Seibert v. City of San Jose
Citation | 247 Cal.App.4th 1027,202 Cal.Rptr.3d 890 |
Decision Date | 31 May 2016 |
Docket Number | H040268 |
Court | California Court of Appeals |
Parties | Grant SEIBERT, Plaintiff and Appellant, v. CITY OF SAN JOSE et al., Defendants and Appellants. |
Attorneys for Plaintiff and Appellant Grant Seibert: Hal F. Seibert.
Attorneys for Defendants and Appellants City of San Jose et al.: Richard Doyle, City Attorney, Nora Frimann, Assistant City Attorney, Kathryn Zoglin, Senior Deputy City Attorney.
Plaintiff Grant Seibert petitioned the superior court for a writ of administrative mandamus to set aside a decision by the Civil Service Commission of the City of San Jose (Commission) denying his appeal from a decision by the San Jose Fire Department (Department) to terminate his employment as a firefighter and paramedic. The dismissal was based upon five charges of misconduct, two of which stemmed from his exchange of salacious e-mails during work hours with a 16–year old girl who had visited the station, and three of which stemmed from allegedly improper conduct toward a female coworker. The trial court set aside the Commission's decision on all but one of the charges, and found that charge insufficient to sustain the level of discipline imposed. Both parties have appealed. We hold that (1) the Commission was not deprived of jurisdiction by the belated filing of the notice of discipline on which the challenged dismissal was based; (2) the trial court properly concluded that the e-mail exchange as alleged in one charge, which made no reference to the recipient's age, could not be found to violate any applicable rule or policy; (3) the court permissibly found, on conflicting evidence, that Seibert lacked actual or constructive knowledge of the recipient's age; (4) the court erred by refusing to consider the contents of interview transcripts which constituted the chief evidence of misconduct toward a female coworker; and (5) the court should have directed that any further administrative proceedings be heard and determined by an administrative law judge. We will reverse the judgment for further proceedings consistent with our opinion.
On the morning of Thanksgiving Day 2008, a female high school student who lived in the neighborhood of Fire Station 28 brought a cookie pie to the firefighters there. The girl, to whom we shall refer as “N.C.,” was in 10th grade at the time, a few months short of her 17th birthday. She was given a tour of the station by respondent and cross-appellant Seibert. At its conclusion he took a picture of her next to a fire engine. He obtained her e- mail address so that he could send the picture to her. At 11:00 a.m. he sent her the picture and thanked her for the baked goods, thus commencing the exchange of e-mails that ultimately included the messages underlying the first set of charges here.
On December 15, 2008, N.C. again appeared at the station, this time in the company of two or three male classmates. Seibert gave the youths a tour of the station. At least one of them played junior varsity football at their high school, and recognized a photograph of the station supervisor, Captain Leong, who was a varsity football coach at the same school. He was summoned to greet them.
While at the station, N.C. apparently injured her elbow. At 2:54 p.m., after she left, she e-mailed Seibert, describing her injury. This led to an exchange of e-mails over at least a five-hour period, which grew increasingly risqué while playing on the conceit that Seibert might use his paramedic skills to treat the injury (all spelling and punctuation as in original):1
N.C. [no time stamp]: | so different positions like what? im willing to try new ones cuz im sure theres plenty i don't know or havn't done yet in an evaluation.. and how big is your thermometer? cuz i think i can open my mouth pretty wide to make sure we get the correct reading..but it may take a few tries.. and how else can we take my temperature? |
At about this point N.C.'s father entered the room and saw what she was doing. He printed out copies of the messages and went to the fire station, arriving in the late evening. He asked to see the person in charge, who was Captain Leong. Leong described him as appearing “very upset.” According to him, the father said, ...
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Hearsay Rule
...prior statements indicating otherwise, are proper. They are tantamount to prior inconsistent statements. Seibert v. City of San Jose , 247 Cal.App.4th 1027 (2016). In New York, a prior statement made by a defendant during police questioning may be admissible to impeach that defendant’s test......
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...the record to be admitted as evidence. The trial court’s ruling admitting the transcript was error. Seibert v. City of San Jose , 247 Cal. App. 4th 1027; 2016 Cal. App. LEXIS 435; 2016 WL 3085205 (Cal. App. 2016). The past recollection recorded exception permits the introduction of a hearsa......
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