Brush v. City of Los Angeles
| Citation | 45 Cal.App.3d 120,119 Cal.Rptr. 366 |
| Court | California Court of Appeals Court of Appeals |
| Decision Date | 23 January 1975 |
| Parties | Jack R. BRUSH, Petitioner and Appellant, v. CITY OF LOS ANGELES, Respondent. Civ. 43502. |
Simon, Sheridan, Murphy, Thornton & Hinerfeld, and Wallace L. Rosvall, Los Angeles, for petitioner and appellant.
Burt Pines, City Atty., John B. Rice, Asst. City Atty., and Bert Glennon, Jr., Deputy City Atty., for respondent.
Petitioner Jack R. Brush sought a writ of administrative mandate (Code Civ.Proc., § 1094.5) to compel respondents, the City of Los Angeles, Edward M. Davis, Chief of the Los Angeles Police Department, and the Los Angeles Police Department, to reinstate him as a sergeant with the Los Angeles Police Department and to pay to him accumulated back salary. The trial court denied the writ and entered judgment for the respondents.
Since the judgment must be reversed for the reason hereinafter stated, we refer only briefly to the factual basis of petitioner's termination from employment.
Petitioner was first employed by the Los Angeles Police Department in 1963. The department, acting upon a tip from an unnamed informant, commenced an investigation in 1971 of events involving petitioner which had occurred in 1968. During the course of the investigation, petitioner was questioned by investigators for the department, and in 1971 and 1972 he denied the truth of certain charges which had been made against him by Lawrence E. Marken, namely that petitioner had, in 1968, planted narcotics in a suitcase in the possession of Marken and Doris Damone (later Doris Marken); had arrested them for possession of narcotics; and had subsequently testified falsely at a preliminary hearing on the narcotics charge with the objective of having the charges dismissed. It was charged that the motivation for the harassment of Marken and Damone by petitioner stemmed from his involvement with an informer and user of narcotics, Shirley Fleming, who had, just prior to the 1968 events, been in an altercation with Marken and Damone.
In 1972 petitioner was charged 1 with three counts of lying to departmental investigators and, after a Board of Rights hearing, was discharged from his employment. He then sought review of the administrative action in the trial court. At that time the trial court applied the standard of review approved by current decisional law, determining whether the administrative decision to terminate petitioner's employment was supported by substantial evidence contained in the administrative record.
While petitioner's appeal from the adverse judgment was pending, the California Supreme Court held, in Strumsky v. San Diego County Employee Retirement Ass'n, 11 Cal.3d 28, 44--45, 112 Cal.Rptr. 805, 816, 520 P.2d 29, 40, that
'. . . in all such cases (Review of local agencies), if the order or decision of the agency substantially affects a fundamental vested right, the court, in determining under section 1094.5 of the Code of Civil Procedure whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence.'
It is well established that employment is a fundamental vested right to which the standard of review specified by Strumsky is applicable (Bixby v. Pierno, 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242; Rigsby v. Civil Service Commission of County of Los Angeles, 39 Cal.App.3d 696, 700, 115 Cal.Rptr. 490.) In a subsequent modification of its opinion in Strumsky, the Supreme Court specified that the announced rule was applicable 'to all pending and future proceedings in trial courts and all pending and future appeals.' (11...
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Nicolini v. County of Tuolumne
...for termination. (Quintana v. Board of Administration (1976) 54 Cal.App.3d 1018, 1021, 127 Cal.Rptr. 11; Brush v. City of Los Angeles (1975) 45 Cal.App.3d 120, 123, 119 Cal.Rptr. 366.) The lower court reviewed the proceedings before the Board and properly acknowledged its review was governe......
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Seibert v. City of San Jose
...210 Cal.Rptr. 788 ; Estes v. City of Grover City (1978) 82 Cal.App.3d 509, 514, 147 Cal.Rptr. 131, citing Brush v. Los Angeles (1975) 45 Cal.App.3d 120, 123, 119 Cal.Rptr. 366.) As a result, the trial court was required to exercise its independent judgment in reviewing the Commission's find......
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Dawn v. State Personnel Board
...is supported by substantial evidence, viewing the record in the light most favorable to defendant. (Brush v. City of Los Angeles (1975) 45 Cal.App.3d 120, 123, 119 Cal.Rptr. 366; Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 691-692, 133 Cal.Rptr. The defendant State Personnel Boa......
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Lee v. Board of Civil Service Comrs.
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