San Diego County Dep. Sheriff's Assn. v. County of San Diego

Filed 5/31/06 San Diego County Dep. Sheriff's Assn. v. County of San Diego CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Affirmed in part, reversed in part.

The County of San Diego (the County) appeals a judgment against it in this action by the San Diego County Deputy Sheriff's Association (the Association) and Deputy Sheriffs Cesario Avila and Rosemarie Kurupas (collectively, the plaintiffs) for declaratory and writ relief. The plaintiffs contended, and the trial court agreed, that the County, through its Sheriff's Department (the Department), improperly denied Avila the right to administratively appeal statements made in certain "temporary" counseling memoranda relating to his job performance and improperly failed to disclose to Kurupas certain e-mails relating to her performance evaluation. The court also found that the Department acted maliciously and with the intent to injure Avila and imposed certain statutory penalties.

The County contends that: (1) the trial court erred in finding that the counseling memoranda constituted "punitive actions" within the meaning of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq. (the Act)); (2) the court erred in finding that the Department acted maliciously and with the intent of violating Avila's rights to an administrative appeal; and (3) Kurupas could not assert a claim for violations of the Act because the challenged e-mails were never placed in her personnel file. (All further statutory references are to the Government Code except as otherwise noted.) We reverse the judgment insofar as it awards the plaintiffs statutory penalties and attorneys fees, but otherwise reject the County's arguments and thus affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

A. Avila

Beginning in approximately 1991, Avila was assigned to work in the Department's patrol division in the City of Imperial Beach (the City), which had a contract with the Department for law enforcement services. In early 2003, Avila was reclassified as a reconstructionist in the Imperial Beach traffic division, a specialty position for which he received a 5 percent increase in pay. Sergeant Carlos Jacobo was the head of the Imperial Beach traffic enforcement unit and Avila's supervisor.

In 2002 and 2003, the City's primary law enforcement concern related to the enforcement of traffic laws and it asked the Sheriff's Department to increase the enforcement activities in that regard to improve the overall public safety on its streets. After noticing that Avila had written very few traffic citations and an unusually high percentage of parking citations, Jacobo talked with Avila on several occasions about the need for Avila to focus on traffic enforcement, particularly relating to hazardous moving violations.

On January 14, 2003, Jacobo obtained a written report on Avila's job-related activities for the year 2002; it showed that Avila had a total of 204 such activities, 46 of which were traffic citations, 31 of which were traffic accident reports and 96 of which were parking citations. (All further dates are in 2003 except as otherwise noted.) The same day, Jacobo met with Avila to review the results shown in the report. After noting the number of parking citations, Jacobo told Avila that the issuance of such citations was the principal responsibility of community service officers rather than traffic officers and instructed him to stop issuing such citations unless they were required as part of a response to calls for service. Avila responded that he had been doing the job for 12 years and no one was going to tell him how to do it; Jacobo told Avila "I am not telling you how to do your job, just [to] do more of it." Jacobo also told Avila that the public safety director of the Imperial Beach station was considering replacing one of the traffic unit cars with a motorcycle officer and that Avila would be the one replaced because he was "on the bottom of the totem pole/in last place."

Jacobo later gave Avila a "discussion memo" summarizing their conversation about Avila's performance. Avila complained to Jacobo and another deputy that he was being unfairly documented and, through the Association, he requested that the discussion memo be rescinded. Jacobo rescinded the discussion memo and prepared a modified "verbal counseling" memorandum documenting their conversation in more detail. On March 11, Jacobo gave Avila the revised memorandum; Avila responded that he was "not going to take this [lying] down" and was "going to fight it all the way."

Jacobo met with Avila again on April 1 and indicated that Avila's attitude needed to improve and that Avila should concentrate on enforcing hazardous traffic violations, although he also noted that Avila's performance for February was improved over the preceding five months. Jacobo gave Avila a copy of the job description for a traffic investigator officer and noted that such an officer "is responsible for providing traffic enforcement." Jacobo also advised Avila that such an officer carries out such duties to increase public safety by reducing traffic collisions, that hazardous violations are the most common cause of traffic collisions and that traffic officers should assist in reducing traffic collisions. Jacobo gave Avila two lists setting forth various hazardous traffic violations (including speeding, unsafe lane changes, pedestrian violations and driving under the influence of alcohol) and advised Avila to become familiar with them. The next day, Jacobo gave Avila a second "verbal counseling" memorandum outlining their March 11 and April 1 conversations. At that time, Avila told Jacobo that he considered the verbal counseling memorandum to be a written reprimand and that he intended to appeal it in accordance with the Act.

