Dorner v. Los Angeles Police Dept.
Dorner v. Los Angeles Police Dept.
Filed 10/3/11 Dorner v. Los Angeles Police
NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Appellant,
ANGELES POLICE DEPARTMENT et al.,
Defendants and Respondents.
(Los Angeles County
Super. Ct. No. BS120439)
APPEAL from a judgment of the Superior Court of Los Angeles
County, David P. Yaffe, Judge.
Law Office of David J. Duchrow, Jill
A. Piano and David J. Duchrow for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney,
Claudia McGee Henry, Assistant City Attorney, and Gregory P. Orland,
Deputy City Attorney, for Defendants and Respondents.
Christopher Dorner, an officer with the Los Angeles Police Department (LAPD), made
a complaint against his field training officer, Sergeant Teresa Evans, accusing
her of kicking a suspect, Christopher Gettler (Gettler). The Los Angeles Police Department Board of
Rights (Board) found that appellant’s complaint was false and therefore
terminated his employment for making false statements. Appellant filed a petition for a writ of administrative mandamus in the
superior court pursuant to Code of Civil Procedure section 1094.5, seeking to
overturn the decision of the Board. The
superior court denied his petition, and he now appeals. We affirm.
FACTUAL AND PROCEDURAL
Appellant was charged in a formal
written complaint with three counts:
count 1, on August 10, 2007, making false statements to Sergeant D.
Deming, who was conducting an official investigation; count 2, on October 9,
2007, making false statements to Detectives S. Gallegos and T. Lai, who were
conducting an official investigation; count 3, on August 10, 2007, making a personnel
complaint that he knew or should have known was false. The Board held a series of hearings at which
the following witnesses testified:
appellant, Captain Donald Deming, Sergeant Evans, Sergeant Leonard
Perez, Sergeant Eddie Hernandez of the Los Angeles Port Police, Sergeant
Phil Jackson, Sergeant Julie McInnis, Detective Shelly Villanueva
(formerly Gallegos), Christopher Adrid, Ashlye Perez, Christopher Gettler, and
Testimony of Captain Deming
In August 2007, Captain Deming was a
sergeant assigned as an assistant watch commander at the Harbor Division of the
LAPD. On August 10,
appellant spoke with Captain Deming about an incident on July
involving the use of force during Gettler’s arrest at a DoubleTree Hotel in
Appellant told Captain Deming he had
something bad to report, and he “expressed remorse that he failed to report
what he believed to be misconduct (unnecessary kicks applied to an arrestee)
that he witnessed approximately two weeks prior.” Appellant said that he had handcuffed the
suspect and was struggling with him when Sergeant Evans (Officer Evans, at the
time) kicked the suspect twice in the left shoulder area and once in the face. Appellant had not told Sergeant Jackson about
the kicks when Sergeant Jackson conducted a use of force investigation, and
Sergeant Evans later discouraged appellant from disclosing she had kicked the
suspect. Appellant was unsure what to
write about the incident on the arrest report, so Sergeant Evans completed the
report, “omitting any reference to the kicks.”
Appellant was visibly upset when he spoke with Captain Deming, and
Captain Deming believed this was caused by fear of repercussions for reporting
misconduct by a training officer.
Because of his fear of repercussions, appellant told Captain Deming,
“Promise me you won’t do anything.”
Appellant testified that the reason he asked Captain Deming not to do
anything was that he knew Sergeant Evans had a child to support and he did not
want her to lose her job.
After Captain Deming retired from the
LAPD, appellant called to tell him he was being investigated for false
statements. Captain Deming expressed
surprise, and appellant told him, “No matter what happens, I just want you to
know I never lied to you.” Captain
Deming testified that appellant’s performance was satisfactory while he was
under his supervision.
Following appellant’s complaint about
Sergeant Evans, appellant believed someone urinated on his equipment bag at the
police station. Appellant thought this
was in retaliation for his complaint against Sergeant Evans and filed a
complaint about this incident. However,
an analysis of the unknown substance on appellant’s jacket revealed that the
substance was not urine.
