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Electronically FILED by Superior Court of California, County of Los Angeles on 01/13/2022 11:06 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk
MICHAEL N. FEUER, City Attorney
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CARLOS DE LA GUERRA, Sr. Assistant City Attorney
2 YONG W. SOHN, Supervising City Attorney
HOON S. PARK, Deputy City Attorney (SBN 186475)
3 200 North Main Street, City Hall East, Room 800
Los Angeles, CA 90012
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Tel: (213) 978-8384 Fax: (213) 978-8787
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NO FEE-GOV’T CODE 6103
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7 Attorneys for Respondent(s)
CITY OF LOS ANGELES and MICHEL MOORE, CHIEF OF POLICE
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES
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) CASE NO. 20STCP03744
12 LILIA VELASCO, )
) RESPONDENTS’ OPPOSITION TO
13 ) PETITION FOR WRIT OF MANDATE;
14 Petitioner, ) MEMORANDUM OF POINTS AND
) AUTHORITIES
15 vs. )
) [CCCP §1094.5]
16 )
CITY OF LOS ANGELES, a
) TRIAL DATE: February 15, 2022
17 Municipal Corporation; MICHEL MOORE, )
Chief of Police, City of Los Angeles, and TIME: 9:30 a.m.
) DEPT: 82
18 DOES 1 through 30, inclusive ) JUDGE: Hon. Mary H. Strobel
19 )
)
20 Respondents. )
)
21 ____________________________________ )
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24 Respondent(s) City of Los Angeles and Chief of Police MICHEL MOORE (collectively
25 “Respondents”), hereby submit the following Memorandum of Points and Authorities in
26 opposition to Petitioner’s Verified Petition for Peremptory Writ of Mandate.
27 ///
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RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 In 2019, Petitioner Lilia Velasco (“Petitioner”) was a police officer employed by Los
4 Angeles Police Department (“LAPD” or “Department”) with the rank of Detective II, working as
5 a supervisor in the Homicide Unit at Central Division. (AR 738)
6 On April 30, 2019, Petitioner was subjected to a random drug test. Subsequently, her
7 urine sample came back positive for THC metabolite. The Department investigated and
8 sustained two misconduct charges against her. Petitioner was afforded an administrative
9 appeal hearing, a Board of Rights hearing which commenced on April 22, 2020. (AR 63) At
10 the Board of Rights hearing, Petitioner faced two Counts:
11 Count 1: On or about April 30, 2019, you, while on duty, submitted a urine sample
12 during a random drug test, which tested positive for marijuana (THC metabolite).
13 Count 2: On or about October 30, 2019, you, while on duty, made a false statement to
14 Sergeant T. Melendez, who was conducting an official investigation. (AR 89)
15 The Board found her Not Guilty on Count 1 but Guilty on Count 2. The Board
16 recommended a 65-day suspension which she received. (AR 1306-1309) Petitioner now
17 seeks to reverse the Department’s action against her.
18 II. STATEMENT OF FACTS
19 At the time of the alleged misconduct, Petitioner was a 31-year veteran of LAPD,
20 working in the Homicide Unit, Central Division. (AR 737, 738, 1198)
21 On April 30, 2019, Petitioner was randomly selected to be drug tested at work. (AR 738)
22 She provided a urine sample. (AR 739, 1199)
23 On June 4, 2019, Petitioner was notified via email that she tested positive for
24 phentermine, a central nervous system stimulant, and positive for THC, a psychoactive
25 substance in marijuana. (AR 314, 316, 317, 739, 1199, 1200) The email instructed Petitioner
26 to contact Dr. Manukian and make an appointment with him and to produce any document to
27 explain the positive test results. (AR 739, 1200)
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RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
1 On June 12, 2019, Petitioner met with Dr. Manukian who was working in the Personnel
2 Department, Medical Services Division. One of his duties is to review drug test results and
3 opine whether it’s verified negative or verified positive. (AR 647) If necessary, he will interview
4 the employee and check any prescription that may be submitted by the employee for
5 legitimacy. (AR 648)
6 Petitioner provided Dr. Manukian with a valid medical documentation excusing her use
7 of phentermine, but she offered no medical documentation for the presence of THC metabolite.