Shortly thereafter, Avila gave Jacobo a written rebuttal to the counseling memoranda. In it, Avila contended that Jacobo had taken certain of his statements out of context, that Jacobo's demand that he increase his traffic citations based on a comparison with other traffic deputies' activities violated Vehicle Code sections 41602 and 41603, that Jacobo's reliance on the number of citations without considering other factors (such as the number of accidents and their locations and causes) was arbitrary and capricious and that Jacobo also failed to take into account his vacation time, as well as other collateral duties he had that reduced the number of citations he was able to write. Avila also noted that during the relevant time, he was commended by both Jacobo and Imperial Beach station Captain Donna Collier for certain of his work.

The Department responded to Avila's rebuttal by telling him that both the verbal counseling memoranda and his response to them would be used to prepare his formal performance evaluation and then purged from the station file. In May, Avila requested that the Department submit to arbitration his appeal from the verbal counseling memoranda, but the Department declined, contending that Avila had not exhausted the administrative remedies available for employee grievances.

On May 22, Jacobo gave Avila a performance evaluation; its overall rating was 2.91 out of a scale of 4.00, which was "fully competent," although it identified eight areas of performance where Avila needed improvement. Avila appealed the performance evaluation, which ultimately resulted in an increase of Avila's overall performance rating from a 2.91 to 2.93.

Based on Avila's performance as reflected in his then-current activity report (which showed in part that Avila did not write any citations in May and only a few in June) and as noted in his performance evaluation, Captain Collier recommended that Avila be reassigned from the traffic division to the patrol division. Her written recommendation recited Avila's 2002 activities and noted that Avila had not written a single speeding ticket in the year preceding the report. Collier concluded that this level of performance was "unacceptable" for a member of the traffic division and that Avila's performance after the review period (which ended in May) continued to fall short of applicable expectations. She recommended that Avila be transferred to the patrol division because there most of the official activity is generated by radio calls rather than through officer self-motivation, although she opined that the Department would need to continue to monitor Avila's performance closely.

Thereafter, the County denied Avila's request to arbitrate the verbal counseling memoranda, indicating that its counseling memoranda did not trigger the right to an administrative appeal under the Act and that, after the documents were incorporated into his formal performance evaluation, the Department removed them from Avila's personnel file, making the matter moot. Avila requested an administrative hearing on his reassignment, which involved a 5 percent decrease in pay, although, by his own choice, the matter did not proceed to a hearing.

Avila also wrote to the Sheriff, requesting that his performance evaluation be revised to delete the references to and details about the verbal counseling memoranda since those had been removed from his personnel file and that the evaluation be re-done without any reference to the information contained in those documents. The Department declined to revise the evaluation, maintaining that its procedure of using written documentation of verbal counselings in preparing a performance evaluation and then purging the documents from the officer's station file was totally appropriate. Avila was ultimately reassigned to the patrol division in accordance with Captain Collier's recommendation.

B. Kurupas

Kurupas was a sergeant with the Department's Imperial Beach station and, as such, was apparently responsible for monitoring her team members' time off and making sure that team shifts were adequately staffed. Lieutenant Cesar Diosdado was Kukupa's immediate supervisor. In April 2004, Diosdado met with Kurupas to discuss overtime management and her failure to comply with the Department's policy of allowing only one employee at a time to take time off from work. Diosdado prepared a memorandum documenting his discussion with Kurupas and had her sign it. Kurupas objected to the memorandum on the ground that it was retaliatory and, although she attempted to file a grievance over it, the Department refused to allow her to pursue grievance procedures relating to the memo.

In July 2003, Diosdado gave Kurupas her performance review, which assigned her an overall rating of 3.16, within the range of "fully competent." The review's only criticism of Kurupas was that she did not consistently cooperate fully or support "decisions management had made that [were] in conflict [with] her own," although it also noted that Diosdado had seen improvement in this area since speaking to her about the issue.

