Post on 28-Apr-2015
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CASE NUMBER B225674
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DMSION 4
CHRISTOPHER DORNER,
V°
LOS
Appellant,
ANGELESDEPARTMENT
Respondent
)))
POLICE))))))
Los Angeles County Superior CourtCase No. BS 120439
Hon. David P. Yaffe, Judge of the LosAngeles County Superior Court
APPELLANT'S OPENING BRIEF
LAW OFFICE OF DAVID J. DUCHROWDavid J. Duchrow, State Bar No. 105617Jill A. Piano, State Bar No. 193930501 Santa Monica Boulevard, Suite 505Santa Monica, California 90401Telephone (310) 395-5511Fax: (310) 395-6677
Attorneys for Appellant CHRISTOPHER DORNER
CASE NUMBER B225674
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DMSION 4
CHRISTOPHER DORNER,
Appellant,
V°
LOS ANGELESDEPARTMENT
Respondent
)))
POLICE)
)))))
Los Angeles County Superior CourtCase No. BS 120439
Hon. David P. Yaffe, Judge of the LosAngeles County Superior Court
APPELLANT'S OPENING BRIEF
LAW OFFICE OF DAVID J. DUCHROW
David J. Duchrow, State Bar No. 105617Jill A. Piano, State Bar No. 193930501 Santa Monica Boulevard, Suite 505
Santa Monica, California 90401
Telephone (310) 395-5511Fax: (3 I0) 395-6677
Attorneys for Appellant CHRISTOPHER DORNER
TABLE OF CONTENTS
Table of Authorities
I. INTRODUCTION AND STATEMENT OF THE CASE-
II. STATEMENT OF FACTS
III. PROCEDURAL HISTORY
IV. STATEMENT OF APPEALABILITY
V. STANDARDS OF REVIEW
VI. SUMMARY OF ARGUMENT
VI. ARGUMENT
ii
1
2
24
24
24
26
26
A° The Superior Court Erred in Denying the Petition for
Administrative Mandamus Based on an Incorrect Application of
the Burden of Proof During the Administrative Hearing 26
B°
VIII. CONCLUSION
CERTIFICATE OF WORD COUNT
The Superior Court Erred in Finding That the Factual Findings
of the Board of Rights Were Correct Because the Findings So
Lack Evidentiary Support That They Are Inherently Improbable
and Unreasonable 30
38
39
-i-
TABLE OF AUTHORITIES
Cases
Antelope Valley Press v. Poizner (2008) 162 Cal. App. 4_ 839 25
Breslin v. City and County of San Francisco (2007)
146 Cal. App. 4th 1064
Brown v. City of Los Angeles (2002) 102 Cal. App. 4th 155 25, 27
DiMartino v. City of Orinda (2000) 80 Cal. App. 4th 329 30
Estate of Larson (1980) 106 Cal. App. 3d 560 31
Fulcuda v. City of Angels (1999) 20 Cal.4th 805 32
Kemp Bros. Const., lnc. v. Tital Elec. Corp. (2007)146 Cal. App. 4th 1474 31
Kuhn v. Dept. of General Services (1994) 22 Cal. App. 4th 1627 31
Lopez v. lmperial County Sheriffs O_ce (2008)165 Cal. App. 4th 1 25
Parker v. City of Fountain Valley (1981) 127 Cal. App. 3d 99 27
Rosenblit v. Superior Court (1991) 231 Cal. App. 3d 1434 25, 27
Sargent Fletcher, lnc. v. Able Corp. (2003) 110 Cal. App. 4th 1658 28-29
Schmitt v. City of Rialto (1985) 164 Cal. App. 3d 494 25
25, 27, 30, 33
Statutes
California Code of Civil Procedure § 904.1 (a)(1)
California Evid. Code § 500
Oth er A uth orities
California Rules of Court, Rule 8.204(a)(2)
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1, 24
27
APPELLANT'S OPENING BRIEF
I. INTRODUCTION AND STATEMENT OF THE CASE
This matter is an appeal from a final judgment denying Appellant's
petition for writ of administrative mandamus in which he sought to overturn
a decision by the Los Angeles Police Department Board of Rights.
Appellant seeks reversal of the Superior Court judgment. The matter is an
appealable firlal judgment. California Code of Civil Procedure §
904.1 (a)( 1); Califomia Rules of Court, Rule 8.204(a)(2);
Appellant Christopher Domer was hired by the Los Angeles Police
Department ("LAPD") as an officer] He served in the military during his
probationary period, earning many honors for his actions. After his service,
Appellant returned to work for the LAPD, still on probationary status.
During one call, Domer saw his training officer kick a mentally
disabled suspect three times. He initially did not report the kicks, but after
speaking with his mentor (an LAPD sergeant) and a sergeant from Intemal
Affairs, he came forward and reported the use of force.
Dorner was accused of making false statements, first to the sergeant
investigating the arrest; second, to Internal Affairs; and third, in a personnel
complaint.
A Board of Rights hearing was conducted. At the conclusion, the
Board issued its decision as well as its rationale. In the rationale, the Board
of Rights stated that it could not determine whether the kicks were made or
not. Appellant contends that in sustaining the charges without the fending
that the kicks did not occur, the Board misapplied the burden of proof,
1
The references to the Administrative Record for all factual
statements will be detailed in the Statement of Facts, below.
-1-
essentially requiting Appellant to prove that the kicks occurred, contrary to
the legal requirement that the Department prove all elements of the charges
by a preponderance of the evidence.
Appellant also contends that the Department's findings are not
supported by substantial evidence, since the evidence it relied upon was
inherently improbable, which negates a fmding of substantial evidence as a
matter of law.
Appellant contends that the Superior Court erred by
misunderstanding, and misapplying, the proper burden of proof; and by
failing to exercise its independent judgment regarding the factual findings;
and further that the Superior Court's fmdings are not supported by
substantial evidence.
Appellant seeks reversal of the trial court, and reinstatement to his
job with LAPD.
1I. STATEMENT OF FACTS 2
Charg_es
Appellant was terminated from his employment with LAPD after
being found guilty of three charges:
"Count 1. On or about August 10, 2007, you, while on
duty, made false statements to sergeant D. Deming, who was
conducting an official investigation.
"Count 2. On or about October 9, 2007, you, while on
2
References to the five-volume Administrative Record of the Board
of Rights Hearing will be abbreviated herein as "AR [volume, in Roman
numerals]/[page]/[lines] In addition to the testimony, Appellant will lodge
a single volume containing the documents from the administrative hearing,
including all exhibits and the Rationale of the Board of Rights for its
decision.
-2-
duty, made false statementsto Detectives S. Gallegos and T. Lai,
who were conducting anofficial investigation.
"Count 3. On or about August 10, 2007, you, while on
duty, made a personnel complaint that you knew or should have
known was false." (AR I/5/10-21)
Officer Christopher Domer
Appellant Christopher Domer testified that his employment with
LAPD began in February, 2005. He was relieved from duty from the
Southwest Division. Before that, he was assigned to Harbor Division,
which was his first assigrnnent after he graduated from the academy in
February, 2006. (AR III/95/5-24)
Domer left the Department in May, 2006, returning in June 2007,
due to being mobilized and deployed with his military unit. (AR II1/96/9-
21) In the proceedings below, the Board of Rights considered Domer's
personnel package, which included "a certificate of release or discharge for
active duty for Officer Chris Domer from the Navy. And it indicates in the
Declaration Medals and Badges, Citations and Campaigns, awarded or
authorized National Defense Service Medal, Iraq Campaign Medals, Global
War on Terrorist Service Medal, Sea Service Ribbon, Overseas Inservice
Ribbon, Armed Forces Reserved Medal, Marksman Pistol - Special Pistol
Marksman." (AR V/219/17 - 220/2) There were two commendations as
well. (AR V/221/7-14)
When he retumed from military service, Domer was assigned to
Harbor Division, under training Officer Teresa Evans. (AR III/96/22 -
97/8)
On July 28, 2007, Domer was the passenger in the patrol car,
accompanied by Officer Evans. (AR Dept. Ex. 2) On that date, they
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receiveda radio call for aman refusing to leavethe Doubletree Hotel.
