Angeles Dept. of Health Services
Filed 4/12/13 Rosario v. County of Los Angeles Dept. of Health Services CA2/8
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opinion has not been certified for publication or ordered published for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
DIVISION
EIGHT
CARLOS M. ROSARIO,
Plaintiff
and Appellant,
v.
COUNTY
OF LOS ANGELES DEPARTMENT OF
HEALTH SERVICES,
Defendant
and Respondent.
B239182
(Los Angeles
County
Super. Ct.
No. BS131781)
APPEAL
from the judgment of the Superior Court
of
County. Ann I. Jones,
Judge. Affirmed.
Law
Offices of Stephan Math and Stephan Math for Plaintiff and Appellant.
Hausman
& Sosa, Jeffrey M. Hausman and Larry D. Stratton for Defendant and
Respondent.
* *
* * * * * * * *
Plaintiff Carlos M. Rosario, a former physician specialist at Martin
Luther King-Drew
Medical Center,
was discharged in 2009 by his employer, defendant
County of Los Angeles Department of
Health Services (Department). Plaintiff
appealed his termination to the Civil Service Commission of the County
of Los Angeles (Commission). The Commission upheld the Department’s
termination decision. Plaintiff sought a
peremptory writ of mandate in the superior court for reinstatement and
backpay. The trial court denied
plaintiff’s writ petition.
On appeal,
plaintiff contends the Department denied him a
Plaintiff claims he received inadequate notice of the basis for his
termination, and the Department did not consider his written response to its
Notice of Intent to Discharge when it made its final termination decision. He also contends his termination was based on
protected activity, such as his right to petition for a redress of grievances
and his assertion of his constitutional right
to remain silent. Additionally, he
contends the evidence on which his termination was based was protected by the
litigation privilege. Lastly, he
contends the trial court abused its discretion by disregarding evidence that
was favorable to plaintiff.
We affirm, finding
that the majority of plaintiff’s claims were never raised either before the
Commission or in the trial court, or were inadequately (and sometimes incomprehensibly) addressed on appeal, and
therefore cannot be reviewed by this court.
Plaintiff’s Skelly claims are
cognizable on appeal, but they fail on their merits.
FACTUAL AND
PROCEDURAL BACKGROUND
Plaintiff
began his career with the Department in August 2001 as a physician specialist
at the Martin Luther
King-Drew Medical
Center, and continued there until
his termination on November 19, 2009. However, in May 2005, plaintiff was
suspended, pending an investigation, for submitting false timecards. On September
21, 2005, plaintiff was discharged, but he successfully appealed
that discharge to the Commission. In
August 2006, the discharge was reduced to a 15-day suspension after the
Commission determined “there is no dispute that [plaintiff’s] time cards for
several years were inaccurate[,]†however, “there is also no dispute
. . . that [his] Department Chair . . . instructed [him] to
code his time [inaccurately].â€
While
the 2005 disciplinary proceedings were pending, plaintiff complained of
timecard fraud by Department employees to the Los Angeles County District
Attorney, Los Angeles County Supervisor Gloria Molina, the Department of Fair
Employment and Housing, and Congressman Henry A. Waxman. In his letters to these officials, plaintiff
claimed the Department had “railroad[ed]†him “as a result of [his] complaining
(whistle blowing) both internally and externally of the nidorous [
(Physicians and Administrators) here at this hospital.†He reported “rampant corruption†at the
hospital including “time card fraud as well as other illegal activities.â€
1.