Kurupas appealed the evaluation and gave Captain Octavia Parker, the appeal officer, a 13-page memorandum outlining the evaluation ratings with which she disagreed, copies of various e-mails and an audiotape of a meeting in which Captain Collier and Diosdado discussed command expectations, communication style and interpersonal demeanor. In response to Captain Parker's request for information, Diosdado sent her an e-mail explaining his position, which was that he felt Kurupas acted inappropriately in going outside the chain of command to address an issue relating to the selection of a training officer to whom Kurupas objected. In addition to that e-mail, Diosdado also forwarded to Captain Parker an e-mail he had received from Kurupas that he described as an example of Kurupas's "snide remarks" and another textless e-mail he had received from Kurupas attaching some minutes from a staff meeting. Neither Diosdado nor Parker showed these e-mails to Kurupas.

In her recommendation and rationale statement regarding Kurupas's appeal, Captain Parker concluded that the overall rating Diosdado gave to Kurupas was "very generous" and that Kurupas's own materials would have established justification for much lower ratings in the areas of conflict resolution, problem solving, cooperation and adaptability. The statement recommended that the overall rating remain unchanged, but that if Kurupas's "pattern of oppositional[,] disrespectful behavior" continued, progressive discipline should be considered. When Kurupas asked to see the supporting documentation for Parker's recommendation, the Department disclosed the e-mails Parker had received from Diosdado.

C. This Action

In August, the Association, Avila and Kurupas filed this action against the County, the Department, Assistant Sheriff Lynne Pierce and the Department's Chief Legal Advisor Robert Faigin for damages and declaratory relief and a petition for writ of mandamus. Their pleading alleged in part that the Department, through Pierce and Faigin, had adopted a policy of using temporary "documents of discussion" to criticize a deputy's performance (which documents would be kept for less than a year and then destroyed either without record or after being incorporated into the officer's employee performance review) in an attempt to deprive the officer of his or her right to administratively appeal adverse documents placed into his or her personnel file pursuant to section 3304, subdivision (b). The complaint further alleged that Pierce and Faigin also implemented a departmental practice of using e-mails to communicate performance criticisms, without the knowledge of the officer being criticized.

The matter was tried without a jury before Judge Linda B. Quinn. The testimony at trial showed that in 2001, after the issuance of the opinion in Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 995 (Otto), the Department began using "documents of discussion" (hereafter documents of discussion) to document conversations between a supervisor and an employee relating to performance issues. The Department's practice was to place a document of discussion in the temporary station file for the affected deputy, which file was kept separately from the officer's personnel file, and that the document would be kept only until the officer's next annual performance evaluation was prepared, after which point the document would be purged from the station file. The Department disallowed the officer from taking an administrative appeal from a document of discussion because the document merely reflected the supervisor's conversation and was only maintained on a temporary basis.

According to the plaintiffs' evidence, the Department's training for supervisors emphasized that the goal was not to criticize, but instead to merely describe the officer's behavior, so as to minimize the possibility that the officer would have the right to an administrative appeal. The Department's witnesses testified that documents of discussion were used primarily as reminders for supervisory staff who were preparing performance evaluations and to establish that an employee was given notice of performance deficiencies. Its evidence showed that documents of discussion might constitute written reprimands, depending on the facts set forth in them, but that it was the counseling or discussion itself, not the documentation of it, that constituted the disciplinary action.

Based on the evidence and the parties' briefs, the trial court concluded that: (1) the counseling memoranda given to Avila were "punitive actions" as defined in the Act because, at the time of their creation, the documents "could have led to dismissal, demotion, suspension, reduction in salary, written reprimand or transfer for purpose of punishment"; (2) the evidence established that the Department in fact relied on the content of the documents as a basis for transferring Avila; (3) the Department's contention that Avila had failed to exhaust his administrative remedies was without merit in light of the fact that it would not allow him to administratively appeal the documents and thus his appeal from the transfer was essentially futile; and (4) although the e-mails relating to Kurupas were not punitive actions, they were adverse to her interests and maintained in a file for personnel purposes and thus Kurupas was entitled to the opportunity to review, sign and rebut them pursuant to section 3305 or as part of her appeal of her performance evaluation. The court also found that the defendants maliciously violated the Act and imposed civil penalties of $15,000 against them and awarded the plaintiffs $100,017 in attorney fees and $3,810.15 in costs.

DISCUSSION

I. Punitive Action

1. General Principles

The Act sets forth "a catalogue of basic rights and protections" that a public entity must afford to all peace officers it employs, reflecting a legislative determination that "the maintenance of stable employment relations between peace officers and their employers is a matter of statewide concern." (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1805.) One of these protections is the right to administratively appeal certain adverse employment actions. (Otto, supra, 89 Cal.App.4th at p. 995.) The limited purpose of allowing an appeal is to give a peace officer who is subjected to punitive action an opportunity to establish a formal record of the underlying circumstances and to attempt to convince the employing agency to reverse its decision. (Binkley v. City of Long Beach, supra, 16 Cal.App.4th at p. 1806.)

