Castagna v. City of Seal Beach

Filed 6/18/08 Castagna v. City of Seal Beach CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Corey S. Cramin, Judge. Affirmed.

Bohm, Matsen, Kegel & Aguilera, Lee A. Wood and Thomas E. Francis for Defendant and Appellant.

Kellison & Vasquez and Sylvia Kellison for Plaintiff and Respondent.

* * *

Introduction

The City of Seal Beach (the City) fired Police Officer Charles Castagna, based on its finding that Castagna had lied under oath in court, and had therefore rendered himself incapable of performing his duties by compromising his ability to testify in court as a material witness. The Citys Civil Service Board (the Board) sustained the charges forming the basis of Castagnas termination. The Board found the City had demonstrated, by a preponderance of the evidence, that a signature on a contract was a forgery. (Castagna claimed he had been present when the contract was signed, and the signature was authentic.)

The trial court granted Castagnas petition for a writ of administrative mandamus, and the City appeals from the trial courts judgment. The court correctly afforded a strong presumption of correctness to the Boards findings, and placed on Castagna the burden of proving those findings were contrary to the weight of the evidence. Then, in exercising its independent judgment, the court found the Boards forgery finding was not supported by the weight of the evidence. The court therefore concluded the Boards finding that Castagna had rendered himself incapable of performing his duties was also contrary to the weight of the evidence, and reversed the Boards affirmance of the termination of Castagnas employment. The trial courts findings were supported by substantial evidence. We therefore affirm.

Statement of Facts and Procedural History

Castagna was a peace officer for the Seal Beach Police Department from 1977 until January 27, 2004. In March 1998, Castagna testified under oath in a probate proceeding in the Orange County Superior Court involving the will of Ernest William Henault, also known as Eric W. Henault. In its statement of decision, the probate court made the following finding: The primary beneficiary [of the will], Charles Castagna, introduced a self‑serving, forged document to this court and lied under oath about its authenticity and circumstances of creation . . . . The document in question was a contract dated December 3, 1993, between Castagna and Henault by the terms of which Henault, upon his death, would leave a piece of real property to Castagna, in exchange for Castagna performing maintenance work on the property, and providing care and making health care decisions for Henault (the 1993 agreement). The 1993 agreement was introduced into evidence by Henaults brother, the will contestant. Castagna testified he prepared the 1993 agreement, and was present when Henault signed it. Henaults will, dated May 29, 1996, bequeathed the same piece of real property to Castagna. Henault also transferred the real property into joint tenancy with Castagna by means of a grant deed on June 7, 1996.

The probate court included the following in its statement of decision: The bottom line is that the Court does not believe Charles Castagna and is shocked at his perjury.

On December 19, 2000, after reviewing Castagnas alleged conduct in the probate matter, the Orange Court District Attorneys Office advised the City, the allegations made against Officer Charles C[a]stagna, including the Courts findings, must be disclosed to any future defendant on trial in any case where Officer C[a]stagna is a material witness. You should not conclude from this discovery obligation that we either believe or disbelieve that the allegations have merit. Clearly though, this information will adversely [a]ffect the officers credibility in future cases.

On January 31, 2001, the City gave Castagna written notice of its intent to discipline him because, based on the evidence, it appears that you: [] (1) Forged and/or were involved in presenting forged documents to a court of law; [] (2) Lied under oath in a court of law; and [] (3) Have rendered yourself incapable of performing the role of a police officer by compromising your ability to testify as a material witness in a court of law. On January 26, 2004, the City provided Castagna with a written notice terminating his employment. The notice stated, in part: This action is being taken for the following reasons: [] 1. You lied under oath in a court of law; [] 2. You have rendered yourself incapable of performing the role of a police officer by compromising your ability to testify as a material witness in a court of law.

Castagna appealed his termination of employment to the Board. The Board found that the City had demonstrated, by a preponderance of the evidence, that Henaults purported signature on the 1993 agreement was not genuine, and that Castagna therefore lied under oath at the probate trial regarding its genuineness. Therefore, the Board sustained the charges forming the basis of the termination of Castagnas employment. The Boards vote was three to two.

Castagna filed a petition for a writ of administrative mandamus and complaint for ancillary damages with the trial court on October 26, 2006. After briefing and hearing, the court granted the petition, reversed the Boards decision, and ordered Castagna reinstated with full back pay and benefits.

