Ortiz v. City of L. A.

• Decision Date: 18 July 2018
• Docket Number: B280767,B280740
• Parties: LEONARDO ORTIZ, Petitioner and Appellant, v. CITY OF LOS ANGELES, et al., Respondents. MICHAEL AYALA, Petitioner and Appellant, v. CITY OF LOS ANGELES, et al., Respondents.
• Court: California Court of Appeals Court of Appeals

LEONARDO ORTIZ, Petitioner and Appellant, v. CITY OF LOS ANGELES, et al., Respondents.

MICHAEL AYALA, Petitioner and Appellant, v. CITY OF LOS ANGELES, et al., Respondents.

B280740

B280767

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

July 18, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BS159358)

(Los Angeles County Super. Ct. No. BS159359)

APPEALS from judgments of the Superior Court of the County of Los Angeles, Mary H. Strobel, Judge. Affirmed.

Stone Busailah, Michael P. Stone and Muna Busailah, for Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant City Attorney, Matthew A. Scherb, Deputy City Attorney, for Defendants and Respondents.

____________________

I.INTRODUCTION

Former City of Los Angeles Police Department (LAPD) Officers Leonardo Ortiz and Michael Ayala (petitioners) were terminated from their employment after they engaged in a high speed pursuit of a reckless driver and fatally shot him. They appeal from the trial court's denial of their petitions for writs of administrative mandamus challenging the decision of the City of Los Angeles (the City) to terminate their employment. According to petitioners, the City failed to provide them with an administrative appeal from the final decision to terminate them, as required by the Public Safety Officers Procedural Bill of Rights Act¹ (POBRA), as interpreted by Morgado v. City and County ofSan Francisco (2017) 13 Cal.App.5th 1 (Morgado). Petitioners maintain that the failure to provide the required administrative review deprived the trial court of subject matter jurisdiction, thereby rendering the court's judgments against them void. Petitioners also contend there was insufficient evidence to support the trial court's findings upholding the City's decision to terminate their employment.

We hold that petitioners forfeited their contention concerning the violation of their right to an administrative appeal under POBRA. We also hold that substantial evidence supports the trial court's finding that petitioners' shooting of the reckless driver violated the City's policy on the use of deadly force. We therefore affirm the judgments.

II.FACTUAL BACKGROUND

A. The Pursuit²

On December 13, 2013, at approximately 10:13 p.m., LAPD patrol officers received a broadcast report of a pursuit of a reckless driver in a Corvette. Initially, members of the Los Angeles County Sheriff's Department and the California Highway Patrol (CHP) were involved in the pursuit, but theyterminated their pursuit and the LAPD subsequently took over in the City limits.

Because Officers Antonio Hurtado and Elizabeth Preciado were in the first LAPD unit to pursue the Corvette, they became the primary unit. During their pursuit, Officer Preciado observed the driver, later identified as 51-year-old Brian Beaird of Oceanside (the driver), leaning toward the passenger side of the vehicle, which, based on her training and experience, indicated to her that the driver was arming himself. Petitioner Ortiz and Officer Andrew Rea responded to the pursuit shortly thereafter and became the secondary unit in the pursuit.

Sergeant Stacy Vandersall also responded and declared herself the incident commander. At some point during the pursuit, the primary unit requested and received permission to perform a pursuit intervention technique, or "pit" maneuver, and a third unit manned by Officers Armando Corral and Ruben Rosas entered the pursuit to assist with that maneuver. Officers Camille Spitaleri, Dennis Walden, petitioner Ayala and his partner David Dixon subsequently joined in the pursuit as well.

The driver drove his Corvette recklessly that night, proceeding through traffic at a high rate of speed, often on the wrong side of the road, almost hitting pedestrians and other cars. As noted, he was seen multiple times leaning over to the passenger side of the Corvette, and this information was broadcast to the pursuit officers. Based on the driver's movements inside the vehicle, the pursuing officers suspected he may be armed and decided against the pit maneuver.

The pursuit ended when the Corvette collided with a Nissan Sentra at the intersection of Olympic Boulevard and Los Angeles Street. The collision spun the Sentra down the streetand onto the curb, shearing off a fire hydrant. The Corvette also spun around and became lodged at the northwest corner of the intersection, between a tree with which it collided and a light pole directly behind it. Pursuing LAPD units stopped behind the Corvette at various angles and distances at the end of the pursuit. A total of 18 officers and one sergeant arrived at the scene. As described in the percipient officer testimony set forth below, a fatal officer-involved shooting of the driver took place at the scene.