Testimony of Sergeant Evans
Sergeant Evans was the field training
officer assigned to train appellant, who was a probationary employee. She testified that appellant had expressed to
her the need for reintegration training because he had been away for a long
time during his military deployment.
Sergeant Evans and appellant responded
to a call around 8:46 a.m. on July 28, 2007.
When they arrived, they saw the subject sitting on a bench outside the
main door of the hotel. Based on the
subject’s demeanor and gaze, the officers thought he was either suffering from
mental illness or under the influence, so they discussed a plan to isolate him
from the numerous pedestrians in the area.
Appellant told the subject to stand
up, but he did not comply, so appellant placed his hand on the subject’s arm
and helped him stand. When appellant and
the subject were walking near a planter box on the sidewalk, the subject
suddenly swung at appellant and said, “fuck you.” Sergeant Evans took a taser from appellant’s
duty belt and called for backup.
While appellant was trying to gain
control of the suspect, Sergeant Evans told the subject to stop or she would
use the taser. Appellant and the suspect
fell into the bushes in the planter box, and the suspect’s arm was wedged
against a wall. After Sergeant Evans
shot Gettler twice with the taser, appellant was able to control Gettler’s left
wrist and place handcuffs on him.
Sergeant Evans went behind the bushes and crouched down to help
appellant control Gettler’s right arm.
After about 30 seconds of struggling, Gettler let the officers handcuff
him and said, “Is that what you wanted
Here you go.” Sergeant Evans
denied kicking Gettler in the face or the shoulder area.
Appellant then helped Gettler stand
and placed him in a police car. Sergeant
Evans noticed that Gettler had a laceration on his cheek, but no other
injuries. There were no boot marks on
Gettler’s face or shirt and no bruising on his face. When Gettler was taken to the police station,
he did not tell the watch commander or a physician, who treated his facial injuries, that he was
kicked in the face.
After Gettler was in custody, other
officers arrived, including Sergeant Phil Jackson. Sergeant Jackson interviewed Sergeant Evans
about the use of force and interviewed other witnesses at the scene.
Sergeant Evans and appellant discussed
the incident so appellant could write the arrest report, but she stated that
appellant took too long to write the report.
Appellant asked Sergeant Evans several questions about how to complete
the use of force section, which underwent about three revisions by Sergeant
Evans and Sergeant Jackson. Sergeant
Evans testified that the revisions were mainly to articulate what specific
actions the officers took during the incident because appellant was unfamiliar
with the “specific verbiage” used to describe their actions. Appellant reviewed the report before it was
turned in to Sergeant Jackson for approval.
The use of force report stated that Gettler’s injury was consistent with
the use of force involved in arresting him and did not state that Sergeant
Evans kicked Gettler.
Sergeant Evans previously had told
appellant that he needed to take less time in writing arrest reports. She also had indicated in an evaluation that
appellant needed to improve in the areas of officer safety and common sense and
good judgment. Appellant received the
evaluation on August 9, 2007.
Testimony of Christopher Adrid
Adrid was working as a bellman at the
DoubleTree Hotel on the date of the incident.
He saw Gettler on a bench in the lobby, talking to himself, so he asked
Gettler if he was a hotel guest. When
Gettler said he was not staying at the hotel, Adrid asked him to sit on a bench
outside the hotel.
When appellant and Sergeant Evans
arrived, Adrid saw them ask Gettler to take his hands out of his pockets and
approach them. Gettler stood up and
walked toward the officers, but when he tried to run away, appellant tackled
him. Adrid testified that he saw Gettler
and appellant fall into the bushes, which were about four feet high, although
in an earlier interview, he had said he did not see appellant tackle
Gettler. Adrid testified that Sergeant
Evans was telling Gettler to put his hands behind his back or else she would
use the taser. Gettler did not comply,
so Sergeant Evans shot him with the taser, and then he complied and was
handcuffed. Sergeant Evans stepped into
the planter and helped appellant and Gettler get up. Adrid did not see Sergeant Evans crouch in
the bushes or kick Gettler. He said that
Sergeant Evans had one foot in the planter and one on the sidewalk and never
had both feet in the planter. Adrid saw
the cut on Gettler’s nose but did not see any other injuries.
