Filed 4/2/18 Luna v. California State Personnel Board CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DEBORAH PACHECO LUNA,

Plaintiff and Appellant,

v.

CALIFORNIA STATE PERSONNEL BOARD,

Defendant and Respondent,

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Real Party in Interest and Respondent.

F070731

(Super. Ct. No. 13CECG03932)


OPINION

APPEAL from an order of the Superior Court of Fresno County. Debra J. Kazanjian, Judge.
Law Offices of Bennett & Sharpe, Barry J. Bennett, Thomas M. Sharpe, Katwyn T. DeLaRosa and Eric J. Licalsi for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Christopher D. Howard, Alan J. Upton and Christine Albertine for Real Party in Interest and Respondent.

-ooOoo-

Appellant Deborah Luna appeals from an order denying her petition for a writ of mandate against the California State Personnel Board. Respondent, California Department of Corrections and Rehabilitation (CDCR), is the real party in interest. Appellant contests the decision to terminate her employment as a correctional officer at the Valley State Prison for Women (VSPW). In her administrative proceedings, an administrative law judge concluded appellant was dishonest by providing false information to an investigating officer and to a trial court while proceeding through the aftermath of a domestic violence incident. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant began working as an office assistant at VSPW in early 2000. By the end of the year, she became a correctional officer and worked in that capacity, save for a temporary position as a correctional sergeant, until her termination. Appellant had no history of discipline during this time.
In 2007, appellant married Luis Pacheco, a correctional sergeant at VSPW. The marriage lasted until 2009, when the two separated and appellant moved to a different location in Fresno. After the separation, appellant and Pacheco continued to communicate by speaking on the telephone and exchanging text messages.
In late 2011, appellant began a relationship with David de la O, a correctional officer at VSPW. At the time, de la O was married to Pacheco’s cousin, Angelica Haro-de la O (Haro). During this time, and through November 2011, appellant and Pacheco texted each other frequently, including a string of 35 text messages on November 12, 2011, that discussed their relationship, emotions, and shared interests. The two also met for dinner on November 5, 2011, to discuss their marriage.
Around 11:00 p.m. on November 12, 2011, de la O went to appellant’s house. Pacheco and Haro learned he was there and attempted to confront him. One or both of them knocked on appellant’s door and rang the doorbell. Pacheco left a voice message for appellant, stating he had seen de la O’s truck at her house and knew she was home. De la O tried to leave the house, was confronted by Pacheco and Haro, and eventually left. Appellant called the police.
Pacheco and Haro entered appellant’s house and confronted her about the affair. A physical altercation occurred before Pacheco and Haro left. Shortly thereafter the police arrived. Fresno Police Officer Sean Severson found appellant with bruising and minor cuts to her face. Appellant told Officer Severson that Pacheco and Haro had accused her of having an affair with de la O. Officer Severson then asked appellant whether de la O had been present earlier that evening, to which appellant responded no.
Two days later, appellant sought a restraining order against Pacheco. In her declaration, appellant stated she was in bed sleeping when she heard someone ringing her doorbell and banging on her front door. She then heard Pacheco leave a message on her answering machine, stating he knew she was home. Appellant then wrote: “Luis and I have been physically separated for 2 yrs and on Aug 9, 2011 he abruptly stopped all contact. So I was very afraid because he was being so aggressive so I did not answer my door.”
The hearing on appellant’s petition was December 5, 2011. During her testimony, appellant stated she and Pacheco “hadn’t had any type of physical contact, any communication since August 9 of 2011. He ceased all contact with me. And on this particular night, he came over to my home, was knocking, ringing my door bell, calling my phone. . . . I was scared.” In response, Pacheco’s attorney presented evidence about the dinner on November 5 and the more than 100 recent text messages between the two. As a result, the judge “found that [a]ppellant had given the court false information regarding her purported lack of ‘contact and communication’ with [Pacheco]; was evasive when challenged on this topic by the judge and [Pacheco’s] attorney; and was not credible.” Appellant’s petition was denied.
In the course of these events, appellant notified her employer of her contact with the police. An internal affairs investigation followed. This investigation initially sought information on whether appellant had struck Pacheco during the incident and whether appellant had been less than honest during her restraining order hearing. The investigation found facts suggesting both that appellant had struck Pacheco and that she had been less than honest at the hearing. As a result, an administrative hearing was held before the State Personnel Board to determine whether the charges could be proven, whether discipline was appropriate, and what that discipline should be.
Reviewing the evidence and testimony presented, the administrative law judge found conflicts between appellant’s testimony and Officer Severson’s testimony regarding the domestic disturbance and appellant’s responses to Officer Severson’s questioning. The administrative law judge rejected appellant’s testimony on these points. Further, the administrative law judge found appellant’s statements when applying for the restraining order and at the related hearing, that appellant and Pacheco had ceased all communications, “were specifically made to paint an exaggerated picture of [Pacheco] to the Fresno County Superior Court as an irrational, hot-tempered husband so that Appellant could secure a TRO against him.” The court further stated, it “is believed, then, that Appellant intentionally fabricated the claim that [Pacheco] had ceased all contact and communication with her in order to secure a TRO against him.”