Specifically, section 3304, subdivision (b), of the Act provides that "[n]o punitive action . . . shall be undertaken by any public agency against any [nonprobationary] public safety officer . . . without providing the public safety officer with an opportunity for administrative appeal." For purposes of the Act, a punitive action is "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." (§ 3303, italics added.) This definition of punitive action presents a semantic conundrum in that it essentially defines a punitive action as an act that might result in a punitive action. Accepting the Legislature's choice of terms, however, it is clear that a "punitive action" includes any action that "may lead to the adverse consequences . . . at some future time." (Otto, supra, 89 Cal.App.4th at p. 996, italics in original.)

The law is nonetheless well established that "not every action taken by a law enforcement agency in reviewing, evaluating or commenting upon the performance of one of its peace officers constitutes punitive action." (Otto, supra, 89 Cal.App.4th at p. 996.) Thus, a routine performance evaluation does not constitute punitive action even if it contains negative comments about an officer or his or her performance. (Turturici v. City of Redwood City (1987) 190 Cal.App.3d 1447, 1449-1450 ["[c]ertainly, the Legislature did not contemplate an administrative appeal every time an employee receives an adverse evaluation"]; see also Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 418; Howitt v. County of Imperial (1989) 210 Cal.App.3d 312, 314; compare James v. City of Coronado (2003) 106 Cal.App.4th 905, 910 [police department did not challenge superior court's finding that officers were entitled to an administrative appeal of internal counseling memoranda and the only issue on appeal was whether the officers were entitled to confront and cross-examine witnesses at the appeal hearing].)

However, as used in determining a public safety officer's right to an administrative appeal, the term "punitive action" is very broad. (Otto, supra, 89 Cal.App.4th at p. 998.) Whether an internal written summary of a conference or discussion that is critical of an officer's performance constitutes a punitive action "depend[s] entirely upon its content." (Otto, supra, 89 Cal.App.4th at p. 998.) Adverse comments that may lead to, or provide the basis for, future punitive action are within the purview of section 3304, subdivision (b), regardless of what title the employing agency places on the document that contains them. (Otto, supra, 89 Cal.App.4th at p. 998; Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1222 (Caloca); Hopson v. City of Los Angeles (1983) 139 Cal.App.3d 347, 352-354; see also White v. County of Sacramento (1982) 31 Cal.3d 676, 681-682 [noting that a written reprimand is itself a punishment].)

2. Did the Department's Criticisms of Avila's Performance Constitute Punitive

Action Within the Meaning of Section 3303?

A. Placement of the Documents

The Department contends that because it did not place the documents of discussion into Avila's personnel file, but instead placed them into his temporary station file, those documents do not constitute punitive actions within the meaning of section 3303. However, while there are a number of cases holding that written memoranda placed in officers' personnel files were "punitive actions" for purposes of section 3303, such placement is not required as a condition of finding a punitive action. For example, in Caloca, this court specifically held that a finding of punitive action could be based on evidence showing that the written reports would be considered in future personnel decisions relating to the officers whose conduct was being reported, even if the reports were not placed in the officers' personnel files. (Caloca, supra, 72 Cal.App.4th at p. 1222.)

We also reject the Department's contention that because it keeps the documents of discussion in station files that are separate from the officer's personnel file, the documents are not punitive actions for purposes of the Act. (See Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 251 [holding that a police department's retention of a citizen complaint against an officer in a file separate from the officer's personnel file did not justify its failure to accord the officer notice and an opportunity to respond to the complaint under sections 3305 and 3306]; also Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703, 706-707, 712-714 [school district could not avoid the requirements of a statute affording its employees the right to notice and an opportunity to respond by maintaining a personnel file for certain documents relating to its employee and segregating into separate files other materials that might serve as a basis for adverse decisions relating to the employee's employment in the future].) Where a document that criticizes the officer's performance is kept or whether such a document is publicly disseminated does not affect the application of section 3303.

B. The Nature of the Criticisms

The Department contends that not all criticisms rise to the level of "punitive action," that whether a criticism is punitive must be assessed based on the circumstances that existed at the time the criticism is made and that the criticisms contained in the documents of discussion given to Avila here were not punitive in nature. While the Department's first two points are well taken (see Otto, supra, 89 Cal.App.4th at pp. 998-999), its last one is not.