Testimony of Sergeant Perez
Sergeant Perez met appellant in 2004
or 2005, when they were both in the United States Navy Reserves. While appellant was in the police academy, he
told Sergeant Perez that a classmate had used a racial epithet against him
(appellant is black) and continued doing so after appellant asked him to
stop. Appellant reported the incident to
In August 2007, Sergeant Perez was
camping at a lake when he noticed he had received several phone calls from
appellant; he tried calling him back, but service was intermittent. Over a series of five or six calls, appellant
told Sergeant Perez that he was not getting along with Sergeant Evans and that
Sergeant Evans had kicked a suspect who was either handcuffed or had one
handcuff on. Appellant asked Sergeant
Perez if he needed to report the incident, and Sergeant Perez said appellant
needed to tell a supervisor immediately or else Sergeant Perez would do it
himself. Sergeant Perez asked appellant
about the arrest report, and appellant alluded to Sergeant Evans having changed
the report or told appellant to change it.
When appellant started telling Sergeant Perez about the incident, Sergeant Perez stopped appellant because
Sergeant Perez knew he might become a witness in any investigation. A few days later, appellant told Sergeant
Perez he had reported the incident to Captain Deming.
Testimony of Sergeant Hernandez
Sergeant Hernandez was an officer with
the Port Police at the time of the incident.
He responded to the DoubleTree Hotel when he heard a call that an
officer needed help. When Sergeant
Hernandez arrived, he saw “two officers crouched over, half in the bush and
half not,” struggling with a suspect and trying to handcuff him. As he ran up to them, he saw them get the
second handcuff on the suspect and saw appellant pick the suspect up. Sergeant Hernandez testified that appellant
was wearing a dress uniform with a tie that was messed up, so he told appellant
to fix his tie while he held the suspect for him. It was subsequently established that
appellant was not wearing a dress uniform or a tie, based on testimony and a
Sergeant Hernandez thought that
Sergeant Evans had one foot in the planter and one on the sidewalk, and he
never saw her in or behind the bushes.
Sergeant Hernandez did not see Sergeant Evans taser Gettler or kick
Testimony of Ashlye
was working at the DoubleTree as a bellhop on July 28,
2007. She was in the lobby of the hotel when she
saw appellant and Sergeant Evans arrive at the hotel. The hotel doors were open, so she heard the
officers ask Gettler to stand and ask if he was a guest at the hotel. After Perez went outside to try to usher
hotel guests inside, she heard Gettler start yelling and saw the officers grab
him to stop him from running away. She
did not remember exactly what happened, but she saw Sergeant Evans use the
taser, and she saw Gettler fall headfirst into the bushes. She noticed that some branches were broken
when Gettler hit the bushes. Perez did
not see Sergeant Evans go into the bushes or kick Gettler. Perez went back into the hotel, so she did
not see the officers handcuff Gettler, but she saw Gettler struggling while the
officers tried to get him out of the bushes.
She noticed that Gettler had a cut on his face, which she thought was
from hitting his face on the bushes.
Testimony of Sergeant
When Sergeant Jackson arrived, he saw
appellant, Sergeant Evans, Sergeant Hernandez, a few other officers, and
Gettler in custody inside the police car.
After learning from Sergeant Evans that use of force was involved,
Sergeant Jackson began to interview people regarding the use of force. He interviewed the officers and the other
witnesses individually and did not recall any of the witnesses reporting that
kicks were used. When he inspected
Gettler’s injury, he saw blood on Gettler’s face that he thought was from the
bushes, but he did not see any bruising or other indication that Gettler had been
kicked. Sergeant Jackson read several
revisions of the arrest report prepared by appellant and Sergeant Evans, and he
noticed Sergeant Evans becoming frustrated with the amount of time it was
taking to prepare the report.
Testimony of Appellant
Appellant testified that he graduated
from the police academy in February 2006, but he left for a 13-month military
deployment in November 2006. When he
returned to the LAPD in July 2007, he was still on probation and was assigned
to the San Pedro area with Sergeant Evans.