Judgment was entered June 28, 2007, and the City timely appealed.

Discussion

I.

Standard of Review

Code of Civil Procedure section 1094.5 provides, in relevant part, the following instructions for a trial court when considering a petition for a writ of administrative mandamus: The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and 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. [] . . . Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. (Code Civ. Proc.,  1094.5, subds. (b) & (c).) The trial court is to exercise its independent judgment on the evidence in cases in which the final administrative decision affects a fundamental vested right. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8 (Fukuda).) Discipline imposed on public employees affects their fundamental vested rights in their employment, making the independent judgment test applicable. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52.)

In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and 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. (Fukuda, supra, 20 Cal.4th at p. 817.) [T]he presumption provides the trial court with a starting point for reviewbut it is only a presumption, and may be overcome. Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agencys findings. (Id. at p. 818, italics added.)

The trial courts judgment reads in part as follows: Although a court of law generally gives substantial deference to the factual findings of the administrative agency, and the Petitioner has the burden to show that the weight of the evidence does not support the Boards decision, the court must conduct an independent review of the evidence where, as here, the issue involves the fundamental right of employment and retirement pay. (Italics added.) The correct standard of deference to apply to the agencys factual findings is the strong presumption of correctness, as set forth ante. Considering only this isolated statement from the judgment, it would appear the trial court may not have applied the proper standard. Having reviewed the entirety of the judgment and the courts full explanation of its reasoning and analysis, however, we conclude the trial court did in fact use the proper standard.

On appeal, we review the trial courts findings for substantial evidence. (Fukuda, supra, 20 Cal.4th at p. 824.)[1] The Citys opening brief unfortunately turns the standard of review of the trial courts judgment on its head. The City argues that a preponderance of the evidence supported the Boards decision. But as explained, ante, the question before us is whether the trial courts decision, not the Boards decision, was supported by substantial evidence.[2]

II.

Substantial evidence supports the trial courts findings.

The trial courts ultimate finding was as follows: This court concludes that there is insufficient evidence to conclude that the signature on the 1993 agreement was, more probably than not, a forgery. Because it cannot be concluded that the signature was a forgery, it cannot be concluded that Officer Castagna lied when he testified that he witnessed the decedent sign the agreement. Substantial evidence before the trial court supported this finding.

The trial court had before it (as did the Board) the testimony of four examiners of questioned documents. Two of the examiners, James Black and Connie Brinker, had concluded the signature on the 1993 agreement was a forgery. The other two examiners, Glen Owens and Michael Gryzik, testified there was insufficient evidence to conclude the signature on the 1993 agreement was a forgery. The courts judgment reads in relevant part as follows: Based on its independent review of the qualifications of the experts, and the testimony about their[ ]reasoning and the factual basis for their opinions, the court agrees with [Castagna] that the opinions of Mr. Owen[s] and Mr. Gryzik, to the effect that there was insufficient evidence to conclude that Mr. Henault did not sign the agreement, is more persuasive and reliable than the testimony of Mr. Black and Mrs. Brinker.

The Board had found Black, Brinker, and Gryzik were all qualified handwriting experts; it made no finding as to whether Owens was a qualified handwriting expert. The trial court did not disagree with the Boards findings regarding the qualifications of the handwriting experts; however, it concluded, the determination that an expert is qualified does not bar the trier of fact from considering the experts qualifications when determining the weight to be given to each experts testimony.

The trial court found Gryzik and Owens were more qualified as questioned document examiners than Black and Brinker. Based on the respective education and training of the expert witnesses, the opinions of Mr. Gryzik and Mr. Owen[s] would be entitled to greater weight than the opinions of Mr. Black and Mrs. Brinker. That finding is amply supported by the record. Gryzik, the senior document examiner for the Orange County Sheriffs Department, and Owens, the supervisor of the questioned document unit for the California Department of Justice, had extensive formal, supervised training. The City did not dispute the qualifications of those questioned document examiners. The City itself decided to hire Owens to determine whether the 1993 agreement was a forgery, after having decided it should not rely only on the opinions of the three other experts.

Gryzik did not consider Black or Brinker to be his professional colleague; Brinker was a graphologist rather than a forensic document examiner, meaning her training was more in the study of personality traits through a persons handwriting. Although Black was a forensic document examiner, he was not board certified, and Gryzik had concerns about the training Black had received. Gryzik testified that if he were conflicted out of a matter, one of the individuals to whom he would refer a client would be Owens. Owens did not directly testify about Black and Brinker, but did testify that training such as they had received was inadequate. Owens had the utmost respect for Mr. Gryzik as a questioned document examiner.

