Riverside Police Dept. v. Adler

Filed 5/21/08 Riverside Police Dept. v. Adler CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed.

Jones & Mayer and Gregory P. Palmer for Plaintiff and Appellant City of Riverside Police Department.

Silver, Hadden, Silver, Wexler & Levine, and Michael D. Schwartz for Real Party in Interest and Respondent Vincent Thomas.

No appearance for Defendant and Respondent Sara Adler.

The City of Riverside Police Department (Department) appeals from the judgment denying its petition for a writ of administrative mandamus. The Department sought to compel defendant and respondent, Sara Adler (Adler), arbitrator, to set aside her order reinstating real party in interest Vincent Thomas to his employment as a police officer with the Department. The Department had terminated Thomass employment for allegedly sexually molesting his niece between January 1999 and July 2001.

I. PROCEDURAL BACKGROUND AND FACTS

Desiree Ashworth (Desiree) was born in July, 1985. Her mother, Michelle Ashworth (Mother), never married Desirees father. Desirees father never acted as a father to her. At the time of Desirees birth, Mother was 17 years old. If Mother was not around, Desiree stayed with her maternal grandmother (Grandmother). Mother met Rick Lobdell (Rick) when she was 21 and Desiree was almost four. The couple had two children together and were married in 1995. Desiree had an abusive childhood at the hands of Mother and Rick. The abuse was physical, emotional and sexual. Because of the abuse, Grandmother stepped in from time to time and brought Desiree to live with her. Desiree soon clung to Grandmother as her moral support, heroine, protector and confidant.

While living with Mother and Rick, Desiree was molested by Rick. She tried to tell Mother, but Mother was half asleep and told Desiree to go back to sleep, causing the incident to go unaddressed for almost a full year. Later, when Mother was angry with Rick, Desiree again told Mother of the molestation. Mother took Desiree to the police to make a report. However, after Rick talked to Mother and informed her about how he would be treated in prison, Mother convinced Desiree to recant her story. Desiree was seven or eight years old at the time.

Years later, when Desiree was 11 or 12 years old, she went to live with Grandmother. Grandmother had cancer, and when the cancer made it difficult to care for Desiree, it was decided that Desiree would move in with Mothers sister, Donna Thomas (Aunt), and her husband, Vincent Thomas, a Riverside police officer (Employee). Employee always allowed his wifes family members to live with them when necessary. Regarding Desiree, he said, She was family. Family with me is the most important thing. Desiree began living with the Thomas family in summer 1998. At the time she moved in, the family was living in San Bernardino with their two children.

Several months after Desiree moved in, she began having problems with Aunt. These problems came to a head when Aunt slapped Desiree for the first time. Afterward, Desiree confided in Aunt about her allegations against Rick from several years ago. Aunt took Desiree to the local police station to inquire about reopening the case against Rick. However, Desiree had credibility problems that posed a concern.

In mid-December 1998, Employee received a page from a female coworker wishing him a happy birthday. Aunt questioned Employee about the female caller, and the two argued. Aunt accused Employee of having an affair.^[1] Later, Aunt found an empty condom wrapper in her nightstand and again questioned Employee. She also questioned Desiree about the wrapper. In Aunts words, I was just really upset because at that point I wasnt thinking straight. And all I could think about was this girl had paged him and then I found the empty condom wrapper in my [nightstand] drawer. Upset about Aunts accusations, Employee packed his bags and moved out of the house. He stayed away for about two weeks; however, knowing Aunts insecurities, which she had exhibited for years, Employee forgave his wife and moved back into the home.

Soon after this incident, Grandmother moved in with the family. Knowing that Grandmother was dying of cancer, Desiree and the Thomas family spent as much time with her as possible. While Grandmother was living with the family, they moved to a larger house in Mentone in June 1999. The larger house caused the familys mortgage to nearly double. Employee began to work more overtime to make up the difference.

While Desiree was living with the Thomas family, Mother and Desirees half-sisters also moved in on two separate occasions. The first move was in the summer of 1999 while Grandmother was still in the house and they stayed for a few weeks. Grandmother died in November 1999. The second move was in April 2000, when Mother and Desirees half-sisters stayed for about six months. Both times, Mother moved out without any goodbye, notice or thank you, leaving Desiree distraught and devastated. Employee prompted Desiree to go to counseling for her emotional upheaval.

In July 2001, Aunt was contacted by the family of Desirees father. Shortly thereafter, Desire met her father and moved in with him and his family. Desiree wrote a goodbye letter to her boyfriend, wherein she stated: The only reason I am leaving so soon is because I need to get away from [Aunt]. In the fall of 2001, Desiree was caught smoking marijuana with her friend. Although Desiree had obtained the drugs from her father, when asked, she lied about it. Given this incident, her ability to remain living with her father was tenuous. In late 2001, Desiree reported that her uncle, Employee, had been inappropriately touching her in a sexual manner for the previous two and a half years. Desiree accused Employee of massaging her back with her bra undone and then moving his hands to massage her chest, tickling her on her leg, and then gradually reaching further until he touched her vagina with two fingers.

