Moore v. Tandy
Filed 9/7/06 Moore v. Tandy CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| GREG MOORE, Plaintiff and Respondent, v. ALAN TANDY et al., Defendants and Appellants. |
F048215
(Super. Ct. No. S-1500-CV252458)
OPINION |
APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.
Clifford & Brown and John R. Szewczyk for Defendants and Appellants.
Adams, Ferrone & Ferrone and Stuart D. Adams for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
As of May 2003, respondent Greg Moore had been a captain with the Bakersfield Fire Department (the Department) for 12 years. Laurie Lundy (Lundy) had been employed as an Emergency Medical Technician (EMT) with Hall Ambulance for eight months, and had worked in the field since January 2003. Sometime prior to May 2003, Lundy spoke to her supervisor and alleged respondent sexually harassed her and engaged in inappropriate and unprofessional behavior during medical dispatch calls. On May 7, 2003, Hall Ambulance filed a complaint against respondent. The Department conducted an investigation and notified respondent that it intended to demote him from captain to fire engineer. After a lengthy administrative hearing, the hearing officer found Lundy was credible and affirmed the Department's decision to demote respondent.
Respondent filed the instant petition for writ of administrative mandamus in the Superior Court of Kern County, against appellants the City of Bakersfield (the City), City Manager Alan Tandy, Chief of Police Eric W. Matlock, and Fire Chief Ron Frazer, all who were officials involved in the demotion.[1] Respondent argued the hearing officer's ruling was not supported by the evidence, his conduct did not warrant a demotion, and he should be reinstated to the rank of captain with backpay. In a lengthy statement of decision, the court agreed with respondent, rejected the hearing officer's factual findings, and found the complaint against respondent was partially related to an ongoing dispute between the Department and Hall Ambulance as to which agency should provide paramedic care in Bakersfield. The court found only one of Lundy's allegations credible, granted respondent's petition, and ordered him reinstated to the rank of fire captain with backpay.
The court's statement of decision did not address respondent's request for attorneys fees. The judgment, however, was prepared by respondent's counsel and included a finding that the City's action against respondent was arbitrary and capricious, within the meaning of Government Code section 800, and ordered the City to pay respondent's attorneys fees.
On appeal, the City asserts the court improperly rejected the hearing officer's factual and credibility findings, improperly ordered the remand subject to the court's specific findings, and the judgment improperly included an award of attorneys fees without any findings in support of that order.
We will set forth the lengthy administrative record, the pleadings and arguments raised in the mandamus proceeding, and the court's statement of decision and judgment. We will then review the standard of review, the pertinent legal issues, and the validity of the trial court's ruling. While this court is obliged to review the trial court's factual findings pursuant to the substantial evidence rule, and any legal questions de novo, both the hearing officer and the trial court rendered erroneous findings in many aspects of this case. We will endeavor to untangle the matter and clarify the relevant issues and conclusions.
STATEMENT OF THE CASE
On March 15, 2004, respondent Greg Moore filed a petition for writ of mandate in the Superior Court of Kern County, pursuant to Code of Civil Procedure section 1094.5, against appellants the City of Bakersfield, City Manager Alan Tandy (Tandy), Police Chief Eric W. Matlock (Matlock), and Fire Chief Ron Fraze (Fraze), to reverse the disciplinary ruling against him and award backpay, costs of suit, and attorneys fees.
On September 27, 2004, appellants filed an answer and points and authorities in opposition to respondent's petition.
On September 29, 2004, respondent filed points and authorities in support of the petition. On October 21, 2004, respondent filed a reply to appellants' opposition.
On October 27, 2004, December 6, 2004, and February 25, 2005, the court conducted a hearing on respondent's petition.
On February 25, 2005, the court granted respondent's petition for relief. On March 1, 2005, the court issued a modified ruling, again granting respondent's petition for relief.
On April 4, 2004, the judgment was filed. On April 26, 2005, the notice of entry of judgment was filed.
On June 3, 2005, appellants filed a notice of appeal.
PART I
FACTUAL BACKGROUND
In January 1982, respondent was hired as a firefighter by the Department, and subsequently promoted to the rank of engineer. In 1991, respondent was promoted to the rank of captain. As of 2002, respondent was the captain of Engine No. Six, one of the Department's busiest stations, and responded to 2,500 to 3,000 calls a year. Many of these dispatches were for medical calls with the paramedics and EMTs of Hall Ambulance Company (Hall Ambulance).
In Bakersfield, paramedic service was previously provided by both Golden Empire and Hall Ambulance. At some point, Hall Ambulance bought out Golden Empire. As of 2002, Hall Ambulance exclusively provided paramedic service on medical dispatch calls.
In approximately October 2002, Laurie Lundy began work as an EMT with Hall Ambulance. In approximately January 2003, Lundy was placed in the field and started to respond to medical dispatches. She responded to anywhere from one to 12 calls per night with different fire stations. Lundy had previously worked as a reserve deputy for about two years, but did not meet respondent until she became an EMT.
On May 7, 2003, Hall Ambulance filed a written complaint with the City's Human Resources Office, that respondent had harassed and created a hostile work environment against Lundy. As we will explain, post, Lundy alleged that respondent sexually harassed her during their interaction at medical dispatch calls between January and May 2003, that he brushed his hand against her buttocks, he used inappropriate and unprofessional language when he spoke to her, he always stood close to her, and his unit never left a medical call even if her partner had cleared them to leave.
Respondent's Evaluation
In an unrelated action, on May 10, 2003, Batallion Chief Darrell Cooper (Cooper), respondent's supervisor, completed respondent's annual evaluation for the period from May 5, 2002 to May 5, 2003. When he completed the evaluation, Cooper was unaware of the pending sexual harassment complaint against respondent, and had no information that respondent engaged in any inappropriate conduct toward women.
Chief Cooper wrote that respondent could exhibit a â€