On July 28,
and Sergeant Evans received a call about a man refusing to leave the DoubleTree
Hotel. When they arrived, they saw
Gettler sitting on a bench, and appellant noticed a lot of people standing in
front of the hotel. Appellant wanted to
move Gettler away from the other people, so he asked Gettler to come speak with
him, but he got no response. After
asking Gettler several times, appellant placed his hand onto Gettler’s wrist
and pulled Gettler up from the bench.
Appellant and Gettler walked about 15
feet away, with Sergeant Evans a little behind them and on Gettler’s left
side. Gettler suddenly stopped, turned
to Sergeant Evans and yelled at her, at which point Sergeant Evans took
appellant’s taser. Appellant thought
Gettler was about to hit Sergeant Evans, so he tried to drag Gettler to the
ground and ended up pushing Gettler toward the bushes. Gettler turned around and started pushing
appellant in an attempt to get away, so appellant pushed back, and they both
fell in the planter box. Appellant was
trying to straddle Gettler to gain control of his hands, and after he got
Gettler’s left hand he heard two taser bursts.
Appellant was trying to grab Gettler’s
right arm, which was pressed against the wall, but Gettler did not comply. Sergeant Evans went into the bushes, between
the bushes and the wall, lifted Gettler by his hair, and told him to give
appellant his arm. Appellant testified
that Gettler did not have blood on his face at that point. Sergeant Evans then stood up and kicked
Gettler twice in the left clavicle.
Gettler yelled, and then Sergeant Evans kicked him on the left cheek,
causing him to start bleeding. Gettler
said, “Is this all you want” and gave appellant his right arm to be
handcuffed. Sergeant Hernandez then
drove up, got out of his car, asked if they needed help, and helped pick
Sergeant Jackson arrived and began his
investigation. He asked what appellant
did during the use of force, so appellant told him that force was used to try
to gain control of the suspect’s hands and that he thought he heard Sergeant
Evans use a taser. Appellant did not
report the kicks by Sergeant Evans because Sergeant Jackson asked him only what
his own involvement was.
Appellant testified that Sergeant
Jackson spoke with Sergeant Evans first and that after Sergeant Jackson spoke
with appellant, appellant heard him say that appellant’s story was consistent
with Sergeant Evans’s. When appellant
heard Sergeant Jackson say that his story was consistent with Sergeant Evans’s,
he knew that Sergeant Evans had not reported the kicks, so he thought about
saying something then, but he did not.
He did not feel comfortable speaking with Sergeant Jackson because
Sergeant Jackson and Sergeant Evans got along well.
Appellant also testified that he was
hesitant to report the kicks because when he was in the police academy, he had
reported an incident in which two recruits were using a racial epithet against
another recruit. He had been shunned by
other recruits after that, so he did not want to speak up again.
Appellant stated that he did not think
the kicks were necessary and that he would not have kicked the suspect, but he
thought they might have fallen within the use of force policy. Appellant was not sure if the kicks were
wrong because he had been away for over a year during his military deployment
and had not received reintegration training, despite his request for the
After Gettler was arrested, Sergeant
Evans and appellant presented him to the watch commander, Lieutenant Andrea
Grossman. Appellant did not report the
kicks to Lieutenant Grossman because he was not asked and he knew that
probationary officers did not speak to Lieutenant Grossman unless spoken to. He also was hesitant because he knew that
Sergeant Evans and Lieutenant Grossman were friends. Gettler did not report being kicked. The medical form filled out by appellant
asked if the arrestee had any injuries or medical problems, and appellant had
written that Gettler had a minor scratch on his face.
When appellant and Sergeant Evans were
in the car later, Sergeant Evans asked appellant if he was comfortable with the
use of force, and appellant replied that he was. Sergeant Evans then stated that they would
not mention the kicks in the report.
Appellant did not reply because he was trying to avoid conflict with
her. He said that Sergeant Evans
previously had told him she was trying to limit the number of use of force
incidents she had because she was on a list to become a sergeant.
When they began writing the use of
force report, appellant felt that he was struggling with an ethical dilemma
about the use of force, but he had forgotten some of the use of force policies
because of his long military deployment.