Brinkers experience and practice were in graphology, which she described as totally different from questioned document examination. Her business included graphoanalysis and a beauty shop. Brinker had no supervised, documented training, except for seminars and one week in England.

Black had been homeschooled in document examination by his father, while working full‑time as a nurse. He had no formal college‑level courses in document examination. Black had been retained as a questioned document examiner by the police departments of Orange, Garden Grove, Westminster, Buena Park, and Fullerton, the California Department of Justice, the United States Department of Justice, and the United States public defenders office. Black had qualified as an expert at trial, and was a member of a number of professional organizations.

The trial court also found that the methods employed by Owens and Gryzik in analyzing Henaults signature on the 1993 agreement and determining its genuineness required the court to give more weight to their opinions than the opinions of Black and Brinker. The court concludes that the approach and analysis by Mr. Owen[s] and Mr. Gryzik, to the effect that there was insufficient evidence to conclude that the signature on the 1993 agreement was a forgery, is more persuasive than the evaluation by Mr. Black and Mrs. Brinker that the signature should be considered a forgery.

As part of his review, Owens considered the following documents containing Henaults signature: 164 original checks; two grant deeds; a copy of a homestead declaration; an original of Henaults 1993 weekly appointment journal; and copies of legal documents, including powers of attorney, an affidavit, a will, and a consent to operation. Owens concluded: I have examined the handwriting and signatures of Eric W. Henault on the above listed documents. Based upon this examination, it is my opinion that the person that wrote the known writings . . . cannot be identified nor eliminated as having written the questioned signature in the name of E. W. Henault on the questioned document [the 1993 agreement] . . . . While it may be true that the questioned signature in the name of E. W. Henault exhibits characteristics that can be associated with a simulated or imitated signature, i.e. slow execution, tremor etc., it is vital to note that these characteristics are also displayed in the known writings of Mr. Henault. Thus, I do not believe that the evidence at hand can firmly support an opinion that eliminates the possibility that the true Eric W. Henault could have executed the signature on the December 3, 1993 Agreement.

Gryzik considered many documents containing Henaults signature: a photocopied affidavit; cancelled checks; homestead declaration; photocopied grant deed; photocopied will; general power of attorney; photocopied change of beneficiary form; grant deed; durable power of attorney for health care; and carbon‑copied consent‑to‑operation forms. Gryzik concluded: To begin with, the exemplars submitted for ERIC W. HENAULT span a period of seven years from 1989 to 1996. The documents provided included a mix of signatures on documents that are formal in nature (e.g. grant deed, power of attorney, last will, etc.) and are less formal in nature (e.g. canceled personal checks). Also, information was provided that Mr. Henault had a history of alcohol substance abuse. However, information regarding the surface on which the writing was done and the position of the writer at the time of the writing was uncertain. The information provided, along with the nature of the ERIC W. HENAULT exemplar items submitted, were all considered in the examination process. [] As a result of the examination and based on the available evidence, some handwriting similarities were noted in the questioned E. W. Henault signature on the [1993] agreement when compared with the available known handwriting for ERIC HENAULT . . . . Because of . . . these similarities, the writer of the ERIC HENAULT exemplars could not be eliminated as having written this questioned signature and the possibility exists that this questioned signature may have [been] written by him.

Black considered as exemplars approximately one hundred checks and three other documents, although he could not remember what those three other documents were. Black concluded: [I]t is my opinion that the E[. ]W. Henault signature on the attached [1993] agreement is a simulation of Mr. Henaults signature. . . . [] I have reached this opinion because the tremor in the agreement signature is more pronounced th[a]n in the exemplar signatures dated contemporaneously, the three loops of the capit[a]l E are not matched in any of the exemplars and numerous pen‑stops are present in the signature. It is my opinion that the pen‑stops are present because the person executing the simulation had to pause frequently and refer back to the model signature to see where next to move his pen. Black agreed that illness, intoxication, or a hangover could cause a tremor in a signature, but testified none would cause the characteristics of the signature to change or cause penstops. Black also admitted that the signature he reviewed was a copy, and that there was degradation in the quality from the original; he could not say how much degradation had occurred. Black testified physical, emotional, and mental health, as well as alcoholism or being under the influence of drugs or alcohol, can cause changes in a signature. Black only looked at three months worth of exemplars of Henaults signatures because signatures made close in time to the questioned signature would most accurately reflect the condition of the signer at the time the questioned signature was produced. Black stated it was not inappropriate for Owens to have looked at more signatures over a longer period of time in reaching his opinion. Black could not say whether Henaults alcoholism caused the tremor seen in the signature on the 1993 agreement, nor did he consider whether the tremor was caused by Henaults emotional response to his statement in the 1993 agreement that he was HIV positive, or by psychological or physical reactions because Henault was not drinking the day he signed the 1993 agreement.