The Department's attempt to characterize Jacobo's statements to Avila as mere constructive criticisms ignores the fact that the statements essentially accused Avila, fairly or unfairly, of failing to carry out the most fundamental duties of a traffic officer. In his January conversation with Avila, Jacobo reviewed Avila's 2002 activities and instructed him that the majority of those activities were not within the principal responsibilities of a traffic officer; he also instructed Avila to stop issuing parking citations except those required in response to calls for service. Jacobo's April conversation with Avila included directives for Avila to "improve his attitude" and concentrate on enforcing hazardous traffic violations; at that time, Jacobo gave Avila a copy of a description of a traffic investigative officer's job responsibilities, despite the fact that Avila had worked in the traffic division for many years, and instructed Avila that a traffic investigative officer "is responsible for providing traffic enforcement."

Given the circumstances, it is clear that Jacobo's comments were highly critical of Avila's job performance and were of the type that could ultimately lead to a decision to dismiss, demote, suspend or reprimand Avila, to reduce Avila's pay or to punitively transfer Avila. As such, the statements were punitive within the meaning of section 3303 even though they did not specifically threaten future consequences. (See Caloca, supra, 72 Cal.App.4th at p. 1223 [recognizing that section 3304, subd. (b) does not require that an adverse employment consequence have occurred or be likely to occur].)

The Department nonetheless maintains that "it is the information -- not the documentation of discussion itself -- that reflect[ed] adversely on Avila." Boiled down to its essence, the Department's contention is that it was Avila's conduct rather than the criticisms arising from that conduct that would have potentially adverse consequences on Avila's job. However, this argument would hold true for any criticism or adverse comment about an officer's job performance; standing alone, it does not establish that Jacobo's statements were not "punitive actions" within the meaning of section 3303. (See Otto, supra, 89 Cal.App.4th at pp. 998-999.) The issue before us does not turn on whether the criticisms of Avila's job performance were valid, but depends instead on whether the nature of the criticisms entitled Avila to an administrative appeal under the statutory scheme. While we agree that not all criticism is necessarily punitive, we conclude that under the circumstances, Jacobo's criticisms of Avila's performance were.

C. The Criticisms as the "But For" Cause of Avila's Reassignment

The Department also makes a confusing argument that the trial court erred in concluding that the documents of discussion were the "but for" cause of Avila's ultimate reassignment. However, pursuant to section 3303, there is no requirement that an action actually result in an adverse employment consequence in order for it to be within the definition of punitive action. (Caloca, supra, 72 Cal.App.4th at p. 1223.) Thus, whether the documents actually resulted in Avila's reassignment is simply of no moment to the issue before us. (Compare Miller v. Chico Unified School Dist., supra, 24 Cal.3d at p. 715 [issue of whether a memoranda criticizing a principal's performance was the cause of the decision to reassign him to a teaching position was relevant to his entitlement to be reinstated to his prior position].)

D. Policy Considerations

Finally, the Department asserts that public policy requires a senior officer to be permitted to counsel a subordinate employee or to communicate performance expectations without every such counseling or communication triggering the right by the employee to an administrative appeal. Certainly, as the court in Otto made clear, not every action taken to review, evaluate or comment on an officer's performance constitutes a punitive action. (Otto, supra, 89 Cal.App.4th at pp. 996, 998.) However, in accordance with the statutory definition of punitive action, adverse comments that "may lead to an officer's dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment" do give rise to the officer's right to appeal. (§ 3303.)

We have acknowledged that the definition of "punitive action" is very broad and we appreciate the difficulties that the Department must face in complying with the Act's requirements. In fact, in creating the Act, the Legislature may have tipped the balance away from the law enforcement agency's ability to manage its officers in favor of the rights of the officers to challenge the agency's management decisions. While we are sympathetic to the Department's position, we are not at liberty to rewrite the provisions of the Act; to the extent that the Department believes that the definition of "punitive action" is too broad or unduly restricts its ability to provide police services to the public, it must seek the assistance of the Legislature to effect the necessary changes.