Domer and Evans discussedthe tools available to them, including a Taser
andpepper spray. (AR 1II/99/1-23)
Upon arrival they observedthe suspect,Christopher Gettler. Domer
approachedthe suspect. When they were about 15 feet from the suspect,he
noticed him sitting on awooden bench,just staring straight ahead. (AR
II1/100/7- 101/4)
Dorner testified that he tried to talk to the suspect,but hewas not
responding. He usedhis right hand to grip the suspect's right wrist, and
askedhim to standup. They startedto walk northbound away from the
bench. The suspectwas betweenDomer andEvans.Evans was standingon
the suspect's left side. (AR II1/101/13 - 102/11)
The suspectsuddenly stoppedand stiffened up. The suspectlooked
at Evans and swore at her. Evans then grabbedthe Taser from Dorner. The
suspect's left hand clenched into a fist. Domer believed the suspectwas
going to strike Evans, sohe tried to drag the suspectto the ground. The
suspectonly went down to a knee, so Dorner pushedhim forward toward,
but not in, the bushes. The suspectbeganto pushDorner, sayingsomething
unintelligible. Domer usedhis body weight to psuh him down becausehe
was trying to control his hands. (AR 111/102/12- 104/2)
Dorner testified that he and the suspectfell into the curb near the
planter box. Dorner tried to straddlethe suspectto control his hands,but
the suspectwas flailing. Dorner was ableto grab the suspect's left hand.
(AR 111/104/12-23)
At that point, Dorner heardtwo Taserbursts. He did not seewhere
EvansTased the suspect.(AR III/120/11-14) The suspectdid not react at
all to being Tased. (AR Ili/120/15023) The suspect then tried to drag
himself into the bushes. (AR II1/105/1-4; II1/121/2-7)
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Domer was able to control the suspect's left ann and cuff it, while
the right arm wasunder the suspect. (AR IIU105/5-17)
Domer recalled Evans going around the bushes,and getting between
the bushesand the hotel wall, asshehad testified. Sheyelled at the suspect
to give Domer his right arm. Shegrabbedhim by the back of his hair and
yelled at him. At the time, the suspecthad no blood on his face. (AR
III/106/2-10)
At that point, Evans tried to get up. Domer could not did not want to
get up, becausehe had an advantagewhere the suspectwason the ground,
with one hand cuffed. At that point, Domer sawEvans kick the suspect
with her right foot, in the left clavicle. Shortly thereafter, shekicked him
againwith aharder kick to the left clavicle. (AR III/106/11-19; III/125/14-
24)
The suspectturned and yelled at Evans. Shethen kicked the suspect
in the face, on the left cheek. (AR IIU106/20-25) With the third kick,
Domer felt the suspect'sbody jerk. (AR III/130/10-20)
Domer testified that although he did not think the kick was
necessary,it did fall within the useof force policy. (AR III/141/16-24) At
that time, Domer had beengonefrom the Department for over a year, and
hadnot beento reintegration training ashehad requested. (AR III/142/1-6)
It was stipulated that Domer had requestedreintegration training
after his military service. (AR V/19/2-6, Accused Ex. E)
At that point, Domer testified, he saw blood on the suspect's face
under his cheek, which he attributed to Evans' kick to the suspect's face.
(AR III/107/3-10; III/126/2-6) The suspect became compliant and gave
Domer his other hand, to cuff. (AR III/107/3-10; III/126/8-10) Domer
handcuffed the suspect.
After the suspect was handcuffed, Dorner saw Port Police Officer
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Hernandezarrive. HernandezaskedifDorner neededhelp. Hernandez
helped get the suspectout of the bushes. (AR Ili/131/21 - 132/2)
Dorner further testified that when Sgt. Jacksonarrived, he asked
Dorner what he did, and Dorner answered. He did not tell Jacksonabout
the kicks becauseJacksonaskedwhat he, Dorner, did during the useof
force. (AR V/29/12-18) He also told Jacksonhe had heardTaserbursts.
By the time Dorner thought he shouldmention the kicks, Jacksonwas
alreadytalking to Evans. (All II1/136/17 - 137/15)
Dorner believed at the time that Evanswould tell Jacksonaboutthe
kicks. (AR V/32/5-11)
Dorner did not tell Evans at the sceneto tell Sgt. Jacksonabout the
kicks, becausehe had previously reportedmisconduct against someoneelse
at the Department. While in a van, two other recruits were calling another
recruit a "nigger." Dorner, who is African-American (AR II1/9/16-19), told
them to stop. They got into a fight in the fan. Dorner was shunned by the
other recruits in the academy, and was not going to speak up again. (AR
III/143/12-20)
Dorner also did not trust Sgt. Jackson. He believed that Jackson and
Evans seemed to know each other very well and were friends. (AR
W34/20-24)
After the incident, as Evans and Dorner were driving away, Evans
asked Dorner if he felt comfortable with the use of force. He stated yes.
She responded with, "We're not going to mention the kicks in the report."
(AR III/151/1-3) He Evans was taking responsibility for reporting the
kicks. (AR V/33/7-11) He didn't know that she would, but he hoped she
would. (AR V/34/1-2) The following day, Dorner checked the report and
there was no mention of the kicks. (AR W32/12-25)
Dorner testified that he and Evans returned to the report writing
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room later and he startedwriting the report. Evanscame in, andthe two
had a disagreement. Dorner had written to the point where the suspect
swore at Evans, and had written threesentencesafter that. They disagreed
about whether the suspectwas trying to hit Dorner or Evans. Evans pressed
the "delete" key and deletedseveralsentences,all the way back to where
Dorner had written about the suspectswearing. (AR III/157/1 - 158/1)
Dorner testified that Evans took over writing the report at that point.
(AR III/2-7)
Dorner doesnot believe the arrest report is accuratebecauseit does
not mention the kicks. (AR III/16 I/11-18)
Dorner wanted to speakwith someonein Internal Affairs, so on
August 9, 2007, he called Sgt.Perez. He consideredPerezto bea mentor.
(AR V/67/12-18) He told Perezabout threekicks. Pereztold him to "Stop
right there." Perez instructed Dorner to go speakto a supervisor. (AR
III/164/2-24; III/165/18 - 166/8)
Dorner testified that when he spoketo Sgt.Perez,he told the truth.
(AR V/8/15-17) He also told the truth to Deming when he spoketo him.
(AR V/8/22-24) Also, in his administrative interview, Dorner told the truth.
(AR V/9/8-12)
Dorner also testified that hehad spokento Evansseveral times after
he returned from military service aboutreceiving reintegration training. He
was told by one officer in the training trailer that probationary officers do
not receive reintegration training. (AR III/168/l 1-19)
When askedabout the evaluationwhich Evanshad just completed
for him, Dorner testified that althoughhe learnedthat someof his ratings
were "improvement needed,"hewasmore focusedon the overall
"satisfactory" evaluation, which waswhat heneededto passprobation.
(AR III/191/5-24) Dorner never received any "unsatisfactory" rating from
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Evans. (AR V/70/23-25) He never received any "unsatisfactory" ratings
during his entire probationary_ period. (AR V/70/1-3)
Dorner testified that when Sgt. Perez had testified 3 that Dorner
described personal problems he was having with Evans, that he had
described an incident in which Evans slapped his (Dorner's) hands. (AR
V/10/13-22)
Domer described Evans as difficult to get along with because she
was angry all the time. (AR V/11/15-17) Evans had told Dorner that Long
Beach police had detained her for domestic violence at her home while she
was on the promotional list for sergeant. (AR V/12/2-24) Later, it was
stipulated that the Long Beach Police Department had responded to Evans's
residence for a domestic violence call on June 7, 2007, and that Evans had
filed for bankruptcy. (AR V/142/9 - 143/4)
Dorner had also been involved in a "use of force" with Evans, which
he did not sure if it was warranted. Evans took a 74 or 75 year old woman
into custody by dragging her to the ground by the forearm. She had to be
taken for medical treatment because the skin came off her forearm. (AR
V/69/6 - 70/4)
Dorner testified that on the day of the incident, he was wearing short
sleeves, not a "Class A" uniform, as Port Police Officer Hernandez had
testified. 4 (AR V/27/16 - 28/1) He was not wearing a tie. (AR V/28/8-10)
He is depicted in Accused Ex. A holding the suspect while he (Dorner) is
wearing short sleeves. (AR V/28/11-29/9, Accused Ex. A)
3
In the hearing, Sgt. Perez had testified before Dorner did; Perez's
testimony is summarized, below.