Brinker considered as the standards to which the questioned document would be compared: 171 canceled checks; copies of Henaults homestead declaration, grant deed, and will; and the originals of other documents in the probate courts file. Brinker concluded: Mr[.] Henaults Standards used [to] have a period after each init[i]al. The Questioned [signature] has no period after the capit[a]l E. He also breaks between the n and a in the last name. The Standards are not drawn, they are fluidly written. The capit[a]l E in the Standards lean[s] to the right as the Questioned is straight. [] . . . [] It is my professional opinion the Questioned signature was not by the same writer as the Standards. Brinker admitted she had considered only checks signed by Henault on December 1 and December 4, 1993 as exemplars, did not take into consideration Henaults physical condition, and ignored anything inconsistent with her opinion once she had formed it.

Ultimately, the trial court concluded Owenss and Gryziks opinions were entitled to more weight because, unlike Black and Brinker, they considered exemplars over a greater period of time, took into account the differences between signatures on formal and informal documents, and took into consideration Henaults physical and mental condition at the time the 1993 agreement was signed, including, but not limited to, his alcoholism, to explain substantial variations in his signature even during a relatively short period of time.

The trial court was entitled to give greater weight to the opinions of Owens and Gryzik, than to the opinions of Black and Brinker, on the ultimate issue of the genuineness of Henaults signature on the 1993 agreement. As to that issue, Gryzik concluded Henault could not be eliminated as the signer of the 1993 agreement. Similarly, Owenss conclusion was that Henault could neither be identified nor eliminated as the signer of the 1993 agreement. Owens also noted that many of the characteristics of the signature, which convinced Black and Brinker the signature was a forgery, were also found in the exemplars.

Two of the experts were convinced of the lack of authenticity of Henaults signature on the 1993 agreement, while the other two could say no more than that Henault could not be excluded or eliminated as the person who signed the 1993 agreement. Even if the definitive opinions are given less weight, was there nevertheless substantial evidence in support of the trial courts judgment? No. Owens testified to the inability of a questioned document examiner to make a definite conclusion of forgery or nonforgery in every case: Albert Osborn in his book makes a statement that the document examiner that tries to resolve every case that comes across his desk is attempting to do that which cannot be done. I firmly believe that in this particular case that the document evidence doesnt lend itself to tip the balance one way or the other. And I would beI would be very, very much bothered and very much concerned by a definitive opinion that was rendered based on the same known writings and the same questioned document that I examined. I just dont think the evidence that I looked at allows a positive or definitive opinion to be reached. (This testimony was in contrast to that of Brinker, who testified she can almost always make a definitive determination of a documents authenticity; she only produces inconclusive results when she has no original to review and the copies are poor.)

The trial court was exercising its independent judgment in determining whether the Boards finding that the purported signature of Eric Henault on the questioned document is not genuine was contrary to the weight of the evidence. The court concluded the weight of the evidence could not support a finding that the signature was not genuine, and therefore reversed the Boards decision. The trial courts finding was supported by substantial evidence.

Once the trial court concluded the Boards finding that the signature was not genuine was contrary to the weight of the evidence, the Boards further finding that Castagna lied under oath about the execution of the 1993 agreement, rendering himself incapable of performing his duties as a police officer, also had to be reversed. Because it cannot be concluded that the signature was a forgery, it cannot be concluded that Officer Castagna lied when he testified that he witnessed the decedent sign the [1993] agreement.