He acknowledged writing the first part of the arrest report but
testified that he and Sergeant Evans disagreed about the report and that she
deleted what he had written and wrote it herself. Appellant also acknowledged that he reviewed
the report but reiterated that he was hesitant to report misconduct because he
was afraid of retaliation. When he
realized the kicks were not in the report, he decided to report them to
Appellant testified that he called
Sergeant Perez because he wanted to speak with someone who worked in Internal
Affairs before reporting the incident.
Sergeant Perez stopped him from telling him about the incident and
instead urged him to report it to his supervisor, telling appellant that he
would report it if appellant did not.
Sergeant Perez followed up by calling appellant to be sure he had
Appellant had asked Sergeant Evans
several times for reintegration training after his deployment and had spoken
with other officers about it, but he was told that probationary officers did
not receive reintegration training. On July
appellant gave Lieutenant Grossman a request for the training, and she said
that he could attend. Appellant asked to
go to reintegration training at the academy because he did not want to work
with Sergeant Evans any more.
Appellant testified that Sergeant
Evans had not given him unsatisfactory evaluations, but he thought that
personal issues she had told him about were affecting her work and causing her
to be angry and difficult to approach.
For example, he said that Sergeant Evans had slapped his hand on
two occasions. Sergeant Evans had told
appellant that she was having difficulties at home regarding a domestic
violence incident and was having financial difficulties. Appellant did not report the difficulties in
his relationship with Sergeant Evans because he was still on probation and did
not want to cause problems.
Appellant received a weekly evaluation
report dated July 29 to August 4, 2007, in which Sergeant Evans indicated
that appellant needed to improve in the areas of report writing, officer
safety, suspects, prisoners, and use of common sense and good judgment. He testified that the evaluation did not
bother him because he had received similar reports from other officers but had
never received an unsatisfactory evaluation, which he described as “a silver
Testimony of Richard Gettler
Richard Gettler testified that his son
was schizophrenic with severe dementia.
He explained that his son sometimes was verbal and able to respond, but
other days he was not responsive.
Gettler sometimes wandered from home, but his father usually did not
report him as missing because he knew the police always brought him home.
Gettler’s father stated that when the
officers brought his son home on July 28, 2007, he asked Gettler if he had been in
a fight because his face was puffy.
Gettler told him that he was kicked at the hotel, so they drove around
until Gettler directed his father to the DoubleTree, where Gettler pointed to
the wall and indicated the incident happened near there. Gettler told his father he was kicked in the
chest twice by a police officer, but his father decided not to report it
because he assumed it was an accident and Gettler was not hurt.
Testimony of Detective
Detective Villanueva worked in the
Internal Affairs Criminal Section of the LAPD and investigated the excessive
force complaint against Sergeant Evans.
During her investigation, she tried to interview Gettler, but she was
told by Gettler’s grandmother and father that Gettler probably would be unable
to answer simple questions because of his severe mental illness. She did not ask Gettler’s father about the
incident at the DoubleTree Hotel.
Based on Detective Villanueva’s
interviews of three DoubleTree employees and Sergeant Evans, she concluded that
appellant falsely accused Sergeant Evans of kicking Gettler. Her investigation did not reveal any evidence
to support appellant’s allegation that Sergeant Evans intentionally kicked
Testimony of Christopher Gettler
The Board brought Gettler in to
question him during the administrative hearing, but his responses generally
were incoherent and nonresponsive. A
videotaped interview of Gettler, taken on December 8, 2008, was shown at the administrative hearing.
Decision of the Board
The Board stated that the primary
issue in the case was whether Sergeant Evans actually kicked Gettler or
not. After reviewing all the evidence,
the Board stated that it could not find that the kicks occurred. The Board pointed out that, although
Gettler’s clothes were soiled, consistent with testimony that he and appellant
fell in the bushes, there was no “visible dirt transfer” on Gettler’s white
shirt to support the allegation that Sergeant Evans kicked him in the shoulder
or chest area.
