California Court of Appeals, Second District, Third Division
from judgments of the Superior Court of Los Angeles County,
Amy D. Hogue, Judge. Reversed. Los Angeles County Super. Ct.
No. BS14576; Los Angeles County Super. Ct. No. BS166514
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N. Feuer, City Attorney, Blithe S. Bock, Assistant City
Attorney, Paul L. Winnemore and Matthew A. Scherb, Deputy
City Attorneys, for Defendants and Appellants.
Busailah, Michael P. Stone and Muna Busailah, Pasadena, for
Plaintiff and Respondent Caesar Gonzalez.
Lucia Stern St. Phalle & Silver, Jacob A. Kalinski, Santa
Monica, and Christopher D. Nissen, Long Beach, for Plaintiff
and Respondent Kosal Uch.
Cal.Rptr.3d 192] The City of Los Angeles (City) and Chief of
Police Charlie Beck (Chief Beck) appeal from trial court
judgments granting petitions for writ of mandate filed by
former Los Angeles Police Department (LAPD) sergeants Caesar
Gonzalez and Kosal Uch. The trial court ordered the City to
vacate Gonzalez’s and Uch’s terminations and provide them
with the opportunity for an administrative appeal. In this
consolidated appeal, we conclude the City’s provision of a
hearing before the Board of Rights was the administrative
appeal Government Code section 3304, subdivision (b)
requires. We reverse the judgments.
1. LAPD Proceedings (Gonzalez)
October 2010, when Gonzalez was an LAPD sergeant living in
San Bernardino County, the San Bernardino Sheriff’s
Department (sheriff’s department) began a criminal
investigation into allegations that in April 2010 Gonzalez
supplied alcohol to a minor (his second cousin by marriage),
and had sex with her. After the sheriff’s department
interviewed Gonzalez in September 2010, he informed his LAPD
supervisor, Lieutenant David Crew, that he had given the
sheriff’s department a voluntary statement about providing
alcohol to a minor, but Gonzalez did not tell Lieutenant Crew
about the sex charge until sometime later. In October 2010
Gonzalez reported the alcohol charge, but not the sex charge,
on the initial department complaint form (number CF
10-00392). The criminal investigation was closed later
without filing charges.
LAPD’s investigation into the alcohol and sex allegations,
the Internal Affairs Group interviewed Gonzalez and other
witnesses, and obtained from the sheriff’s department
statements by the minor and her mother. The LAPD investigator
prepared a 20-page report, submitted in June 2011 and
approved in December 2011. The report listed four
allegations: (1) providing alcohol to a minor, (2) sexual
intercourse with a minor, (3) attempt to engage
in an intimate relationship with a minor, and (4) engaging
while off-duty in conduct unbecoming to an officer. The
report summarized the evidence, and described the
investigation and the criminal investigation in San
Bernardino. Gonzalez denied he had sex with the minor, but
did not dispute that she drank alcohol with his knowledge.
The investigator was unable to determine if Gonzalez and the
minor had sex, as there was no physical evidence and no
witnesses, and the victim reported the alleged sex five
March 2012, Gonzalez’s commanding officer, Captain Don
Schwartzer, adjudicated the allegations, sustaining all but
the allegation of sex with a minor, which he classified as
unresolved. Captain Schwartzer [256 Cal.Rptr.3d 193]
concluded: "It has been determined that Sergeant
Gonzalez committed acts that merit 10
Suspension Days and his tour at Internal Affairs is
not being extended, as a result he will transfer to another
Division outside of Professional Standards Bureau."
Gonzalez filed a Skelly response including additional
information, LAPD conducted a supplemental investigation led
by Detective Christina Frus, who held additional interviews
and obtained and reviewed additional evidence. A 31-page
supplemental report retained the first two allegations
(providing alcohol to, and having sex with, a minor) and
modified the third allegation to state that Gonzalez, while
off-duty, unnecessarily placed himself in a compromising
position. The supplemental report added six new allegations
against Gonzalez: (4) failure to report the criminal
investigation in a timely manner, (5) submitting an official
complaint form he knew or should have known was inaccurate,
(6) omitting critical alleged misconduct from an official
complaint form, and (7), (8), and (9), three separate
instances of providing misleading information to LAPD.
September 19, 2012, Captain Schwartzer adjudicated the
expanded allegations and sustained them all. In an eight-page
supplemental letter of transmittal, he recommended that
allegation (2), sexual intercourse with a minor, be
reclassified as sustained, based on the evidence and
information obtained in the supplemental investigation.
Captain Schwartzer evaluated the evidence (the minor reported
they had sex and Gonzalez denied it) and found Gonzalez’s
story unreasonable. Captain Schwartzer also described the
evidence supporting the new allegations that Gonzalez failed
to report and provided incomplete and inaccurate information.
He recommended: "As a result of the supplemental
administrative investigation, the Department ...