The City does not argue the trial courts finding that Castagna lied under oath could be supported by the evidence when the finding regarding the genuineness of the signature was contrary to the evidence. The court observed: Under the circumstances, this court considers it more than a little Kafkaesque that Officer Castagna was accused of lying under penalty of perjury and was terminated after 26 years of service without any apparent disciplinary history . . . as the result of a dispute about the authenticity of a document that apparently was utterly irrelevant to any issue before the probate court.^[[3]] In the absence of any indication that the authenticity of the [1993] agreement was material to any issue before the probate court, this court can only conclude that the decedents brother introduced the document for the primary if not the sole purpose of impeaching Officer Castagnas credibility on a collateral matter, so as to avoid the lack of evidence on the material issues. As Officer Castagna testified, he had no reason to introduce the agreement in the probate proceeding and had no reason to lie about it, because his rights were determined by the deed and the will, not the agreement.

The Board had found Castagnas testimony regarding the execution of the 1993 agreement was not credible, based on the Boards finding that Henaults signature on the 1993 agreement was markedly different than his other signatures in 1993, the testimony of the various handwriting experts, and Castagnas self-interest in the disciplinary proceeding. On appeal, the City relies heavily on the discrepancies between Castagnas testimony regarding the 1993 agreement at the probate trial and at the administrative hearing before the Board. The trial court was entitled to consider Castagnas testimony before the probate court and the Board, and determine whether the testimony was credible. (Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010, 1016 [the trial court has the power and responsibility to weigh the evidence at the administrative hearing and to make its own determination of the credibility of witnesses]; see Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 868 & fn. 4.)

The Board also gave no weight to the testimony of Michelle Harding. Harding was a friend of Henaults and was familiar with his signature; she believed that the signature on the 1993 agreement was his. (Harding also testified that she was present at Henaults apartment several years prior to 1996 when Henault and Castagna were discussing Henaults transfer of the property to Castagna, and when Henault signed certain documents, but that she had no personal knowledge whether the 1993 agreement was signed by him at that time. That testimony would not constitute substantial evidence supporting the trial courts findings.) The City points to Hardings testimony that Henault was fanatical about paperwork and regularly had documents notarized to support its argument that the trial courts findings were not supported by the evidence. Given that there was other substantial evidence to support the trial courts findings and judgment, the existence of evidence that is contrary to the findings does not affect our holding.

The City argues the trial court failed to conduct an independent review of the entire administrative record, because the judgment is based entirely on the courts assessment of the qualifications and opinions of the four handwriting experts. We cannot assume that because the trial court found the issues involving the experts opinions on the authenticity of Henaults signature to be dispositive of the case, it failed to review the entire record. In the judgment, the trial court stated it had independently reviewed the evidence in the administrative record; absent some evidence to the contrary, we presume the court performed its official duty. (Evid. Code,  664.)

We agree with the authority cited by the City that the highest levels of honesty and credibility are required in those persons who are sworn to serve as peace officers, and that dishonesty by a police officer is cause for his or her dismissal. (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721; Haney v. City of Los Angeles (2003) 109 Cal.App.4th 1, 12; Ziegler v. City of South Pasadena (1999) 73 Cal.App.4th 391, 397; Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 972; Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 761; Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395, 400.) But in these cases, the appellate court considered whether the disciplinary agency involved abused its discretion by terminating the employment of a peace officer, when substantial evidence supported the agencys findings of dishonest and/or illegal conduct by the officer. Here, the trial court found on an independent review that the weight of the evidence did not support the Boards finding that Castagna was dishonest with regard to Henaults signature on the 1993 agreement. Therefore, the well‑reasoned analyses of the cases cited by the City do not change the result in this case.

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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[1] The City cites Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107‑108 for the proposition that this court should review de novo any questions of law. However, having reviewed the parties appellate briefs, we find no issues of law to be resolved on appeal.

[2] In cases where the trial court itself applied the substantial evidence test rather than the independent judgment test to consider the findings by the agency, the standard of review on appeal is whether substantial evidence supported the agencys findings (since the trial court would not have made any independent factual determinations). (Young v. Gannon (2002) 97 Cal.App.4th 209, 224‑225; Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334‑335.)

[3] The probate proceeding was a contest involving Henaults will. In a prior opinion, this court concluded the probate court erred by refusing to admit Henaults will to probate. (Estate of Henault (June 19, 2002, G025278) [nonpub. opn.].) The will was not a prohibited transfer under Probate Code section 21350, and the will contestants had failed to prove the will was the product of undue influence, fraud, or duress. (Estate of Henault, supra, G025278.) The trial court in the present case was therefore correct in concluding the 1993 agreement was merely collateral to the issues in the probate proceeding and therefore irrelevant.