Riveros v. City of Los Angeles

• Decision Date: 22 January 1996
• Docket Number: No. B086787,B086787
• Citation: 41 Cal.App.4th 1342,49 Cal.Rptr.2d 238
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 466, 96 Daily Journal D.A.R. 715 Jose RIVEROS, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

Page 238

49 Cal.Rptr.2d 238

41 Cal.App.4th 1342, 96 Cal. Daily Op. Serv. 466,

96 Daily Journal D.A.R. 715

Jose RIVEROS, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

No. B086787.

Court of Appeal, Second District, Division 5, California.

Jan. 22, 1996.

As Modified on Denial of Rehearing Feb. 20, 1996.

Darryl Mounger, North Hollywood, and Diane Marchant, Los Angeles, for Plaintiff and Appellant.

James K. Hahn, City Attorney, Frederick N. Merkin, Senior Assistant City Attorney, and Leslie E. Brown, Assistant City Attorney, for Defendants and Respondents.

GODOY PEREZ, Associate Justice.

Jose Riveros appeals from the judgment denying his petition for writ of mandate to be reinstated to his job as a Los Angeles police officer. For the reasons set forth below, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Appellant Jose Riveros ("Riveros") was sworn in as a rookie member of the Los Angeles Police Department ("the Department") on September 9, 1991. By all accounts, Riveros was an excellent and dedicated officer who showed an early commitment to a law enforcement career. Pursuant to section 109, subdivision (c) of the Los Angeles City Charter, Riveros would remain a probationary employee of the Department for 18 months. ¹

On November 3, 1992, a complaint against Riveros was lodged by 18-year-old Heather Stupnik, alleging that after Riveros arrested her the month before on drug charges, he struck up a personal relationship with her which culminated in sexual intercourse. Stupnik's allegations were investigated between November 20, 1992, and December 14, 1992. The investigation revealed that Riveros and his training officer, William Murphy, responded to a child abuse call made by Bonnie Ivy, Stupnik's mother. Ivy told Riveros and Murphy that Stupnik, a chronic drug abuser, was endangering the life of Stupnik's young child by keeping narcotics in the house. Riveros arrested Stupnik for drug possession. During the arrest and booking procedure, Riveros gave Stupnik his business card, telling her to call if she needed help.

Riveros was professional and courteous during this encounter. About one week later, Stupnik began leaving several messages for Riveros at the police station until Riveros returned her call. At this point, the accounts of what took place diverge. Stupnik contends that after a few "general" phone conversations, Riveros became flirtatious and asked to meet. Riveros picked her up at a Long Beach street corner, took her to a motel so they could talk, then had sex with her. Their lovemaking was not rape and was purely consensual, she told investigators. Riveros checked into the motel under a fictitious name. After she began calling Riveros at home, he changed his phone number and threatened to file a complaint about harassing phone calls. Feeling spurned, she wrote letters to Riveros with the intent to make him feel guilty. The Department's investigator noted that Stupnik admitted portions of the letters were not factual and were in part a "product of her imagination." The letters were later discovered by Stupnik's husband, who insisted that she file the complaint.

Riveros contended that his phone calls and meeting with Stupnik were intended to discuss ways she could overcome her drug use problem. Riveros admitted renting a motel room under a fictitious name and paying for that room in cash. He also admitted sitting on the bed with Stupnik, but contended he left when she made sexual advances to him, denying that they ever engaged in sexual intercourse.

The results of the investigation were included in a letter of transmittal by Riveros's commanding officer, Captain Timothy King. In analyzing Riveros's conduct, King noted that Riveros was involved in ongoing phone conversations--including calls to his home--with a known addict, that he did not inform anyone he was receiving such calls, that his off-duty meeting with a known addict and rental of a motel room for their meeting "would normally be suspicious to an officer" and that any "thinking, tactics conscious[ ] officer would have been fearful of being 'set-up'...." Whether or not he had sex with Stupnik, King believed that Riveros "exposed himself to such personal risk, which subjected the Department to criticism, which was so inherently wrong that only the strongest discipline is applicable. Riveros, a good probationer, seems to have exposed a personality flaw, a deep rooted malignancy in his ability to make judgments that keep his professional position from benefiting his personal appetite." Riveros was contrite, expressed remorse and acknowledged his poor judgment. Based on his previously unblemished performance, Capt. King recommended a 15-day suspension.