4
Hernandez had already testified before Dorner did. Hernandez's
testimony is summarized below.
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Richard Gettler, Sr.
Richard Gettler, Sr., testified. He is the father of the arrestee,
Christopher Gettler. (AR IV/13/15-24) He testified that his son,
Christopher, lives with him. He said his son is "classified as a
schizophrenic with severe dementia." (AR IV/14/2-7) He described other
behavioral characteristics of his son. (AR IV/14/8-25)
Mr. Gettler, Sr., testified that he can place Christopher on a missing
persons list irnmediately, but that he usually gives him a chance to come
home first. (AR IV/15/1-6) He described how it was not unusual for police
to bring his son home. "[G]ood officers are always out there and always,
you know, ready to help out." (AR 1V/15/24-25)
He recalled the July 28, 2007 event. Christopher had been missing
from the family home. After a couple of days, his son was brought home by
the police. (AR IV/15/4-11)
Mr. Gettler, Sr., testified that when he saw his son's face when he
returned from home on July 27, 2008, "When you looked at his face, there
was a slight puffiness and he had a little line down here (indicating). I
asked him what happened. Did you get in a fight? And he said no. I go,
'Then how did that happen? How did you get that scratch there, that
puffiness?' That's when he responded, he goes, 'I was kicked.'." (AR
IV/16/6-13) When he asked where it happened, Christopher told him "a
hotel." He understood Christopher to mean the Doubletree, "because
there's only one hotel." (AR IV/16/21-24) They drove to the Doubletree,
and Christopher confirmed that it was the hotel. As they circled the hotel,
Christopher pointed out the place where he was sitting, pointed to the left of
the doorway, and said that something had happened over there. (AR
IV/17/1 - 18/1)
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Christopher was also ableto describeto his father that he had been
kicked by an LAPD officer. (AR IV/18/2-14) Gettler, Sr., deniedto
Christopher that he had beenkicked by an LAPD officer, andtold
Christopher, "You got to tell me what were you doing wrong." (AR
IV/18/15-17) Eventually he decidednot to go to police authorities to report
the incident, since "they've beengood to us all thoseyears and it's
obviously just an accident." (AR IV/19/20-25) Gettler, Sr., said "I was
scolding him after I found out about the secondtwo kicks. And I just told
him, it's LAPD and we're not going to do anything." (AR IV/112/21-25)
Mr. Gettler and Christopher went to Domer's trial counsel's office
on December 8, 2008. A photograph of Christopher was taken. (AR
IV/22/3 - 23/2, Accused Ex. F) The photograph depicteda quarter-inch
mark on Christopher's face, on the spot onwhich hehad beeninjured at the
Doubletree. (AR IV/23/18-25; Accused Ex. F)
Mr. Gettler was presentwhen Dorner's trial counsel interviewed
Christopher on December 8, 2008. Christopher was having a good day, and
wasmore lucid than he normally was. (AR IV/24/15-22)
Eventually it was decided that the Board would have LAPD officers
go to the Gettler home and bring Christopher in to testify. (AR IV/33/7-18)
During the hearing, Gettler, Sr., respondedto a call that he received
from home, and learnedthat Christopher wasnot at home. (AR IV/39/8-15)
Eventually, Christopher Gettler was located, and was brought to the
hearing and was questioned. (AR IV/84/10-22) When that questioning
proved ineffective (seesummary of Christopher Gettler testimony, below),
Gettler, Sr., continued his own testimony. (AR IV/100/15)
Get-tier,Sr., testified that before Appellant's trial counsel interviewed
Christopher, there wasno coaching at all, and the only conversation
betweentrial counseland Christopher was an introduction. (AR IV/100/16-
-10-
25)
He further testified that when officers brought Christopher home
from the Doubletree, he noticed puffiness on his face, and that there was
redness and puffiness for a week. (AR IV/109/2-12)
When the Department's trial counsel showed Gettler, Sr., a
photograph of the hotel, Gettler, Sr., demonstrated that his son had shown
him that he had come out of the front of the hotel, and was sitting on a
bench to the left of the entrance, and that something happened north of the
entrance, and west of the entrance. (AR IV/I 1I/i-17)
When Gettler, Sr., was contacted by Det. Villanueva about the
incident, he "just totally blew her off." (AR IV/I 15/15-25)
Christopher Gettler
As stated by a member of the Board of Rights, "[W]e have seen that
even if you asked the questions, the likelihood of [Christopher] being able
to say it is what it is or it is what it isn't, is not really there." (AR IV/96/4-
8) Gettler, Sr., characterized his son's degree of lucidity that day as "bad."
On the day oft_he recorded interview of his son, he was "talkative." (AR
IV/103/23-24)
Based on its own questioning of Christopher, the Board allowed
Appellant's trial counsel to play a two-minute twenty second audio/video
recording of an interview of Christopher Gettler recorded December 8,
2008. (AR IV/96/3 - 98/8; AV V/139/19 - 140/1)
The recording was introduced over the Department's objection, and
played for the Board. (AR V/141/1 - 142/8) It was played again at the
close of evidence so that the Board could hear the exact words. (AR
V/144/9 -25)
In the recording, Christopher recalls having contact at the Doubletree
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Hotel with police and being taken into custody. He recalled a struggle, and
that during that struggle, hewas kicked once in the face. He was kicked by
a female officer. (ARV/145/1 - 147/7)
Sgt. Teresa Evans
While Appellant was on probation, he was activated into military
service. (AR 1/49/7-14)
While Dorner was on probation, his ratings were satisfactory and he
showed improvement in his performance. (AR 1/49/15-22)
On July 28, 2007, Teresa ("Terri") Evans was a Field Training
Officer. (AR U64/8-I0) She had been Dorner's training officer for only a
month or two. (AR 1/65/8-12)
On that date, Evans and Dorner responded to a call at a hotel in San
Pedro about a man creating a disturbance. (AR 1/68/19-23)
Evans testified that when the officers arrived at the call, they
observed the subject of the call sitting on a bench adjacent to the hotel. She
• first saw Mr. Gettler _om the patrol car. (AR I1/123/23 - 124/1) She said
that she believed the subject was "either was suffering from mental illness
or under the influence." (AR 1/75/8-18)
Evans could not clearly recall her path of travel to the suspect. (AR
I1/126/2-3)
According to Evans, Dorner made initial contact, and told the man to
stand up. The subject did not initially comply with Dorner's commands.
Domer walked over and placed a firm grip on the subject's left arm and
guided him northbound on a sidewalk, to an area where there was a planter
box. (AR 1/78/13 - 79/10) At that point, according to Evans, the subject
stopped and took a swing at Dorner. (AR 1/79/18-23; AR I1/127/12 -
129/18)
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Evans further testified that the subjectswore at Domer, and swung
his fight arm at Domer. Evans then unlaolsteredthe Taser which Domer
was wearing and requested back up. (AR 1/80/2) After Evans unholstered
the Taser, she called over the police radio for backup. She did not place an
"officer needs assistance" call. (AR I1/141/1-7) Evans said she warned the
subject to stop or she would use the Taser. As Dorner attempted to
handcuff the subject, they fell into a planter box. (AR 1/80/2 - 81/15;
I1/129/19 - 130/16; 11/13 I/1-4)
While Dorner was using his body weight to hold the suspect against
the ground, Evans testified that she twice use the Taser on the subject. (AR
1/84/7-19, 1/85/3-8) The suspect was already on the ground when she Tased
him. (AR 11/154/10-12) She did not use the "darts," she deployed the Taser
in "close contact." (AR 1/85/17-19)
Evans testified that she then repositioned herself, and went into the
bushes in the planter "in a crouching position" so she could assist in
controlling the suspect. (AR 1/86/6-11; I1/136/9-12) Evans entered the
planter box which contained the bushes somewhere north of where Domer
and the suspect were. (AR I1/138/4-7) The suspect had a handcuff on only
his left wrist at that point. (AR I1/138/13-21) The suspect was still being
resistant after being Tased twice. (AR I1/156/5-11) Evans testified that,
while in the planter box, she placed a "firm grip" on the suspect's free hand
and assisted in moving it to the handcuffs. (AR 11/155/21-23) After Evans
was in the planter for about 30 seconds, both of the suspect's hands were
handcuffed. (AR 1/88/4-8; AR I1/161/1-5)
Evans denied kicking the suspect in the face, shoulder or chest area.