Based on these findings, the administrative law judge determined “Appellant intentionally lied to Officer Severson about [de la O’s] presence at her house in order to make [Pacheco] appear more culpable for the altercation, and intentionally lied to the Fresno County Superior Court about her contacts and communications with [Pacheco] in order to secure a TRO against him,” conduct that constituted dishonesty. The administrative law judge then recommended termination of appellant’s employment. The administrative law judge determined there was a high chance of recurrent conduct, despite the personal circumstances involved, because “Appellant engaged in two instances of dishonesty, and the second instance . . . occurred two days after that emotionally-charged incident, and was accomplished with foresight and deliberation.” The administrative law judge further emphasized “Appellant’s failure to acknowledge her misconduct, either to CDCR or at the [state personnel board] hearing, increases the odds that further similar misconduct will occur.”
Appellant was ultimately terminated and petitioned for a writ of mandate in the Fresno County Superior Court. The trial court denied appellant’s writ petition, finding the administrative law judge’s decision on credibility was based on substantial evidence and that no abuse of discretion was shown with respect to the punishment imposed. This appeal timely followed.
DISCUSSION
Standard of Review
“The scope of our review from a judgment on a petition for writ of mandate is the same as that of the trial court.” (Department of Corrections & Rehabilitation v. State Personnel Bd. (2015) 238 Cal.App.4th 710, 716.) Thus, we review administrative factual findings for substantial evidence and questions of law de novo. (Ibid.)
With respect to reviewing the penalty imposed, we may not disturb the administrative decision unless there has been an abuse of discretion. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217 (Skelly).) We may not substitute our own discretion in the matter, even if in our own evaluation of the circumstances, the penalty appears to be too harsh. (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966.) Rather, we consider only whether there is an arbitrary, capricious or patently abusive exercise of discretion, i.e., the action exceeds the bounds of reason. (Ibid.; Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716, 721 (Kolender).)
The Administrative Law Judge Did Not Abuse Its Discretion
In determining whether dismissal of an employee is excessive as a matter of law, the overriding considerations are the extent of harm to the public service resulting from the employee’s conduct or the likelihood such conduct, if repeated, would result in such harm. Other considerations include the circumstances surrounding the employee’s conduct and the likelihood of its recurrence. (Skelly, supra, 15 Cal.3d at p. 218.) A peace officer is in a position of trust and is held to the highest standards of behavior. The officer’s honesty and credibility are crucial to proper performance of his or her duties. Accordingly, dishonesty is intolerable. (Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 972.) Moreover, “[d]ishonesty is not an isolated act; it is more a continuing trait of character. False statements, misrepresentations and omissions of material facts in internal investigations, if repeated, would result in continued harm to the public service.” (Kolender, supra, 132 Cal.App.4th at p. 721.)
Appellant’s counsel passionately conveys the difficult circumstances that surround appellant’s termination in this case. Even taken in the light most favorable to the determination, there is no doubt that appellant was the victim of domestic violence. Appellant’s new relationship resulted in unacceptable behavior by both her and her new partner’s significant others. This incident was not appellant’s fault and had she been terminated for the incident itself we would have no trouble finding an abuse of discretion.
However, despite these circumstances, counsel’s argument cannot overcome the additional facts, uncontested in this matter, regarding appellant’s own later conduct. The administrative law judge expressly found that appellant intentionally lied to the investigating officer in order to bolster her claim Pacheco’s conduct was unwarranted. More troubling, the administrative law judge found appellant continued to lie, this time about the circumstances surrounding her contact with Pacheco, in her TRO proceedings despite having at least two days to reflect on the incident. As the administrative law judge found, these lies were made with both foresight and deliberation.
When weighing the competing narratives in this case, one suggesting appellant’s status as a domestic violence victim mitigates any incongruences and the other concluding appellant intentionally generated false statements to bolster her claims, we do not conclude the administrative law judge’s determination that termination is an appropriate sanction exceeds the bounds of reason. It is uncontested that appellant was willing to intentionally lie in formal court proceedings to further her claims. Her willingness to do so, if repeated in formal proceedings related to her employment, would create a substantial risk of harm to the public service. While it is possible to conclude the unique circumstances of her situation would make such conduct unlikely, it is not an abuse of discretion to see such conduct as repeatable and worthy of termination.
DISPOSITION
The order is affirmed. Costs are awarded to Real Party in Interest/Respondent.



HILL, P.J.
WE CONCUR:



DETJEN, J.*



SMITH, J.