Plaintiff’s
Deposition Testimony About Timecards
In
September 2007, plaintiff filed a lawsuit against the County
of Los Angeles (hereafter
County), alleging he was wrongfully
subjected to disciplinary action (the 2005 termination) after he complained of
“‘the intentional falsification of time cards.’†That case was ultimately resolved against
him.
case against the County. During his
deposition, plaintiff was asked whether he had complied with the County’s
discovery request seeking production of “all documents supporting your claim
that the County engaged in intentional violation of [L]abor [C]ode [s]ection
1102.5 . . . [¶] . . . your claim for taking action against you
because you are essentially a whistleblower.â€
Plaintiff’s counsel produced a “group of documents . . . which
consists solely of time cards.â€
When
the County’s counsel asked plaintiff whether the timecards were County
timecards, and whether they belonged to plaintiff or other employees, plaintiff
testified they were County timecards for “[o]ther people.†When asked how he came to possess the
timecards of other individuals, plaintiff responded “I never—no one ever gave
me any time cards. And I don’t even
recall how that information was communicated to me, but I unearthed that.†When asked again how he got the timecards,
plaintiff said, “As I recall, when this was taking place, they were left about. And what happens is that—they were just left
about.†When asked where they were “left
about,†plaintiff responded, “And as I was copying my time cards ‑‑
.†He was interrupted by County counsel,
who stated, “I think was have some serious problems here.†Plaintiff’s counsel agreed, and they went off
the record so plaintiff and his counsel could confer.
When
they came back on the record, the County’s counsel identified some of the
employees whose timecards were produced, and asked plaintiff whether any of
those employees gave plaintiff “authorization to take possession of their time
cards.†Plaintiff’s counsel objected,
asserting the questions sought information that tended to incriminate
plaintiff. Plaintiff followed his counsel’s
advice and did not respond. When queried
about his earlier testimony that he had found the cards laying about, plaintiff
testified, “Right. They were going to be
thrown out.†When asked how he knew they
were going to be thrown out, plaintiff’s counsel again objected on
self-incrimination grounds, and plaintiff did not answer the question. Plaintiff did not answer any additional
questions about the timecards.
2.
The
County’s Investigation of Plaintiff’s Possession of Timecards
The
County initiated an investigation into plaintiff’s possession of the
timecards. On May 13, 2009, Martina Ford
and Fred Williams, Department performance management investigators, met with
plaintiff and his attorney and memorialized their findings in affidavits. Ford asked plaintiff “how he obtained time
records of other employees,†and plaintiff gave a new explanation. This time, he said “they were delivered [and]
left at his home anonymously.†He did
not save the envelope in which they were delivered. Plaintiff denied he had taken the timecards
from the hospital. He “did not notify
his superiors, payroll, [or] personnel regarding the confidential
documents.â€
In
a May 28, 2009 affidavit, plaintiff testified he “received a packet,
anonymously, at his home, which was placed outside his apartment door. The package was very thick, and did not have
a return address or postmark . . . . [H]e ripped open the package, and in the
process ripped some it its contents as well . . . he threw away the
envelope and the ripped contents . . . . [H]e was aware time cards were confidential
before he had received the timecards at his door,
anonymously . . . .
[H]e asked his colleagues what he should do with the anonymously sent
timecards and they did not provide any useful advice . . . . [H]e decided to store them.†The colleagues he consulted were Drs. Tim
Dutra and Rosabel Young. They were
former County employees at the time he consulted them. Plaintiff did not talk to anyone at the
Department about the timecards “because he was falsely accused of timecard
fraud whilst [sic] he was actually
reporting timecard fraud to the respective authorities.â€
Plaintiff
testified further that “he went to the fifth floor mailroom to make copies of
his own time . . . card as he became aware of false accusations of
timecard fraud being made against him.
He . . . saw timecards strewn about the shredder; he viewed a
couple of them and recognized them as copies of those which had already been
sent to him and so he threw them away into the office trashcan and quickly left
the room.†According to plaintiff, “he
has never taken time cards off the premises, ever made copies of time cards, or
has ever shared copies with anyone other than his attorney.†However, he admitted he did “deliver in
person copies to supervisor Gloria Molina’s office; copies were also sent
. . . to Rep. Henry Waxman and the district attorney.†Plaintiff also averred he had reported
timecard fraud to various Department supervisors.
On
August 7, 2009, Ford and Williams interviewed Dr. Young, who told them that
several years earlier, plaintiff contacted her about a position she was trying
to fill in her practice. He told her
about problems with his timecards.