B. Petitioner Ortiz's Testimony

On December 13, 2013, petitioner Ortiz was working in Newton Division with Officer Rea, who was driving their patrol vehicle. At approximately 10:16 p.m., the officers responded to a pursuit of a driver who was wanted for reckless driving. At the end of the pursuit, the driver's vehicle collided with a red Nissan Sentra at the intersection of Olympic and Los Angeles. The Sentra "spun out northbound" and "[took] out a fire hydrant," which caused "water to just shoot up into the air, at least 30 to 60 feet . . . ."

Petitioner Ortiz "popped the door open" on the passenger side,³ exited his patrol vehicle, unholstered his weapon, "[took] two steps forward from [his] cover," "took a quick peek into the [Corvette]," and saw "the [driver] again reaching down into the seat." After he observed the driver "trying to find something under his seat," he "started to backpedal into cover," at which point petitioner Ayala grabbed Ortiz by the belt and guided him to cover behind the ballistic door of his vehicle. Because none ofthe pursuit vehicles had observed or reported that contraband had been thrown from the Corvette, petitioner Ortiz assumed the object for which the driver was reaching was a weapon inside the vehicle, i.e., "[the driver] was arming himself."

Once behind the ballistic door panel, petitioner Ortiz observed the driver trying to move the Corvette. According to the officer, the driver "floored his gas and you could just hear the tires screeching and [see them] smoking." The driver then "popped open" the Corvette's driver's side door and exited the vehicle. From his vantage point, petitioner Ortiz could not see the driver's "body language" or hands, but he could hear other officers yelling commands at the driver, who failed to comply and instead kept "coming towards the officers." When the driver reached the back of the Corvette, petitioner Ortiz could see him "from head to toe."

Once the driver came around the back of the Corvette and reached the "midpoint [of] the bumper," petitioner Ortiz could see "everything" that the driver was doing. At that point, the driver made "a gesture with his left hand" and "[went] into his waistband." Based on what he was observing, petitioner Ortiz believed "[he was] in an immediate defensive life situation for [himself], for [his] fellow officers, and for [the] victims [in the Sentra]." Although petitioner Ortiz did not see a gun or weapon, he believed the driver was reaching under his waistband to arm himself, "so [he] fire[d] four shots at the [driver]." Prior to firing those rounds, he did not hear any other shots being fired.

Petitioner Ortiz then "assess[ed] the situation." Because the driver's "left hand was in his waistband," the officer believed "he was still reaching for . . . the gun." "At that point, [petitioner Ortiz] took a deep breath, focused on [his] front sightand . . . fired [his] next five rounds." He reloaded his weapon, again assessed the situation, and could see that the driver was on the ground. He therefore concluded "there was no need for [him] to fire additional rounds."

C. Petitioner Ayala's Testimony

On December 13, 2013, petitioner Ayala was assigned to Newton Division gangs. At approximately 10:16 p.m., he and his partner, Officer Dixon, heard a radio broadcast from a Sheriff's Department helicopter reporting that a reckless driver in a Corvette was "coming into Newton Division." When the Sheriff's deputies terminated their pursuit of the Corvette, a unit from CHP "pick[ed] up the pursuit . . . ."

At some point, after the Corvette entered Newton Division territory, the Sheriff's helicopter broadcast that the CHP was no longer in pursuit. LAPD Officers Hertado and Preciado then "spot[ted]" the Corvette and requested permission from the watch commander to "engage the reckless driver . . . ." The watch commander gave permission to engage in the pursuit, and Officer Preciado requested a back-up helicopter and a supervisor. Believing Officer Preciado's vehicle was the only unit in pursuit, petitioner Ayala drove his unit to the area, following another Newton Division gang unit manned by Officers Walden and Spilateri. While en route to the area of the pursuit, petitioner Ayala heard a unit manned by petitioner Ortiz and Officer Rea broadcast that they were "secondary in the pursuit." Petitioner Ayala then heard Officer Preciado's primary pursuit unit request "permission to [perform a] pit," a maneuver that required a third unit and a supervisor.

After Officer Preciado received permission to perform the pit maneuver, she broadcast multiple times that the suspect reckless driver was "reaching under his seat." Petitioner Ayala also heard the helicopter broadcast a similar warning. The watch commander then broadcast that because the suspect appeared to be armed, he was calling off the...