II. Adverse Comments

1. General Principles

As noted above, there are adverse comments that do not rise to the level of punitive action. (Otto, supra, 89 Cal.App.4th at pp. 996, 998.) Section 3305 provides that a public agency shall not place "any comment adverse to [the public safety officer's] interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the . . . officer having first read and signed the instrument containing the adverse comment[.]" Further, section 3306 permits an officer who is a recipient of such an adverse comment to file a written response to any adverse comment placed in his personnel file.

2. Does Section 3305 Apply to Diosdado's E-mails to Parker?

The Department contends that the trial court erred in finding that the e-mails about Kurupas were subject to section 3305 because the undisputed evidence established that those e-mails were never placed into Kurupas's personnel file or any file used for personnel purposes. However, the evidence on which the Department relies merely establishes that Diosdado did not place the e-mails into any personnel-related file. Elsewhere the record establishes, without contradiction, that copies of the e-mails were attached to or maintained with Parker's recommendation and rationale statement relating to Kurupas's appeal of her performance review. While the evidence does not also establish where the Department kept these materials, it is nonetheless clear that it maintained the e-mails, at least for some period of time, "for personnel purposes," which is sufficient to trigger the application of section 3305. (See Aguilar v. Johnson, supra, 202 Cal.App.3d at p. 251.) The trial court thus correctly concluded that section 3305 applied to Diosdado's e-mails to Parker despite the fact that those e-mails were not placed into Kurupas's personnel or station file.

III. Imposition of Penalties Based on a Finding of Malice

"[U]pon a finding by a superior court that a public safety department, its employees, agents, or assigns . . . maliciously violated any provision of [the Act] with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed [$25,000] . . . and for reasonable attorney's fees . . . ." (§ 3309.5, subd. (e).) The trial court concluded that the Department acted maliciously in denying Avila the right to an administrative appeal from the documents of discussion; the Department challenges the sufficiency of the evidence to support the court's findings of malice or intent to injure.

The Department contends that our review of this issue should be based on a clear and convincing standard of proof. Assuming, without deciding, that such a heightened standard of proof applies to a civil penalty under section 3309.5, subdivision (e), it does not change the nature of our review of the trial court's findings. (Crail v. Blakely (1973) 8 Cal.3d 744, 750 [holding that burdens of proof are for the guidance of the trier of fact and do not affect the nature of appellate review of the sufficiency of the evidence]; Nat. Auto. & Cas. Co. v. Ind. Acc. Com. (1949) 34 Cal.2d 20, 25 [same]; contra Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891 [holding that an appellate court reviewing the sufficiency of the evidence to support a punitive damage award "must inquire whether the record contains 'substantial evidence to support a determination by clear and convincing evidence'"].) Accordingly, our review is limited to a determination of whether there is any substantial evidence, contradicted or uncontradicted, to support the court's conclusions. (See Beck v. State Farm Mut. Auto. Ins. Co. (1976) 54 Cal.App.3d 347, 354-355.)

Although section 3309.5 does not set forth the specific definition of "malice," the legislative history of the statute suggests that the Legislature contemplated the definition of that term used in Civil Code section 3294. (See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1516 (2001-2002 Reg. Sess.) as amended Apr. 18, 2002.) Civil Code section 3294 provides that "malice" is "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." The question is whether substantial evidence in the record supports the trial court's conclusion that the Department engaged in malicious conduct intended to cause injury to Avila. We answer this question in the negative.

Here, the evidence showed that, after carefully reviewing the existing case law defining "punitive action," the Department adopted a practice of using documents of discussion in an attempt to maximize its supervisors' ability to communicate suggestions and concerns to deputies without triggering an automatic right to an administrative appeal. Two years later, Jacobo complied with this practice in attempting to encourage Avila to step up his traffic enforcement activities. As indicated in Otto, the analysis of whether an employee is entitled to administratively appeal a particular criticism must be determined on a case-by-case basis. (See Otto, supra, 89 Cal.App.4th at pp. 998-999.) Although the nature of Jacobo's comments entitled Avila to an administrative appeal under the Act, there is no evidence that the Department implemented this practice specifically to harm Avila or that its application of this practice to him was significantly different than how it applied the practice to other deputies. Under these circumstances, we conclude that the evidence in the record does not substantiate a finding that the Department maliciously violated the Act or that it did so with the intent to injure Avila.

DISPOSITION

The judgment is reversed as to the award of statutory penalties and attorneys' fees to the plaintiffs and is otherwise affirmed. Each party shall bear its own costs on appeal.

McINTYRE, J.

WE CONCUR:

McCONNELL, P.J.

IRION, J.

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