Plaintiff said he and other Department employees were not being paid. Dr. Young told Ford and Williams she had
problems with the approval and submission of her timecards when she was
previously employed with the County.
Plaintiff never told Dr. Young he possessed timecards belonging to other
employees.
Department’s Notice of Intent to Discharge
On
August 27, 2009, the Department issued a Notice of Intent to Discharge
plaintiff. The basis for the intended
discharge was plaintiff’s violation of the Department’s Employee Evaluation and
Discipline Guidelines and Policy and Procedure No. 362 (Department Guidelines
or Guidelines). Specifically, it was
alleged plaintiff failed “to follow established rules and regulationsâ€; he
provided “inaccurate, false or misleading information†during an administrative
or internal affairs investigation; and he had violated a policy against the
“[u]nauthorized access†to confidential personnel records. The notice also stated plaintiff violated
Department policy concerning the confidentiality of personnel records, which
provides that “[i]n accordance with federal and state privacy laws, employee
personnel . . . and payroll records are considered confidential
information. Information in such records
may only be used for administrative purposes, without employee
consent . . . .
Unauthorized release of employee information shall be cause for
disciplinary action.â€
The
notice identified the facts in support of the proposed discharge, including
plaintiff’s statements in his deposition about how he came to possess the
timecards, and his subsequent inconsistent statements to Department
investigators, as well as his further inconsistent statements in his
declaration. The notice also listed as a
basis for discharge plaintiff’s statement in his affidavit that he sought
advice from Dr. Young about what to do with the timecards, and Dr. Young’s
denial that plaintiff had ever mentioned to her that he received timecards
belonging to other employees. Further,
the notice stated plaintiff did not have the authorization of the Department or
its employees to possess or distribute the timecards.
4. Skelly Hearing and Discharge
Plaintiff
responded to the Department’s notice on September 15, 2009, and participated in
a hearing pursuant to Skelly,
its formal notice discharging plaintiff from employment with the Department,
stating the same grounds identified in the Notice of Intent to Discharge.
5. The Commission Proceedings
Plaintiff
appealed to the Commission, which conducted a hearing on August 16, 2010. Three witnesses testified on behalf of the
Department, including Williams, Kathy Hanks, and Michael Lampert. Plaintiff testified in his own behalf. Exhibits and affidavits were admitted into
evidence.
Williams,
performance management investigator for the Department, testified that he
investigated the allegations against plaintiff.
Specifically, he investigated plaintiff’s “unauthorized possession of
time records.†He authenticated the
Department Guidelines referenced in the notice of discharge. Policy No. 362 provides that payroll records
are confidential, the information contained in the records can only be used for
administrative purposes, without the employee’s consent, and “[u]nauthorized
release of employee information shall be cause for disciplinary action.†Moreover, the County discipline Guidelines
prohibit “[u]authorized access to confidential records, or any portion of a
record, including but not limited to:
medical records, personnel records, and credential files.â€
Hanks,
an administrator with Contract Programs and Special Services who acted as the
experience conducting Skelly
hearings. It was her role to look at the
presentations made by both parties, to determine the appropriateness of the
recommended discipline, and then to make a recommendation to the
Department. She did not consider
plaintiff’s previous discipline when making her recommendation.
After
the Skelly hearing, Hanks permitted
plaintiff to submit declarations in support of his position, which she
considered in making her recommendation.
These included a declaration of Dr. Dutra, signed September 25, 2009, in
which Dr. Dutra declared that in 2005, he had a conversation with plaintiff
about a packet of timecards plaintiff received that belonged to other
employees. Plaintiff told Dr. Dutra he
received the timecards anonymously in an unmarked package. Hanks also considered the declaration of Dr.
Young dated September 30, 2009, in which Dr. Young declared she and plaintiff
had conversations in 2005 and 2008 about an unmarked packet of timecards for
other employees that plaintiff received at his home.
Based on the
evidence before her, Hanks recommended that discharge was appropriate. She based this recommendation on plaintiff’s
possession of confidential timecards belonging to other employees, and the high
standard of confidentiality applicable to physicians. There were discrepancies between plaintiff’s
deposition testimony, his statements during the investigation, and his
testimony at the Skelly hearing about
how he came into possession of the timecards.