(AR 1/88/15-20)
Evans also testified that a kick to the suspect's head, under the
circumstances, would have been permissible and "appropriate." (AR
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II/165/3-15)
Evans also testified that after the suspectwas in custody, Sgt.Phil
Jacksonarrived. (AR 1/89/10-20)
Evansnoticed that the suspecthad a laceration onhis left cheek,and
that blood was trailing toward his nose. (AR 1/90/1-17; Dept. Ex. 6)
Evans noticed, after the suspect was in handcuffs, that a Port Police
Officer arrived. (AR 11/140/21-25)
Evans testified that when she and Dorner were completing the
reports of the incident, Dorner believed that the suspect had swung at
Evans, but she prevailed upon him to change his report to say that the
suspect had swung at him (Dorner). (AR 1/103/7-25) Evans herself made
changes to Dorner's report, particularly regarding use of force. (AR I/105/5
- 106/3; "The only changes that were made were in regard to specific
verbiage on the actions during the use of force.")
Evans also testified about some of her evaluations of Dorner.
Around the time of the altercation, Evans was Dorner's training officer.
She testified that on August 9, 2007, she completed an evaluation of Dorner
with some of the ratings as "improvement required;" August 10, 2007 was
the date on which Dorner complained to another supervisor about Evans's
conduct. (AR 1/117/4-24; Dept. Ex. 1, 11) However, that evaluation was
not actually delivered to Dorner until weeks later, on or about August 29,
2007. (AR 1/122/8-23) Even then, the evaluation is overall "satisfactory."
(AR 1/122/24 - 123/4) The evaluation also describes Dorner as using
"good tactics." (AR 1/123/15-25)
Evans was upset about the complaint Dorner made, since it caused
her to be placed at a desk and restricted her from moonlighting with other
potential employers, although it did not affect her full-time employment
with the LAPD. (AR 1/118/12-24) Even after Dorner reported her conduct,
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shewas promoted to Sergeantat thenext opportunity. (AR I/119/6-8)
Christopher Adrid
Christopher Adrid testified that on July 28, 2007, he worked as a
Bellman for the Doubletree Hotel where the incident occurred. At the time
of the hearing, he was a Firefighter with the Los Angeles City Fire
Department. (AR 1/131/10-24; 1/132/6-8)
Adrid had called the police on July 28, 2007 because a man was
trying to sleep on a bench inside the Doubletree. (AR 1/132/19-25) The
man appeared to have "mental problems," including laughing and
mumbling. (AR 1/133/8-16) Adrid spoke to the man and directed him to a
bench outside the hotel. (AR 1/133/17-25)
Adrid saw the police arrive, although he failed to recognize Domer
during the hearing as being one of the officers, (AR 1/134/15-21)
Adrid described the initial contact between Dorner and the suspect.
He saw Dorner tackle the suspect, and fall over into the bushes. (AR
IJ136/9-17) Adrid described the bushes as being four feet tall and about a
foot from the exterior wall of the hotel. (AR 1/141/18-24)
According to Adrid, when Domer and the suspect fell into the
bushes, Evans went over and gave verbal commands to the suspect. (AR
1/143/19- 144/1)
At that point, Adrid testified, he could only see Dorner and the
suspect, both in the bushes, from the waist down. (AR 1/144/2-5)
Adrid testified that he saw Evans use the Taser on the suspect. The
Taser came from "somewhere on her person." (AR 1/180/8-11) He doesn't
know how many times Evans use the Taser. (AR 1/145/24 - 146/1) Adrid
repeatedly testified that Evans was "no more than five feet away" from the
suspect when she used the Taser. (AR 1/146/9-13; 1/180/25 - 181/2) He
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said that after the Taserwas used,Evanswent into the bushesto help.
Adrid was told that Evans testified that she had gone between the
bushes and the wall of the hotel, but Adrid said he never saw her go there.
(AR 1/181/11-15)
After the suspect was handcuffed, according to Adrid, the suspect
had a cut on his face. (AR 1/147/17-21)
Although Adrid testified that he saw Domer tackle the suspect, his
tape recorded interview of October 19, 2007, when his memory was
"better," shows that he denied seeing the tackle - "I missed the tackle."
Adrid changed his testimony to say that he had indeed missed the tackle,
stating, "I would say the entire tackle, yes." (AR 1/149/4 - 151/24)
Adrid also admitted that he "did not have a clear and unobstructed
view of the entire incident." (AR 1/152/23 - 153/1) Despite having what he
called an "unobstructed" view of Evans's use of the Taser, Adrid could not
say how many times Evans used the Taser. (AR 1/168/12-18)
Adrid recalled that when he was interviewed prior to the hearing, he
said he was "unsure" whether the female officer (Evans) went in the bushes.
(AR 1/155/5-9)
Adrid said he did not see any officers kick the suspect. (AR 1/146/19
- 147/8; 1/170/13-17)
Sgt. Leonard Perez
Sgt. Leonard Perez testified that he knew Dorner through the U.S.
Navy Reserves; at the time of the hearing, Perez was still assigned to the
reserve center in Seal Beach. (AR I1/8/2-13)
Perez was instrumental in helping Domer become employed by the
LAPD. (AR I1/38/1-4)
Perez recalled hearing Dorner describe an incident while Dorner was
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in training. In that incident, Domer hearda classmateusea racial epithet,
and,when the classmaterefusedto stop usingthe epithet, Dorner reported
the incident to a superior. (AR II/10/19 - 11/5)
Pereztestified that on August 9, 2007 - the day before Dorner made
the complaint about Evans - he had receivedmessages,and had returned the
messagesand had spokento Dorner. (AR I1/84/7 - 86/7, II/88/2-9; 11/92/2-
8; Accused Ex. B2) They also spokeover the next several days. (All
11/90/5-14)
Sgt.Perezsaid Dorner told him, beginning on August 9, 2007, about
an "incident" involving Evans; that Evans "had kicked the suspect," either
while handcuffed, or with one handcuff on at the time. (AR II/11/11 -
12/24; AR 11/19/19-25) After Domer mentioned the "kick," Perez cut
Domer off before he could describe too much of the incident, since Perez
believed he could become a witness. (AR I1/16/15-22; 11/27/16-25;
I1/101/19-25) Perez told Dorner he needs to tell a supervisor, and directed
him to either tell his watch commander or a supervisor, or that he, Perez,
would do so himself. (AR 11/13/1-13)
Perez believed that Dorner was telling him the truth. (AR II/35/20-
24)
Perez also recalled that Evans had changed Dorner's report. (AR
I1/13/9-12; 11/17/1-9)
During the time when Perez knew Domer, he never knew Dorner to
have integrity issues or to embellish about things. (AR 1I/31/3-9) Perez had
known Dorner from their contacts at the Navy Reserve Center, during a
ride-along before Dorner joined LAPD, and contacts and conversations
over the telephone. (AR 1I/31/5-11)
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Sgt. Eddie Hernandez
Los Angeles Port Police Sgt. Eddie Hernandez testified that he had
become a sergeant five months before the hearing; he was an officer at the
time of the incident. (AR II/46/10-20).
