Caloca v. County of San Diego

• Decision Date: 27 August 2002
• Docket Number: No. D038059.,D038059.
• Citation: 126 Cal.Rptr.2d 3,102 Cal.App.4th 433
• Parties: Victor CALOCA et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

126 Cal.Rptr.2d 3

102 Cal.App.4th 433

Victor CALOCA et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents.

No. D038059.

Court of Appeal, Fourth District, Division 1.

August 27, 2002.

As Modified September 25, 2002.

Law Offices of Everett L. Bobbitt, Everett L. Bobbitt, San Diego, and Sanford A. Toyen, for Plaintiffs and Appellants.

John J. Sansone, County Counsel, and C. Ellen Pilsecker, Senior Deputy County Counsel, for Defendants and Respondents.

BENKE, Acting P.J.

In a prior appeal in this case we held that under the provisions of the Public Safety Officers Procedural Bill of Rights Act (Gov.Code, § 3300 et seq.) (Public Safety Officers Bill of Rights), three sheriffs deputies, respondents Victor Caloca, Ronald Cuevas and Rick Simica, were entitled to administrative review of misconduct findings made by the Civilian Law Enforcement Review Board (CLERB). (Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1223, 85 Cal.Rptr.2d 660 (Caloca I).) Although the sheriffs department had conducted its own investigation of the misconduct allegations and determined that none of the officers was subject to disciplinary action, we found the deputies were nonetheless entitled to administrative review of the adverse CLERB findings because the record disclosed the review board's findings would impair the officers' ability to compete for promotions. (Ibid.) We left to respondent County of San Diego (the county) formulation of the specific procedures which would govern the administrative review. (Ibid.)

On remand respondent County of San Diego Civil Service Commission (the commission) adopted procedures which, among other matters, required that the officers bear the burden of establishing that the misconduct findings were erroneous and permitted the commission to close some portions of its hearings to the public notwithstanding the objection of a deputy. By way of a second petition for a writ of mandate, the deputies and respondent San Diego County Deputy Sheriffs Association (Sheriffs Association) challenged the commission's procedures. In granting the petition for a writ of mandate the trial court found that the burden of proof could not be placed on a deputy and that without the consent of a deputy an administrative hearing could not be closed to the public. On appeal the commission argues these aspects of the procedure it adopted were valid.

We affirm. At a minimum an administrative appeal requires independent fact finding in a de novo proceeding. In such a proceeding the proponent of any fact bears the burden of establishing it. Thus the commission could not place on officers the burden of refuting the civilian review board's misconduct findings. Moreover, the commission has not shown any substantial need to close its hearings over the objection of a deputy who is challenging an adverse finding.

By way of a cross-appeal the deputies and the Sheriffs Association argue they were entitled to recover their attorney fees under Code of Civil Procedure section 1021.5. Like the trial court we find the costs the deputies and the association incurred in this litigation over the particular procedures used to review the misconduct findings did not entirely transcend their own interest in the outcome of the litigation. Thus we find no abuse of discretion in the trial court's order denying their motion for attorney fees.

SUMMARY

The background of this case was fully set forth in our opinion in Caloca I: "In 1990, County voters amended their charter to require County Board of Supervisors to establish CLERB. (San Diego County Charter, § 606.) Pursuant to the charter amendment, the board of supervisors enacted County of San Diego Ordinance No. 7880 (N.S.), adding article XVIII (entitled Citizens Law Enforcement Review Board) to the County's administrative code. `[CLERB is established] ... to advise the Board of Supervisors, the Sheriff and the Chief Probation Officer on matters related to the handling of citizen complaints which charge peace officers and custodial officers employed by the County in the Sheriffs Department or the Probation Department with misconduct arising out of the performance of their duties. [CLERB] is also established to receive and investigate specified citizen complaints and investigate deaths arising out of or in connection with activities of peace officers....' (San Diego Co. Admin. Code, § 340.)

"CLERB makes (1) findings of misconduct and recommendations for imposition of discipline against individual deputies, and also (2) recommendations for changes in policies and procedures of the Sheriffs Department. (San Diego County Admin. Code, § 340.9(c) & (f).) However, `[i]t is the purpose and intent of the Board of Supervisors in constituting [CLERB] that [CLERB] will be advisory only and shall not have any authority to manage or operate the Sheriffs Department or the Probation Department or direct the activities of any County officers or employees in the Sheriffs Department .... [CLERB] shall not decide policies or impose discipline against officers or employees of the County in the Sheriffs Department or the Probation Department.' (San Diego County Admin. Code, § 340.)" (Caloca I, supra, 72 Cal.App.4th at pp. 1212-1213, 85 Cal.Rptr.2d 660.)¹

"Here CLERB sustained findings of misconduct against each of the four appellants arising from three separate incidents. CLERB's findings were based on investigative reports; no hearings were conducted.