The Board reasoned that, although
there were inconsistencies in the testimony, the testimony of Adrid, Sergeant
Perez, and Sergeant Hernandez was consistent with the original report by appellant
and Sergeant Evans. Although Richard
Gettler’s testimony supported appellant’s assertion that Sergeant Evans kicked
Gettler, the Board found his testimony not credible because it was inconsistent
with his son’s testimony. The Board also
noted that Gettler’s mental illness affected his ability to give an accurate
account of the incident and found that Gettler’s videotaped statement, alleging
one kick, was not credible.
The Board found that appellant had
failed to report the alleged kicks, despite numerous opportunities to do so,
and that his testimony regarding his reasons for not reporting the kicks was
not credible. The Board also found that
the injury to Gettler’s face was caused when he fell into the bushes.
The Board found there was evidence
that appellant had a motive to make a false complaint, citing Sergeant Evans’s
testimony that appellant was going to receive an unsatisfactory probationary
rating if he did not improve his performance and that the kicks were reported
the day after appellant received an evaluation.
The Board concluded that appellant was not credible and found him guilty
of the charges against him.
Decision of the Trial Court
Appellant filed a petition for writ of
administrative mandamus, which the trial court denied. The court stated that, after an independent
review of the administrative record, the court was “uncertain whether the
training officer kicked the suspect or not.”
Because the court was not convinced that the administrative findings
were wrong, the court found that appellant failed to carry his burden of
establishing that the administrative findings were contrary to the weight of
the evidence. The court also rejected
appellant’s contention that the Board shifted the burden of proof by requiring
him to prove the training officer kicked the suspect. Finally, the court rejected appellant’s
contention that the Board members were biased.
The court reasoned that no other witness testified that Sergeant Evans
kicked Gettler and that the issue came down to a determination of the relative
credibility of appellant and Sergeant Evans.
The court thus denied appellant’s petition for writ of mandate and
entered judgment in favor of respondents.
Appellant filed a timely notice of appeal.
“Pursuant to Code of Civil Procedure
section 1094.5, when the trial court reviews an administrative decision that
substantially affects a fundamental vested right, the trial court ‘not only
examines the administrative record for errors of law but also exercises its independent
judgment upon the evidence . . . .’
[Citations.]” (Sarka v. Regents of University of California (2006) 146 Cal.App.4th 261, 270 (Sarka).)
The right to practice one’s trade or profession is a fundamental vested
right. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143; see also Barber v. Long Beach Civil Service Com.
(1996) 45 Cal.App.4th 652, 658 [stating that the trial court is required to
exercise its independent judgment where a case involves a police officer’s
vested property interest in his employment].)
“Under the independent-judgment
standard, ‘the party challenging the administrative decision bears the burden
of convincing the court that the administrative findings are contrary to the
weight of the evidence.’ [Citation.] ‘[The] trial court must accord a “‘strong
presumption of . . . correctness’” to administrative findings . . . .’ [Citation.]
The trial court begins its review with the presumption that the administrative
findings are correct, and then, after according the respect due these findings,
the court exercises independent judgment in making its own findings. [Citation.]
. . . [¶] On appeal, we review a trial court’s exercise
of independent review of an agency determination for substantial evidence. [Citation.]”
(Sarka, supra, 146 Cal.App.4th at pp. 270-271.) “‘[O]ur review of the record is limited
to a determination whether substantial evidence supports the trial court’s
conclusions and, in making that determination, we must resolve
all conflicts and indulge all reasonable inferences in favor of the party
who prevailed in the trial court.
[Citations.]’” (Wences v. City of Los Angeles (2009)
177 Cal.App.4th 305, 318.) We
review independently any legal interpretations made by the administrative
agency and the trial court. (Breslin v. City and County of San Francisco
(2007) 146 Cal.App.4th 1064, 1077 (Breslin).)
Appellant’s first contention is that
the trial court erred in rejecting his argument that the Board improperly
shifted the burden of proof from the employer to him. Whether the Board shifted the burden of proof
is a legal question reviewed de novo. (Breslin, supra, 146 Cal.App.4th at p. 1077.)
We conclude that the Board did not improperly shift the burden of proof.