On the date of the incident Hemandez was listening to the police
scanner when he heard the call at the Doubletree. (AR II/47/10-25) When
he arrived, he saw both officers crouched over, half in the bush and half
not. (AR 11/49/18-19) As he got out of his car, the suspect was being
handcuffed and picked up by Dorner. (AR I1/50/2-9; II/58/8-13)
Hernandez recalled that Dorner had his "Class A" uniform on, and
recalled that Dorner's tie was "messed up." (AR I1/50/13-19) However,
during cross examination of Hernandez, the Department stipulated that
Dorner was wearing short sleeves. (AR I1/72/2-19i Accused Ex. A)
Hernandez agreed that "Class A" uniforms are long sleeved. (AR 11/73/21 -
74/8)
Hernandez did not see the Taser being used. (AR 11/51/1-6; 11/60/1-
5; II/62/8-13; 11/63/12-14)
Hernandez did not see Mr. Adrid when he arrived. (AR I1/65/9-11)
Hernandez agreed that, if there had been _ kicks prior to his
arrival, he would not have seen that. (AR 11/67/16-25) Hernandez never
asked if anyone had been kicked. (AR I1/68/1-3)
Hernandez left without talking to Evans. (AR 11/61/23 - 62/1)
Ashlye Perez
Ashlye Perez testified that she was employed at the Doubletree on
the date when the events occurred. (AR Ill/6/5-9, 111/7/19-21)
Ms. Perez testified that she and other hotel employees had seen the
suspicious person in town before. On July 28, 2007, she saw the suspect
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who was "sweating," and shebelieved hewasunder the influence of
alcohol or drugs, and that he was "mumbling to himself." (AR III/8/7-14)
Ms. Perezsaid shestayedinside until after the officers f'trst
contactedthe suspect,then shewent outside andwas "worried about the
guests" who were outside. (AR III/11/10 -12/13) Shedescribedthe
suspectasbeing uncooperative,and the officers' attemptsto handcuff him.
"Then all I remember after that - I don't know within how - the time frame,
but they Taseredhim." (AR III/17-25) Then, the suspectfell to the ground,
where the busheswere. (AR III/12/24 - 13/4)
Ms. Perez testified that Evansusedthe Taseron the suspect"before"
they were down in the bushes;andthat shewas "a distanceaway" when she
did so. (AR III/36/3-13) Evanswas "six feet away" from the subject at the
time of the Tasing. (AR III/37/13-18) Shesaw"something fly out [sic;
of?.]the Taserand strike the subject." (AR III/36/14-16) Shesaw two
objects fly from the Taser and strike the subject, both striking the subject at
the sametime. (AR III/37/3-12)
Ms. Perez testified that shedid not seeEvanskick the suspect. (AR
III/20/10-15) In fact, "She wasn't anywherenearhim at that time." (AR
III/20/l 5) She "never" observedEvansbehind the bushes. (AR III/28/11-
13)
Ms. Perez did not see the subject in handcuffs, nor did she see him
being led from the bushes to the patrol car. (AR III/20/16-24; AR III/28/14-
16) She did not see the subject being cuffed because she walked back into
the hotel, trying to get guests into the hotel; as she testified, "I didn't see
them actually cuffhim because after that I walked in. I was trying to get
guests into the hotel, so I didn't see them cuff him and take him to the car.
But the next time I saw the suspect he was already in the car." (AR
III/31/17-25; III/33/5-17)
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Ms. Perezdid, at somepoint, seeblood on the suspect's face. (AR
III/21/1-13) Shetestified that shesaw the suspect'sheadhit a specific
branchon the bushes. (AR 111/28/22- 29/6)
Sgt. Phil Jackson
Sgt. Jackson testified that he was close to 37 years with LAPD at the
time of the heating, 22 years of which were as a supervisor. (AR Ili/40/3-6)
He was on duty on July 28, 2007, and responded to the call at the
Doubletree Hotel. He arrived when Evans, Dorner, along with two or three
other officers and a Port Patrol Officer were all there. The suspect was
already in custody. (AR 111/40/10-22)
Jackson spoke first to Evans. She disclosed that she and Dorner had
used force. Jackson then began investigating the use of force. (AR
II1/41/16-25)
Jackson's report of his investigation reminded him that Evans had
twice Tased the subject. (AR Ili/43/14-21) Nothing in his report or
recollection indicated that anyone reported seeing kicks used to subdue the
subject. (AR 1II/48/17- 49/2) He saw blood on Mr. Gettler's face. He
believed it came from "thorn bushes" on the side of the hotel. (AR
II1/50/15-22) He did not see any boot prints or smudge on Mr. Gettler
which would have appeared to have come from a shoe on his face. (AR
1II/50/22-25) He saw some dirt on Mr. Gettler which he believed to be from
"the plant" but "no boot or shoe marks." (AR III/51/2-6)
Jackson testified that he saw Evans become "frustrated" at how long
it was taking to write the arrest report, and that she sat at the computer to
make corrections. (AR II1/63/3-9)
Jackson viewed photographs, showing that Dorner was wearing short
sleeves at the scene of the incident. (AR 111/71/9-20; Accused Ex. A)
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Jacksontestified that if akick had beenused, it would have been
justified, but not to the head. (AR II1/75/19-25)
Jacksondid not believe the blood on the suspect's face was
consistentwith being kicked. (AR Ili/77/16-22) But he could not besure
that akick could not have causedthat cut to the cheek. (AR Ili/83/3-11)
Sgt. Julie Mclnnis
Sgt. Mclnnis was employed by the LAPD for 14 years at the time of
the hearing, five years as a supervisor. (AR III/85/2-8) She had been
Appellant's supervisor during June, July and August, 2007. (AR 1II/85/22 -
86/3) She was also one of Evans's supervisor at the same time. (AR
II1/86/7-19)
Sgt. Mclnnis testified that she recalled Evans telling her about
Domer while she was training him, especially that he had been in the
military and was confident and assertive. (AR III/88/1-11)
Sgt. Mclnnis testified that she did not recall a conversation with
Evans in which Evans told her about Dorner discussing the race of other
officers. (AR 111/89/6-17) Evans had testified to the contrary, that she had
a conversation with Sgt. Mclnnis in which she told Mclnnis that Dorner
told her that he felt that the LAPD was a "racist organization" and he was
going to sue the Department after he retired. (AR 1/119/7 - 121/6)
Nor did Sgt. Mclnnis recall any conversation with Evans about
Dorner "confiding" to Evans that he was having problems adjusting after
having been deployed. (AR II1/89/19-25)
Det. Shelly Villanueva
Detective Villanueva testified that she is a Detective II working in
Internal Affairs for LAPD, holding that position for four years at the time of
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the heating. Sheis formerly known as Shelly Gallegos. (AR IV/36/23 -
37/20)
Villanueva investigated the complaint madeby Dorner, in which he
was accusedof making false statements. (AR IV/38/15-25)
Villanueva spoketo witnessesbut did not speakto Christopher
Gettler. (AR IV/41/13-25) Sheunderstoodthat Christopher would not be
able to answer simple questionsand had mental issues. (AR IV/42/1-8)
Shedid speakto Gettler, Sr.,who was thankful toward her and saidthat
every time the LAPD hascome in contact with his son, that heknows his
son is difficult to deal with, andknows that they bring him home when he's
missing.
Villanueva did not tell Gettler, Sr., that the investigation had
anything to do with the kicking of his son. (AR IV/44/12-16)
Villanueva also interviewed Ms. CaseyNixon, who had worked at
the Doubletree Hotel, but who was found to be "unavailable" for the
hearing. (AR IV/45/9 - 49/10) Over objection, Villanueva testified that
Nixon told Villanueva that shedid not seeeverything, and did not seeany
kicks. (AR IV/49/19-25) Ms. Nixon had observedthe suspectbeing
handcuffed on the ground. (AR IV/50/2-8) When Villanueva interviewed
Nixon, Nixon said shewas outsidethe entranceof the hotel but did not say
exactly where shewas standingduring the incident. (AR IV/58/21-24)
Villanueva never askedNixon if shesawEvansbetween the wall and the
bushes,or behind the bushes. (AR IV/62/15 - 63/8) Nothing in the written
paraphrasingof the interview, which Villanueva was using to refreshher
recollection, indicated that Nixon said anything about Evans standinginside
the bushes. (AR IV/9-19) Villanueva also testified that Nixon said that the
Port Police Officer drove away prior to the incident occurring. (AR
IV/70/4-7)
-22-
Villanueva testified that in her opinion, Dorner had made a false
statementabout whether Evanshad kicked the suspect;that was the only
false statement she had an opinion about. (AR IV/54/5-14)
Capt. Donald A. Deming
Capt. Deming testified that on August 10, 2007, Dorner contacted
then-Sgt. Deming. s the Assistant Watch Commander. Dorner told Deming
about the use of force by his partner, Terri Evans. He said that while he
was applying handcuffs to a suspect, Evans delivered two kicks to the
shoulder, and one to the suspect's face. (AR 1/35/11 - 36/25, 1/38/8-13)
Dorner was "visibly upset" at having to report the misconduct to Deming.
