be detrimental to the image of the Department, unless express written permission is received from the member's unit commander." ¹

*872 2. Bautista's Relationship with Shawn Crook

In August 2002, while on duty driving a marked Department bus, Bautista saw Shawn Crook, a prostitute, standing on a street corner. Bautista did not know Crook, but recognized her as a prostitute. He decided to engage her in a conversation, not for any law enforcement purpose, but to attempt to get to know her and understand the reasons she had resorted to prostitution. Bautista hoped he could help reform women like Crook and assist them in leading crime-free lives. Bautista enjoyed talking to Crook; the two soon developed a friendship. At some point during their on-going association, Bautista gave Crook his home telephone number. Because Crook did not have a car, Bautista often drove her places, including to dinner and to the methadone clinic where she was receiving treatment for her heroin addiction. (Crook told Bautista she was a recovering heroin addict.) Bautista also gave Crook rides home in the early morning after she had finished working the streets to make sure she returned safely. Bautista did not seek permission from the Department to associate with Crook and did not report his friendship with Crook to the Department.

On July 29, 2003, sometime after midnight, Gardena Police Sergeant Jocelyn Hillard saw Crook leaning on a pickup truck in a restaurant parking lot. Hillard had frequently seen Crook during her early morning shift and knew her to be a prostitute. Hillard shined a light on Crook and asked her what she was doing. Crook responded she had been working that night as a prostitute, "but I'm not now, I'm going home." Hillard saw Bautista standing near Crook. When Hillard told Bautista she intended to run the license plate of the truck, Bautista admitted the truck was his and he was a deputy **717 sheriff with the Department. Bautista explained he was Crook's friend and was only there to give her a ride home. Bautista asked Hillard not to report him to the Department's watch commander. Hillard advised Bautista that it was not a "smart idea" to associate with Crook.

On August 3, 2003 Gardena Police Lieutenants Charles Balo and Edward Medrano were on patrol when they saw Crook sitting in the passenger seat of Bautista's car. Balo had known Crook for several years and was aware she was a long-time prostitute and heroin addict. The two officers stopped to talk to Crook and Bautista. Bautista explained to the officers he was an off-duty deputy sheriff and he and Crook were just friends. Crook confirmed Bautista's characterization of their relationship, acknowledging that, while she had wanted a dating relationship, she understood Bautista could not "be involved with me right now because I'm doing this." Medrano, who also knew Cook as a prostitute and long-time heroin addict, warned Bautista not to associate with Crook because, he suspected, it could cost him his job with the Department. Although Bautista denied Crook was still using heroin, Medrano *873 told Bautista he had encountered Crook only a few days earlier and Crook had confessed to him she was still using heroin, though only occasionally.

In August 2003, shortly after their encounter with officers Balo and Medrano, Bautista and Crook moved in together. They are now married.

3. The Discipline Proceedings Against Bautista

After being informed by the Gardena Police Department about Bautista's personal association with Crook, the Department began an internal investigation. On July 28, 2004 Bautista was served with a letter of intent to discharge him from his position as deputy sheriff, effective August 18, 2004. The letter charged Bautista with, among other things, violating the Department's prohibited-association policy by engaging in a personal relationship with Crook without informing the Department and obtaining the Department's consent.²

Pursuant to civil service rules, Bautista timely petitioned for a full evidentiary hearing before a Commission hearing officer. After a four-day hearing at which several witnesses testified, the hearing officer issued her findings of fact and conclusions of law and recommended Bautista's discharge on the sole ground he had violated the Department's prohibited-association policy. ³ The hearing officer concluded the prohibited-association policy was neither unconstitutionally vague on its face nor unconstitutional as applied to Bautista. In addition, the hearing officer found discharge to be an appropriate penalty under the Department guidelines. The hearing officer explained, "[I]nitiating and pursuing**718 a relationship with Crook while she was working as a prostitute and taking illegal drugs was a personal choice [Bautista] clearly believed in; however it was also a choice which necessarily resulted in his discharge."

On January 18, 2006, the Commission overruled Bautista's objections and formally approved the hearing officer's findings of fact and recommendation of discharge.

*874 4. Bautista's Petition for Administrative Writ of Mandate and Complaint for Violation of His Federal Civil Rights

On April 13, 2006 Bautista filed a petition for writ of mandate in the superior court challenging the Commission's decision on the ground the prohibited-association policy violated his right to freedom of association under the First and Fourteenth Amendments to the United States Constitution. In the operative second amended petition and complaint, Bautista also included a separate claim for violation of his federal civil rights.

On April 5, 2007 the trial court (Judge Dzintra Janavs) held a hearing on the petition for writ of mandate. The court denied the petition, rejecting Bautista's claims the policy was vague and unconstitutional on its face. The court also found the prohibited-association policy was rationally related to a legitimate purpose of preserving the credibility and integrity of the Department and avoiding potential conflicts of interests that could harm the Department. The court did not consider the federal civil rights claim. ⁴

On February 9, 2009 the Department and Baca filed a motion for summary judgment on the section 1983 claim. On June 12, 2009 the trial court (Judge Zaven Sinanian) granted the motion, ruling Bautista had not demonstrated a constitutional violation to support his section 1983 claim. Judgment was entered on July 16, 2009. Bautista has filed a timely appeal from the judgment.

DISCUSSION

1. The Trial Court Did Not Err in Denying the Petition for Writ of Mandate

a. Standard of review

Termination of a nonprobationary public employee substantially affects that employee's fundamental vested right in employment. ( Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902, 4 Cal.Rptr.3d 325; McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129, 8 Cal.Rptr.2d 548.) Accordingly, when ruling on a petition for a writ of administrative mandamus seeking review of procedures that resulted in the employee's termination, the *875 trial court examines the administrative record and exercises its independent judgment to determine if the weight of the evidence supports the findings upon which the agency's discipline is based or if errors of law were committed by the administrative tribunal. ( Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811, 85 Cal.Rptr.2d 696, 977 P.2d 693 ["when a court reviews an administrative determination**719 [affecting a vested fundamental right] the court must 'exercise its independent judgment on the facts, as well as on the law' "]; Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314, 99 Cal.Rptr.3d 199; McMillen, at p. 129, 8 Cal.Rptr.2d 548.)

On appeal we review the trial court's factual findings for...