Therefore, Hanks concluded plaintiff was dishonest. She testified receipt of unsolicited
documents was not inappropriate, but the retention of those documents was
inappropriate. Plaintiff could have
reported receipt of the timecards to management, or to the audit and compliance
office, or he could have anonymously called the fraud hotline. Hanks did not consider the fact that counsel
raised objections during plaintiff’s deposition in making her
recommendation. She did consider the
written response provided by plaintiff’s counsel on September 15, 2009, when
she made her recommendation to the Department.
Lampert,
the chief of performance management for the Department, made decisions
regarding discharge and discipline for employee misconduct. It was his predecessor, retired County
employee Carolyn Clark, who signed plaintiff’s discharge letter. Lampert recommended plaintiff’s termination
to Clark in his former capacity as the manager of the investigative unit for
the Department. In making his
recommendation, he considered the rules that were violated, the imposition of
any previous discipline, and the potential impact on the Department. He did not consider any previous disciplinary
actions against plaintiff that were not sustained, or plaintiff’s lawsuit
against the County. He did consider the
Lampert
recommended discharge because the position of physician specialist requires a
great deal of trust from the Department and patients. Lampert had serious concerns about
plaintiff’s truthfulness and ability to use sound judgment because he testified
at his deposition that he did not know how he came to possess the timecards,
and then later averred that he had received them in an anonymous package. Also, plaintiff displayed poor judgment in
keeping the timecards for several years without letting his employer know he
had them, and by only discussing the matter with former County employees who were not part of the chain of
command. The range of appropriate
discipline for such conduct is suspension to discharge. Lampert recommended discharge because of the
“egregious†nature of the conduct and plaintiff’s access to confidential
patient information.
Lampert
did not recall reviewing the written response to the Notice of Intent to
Discharge provided by plaintiff’s counsel on September 15, 2009. However, he does not customarily review all
documents considered by the Skelly
officer in making a recommendation. That
is because an employee is afforded a full opportunity to respond to the charges
against him at the Skelly hearing,
before the Department makes its final determination.
Plaintiff
stipulated he did not have permission to possess the timecards. He testified he was accused of timecard fraud
in 2005, but was “exonerated†and ultimately suspended for 15 days for other
“minor things involving behavior.â€
Although plaintiff saw employee timecards in the copy room at work, he
did not take them, and could not have taken them because he was “always
escorted to the copy room.†He was
escorted due to claims in 2003 that he mismanaged a patient. He was not permitted to see patients, and was
closely monitored while on Department premises.
At the time of his deposition, he could not recall how he came to
possess the employee timecards, and only remembered seeing them “strewn aboutâ€
at work. He was “flustered and
. . . nervous†at his deposition.
The
timecards “were deposited outside [plaintiff’s] door.†Around the time he received them, he had complained
of timecard fraud to the hospital’s chairman and the chief medical
officers. He also contacted Supervisor
Molina, the district attorney, and Congressman Waxman. Plaintiff believed he received the timecards
sometime between January 2004 and his termination. He did not inform the Department about the
timecards because he had been accused of timecard fraud. Plaintiff was “very apprehensive of returning
copies of documents which [he] didn’t ask for.â€
Plaintiff believed he would have been fired if he had done so. Because he had been accused of timecard
fraud, plaintiff thought it would be “unwise†to “return exculpatory
evidence.†He simply “stowed
. . . away†the timecards, and did not share them with anyone. However, he later testified that he gave
copies of the timecards to Congressman Waxman and Supervisor Molina. Plaintiff forgot he had the timecards, and
when asked about them at his deposition, he did not recall that they had been
anonymously delivered to his door. He
remembered this, however, almost immediately after his deposition, but did not
correct the deposition to reflect the anonymous delivery of the timecards.
Plaintiff
testified that when he received the anonymous envelope, he ripped it open, and
in the process tore some of the timecards.