Because the alleged incidents occurred in San Bernardino, the San Bernardino Sheriffs Department conducted a criminal investigation. The investigation led to the filing of a multiple count criminal complaint against Employee. The criminal charges proceeded to trial. Both the first and the second jury trials resulted in hung juries. The San Bernardino District Attorneys office decided not to refile and try employee a third time.

At the same time, the Department conducted an internal affairs investigation of the allegations. Sergeant Rick Tedesco led the investigation. Sergeant Tedesco interviewed numerous witnesses, and he watched on a monitor as Desiree gave a statement to the San Bernardino Sheriffs Department. Sergeant Tedesco explained there were discrepancies in Desirees account of what happened, and that new facts had come to light that he did not have during his investigation and which were significant in casting doubt on Desirees claims. Sergeant Tedesco further testified that both during the investigation as well as two and a half years later at the administrative hearing, he held the belief that the case could not be, and had not been, proved against Employee.

After reviewing both the criminal and internal investigations, the Departments command staff decided to believe the accusations made by Desiree. The Department terminated Employee effective January 27, 2003. An administrative hearing was held in which Adler was arbitrator. After five days of extensive testimony from numerous witnesses, including Desiree and Employee, Adler took the matter under submission. On January 3, 2006, Adler rendered her decision. Adler found that none of the charged misconduct relating to the molestation had been proved by the Department by a preponderance of the evidence. Consequently, Adler stated there was no just cause for Employees termination and ordered Employee reinstated with full back pay and benefits, including seniority and the conforming of all personnel records with the award. Adler retained jurisdiction to resolve any disputes regarding the details of reinstatement.

On March 29, 2006, the Department filed a petition for writ of administrative mandamus, in accordance with Code of Civil Procedure section 1094.5, in which it alleged that Adlers decision was not supported by substantial evidence, and that, by reinstating Employee and awarding him back pay and restoration of benefits, her decision amounted to an abuse of her discretion. Following a hearing on September 29, 2006, on October 17, the trial court issued its ruling denying the writ petition. According to the trial court, Adlers findings were supported by substantial evidence, and she did not abuse her discretion in ordering Employee reinstated with back pay and benefits. The Department appeals.

II. STANDARD OF REVIEW

The Department brought this petition under Code of Civil Procedure section 1094.5, to inquire into the validity of Adlers administrative decision. The trial court was tasked with determining whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. [Citation.] The trial court was correct in not utilizing the independent judgment test, since the governmental entitys interests in managing its department are not treated as fundamental rights. It is well-established that an employers right to discipline or manage its employees . . . is not a fundamental vested right entitling the employer to have a trial court exercise its independent judgment on the evidence. [Citations.] [Citation.] Therefore, the trial court was required to utilize the substantial evidence test in reviewing the commissions decision. And on an appeal from the decision of the trial court, we review the administrative decision, not the superior courts decision, by the same standard the substantial evidence test. [Citation.] [Citation.] (Kolender v. San DiegoCounty Civil Service Com. (2007) 149 Cal.App.4th 464, 470, italics in original.)

III. SUFFICIENCY OF EVIDENCE

The Departments opening brief claims, There is no substantial evidence in support of the claims made by [Employee]. It specifically addresses eight areas that Employee raised during the arbitration and proceeds to refute them. We will therefore follow the outline used by the Department.

A. Credibility of Desiree.

According to the Department, Employee attacked Desirees credibility by noting the timing (during a moment of opportunity) of her report of Ricks abuse to Mother and later on to Aunt. However, the Department reasons that Desiree reported the abuse when she believed someone would listen to her. Likewise, the Department challenges Employees criticism of Desirees description of living with Grandmother as idyllic. Given the choice of being with Mother and Rick or Grandmother, the Department contends that living with [Grandmother] most assuredly could be truthfully described as idyllic. Finally, the Department contends that Desirees lie about the source of the marijuana she used was easily explained upon considering that she had just gotten to know her father and did not want to get him in real trouble by revealing the truth that he provided the marijuana. Instead, the Department argues that if we are analyzing lies, [Employee] is equally culpable for keeping Desirees lie about the source.

Clearly, this is a case of he said, she said. Thus, credibility is very relevant given the seriousness of Desirees accusations. After reviewing the record, we find Desirees claims lack credibility. First, she lies. She lied about where she got the marijuana. Regardless of whether or not she was trying to protect her father, she lied. She lied about Ricks abuse. After she reported Ricks abuse, she changed her mind and recanted. While her change was prompted by Mother, she had no problem sitting alone with a detective, without Mother, and lying about her allegations. Second, Desiree had a reputation for being dishonest. Two of her closest friends testified that she routinely lied and neither believed her allegations against Employee. Third, Desirees life with Grandmother may have been better than her life with Mother and Rick; however, as Desiree got older, she did not like Grandmothers rules, and she gave Grandmother a difficult time. This is not quite an idyllic life. Finally, we note that Sergeant Tedesco, the internal affairs investigator and a veteran police officer for over 20 years, and Adler, the arbitrator, both witnessed Desiree recount her story, and neither was convinced of her allegations. Having reviewed the entire transcript of the hearing, we agree.