(AR 44/2-8) Dorner had asked Deming to promise him that he wouldn't do
anything to Evans. (AR 50/9-19) Deming believed Dorner was attempting
"to do the fight thing." (AR 1/52/3-7)
Deming testified that he learned that within two to three months after
Domer disclosed the misconduct to Deming, someone urinated on his
equipment bag, which was left at the rear of the station in the parking lot.
(AR 1/58/11 - 59/7)
Sgt. Joel Sydanmaa
Sgt. Joel Sydanmaa testified in support of Dorner during the
"penalty" phase. Sgt. Sydanmaa was Dorner's first training officer. (AR
V/225/15-20) He testified that when he worked with Dorner, in relation to
other probationary officers he had trained with the same amount of time on
5
At the time of the hearing, Deming held the rank of Captain with the
Lompoc Police Department, following his retirement as a Sergeant withLAPD, the rank he held at the time of the events described herein.
-23-
the job, it was his opinion that Dorner was "either averageor aboveaverage
in all areas.... " (AR W226/13-18) He never believed that Dorner was
upsetabout criticism, but insteadthat Dorner "was probably one of the
more inquisitive Pl's that I everhad.... He was constantly asking
questionsasto how he could improve, I believe he neededto improve on."
(AR V/227/3-14) Therewasnever any issueregarding Dorner's integrity.
(AR V/226/13-19)
Administrative findings
The Board of Rights found Appellant guilty of all three charges.
(AR V/216/5-13) The Board also recommended termination from
employment. (AR V/233)
III. PROCEDURAL HISTORY
Appellant timely filed a Petition for Writ of Mandate, in the Superior
Court. The matter was heard by April 26, 2010 in Department 86, David P.
Yaffe, Judge presiding. After heating argument, on May 10, 2010, the
Superior Court adopted its tentative decision, denying the Petition. Notice
of Entry of Judgment was served upon the parties.
Appellant timely filed a Notice of Appeal on July 7, 2010.
IV. STATEMENT OF APPEALABILITY
Appellant appeals from a final judgment following an order denying
a petition for writ of mandate. California Code of Civil Procedure §
904.1(a)(I).
V. STANDARDS OF REVIEW
The Court of Appeal reviews de novo the question of law of whether
the trial court misapplied the burden of proof as a matter of law. "In
-24-
Q j
disciplinary administrative proceedings, the burden of proving the charges
rests upon the party making the charges. (Caloca v. County of San Diego
(2002) 102 Cal. App. 4th 433 (Caloca).) We review de novo the legal
question presented. (Breslin v. City and County of San Francisco (2007)
146 Cal. App. 4th 1064, 1077.)" Lopez v. lmperial County Sheriffs Office
(2008) 165 Cal. App. 4th 1, 4.
The Court of Appeal reviews factual determinations of a trial court's
review of an administrative agency decision using the "substantial
evidence" standard. "We uphold the trial court's findings unless they so lack
evidentiary support that they are unreasonable. We may not uphold a
finding based on inherently improbable evidence or evidence that is
irrelevant to the issues before us." [emphasis added, citation omitted]
Breslin v. City and County of San Francisco (2007) 146 Cal. App. 4th 1064,
1077-78.
Judicial Review of the penalty imposed by an administrative agency
is limited to a determination of whether the agency abused its discretion.
Antelope Valley Press v. Poizner (2008) 162 Cal. App. 4th 839, 851. The
appellate court looks to the correctness of the agency's decision rather than
that of the trial court. Schmitt v. City of Rialto (1985) 164 Cal. App. 3d
494, 500.
The ultimate question of whether the trial provided by the agency
was procedurally unfair or whether an agency's proceedings were unlawful
are questions of law to be decided de novo on appeal. Rosenblit v. Superior
Court (1991) 231 Cal. App. 3d 1434, 1443; Brown v. City of Los Angeles
(2002) 102 Cal. App. 4th 155.
-25-
VI. SUMMARY OF ARGUMENT
Appellant respectfully submitsthat the Board of Rights, and Superior
Court, erred in incorrectly placing the burden of proof upon Appellant; and
that the factual findings arenot supportedby substantial evidence, since the
evidence is inherently improbable or comesfrom witnesseswho admittedly
did not seewhat happened.
VI. ARGUMENT
A. The Superior Court Erred in Denying the Petition for
Administrative Mandamus Based on an Incorrect
Application of the Burden of Proof During the
Administrative Hearing
The Board of Rights found against Domer. In explaining its
decision, the Board stated:
"The Board understands that the primary issue in this case was
whether or not the three alleged kicks by Officer Evans to
Christopher Gettler during the use of force at the Doubletree Hotel
occurred or did not occur. After deliberating and all of the evidence,
the Board cannot make a factual finding that the kicks occurred. The
Board searched for evidence to support the allegations of the three
kicks to include testimony of witnesses, physical and documentary
evidence presented to the Board. (AR V/211/20 - 212/5)
"Substantial evidence review in an administrative mandamus case
includes within it the duty to determine whether the administrative body
-26-
committed errors of law in applying the factsbefore it. (SeeCity and
County of San Francisco v. Board of Permit Appeals (I 989) 207 Cal. App.
3d 1099, 1111 .)" Breslin v. City and County of San Francisco (2007) 146
Cal. App. 4th 1064, 1078, fn.14.
The ultimate question of whether the trial provided by the agency
was procedurally unfair or whether an agency's proceedings were unlawful
are questions of law to be decided de novo on appeal. Rosenblit v. Superior
Court (1991) 231 Cal. App. 3d 1434, 1443; Brown v. City of Los Angeles
(2002) 102 Cal. App. 4th 155.
"Except as otherwise provided by law, a party has the burden of
proof as to each fact the existence or nonexistence of which is essential to
the claim for relief or defense that he is asserting." California Evid. Code §
500, emphasis added.
"It is axiomatic, in disciplinary administrative proceedings, that the
burden of proving the charges rests upon the party making the charges."
(Layton v. Merit System Commission (1976) 60 Cal. App. 3d 58, 64; Martin
v. State Personnel Bd. (1972) 26 Cal. App .3d 573,582.)" Parker v. City of
Fountain Valley (1981) 127 Cal. App. 3d 99, 113.
A fundamental principle of due process is that the burden of proof in
administrative hearings to contest a public employee' s termination from
employment lies on the employer, not the employee. The employer must
prove its case by "a preponderance of the evidence." Yet the Board of
Rights turned it into the burden being on the employee; if the Department
alleged that Dorner lied in that the kicks did not occur, and if, as the Board
states, it "cannot make a factual fmding that the kicks occurred," then the
Department did not prove its case by a preponderance of the evidence. The
burden was not on Dorner to prove his innocence, i.e., that the kicks
occurred; the burden was on the Department to prove the kicks did not
-27-
Occur.
The Superior Court compounded this error in its ruling on the
petition for writ of mandate. The Minute Order states in relevant part,
"Neither the language quoted by petitioner nor anything else in the
administrative record indicates that the Board of Rights presumed that the
training officer kicked the suspect, and required petitioner [Appellant
Domer] to prove otherwise." (Appellant's Appendix, p. 9 paragraph 4 - p.
10 para. 1, emphasis added) But that was not what Appellant was alleging
as the error. He alleged that the Board placed the burden on him to prove
the kicks did occur, not that the Board gave him the Department's burden to
prove that they did not occur.
During argument in the Superior Court, the Court stated, "I don't
really know whether the female officer [Evans] kicked this guy or not. I
mean, there's an inference that can be drawn she did." (RT 5/6-10) Thus,
the Superior Court also placed upon the Appellant the burden of disproving
the charges against him.
That clear legal error requires reversal.
In discussing the burden of proof, one court has stated:
"We begin with a discussion of key terms: burden of proof
and burden of producing evidence. Attorneys, judges, and
commentators often have confused these terms and the concepts they
represent. As the United States Supreme Court observed, 'For many
years the term "burden of proof" was ambiguous because the term
was used to describe two distinct concepts. Burden of proof was
frequently used to refer to what we now call the burden of
persuasion--the notion that if the evidence is evenly balanced, the
party that bears the burden of persuasion must lose. But it was also
used to refer to what we now call the burden of production--a
-28-
party's obligation to come forward with evidence to support its
claim.' (Director, Office of Workers'Compensation Programs v.
