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

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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.

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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.

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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-

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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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