He threw the torn timecards away without examining them. He denied ever closely examining the
timecards he received, notwithstanding his testimony that he believed them to
be “exculpatory,†and that he made copies of the documents to send to various
officials.
In
June 2008, plaintiff participated in an internal audit by the Department
concerning the timecards, and told the auditors they had been anonymously
delivered to his home. The timecards
were in an envelope that said only “Rosario.â€
Plaintiff was surprised when Ford and Williams interviewed him about the
timecards in May 2009.
Plaintiff
knew timecards are confidential.
The
hearing officer issued a proposed decision recommending the Commission uphold
the Department’s decision to discharge plaintiff. Plaintiff filed objections, asserting he did
not receive proper notice of the basis of his discharge. The Commission voted to overrule plaintiff’s
objections and adopted the hearing officer’s Findings of Fact and Conclusions
of Law as its final decision.
Accordingly,
the Commission affirmed the Department’s decision to discharge plaintiff,
finding that discharge was appropriate under Department Guidelines concerning
the confidentiality of personnel records and unauthorized access to them, and
because plaintiff provided inconsistent accounts of how he obtained the
timecards, “cast[ing] serious doubt over [his] credibility and honesty.†He also maintained and copied the timecards,
and sent copies to various officials.
Plaintiff failed to notify his supervisors or any Department official
that he was in possession of confidential time records. Given the high standard of honesty that
physicians are held to, discharge was an appropriate penalty.
6. Petition for Writ of
Mandate in Superior Court
Plaintiff
filed a petition in the superior court seeking a peremptory writ of mandate
directing the Commission to vacate its decision and order plaintiff’s
reinstatement with backpay. The petition
alleged that plaintiff did not receive a fair trial because the Notice of
Intent to Discharge did not provide adequate notice of the grounds for his
discharge. The petition also alleged the
Department failed to meet its burden of proof because the finding that his
statements to Department investigators contradicted his earlier deposition
testimony was not supported by the weight of the evidence. The petition also alleged that to the extent
the Commission based its conclusions of law on plaintiff’s incomplete
deposition testimony, these conclusions “are in violation of the exercise of
petitioner[’s] constitutional rights as asserted by his counsel on his behalf
at said deposition.†Also, the petition
alleged any conclusion of law based on his possession and transmission of the
timecards to various officials violates Labor Code section 1102.5.
In his trial brief
in support of the petition, plaintiff raised only the following issues: the Notice of Intent to Discharge did not
place plaintiff “on notice that the mere retention of [timecards] without
informing a person in authority of same was a matter with which he was being
chargedâ€; the Commission failed to consider evidence that was favorable to
plaintiff; and the findings of the Commission are not supported by substantial
evidence.
The trial court
concluded the evidence supported the Commission’s conclusion that plaintiff
“improperly possessed and used confidential information and that he provided
inaccurate, false or misleading information during the course of the
investigation.†The trial court found
discharge was an appropriate penalty because of the substantial trust placed in
plaintiff in his position as a physician
specialist.
This timely appeal
followed.
DISCUSSION
Even though the
majority of the issues raised in this case will be resolved without reaching
the merits, it is necessary to discuss the appropriate standards of review, so
that the impact of the various deficiencies in the appeal are placed in proper
context. Plaintiff filed his petition in
the superior court pursuant to Code of Civil Procedure section 1094.5,
contending the Commission’s decision to uphold his discharge was an abuse of
discretion, as it was unsupported by the evidence and contrary to the law, and
that he was denied a fair hearing.
Because the Commission’s order affirming plaintiff’s discharge affected
a fundamental vested right, the trial court was required to exercise its
independent judgment in reviewing the administrative
record. (Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152
Cal.App.4th 1122, 1130 (Davis).) The independent judgment test required the
trial court to not only examine the administrative record for errors of law,
but also exercise its independent judgment upon the evidence in a limited trial
de novo. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143 (Bixby).) The trial court was
permitted to draw its own reasonable inferences from the evidence and make its
own credibility determinations. (
Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 868 (
strong presumption of correctness to the administrative findings, and the
challenging party was required to demonstrate that such findings were contrary
to the weight of the evidence. (
Cal.4th 805, 817.)