Greenwich Collieries (1994) 512 U.S. 267, 272; see 2 McCormick,
Evidence (5th ed. 1999) Burden of Proof, 8 336, p. 409.)
"The terms burden of proof and burden of persuasion are
synonymous. (1 Witkin, Cal. Evidence (4th ed. 2000) Burden of
Proof, 8 3, p. 157; 2 McCormick, Evidence, supra, Burden of Proof,
8 336, p. 409.) Because the California usage is 'burden of proof,' we
use that term here.
"'Except as otherwise provided by law, a party has the burden
of proof as to each fact the existence or nonexistence of which is
essential to the claim for relief or defense that he is asserting.' (Evid.
Code, 8 500.) To prevail, the party bearing the burden of proof on
the issue must present evidence sufficient to establish in the mind of
the trier of fact or the court a requisite degree of belief (commonly
proof by a preponderance of the evidence). (Evid. Code, 88 115,
520.) The burden of proof does not shift during trial--it remains
with the party who originally bears it. (Evid. Code, 8 500; Mathis v.
Morrissey (1992) 11 Cal. App. 4th 332, 346; Smith v. Santa Rosa
Police Dept. (2002) 97 Cal .App. 4th 546, 569; 2 McCormick,
Evidence, supra, Burden of Proof, 8 336, pp. 409-410.)"
Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal. App. 4th 1658, at
1666-1667.
The Department failed to meet its burden of proving that the kicks
did no_.._!toccur, yet the Board upheld the charges. The Superior Court
repeated that error. Appellant respectfully requests reversal based upon that
error.
• -29-
B. The Superior Court Erred in Finding That the Factual
Findings of the Board of Rights Were Correct Because the
Findings So Lack Evidentiary Support That They Are
Inherently Improbable and Unreasonable
The Appellate Court reviews the factual findings of the Superior
Court under the "substantial evidence" standard; if the findings so lack
evidentiary support as to be unreasonable, the fmdings are reversed.
"When--as in this matter_e trial court reviews the
commission's decision under the independent judgment standard of
review and we review this ruling on appeal, we determine whether
the record provides substantial evidence supporting the trial court's
factual findings. [footnote and citations omitted] Applying the
substantial evidence test on appeal, we may not reweigh the
evidence, but consider that evidence in the light most favorable to
the trial court, indulging in every reasonable inference in favor of the
trial court's findings and resolving all conflicts in its favor. [citations
omitted] The question on appeal is whether the evidence reveals
substantial support-----contradicted or uncontradicted--for the trial
court's conclusion that the weight of the evidence supports the
commission's fmdings of fact. [citations omitted] We uphold the
trial court's findings unless they so lack evidentiary support that they
are unreasonable. We may not uphold a finding based on inherently
improbable evidence or evidence that is irrelevant to the issues
before us." [emphasis added, citation omitted]
Breslin v. City and County of San Francisco (2007) 146 Cal. App. 4th 1064,
1077-78.
"Substantial evidence" is not synonymous with "any" evidence.
DiMartino v. City of Orinda (2000) 80 Cal. App. 4th 329, 336. The
-30-
substantial evidencerule "does not meanwe must blindly seizeany
evidencein support of the respondentin order to affirm thejudgment. The
Court of Appeal was not created.., merely to echothe determinationsof
thetrial court. A decision supportedby a merescintilla of evidence need
not be affm-nedon review." Kuhn v. Dept. of General Services (1994) 22
Cal. App. 4th 1627, 1633.
The "substantial evidence" rule is based on the assumption that the
trial court actually performed its function of weighing the evidence and thus
actually resolved the factual dispute. If the record demonstrates otherwise,
the appellate court will not affirm merely because there was substantial
evidence upon which the trial court might have ruled against appellant.
Kemp Bros. Const., Inc. v. Tital Elec. Corp. (2007) 146 Cal. App. 4th 1474,
1477-1478. The substantial evidence rule is inapplicable when the trial
judge failed to weigh all relevant evidence and determine factual issues.
Estate of Larson (1980) 106 Cal. App. 3d 560, 567.
In the present case, the trial court relied on an incorrect
understanding of Fukuda and instead of weighing the evidence, simply
rubber-stamped the decision of the administrative body. During argument,
the Superior Court stated:
"I'm supposed to presume that the administrative tribunal got it right,
at least initially, and unless I can find something in the
administrative record to indicate that they didn't, I'm supposed to -
unless I'm satisfied that they decided wrongly, I'm supposed to go
along with them, and that's what I'm doing here under the City of
Angels case, Fukuda against City of Angels, the Supreme Court
case." (RT 5/13-21)
-31-
The Department has,andwill likely, arguethat although the Superior
Court was required to exercise its independentjudgment in this case,that
the administrative decision is "presumedcorrect," citing to Fukuda v. City
of Angels (1999) 20 Cal.4th 805. But one must be careful not to interpret
this statement to mean that the Superior Court need only determine whether
there is sufficient evidence in the record to sustain the findings below.
The true meaning of Fukuda is that a petitioner has a responsibility
to point out to the reviewing Court the violations of law and the
objectionable findings and the lack of support therefore. The California
Supreme Court in Fukuda advised the trial courts that they did not have to
search the administrative record on their own as if there had been no prior
sifting of the evidence:
"We reject the Court of Appeal's conclusion, under which
agency determinations and findings would be entitled to no weight at
all, and afftrrn the rule first articulated in Drummey, supra,
reaffirmed in Dare, supra, and Sipper, supra, implicitly codified by
the Legislature in section 1094.5, and thereafter reaffirmed by
numerous opinions including Bixby, supra: 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, 20 Cal.4th at 817. Thus, the Superior Court's duty to exercise its
independent judgment has not been cancelled. Rather, once a petitioner has
identified the challenged fmdings or conclusions and has shown why such
finding or conclusion is erroneous, the trial court is required to exercise its
independent judgment and may make its own f'mding unrestricted by the
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agency'sprior decision.There is no requirement that the Superior Court
give anypreferential or deferential treatment to the agency's findings.
"On factual issues,the trial court had a duty to weigh the
evidence andto exercise its independentjudgment on the facts. In so
doing, it was assistedby the commission'swork in sifting the
evidence and making its findings, which cameto the trial court with
a strongpresumption of correctness.[citations omitted] In the trial
court, the officers had the burdenof proof to show that the
commission'sdecision wasnot supportedby the weight of the
evidence--that is, that the decision was not supportedby the
preponderanceof the evidence. [citations omitted] The presumption
of correctnessis the starting point for the trial court's review, but this
rebuttable presumption may be overcomeby the evidence. When
applying the independentjudgment test, the trial court may reweigh
the evidence and substitute its own f'mdings for thoseof the
commission, after first giving due respectto the commission's
findings." [citations omitted]
Breslin v. City and County of San Francisco (2007) 146 Cal. App. 4th 1064,
1077.
Against that legal background, it must be concluded that the
evidence, other than from Dorner, Evans and Christopher Gettler, does not
provide substantial evidence because it is inherently improbable and
because the witnesses, by their own admissions, were not in a position to
see anything, or were not on the location when the events transpired.
Appellant does not rely simply on his own statements to show that
the witnesses' testimony should be afforded no weight; Sgt. Evans's
testimony is an even more powerful means of impeachment for the
witnesses who believe they saw something, but did not.
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Evans, it will be recalled, testified that sheunholstered the Taser
which Dorner was wearing andrequestedback up. (AR 1/80/2) She
testified that she twice usethe Taseron the subject. (AR 1/84/7-19,1/85/3-
8) The suspect was already on the ground when she Tased him. (AR
I1/154/10-12) She did not use the "darts," she deployed the Taser in "close
contact." (AR 1/85/17-19)
Christopher Adrid, the Bellman who became a firefighter, testified
that the Taser came from on Evans's person, not from Dorner. " (AR
1/180/8-11) Adrid repeatedly testified that Evans was "no more than five
feet away" from the suspect when she used the Taser. (AR 1/146/9-13;
1/180/25 - 181/2) His testimony is directly contrary to Evans's on that
issue.
Although Adrid testified that he saw Dorner tackle the suspect, his
tape recorded interview of October 19, 2007, when his memory was
"better," shows that he denied seeing the tackle - "I missed the tackle."