"On May 9, 1995, CLERB issued its report concerning allegations of misconduct against five officers arising from the February 1992 shooting of Paul Reynolds by Deputy Jeffrey Jackson. CLERB sustained an allegation of misconduct against Deputy Caloca, finding he `committed an act of misconduct when he improperly investigated the Reynolds homicide by asking Deputy Jackson leading questions ....' CLERB found Deputy Caloca asked Deputy Jackson questions that suggested answers creating the legal foundation for justifiable use of force.

"On December 12, 1995, CLERB issued its report concerning the December 1991 shooting death of Esquiel Tinajero-Vasquez (Tinajero) by Deputy Smith and the investigation of the incident by Deputy Simica. CLERB sustained two findings of misconduct against Deputy Smith, finding (1) his attempt to stop and detain Tinajero was without reasonable cause or legal authority, and (2) his use of lethal force was excessive. CLERB sustained one finding of misconduct against Deputy Simica, finding his narrative description, diagram, and report of the crime scene were misleading and incomplete.

"On May 14, 1996, CLERB issued its report concerning the October 1994 detention of Robert Thompson and Dennis Webb by California Fish and Game Officer Lieutenant Turner, which occurred in Deputy Cuevas's presence. CLERB sustained three findings of misconduct: (1) Deputy Cuevas acted in a manner inconsistent with the sheriffs department's mission and ethics by refusing to prevent Lieutenant Turner from conducting an illegal detainment of Thompson and Webb; (2) Deputy Cuevas failed to safeguard Thompson; and (3) Deputy Cuevas's report contained false or misleading information.

"In its reports against Deputies, CLERB made general recommendations for policy changes to the sheriffs department. Although CLERB sustained findings of serious misconduct against Deputies, the final reports were silent as to recommendations of discipline. CLERB's reports indicate none of the Deputies responded to its investigator's request for a statement or interview.

"The San Diego Sheriffs Department investigated the same incidents giving rise to CLERB's reports, and found no misconduct by any of the Deputies. [¶] ... [¶]

"In June 1996, counsel for Deputies wrote letters to the Civil Service Commission, requesting it hold liberty interest hearings or alternatively administrative appeals to allow Deputies an opportunity to challenge CLERB's findings. The Civil Service Commission denied Deputies' requests.

"Deputies and Sheriffs Association filed a petition in superior court seeking a writ of mandate to compel County and the Civil Service Commission to conduct: (1) liberty interest hearings to allow Deputies to clear their names of CLERB's findings; or alternatively (2) administrative appeals pursuant to the Public Safety Officers Procedural Bill of Rights Act on the ground that CLERB's findings of misconduct constitute punitive action.

"In support of their petition, Deputies submitted the declaration of Assistant Sheriff Thomas Zoll, who is in charge of the human resource services bureau for the sheriffs department. Zoll stated his department when considering a deputy for advancement `may consider findings and evaluations from other credible agencies or boards,' including `credible reports or findings from such sources as ... a citizens review board.' Further, Zoll stated negative findings that a deputy committed an act of misconduct `published by a credible source ... would be given consideration in personnel decisions, and may have an adverse impact on the career of the deputy ... [e]ven though the [Sheriffs] department may have investigated the matter and reached a different conclusion ....'

"The trial court denied Deputies' petition, finding (1) Deputies are not entitled to liberty interest hearings as they failed to show a present deprivation of liberty interests, and (2) Deputies are not entitled to administrative appeals as they failed to show punitive action." (Caloca I, supra, 72 Cal.App.4th at pp. 1215-1217, 85 Cal. Rptr.2d 660, fns. omitted.)

In our opinion in Caloca I we reversed the trial court's order in part. We found that although the deputies were not entitled to liberty interest hearings, they were entitled to administrative appeals under Government Code section 3304, subdivision (b). In rejecting the deputies' contention that due process required that they have an opportunity to appeal the CLERB findings, we sta...