Our task on appeal
is to conduct a limited review of the record to determine only whether the
administrative agency findings) are supported by substantial evidence. (Bixby,
supra, 4 Cal.3d at p. 143, fn. 10;
superior court required to exercise independent review of administrative
record, “‘the scope of review on appeal is limited’â€].) We resolve all evidentiary conflicts and draw
all legitimate and reasonable inferences in favor of the trial court’s
decision. (Valiyee v. Department of Motor Vehicles (1999) 74 Cal.App.4th 1026,
1031.) “Where the evidence supports more
than one reasonable inference, we are not at liberty to substitute our
deductions for those of the trial court.â€
(Morrison,
However, where the
question presented is a question of law, on undisputed facts, our review of the
trial court’s decision is de novo. (See
(1998) 63 Cal.App.4th 95, 107-108; Riveros
v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1349-1350;
Cal.App.4th 1029, 1036.)
1.
Procedural Bars to Review
This appeal suffers from a number of deficiencies that necessarily limit
the scope of our review. First,
plaintiff’s statement of facts in his opening brief provides an incomplete
summary of the evidence before the Commission and the trial court. If we were to review only his opening brief,
we would be left with the impression that plaintiff was a whistleblower, who
was terminated for reporting timecard fraud at Martin Luther King-Drew Medical
Center. Far from providing us an
objective summary of the record, his statement of facts reads like an opening
or closing argument, detailing the many ways that the Department has
purportedly persecuted plaintiff, ignoring the considerable evidence that
supported the discharge decision.
An appellant must recite in the opening brief all “significant factsâ€
included in the record, not just the evidence favorable to his position. (Cal. Rules of Court, rule 8.204(a)(2)(C); Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano
v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274 (
Department employees Williams and Hanks before the Commission, and included
only a limited discussion of Lampert’s testimony. Plaintiff did not discuss the contents of the
affidavits submitted by Ford and Williams, or his own declaration, and failed
to thoroughly discuss the nature of his deposition testimony, which was
essential evidence in support of his discharge.
All of this evidence is crucial to the proper consideration of the
arguments raised on appeal, given the substantial evidence standard of
review. (Bixby, supra, 4 Cal.3d at
p. 143, fn. 10.)
After respondent pointed out this failure, plaintiff attempted to restate
the facts in his reply brief. However,
plaintiff’s failure to state all of the evidence fairly in his
alleged error on appeal. (Foreman
& Clark Corp. v. Fallon, supra,
3 Cal.3d at p. 881; County of Solano, supra, 75 Cal.App.4th at p.
1274.) The California Rules of Court
require the statement of facts to appear in an opening brief, and it is well
settled that matters raised for the first time in the reply brief will not be
considered. (REO Broadcasting
Consultants v. Martin (1999) 69 Cal.App.4th 489, 500; Reichardt v.
Hoffman (1997) 52 Cal.App.4th 754, 766.)
It was plaintiff’s burden to establish that the underlying decision was
“contrary to the weight of the evidence.â€
(Davis, supra, 152 Cal.App.4th at p. 1130.)
He did not do this in light of his incomplete representation of the
facts.
Also, plaintiff’s characterization of the issues to be decided in this
appeal ignores well-settled law on which issues may be properly raised before
this court. In this appeal, plaintiff
contends his termination was based on protected petitioning activity (his act
of suing the County) and the Department relied on evidence and conduct
protected by the litigation privilege in making its termination decision (his
deposition testimony and the timecards produced during his deposition). Also, his characterization of the facts appears
to intimate he was wrongfully terminated for whistleblowing (reporting timecard
fraud to various entities). (See Lab.
Code, § 1102.5.)