The parties agree that respondents had
the burden of proving the charges against appellant. (See California
Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th
1133, 1167 [explaining that a public employee’s interest in his employment is
protected by due process, which requires an administrative hearing at which
“‘the burden of proving the charges rests upon the party making the
charges’”].) Thus, here, the LAPD was
required to prove that appellant made a complaint he knew or should have known
was false and that he made false statements during the investigation.
In arguing that the Board improperly
shifted the burden of proof, appellant focuses on the Board’s statement that,
after reviewing all the evidence, it could not “make a factual finding that the
kicks occurred.” Neither this statement
nor anything else in the Board’s decision indicates that the Board shifted the
burden to appellant.
In order to prove that appellant made
false statements and a false complaint, the LAPD needed to prove that Sergeant
Evans did not kick Gettler. The LAPD
accordingly presented witnesses and other evidence tending to show that the
kicks did not occur, and the Board found its evidence persuasive. The Board’s statement that it could not find
evidence to support appellant’s claim that Sergeant Evans kicked Gettler does
not mean that appellant had the burden of proving his statements were not
false. Rather, it indicates that the
LAPD bore its burden of convincing the Board that the kicks did not occur. The trial court did not err in rejecting
Appellant’s second contention is that
the trial court erred in upholding the Board’s factual findings because they
were not supported by substantial evidence. As stated above, on appeal, “we may not
reweigh the evidence, but consider that evidence in the light most favorable to
the trial court, indulging in every reasonable inference in favor of the trial
court’s findings and resolving all conflicts in its favor.” (Breslin,
supra, 146 Cal.App.4th at p. 1078.)
Appellant argues that the trial court
did not understand that it was required to exercise its independent judgment,
pursuant to Fukuda v. City of Angels
(1999) 20 Cal.4th 805 (Fukuda),
and that the court instead merely “rubber-stamped” the Board’s decision. Contrary to appellant’s claim, the trial
court specifically stated that it had independently reviewed the administrative
record and, based on that review, it was uncertain whether Evans had kicked
Gettler. Appellant therefore had failed
to carry his burden of convincing the court that the administrative findings
were contrary to the weight of the evidence.
(Fukuda, supra, 20 Cal.4th at p. 817; Breslin,
supra, 146 Cal.App.4th at p.
1077.) The trial court did not fail to
exercise its independent judgment.
Appellant further contends that the
findings made by the Board were so lacking in evidentiary support as to be
inherently improbable and unreasonable.
The Board’s findings relied on
physical evidence and the testimony of several eyewitnesses who testified that
they did not see Sergeant Evans kick Gettler.
Sergeant Hernandez and the two DoubleTree employees who witnessed the
incident, Adrid and Perez, did not see any kicks. The Board also noted that the photo of Gettler
did not show any dirt on his white shirt that would have indicated he was
kicked in the clavicle area. The Board
also relied on appellant’s failure to report the kicks despite several
opportunities to do so, citing Sergeant Jackson’s testimony that appellant did
not report the kicks when he was first interviewed about the use of force, as
well as appellant’s failure to report the kicks to Lieutenant Grossman. In addition, the Board found that appellant
had a motive to make false allegations against Sergeant Evans, based on her
testimony that appellant would receive an unsatisfactory rating if he did not
improve his performance.
Even if the Board had not found the
evidence listed above persuasive, Sergeant Evans herself testified that she did
not kick Gettler. Her testimony alone
would have been sufficient to support the Board’s findings. (See People
v. Fierro (2010) 180 Cal.App.4th 1342, 1347 (Fierro) [stating that “‘unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction’”].)
substantial evidence in the record to support the Board’s finding. The Board simply found appellant not credible
and thus implicitly found Sergeant Evans credible. Credibility determinations are within the
province of the trier of fact. (Fierro, supra, 180 Cal.App.4th at p. 1347.)
The judgment of the trial court,
denying appellant’s petition for a writ of administrative mandamus, is
affirmed. Respondents shall recover
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Acting P. J.
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Information provided by www.fearnotlaw.com
 At the
time of the hearing, he was a captain with the Lompoc Police Department.
 Appellant left for a
13-month military deployment shortly after his graduation from the police
 Because we find the findings
supported by substantial evidence, we need not consider respondents’ assertion
that appellant waived the substantial evidence issue.