Adrid changed his testimony to say that he had indeed missed the tackle,
stating, "I would say the entire tackle, yes." (AR 1/149/4 - 151/24)
Thus, Adrid's testimony is inherently improbable. He did not see
any kicks, according to his testimony, but he clearly missed seeing the Taser
usage, missed the tackle and changed his testimony. His testimony should
not be considered as "substantial evidence" for anything.
Los Angeles Port Police Sgt. Eddie Hernandez also testified, and his
testimony should not be considered as "substantial evidence" regarding
whether Evans kicked the suspect or not. ) Evans testified that as he got
out of his car, the suspect was being handcuffed and picked up by Dorner.
(AR 11/50/2-9; I1/58/8-13) Thus, he arrived after the alleged kicks were
made. He was not on the scene at the time. Hernandez agreed that, if there
had been _ kicks prior to his arrival, he would not have seen that. (AR
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I1/67/16-25) Hernandeznever askedif anyonehad beenkicked. (AR
I1/68/1-3)
It is also at leastquestionablewhether Sgt.Hernandezknew who or
what he was seeing. He was very clear aboutDorner's tie being "messed
up" at the scene. (AR II/50/13-19) However, during crossexamination of
Hernandez,the Department stipulated that Domer was wearing short
sleeves. (AR 11/72/2-19; Accused Ex. A) Hernandez agreed that "Class A"
uniforms - the uniforms with the tie - are long sleeved. (AR 11/73/21 - 74/8)
Dorner would not have been wearing a tie at all. Sgt. Jackson also testified
that Dorner was wearing short sleeves. (AR Ili/71/9-20)
Ashlye Perez, another Doubletree employee, also testified. As with
Mr. Adrid, Ms. Perez's testimony does not rise to the level of being
"substantial," due to its inherently improbable nature. According to Ms.
Perez, Evans was "six feet away" l_om the subject at the time of the Tasing.
(AR II1/37/13-18) As stated above, Evans herself said that she administered
the Taser at close contact; she did not shoot anything. Ms. Perez further
testified that she saw "something fly out [sic; of?.] the Taser and strike the
subject." (AR 1II/36/14-16) She saw two objects fly from the Taser and
strike the subject, both striking the subject at the same time. (AR III/37/3-
12) Again, Evans, who used the Taser, refutes Ms. Perez's testimony.
Ms. Perez testified that she did not see Evans kick the suspect. (AR
Ili/20/10-15) In fact, "She wasn't anywhere near him at that time." (AR
111/20/15) She "never" observed Evans behind the bushes. (AR 111/28/11-
13) Ms. Perez did not see the subject in handcuffs, nor did she see him
being led from the bushes to the patrol car. (AR 1II/20/16-24; AR 111/28/14-
16) Thus, to the extent she saw anything, Ms. Perez was either wrong,
gone, or not paying attention at the crucial moment when it is alleged the
kicks occurred.
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The Department also presentedhearsaytestimony l_om Internal
Affairs Detective Villanueva, who interviewed anotherDoubletree
employee. Even that testimony is not "substantial," sufficient to sustainthe
Board's findings. Over objection, Villanueva testified that Nixon told
Villanueva that shedid not seeeverything, and did not seeanykicks. (AR
IV/49/19-25) Ms. Nixon had observed the suspect being handcuffed on the
ground. (AR IV/50/2-8) When Villanueva interviewed Nixon, Nixon said
she was outside the entrance of the hotel but did not say exactly where she
was standing during the incident. (AR IV/58/21-24) Det. Villanueva never
asked Nixon if she saw Evans between the wall and the bushes, or behind
the bushes. (AR IV/62/15 - 63/8) Nothing in the written paraphrasing of
the interview, which Villanueva was using to refresh her recollection,
indicated that Nixon said anything about Evans standing inside the bushes.
(AR IV/9-19) Evans had also testified that she repositioned herself, and
went into the bushes. Villanueva also testified that Nixon said that the Port
Police Officer drove away prior to the incident occurring. (AR IV/70/4-7)
There were only three people present at the time when Dorner claims
Evans kicked Gettler, and two of them said Evans kicked Gettler. Not
surprisingly, only the person accused with using the force in an
inappropriate manner denies it.
There was a great deal of evidence which has no direct bearing on
whether Evans kicked the suspect: Gettler's schizophrenia, the supervisory
relationship between Evans and Dorner, telephone records and campsite
receipts, prior and subsequent allegations of retaliation, shrubbery, etc.,
such that it might be easy to overlook the only direct evidence of whether
the kicks occurred: the testimony of Dorner and Gettler. All of the other
indirect evidence requires, at least, a leap of speculation to tie it to the issue
of whether or not there were kicks.
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Usually, when apersonis accusedof assaultinganother,there are
two stories: the story by personwho did the hitting, andthe story by the
personwho was hit. In that situation it canbevery difficult to decidewhat
really happened. But this caseis different. In this case,there is awitness,
one who might be expectedto automatically take the side of his superior:
the probationary subordinate,Officer Dorner. Dorner initially remained
silent, but soon knew that it was wrong. When holding in that knowledge
became too much, and at the urging of his mentor, he came forward.
For his trouble, Dorner was accused of making a false statement -
that Evans had kicked the suspect - three times, and was fired by the LAPD.
He asked for, and received, a hearing before the Board of Rights.
It would seem that testimony by the victim and the accused police
officer's subordinate would be more than sufficient to convince a trier of
fact that an assault occurred.
However, the Board of Rights also heard the testimony about Gettler
being schizophrenic, and being a poor witness. He did not immediately
complain to the Department. But Gettler and his family had a history with
the hotel and with police. They knew there would be more in the future.
Christopher had to lie low. He didn't need to antagonize the police by
filing a complaint. Better to move on.
The Board of Rights also heard that there were some areas where
Dorner's evaluations showed "Improvement Required" in some areas, even
though the overall evaluation was "Satisfactory." Dorner knew he needed
to improve; after he returned from his tour of duty with the Naval Reserve,
he asked for more training. Also, Dorner had not even received that
evaluation until weeks after he disclosed Evans's kicks.
Appellant respectfully requests that this Court reverse the Superior
Court, and fred that the Board's findings are not supported by the weight of
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the evidence,and grant the petition for administrative mandamus.
VIII. CONCLUSION
Appellant respectfully requeststhis Court to reversethe Superior
Court's decision denying the petition for writ of administrative mandamus
for the reasonsset forth above.
Dated: January 27, 2011 LAW OFFICE OF DAVID J. DUCHROW
BY: ___uc_ow_'J
Attorneys for Appellant
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CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, Rule 14(c)(1))
The text of this brief consists of 10,712 words as coumed by the Corel
WordPerfect X3 word processing program used to generate the brief.
Dated: January 27, 2011 BY: _4,
DAVID J. DUCI_r_.O_. "
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PROOF OF SERVICE
I am employed in the County of Los Angeles at 501 Santa Monica
Boulevard, Suite 505, Santa Monica, California 90401-2443. On the date of
mailing, I am over the age of eighteen, and not a party to the above-
described action.
On January 28, 2011, I served the within:
APPELLANT'S OPENING BRIEF
by placing the true copies thereof enclosed in sealed envelopes as stated on
the attached mailing list;
BY MAIL:
I am "readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with
U.S. postal service on that same day with postage thereon fully prepaid at
Los Angeles, California in the ordinary course of business. I am aware that
on motion of the party served, service is presumed invalid if postal
cancellation date or Postage meter date is more than one day after date of
deposit for mailing in affidavit.
Executed on January 28, 2011, at Santa Monica, California. I declare under
penalty of perjury under the laws of the State of California that the above is
true _t_d correct. /q/ /
c o4.David J. Duci[row
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ATTACHMENT TO PROOF OF SERVICEAPPELLANT'S OPENING BRIEF
DORNER v. LOS ANGELES POLICE DEPARTMENT
To the Respondent:
Gail D. Peterson, Esq.
Office of the City Attorney
201 N Los Angeles St #301
Los Angeles, CA 90012
To the Appellant:
(confidential address provided to counsel)
To the Trial Court:
Hon. David P. Yaffe
Los Angeles Superior Court111 N. Hill Street
Los Angeles, CA 90012
Four Copies to:
Clerk, California Supreme Court
350 McAllister Street
San Francisco CA 94102-7303
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