None of these issues were adequately raised or developed before the
Commission or trial court, and we cannot, in the first instance, decide them on
appeal. Plaintiff is not entitled to a
fourth trial on the merits in the Court of Appeal. (Abelleira
v. District Court of Appeal (1941) 17 Cal.2d 280, 292 (Abelleira) [“relief must be sought from the administrative body and
this remedy exhausted before the courts will actâ€]; Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 135 [same];
Fair
Political Practices Com. v. Californians Against Corruption (2003) 109 Cal.App.4th 269, 281-283; see
also Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486
[The right to complain on appeal may be waived if the issue was not raised in
the trial court.].) Moreover, the issue
of whether plaintiff was entitled to the protections of Labor Code section
1102.5 for whistleblowing was not briefed or developed on appeal,
notwithstanding its presence as a dominant theme in plaintiff’s factual
characterization of this case. (Cal.
Rules of Court, rule 8.204(a)(1)(B); Jones v. Superior Court (1994) 26
Cal.App.4th 92, 99.)
The issue of whether plaintiff’s termination was based on his assertion
of his Fifth Amendment privilege against self-incrimination during his
deposition was raised before the Commission and the trial court. The trial court concluded plaintiff’s
deposition testimony was “provided freely and voluntarily†and the questions to
which he asserted a constitutional privilege were not a basis for any action
against plaintiff. Plaintiff’s failure
to fairly summarize the facts has waived his right to any further consideration
of this issue on appeal, as the resolution of this claimed error turns on
whether plaintiff’s refusal to answer questions at his deposition was the basis
for the Department’s termination decision.
Ultimately, plaintiff’s framing of the facts and issues has made
meaningful review of the above claims of error impossible. Even if these claims were cognizable on
appeal, they do not appear to have substantive merit. Plaintiff’s claims regarding protected
petitioning activity, the litigation privilege, and the right against
self-inclination are ill-conceived. The record supports the trial court’s
conclusion that plaintiff’s discharge was based on his wrongful retention of
confidential records, and his untruthful statements when the matter was
investigated. It is of no consequence
that plaintiff’s possession of confidential timecards came to light during his
deposition in an action he commenced against the County, because nothing in the
record suggests his discharge was based on his protected activity. (See, e.g., Wang v. Wal-Mart Real Estate
Business Trust (2007) 153 Cal.App.4th 790, 809-810 [where protected
activity merely will be used as evidence in an action, claim does not arise
from protected activity].) Moreover, the litigation privilege is
“a limitation on liability, precluding use of the protected communications and
statements as the basis for a tort action,†but is not an evidentiary privilege
prohibiting discovery of the statements or communications, or their use for
evidentiary purposes in other proceedings.
(Moore v. Conliffe (1994) 7
Cal.4th 634, 638, fn. 1; Oren Royal Oaks
Venture v. Greenberg, Bernhard, Weiss & Karma (1986) 42 Cal.3d 1157,
1168.)
Likewise, the conclusion that plaintiff provided misleading answers
during his deposition and during the Department’s investigation was in no way
based on the assertion of his right against self-incrimination. Plaintiff testified before the Commission
that he was flustered during his deposition, and did not recall the source of
the timecards. During his deposition, he
provided one account of how he came to possess them. During the investigation, he provided a
conflicting account. Nothing in the
record suggests plaintiff’s discharge was based on his assertion of his right
to remain silent during his deposition.
Rather, it was based on his possession of confidential personnel records
and his conflicting statements made during his deposition and the subsequent
investigation in violation of Department policy.
Lastly, the claim that the trial court failed to consider exculpatory
evidence is wholly without merit. We
will uphold the trial court’s findings if they are based on substantial
evidence, and will not reweigh or resolve conflicts in the evidence. Plaintiff is essentially asking us to do
so. (Morrison, supra, 107
Cal.App.4th at p. 868.) Plaintiff provided grossly
inconsistent accounts of how he came to possess the confidential
timecards. His credibility was seriously
impugned. Based on the nature of his
position as a physician, trusted with confidential medical records, it was
permissible to discharge him.
Due Process
The only cognizable claim on appeal is plaintiff’s claim that his due
process rights were violated in the Skelly
proceedings, as this claim is not based on any disputed facts, was raised
below, and presents a pure question of law.