B. The ThomasHome Was Occupied.

At the arbitration, Employee pointed out that his home was occupied by many people during the time when Desiree lived with them. At any given time, the Thomas home included Aunt, the Thomas children, Grandmother, Mother, and Mothers children, along with Employee and Desiree. In addition, Aunt quit her job when the family moved to their bigger house. Given the number of people in the home, Employee argued there was no opportunity for him to do the things Desiree accused him of doing. On appeal, the Department challenges this claim by noting, the type of abuse suffered by Desiree is of the type that occurred in short duration. It . . . could be quickly covered up and be non-discernable upon the approach of somebody in the home. More specifically, the Department points to Employees failure to mention his alleged touching of Desiree while she and his daughter were lying with him on the couch watching television. According to the Department, if he could hide his behavior under these circumstances, he could most certainly touch Desirees breasts momentarily, even every day, for a few brief moments without being detected.

While the Department discounts the occupancy of the Thomas home, we find it to be a very relevant factor. Desiree lived with the Thomas family for about three years. During that time, Grandmother lived with them for about one year, from the end of February 1999 until she died in November 1999. On two separate occasions, Mother and her other children moved in, once for a few weeks, and then again for about six months. While Grandmother was still alive, Desiree testified that she spent as much time with her as possible. Desiree also spent a lot of time out of the house with her friends on the block. Desirees boyfriend lived in a house close to hers and she spent time there. Also, her friends came to the house many times. After moving into the bigger house, Employee began to work more hours to pay for the mortgage. Aunt, on the other hand, stopped working to stay at home. The evidence of such a busy home was relevant and credible. We reject the Departments attempts to discount it.

C. Desirees Letter to Her Boyfriend.

When Desiree went to live with her father, she wrote a farewell letter to her boyfriend stating that she needed to get away from Aunt. Employee emphasized the absence of any reference to Desirees need to get away from him. The Department discredits Employees emphasis, arguing it was not [Employee] that Desire did not like; indeed, he was the closest, and best, thing she had resembling a father in her life. . . . He was not the disciplinarian; that was [Aunt]. For a child her age, it would be natural to desire to get away from [an aunt-] type person in this dynamic, rather than from [Employee]. However, the significance of Desiree stating that the reason for wanting to leave was to get away from Aunt is the fact that Desiree had allegedly already told her boyfriend about Employees abuse. Despite having already told him about the abuse, she failed to say anything about it in her private letter or state a need to get away from Employee. We agree with Employee that [s]uch a significant omission, coupled with times when [Desiree] had been complimentary of her uncle to her friends . . . threw serious doubt on her story and credibility.

D. Desiree Repeats Her Allegations.

The Department challenges Employees claim that Desirees complaints about Employee were similar to her complaints about Rick. It argues that Desirees complaint against Rick involved his asking her to put baby oil on his penis, his placing her hand on his penis, masturbating in front of her, and watching pornographic movies. In contrast, Desirees complaints about Employee involved his massaging her back with her bra undone and then moving his hands to massage her chest, tickling on her leg and then gradually reaching further until he touched her vagina with two fingers. Turning to the record, we note that Desiree also reported that Rick had touched her vagina with two fingers after he had been tickling her. While the complaints may not have mirrored each other, they were similar enough to be relevant.

E. Desirees Friends.

According to the Department, Employees reliance upon the testimony of Desirees teenage friends is misplaced hyperbole. The Department argues that the friends testified only that Desiree lied about little things, and it is not clear that she would have shared the intimate details of her life with them. We disagree. The fact that Desiree had a reputation for being untruthful is very relevant. Moreover, a likely reason for her not telling her friends about Employees abuse is because the abuse never happened. Thus, we cannot agree that no significance should be attached whatsoever to the testimony of [the] teenage witnesses.

F. Child Erotica.

Finally, the Department faults Adlers decision to discount the evidence of child erotica found on Employees home computer. The Department acknowledges that the images did not qualify as child pornography; however, it argues, An interest in child erotica demonstrates an interest in sexual activity with children. Turning to the record, we note that Employee never denied looking up adult pornography. He did not recall the specific pictures that were introduced as an exhibit.^[2] And, he denied going to the www.teenfuck.com Web site. He did not know if the pictures found on his computer were the result of a pop-up, or someone else accessing his computer. Based on the record before this court, we cannot fault Adler for discounting the evidence.

In this case, Adler found that the allegations of misconduct had not been proved by a preponderance of the evidence. Having reviewed the record, we find substantial evidence to support Adlers factual findings. Thus, we agree with Adler that the Department did not have just cause to discharge Employee. The Department must reinstate Employee in accordance with Adlers order and award of January 3, 2006.

IV. DISPOSITION

The judgment is affirmed. Employee shall recover his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

KING

J.

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^[1] Aunt had previously had an affair during her marriage to employee.

^[2] The exhibit includes pictures of girls who appear to be 18 years old in various states of undress.