After Commander Arthur Lopez learned that a drug user was involved, he recommended that Riveros be fired instead. Capt. King advised Riveros of the new recommendation and the paperwork was finally sent to Assistant Chief of Police Bernard Parks, who was the acting chief of police in the absence of Police Chief Willie Williams.

On February 19, 1993, Parks imposed a 22-day suspension based upon the following charge: "On or about October 3, 1992, you inappropriately turned an on duty official contact with arrestee H. Stupnik into an off duty social relationship." Riveros learned about the intended suspension on February 18, 1993, and began to serve it that day. He signed and was officially served the suspension papers on February 23, 1993. On February 24, 1993, Riveros left for San Francisco to work a part-time job while on suspension.

At 3 p.m. on February 23, however, Capt. King's temporary replacement was notified that Chief Williams had overturned the suspension and intended to fire Riveros. The Department tried unsuccessfully to reach Riveros in San Francisco. When Riveros returned from his trip four days later he found a notice posted on his door that he had been fired.

While the notice of termination is not in the record, Riveros contends and the Department does not dispute that the notice was on a form identical to the one used in imposing the original 22-day suspension. That form, from the Department's chief of police, is titled, "NOTICE OF TERMINATION OR SUSPENSION OF SWORN PROBATIONARY EMPLOYEE." Pursuant to charter section 109, subdivision (c), Chief Williams was terminating Riveros "pending any appeal to the Chief of Police." The second page of the form, in a section captioned "ADMINISTRATIVE APPEAL," advised that Riveros had five days from service of the notice to appeal the decision. The form contained instructions for service of the notice, including a provision that the completed original had to be filed with the Board of Civil Service Commissioners ("the Board") of the City of Los Angeles ("the City") at the end of the five-day appeal period if there were no appeal or immediately after the chief's final decision if an appeal were taken.

Riveros appealed the chief's decision and a hearing was held on March 23, 1993, before Capt. Joseph Curreri as hearing officer. That hearing was described by Curreri as a "liberty interest" hearing. After reading the charge to Riveros, Curreri told Riveros that he had the right to be represented by private counsel, a departmental representative, or both. Riveros was told he also had the right to produce witnesses on his behalf, cross-examine adverse witnesses and testify on his own behalf. Fifteen officers, many of them long-time veterans, testified that Riveros was an excellent and dedicated young officer who had shown one unfortunate lapse of judgment, urging that he be suspended instead of terminated. It was stipulated that 12 other officers who were not present would offer similar testimony if called. The Department called no witnesses.

Riveros testified that he gave Stupnik his business card because he believed he was supposed to hand one to every field contact he had. When Stupnik first called, she merely asked for advice, which he tried to give in a professional manner. When the calls continued, he explained that their relationship was only professional. After Stupnik persisted, including phoning Riveros at home, he threatened to report her for making harassing calls and changed to an unlisted home phone number. He did not report the phone calls because he did not believe he had done anything wrong. It was Stupnik's idea to meet at a motel because she had been kicked out of the house. Riveros rented a motel room at her request and told Stupnik it was the last thing he would do for her. He used a fictitious name to avoid embarrassing the Department.

Curreri said he at first believed the charge but, after hearing and considering all the testimony, was no longer convinced of Riveros's guilt. This doubt was based on evidence of Riveros's strong work performance and that Riveros consistently tried to help people. He concluded that there was a preponderance of "equal if not greater evidence ... to not resolve the allegation rather than to sustain the charge...." He recommended that Chief Williams reevaluate the classification of the complaint as a charge of conduct unbecoming an officer and, if Williams did so, to instead impose a 22-day suspension. Curreri cautioned Riveros that his findings were not binding on Chief Williams, who was free to follow or disregard them.

On March 24, 1993, Curreri signed a form captioned "DECISION OF THE HEARING OFFICER ADMINISTRATIVE APPEAL HEARING AND ORDER OF THE CHIEF OF POLICE," making a recommendation in accordance with his statements at the hearing. Below the space for the hearing officer's decision was a section captioned "ORDER OF THE CHIEF OF POLICE." On April 14, 1993, Chief Williams signed this section, ordering Riveros's termination. Attached to the order was a typewritten page signed by Chief Williams which read: "I have reviewed the report of the Hearing Officer and weighed the evidence. Notwithstanding the recommendation, I have come...