The due process claim is twofold.
Plaintiff contends that the Notice of Intent to Discharge did not
provide adequate notice of the grounds for his termination. He also claims that his due process rights
were violated when Lampert, a Department employee who participated in the
decision to terminate him, made that decision without reviewing counsel’s
September 15 response to the Notice of Intent to Discharge.
Respondent contends that these claims are not cognizable on appeal
because they were never certified to the Commission, and therefore plaintiff
did not exhaust his administrative remedies.
(See Abelleira,
Against Corruption,
281-283.) However, the procedural
fairness of the Skelly procedure was
squarely raised before the Commission and the trial court. Plaintiff and the Department submitted
a joint prehearing statement identifying the issues before the Commission as
whether: (1) “the allegations contained
in the Department’s letter of November
19, 2009 [are] trueâ€; and (2) “If any or all are true, is the discipline
appropriate.†In that statement,
plaintiff also proposed that a third issue should be decided, e.g., “Whether
[plaintiff] was denied due process at his Skelly
meeting.†Plaintiff’s petition to
the superior court averred that plaintiff was not afforded due process and the
Department “failed to provide adequate notice†of the grounds for his
termination. It does not appear the
Commission or the trial court considered the issue directly. However, because the question of the
procedural fairness of the proceedings is a pure question of law, we will
review plaintiff’s due process claim de novo.
(Bostean v. Los Angeles Unified School Dist., supra, 63 Cal.App.4th at p. 107.)
One of the bases for the Commission’s and trial court’s determination
that discharge was appropriate was that plaintiff wrongfully possessed and
retained confidential personnel records of other employees for a number of
years. Plaintiff contends that the
Notice of Intent to Discharge was insufficient to put him on notice that the
retention of confidential records could provide a basis for his discharge. We are not persuaded. The Notice of Intent to Discharge recited
that “unauthorized access to confidential records†constituted
during his deposition and later in the investigation that he had confidential
personnel records in his home for several years, and that he never alerted
anyone at the Department of this fact.
Rule 18.02 of Los Angeles County Civil Service Rules requires that before
a discharge becomes effective, “the employee shall receive a written
notice from the appointing power of intent to invoke discharge or reduction,
and specific grounds and particular facts therefor. The employee shall then be allowed a
reasonable time, not to exceed 10 days, to respond orally or in writing to the
appointing power before the discharge or reduction shall become
effective.†Likewise,
therefor, a copy of the charges and materials upon which the action is
based, and the right to respond, either orally or in writing, to the authority
initially imposing discipline.†(
Clearly, the allegations in the notice encompass the wrongful retention
of confidential records, which were accessible to plaintiff while they were in
his apartment for a number of years, regardless of how they came into his
possession. “Access†is defined as an
“opportunity to reach or use or visit.†(Oxford
American Desk Dict. (2d ed. 2001) p. 6.)
Plaintiff also complains that Lampert’s failure to
consider counsel’s response to the Notice of Intent to Discharge, before making
any final termination decision, violated his due process rights under
This claim is also without merit.
It is undisputed that the Skelly
hearing officer considered counsel’s response in making her recommendation to
the Department. Plaintiff was allowed to
fully participate in the Skelly
hearing. It is of no consequence that
one of the final decision makers in the Department did not review some of the
documents underlying the Skelly
officer’s recommendation, since the Skelly
officer took into consideration all of the relevant evidence and
arguments.
The judgment is affirmed. Respondent shall recover its costs on appeal.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
BIGELOW, P.
J.
FLIER, J.
name="_ftn1" title="">[1] We
take judicial notice of our unpublished opinion in Rosario v. County of Los Angeles (Sept. 30, 2009, B210349).
Rosemary Chequer also submitted a declaration averring plaintiff told her, in
2005, about a packet of timecards belonging to other employees plaintiff had
received anonymously. Hanks did not
consider Dr. Chequer’s declaration, because she never received it. Even if she had received it, she testified it
would not have changed her recommendation to the Department. Plaintiff raises no issue about this in this
appeal.