8 (AR 649, 650) And Petitioner told Dr. Manukian that she didn’t want to make any statements
9 and left without providing any explanation for her positive test for THC. (AR 649) Petitioner
10 later explained that she believed that Dr. Manukian mistaking her with another employee, a
11 sergeant, so she left without discussing her positive test for THC. (AR 740, 744)
12 The next day, June 13, 2019, Petitioner’s Captain called Dr. Manukian and told him that
13 Petitioner changed her mind and asked if she could come in to complete the interview. (AR
14 649) Petitioner was ordered to return to Dr. Manukian by her commanding officer. (AR 745)
15 According to Dr. Manukian, he took handwritten notes of what Petitioner told him that day,
16 which is that Petitioner had been using CBD oil which was purchased from a Pasadena health
17 store for her aching knees. (AR 651, 749) She also told Dr. Manukian she had a knee surgery
18 in 2015, and she’s been using the hemp product since January 2019. (AR 653, 654) Dr.
19 Manukian deemed the test result verified positive for THC because Petitioner did not have a
20 medically verifiable reason or cause to explain the presence of THC. (AR 656)
21 LAPD started an investigation. (AR 133-134)
22 Dr. Manukian later testified at the Board hearing that he believed that Petitioner was
23 applying the hemp product on her knee for pain control. (AR 698) According to Petitioner
24 however, she never stated or implied to Dr. Manukian that she was using the hemp product on
25 her knee. She only stated that she was using the hemp product which was purchased in
26 Pasadena, and that she had a knee surgery in 2015. (AR 752) Dr. Manukian’s testimony on
27 this point may be a misrecollection or a misinterpretation of his notes because he was
28 interviewed by Internal Affairs investigator Sgt. Tomas Melendez in November 2019 in which
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RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
1 he stated that he did not know if the hemp product was applied topically or taken orally. (AR
2 1167)
3 On October 30, 2019, Petitioner and her attorney met with Sgt. Melendez for her official
4 interview. (AR 1195) During this interview, Petitioner stated that her domestic partner, Mary
5 Kladouris, had been putting a hemp product in Petitioner’s morning shake without her
6 knowledge. (AR 1211-1212) The hemp product is a hemp oil which was purchased at a health
7 food store in South Pasadena. (AR 1212) Petitioner provided a picture of the hemp product to
8 Melendez. (AR 1213) The bottle was labeled “Fountain of Health CBD oil.” (AR 1213)
9 Petitioner also stated that she had been taking the shakes since about January of 2019. (AR
10 1215) She estimated that she drank the shake probably three or four times a week. (AR
11 1215) She had no idea that the hemp product was in the shake. (AR 1216)
12 On November 21, 2019, Sgt. Melendez interviewed Petitioner again. The reason for the
13 second interview was that Sgt. Melendez forgot to ask an important question during the first
14 interview, “Did you ingest marijuana”, so he just needed to follow up. It was a brief interview.
15 (AR 136, 137)
16 III. STANDARD OF REVIEW
17 The independent judgment standard of review applies to an administrative body’s
18 findings on guilt in cases involving a police officer’s vested property interest in his employment.
19 (Barber v. Long Beach Civil Service Comm’n (1996) 45 Cal.App.4th 652, 658.) “[I]n exercising
20 its independent judgment, a trial court must afford a strong presumption of correctness
21 concerning the administrative findings, and the party challenging the administrative decision
22 bears the burden of convincing the court that the administrative findings are contrary to the
23 weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) The trial court
24 must give “considerable deference” to the administrative decision, as well as to the technical
25 expertise of administrative officers and experts. (Mason v. Office of Admin. Hearings (2001) 89
26 Cal.App.4th 1119, 1131, 1138.) This deference to administrative findings also applies to
27 determination of witness credibility. (Fukuda, supra, 20 Cal.4th at 819.) The selection and
28 imposition of penalties by an administrative agency, however, are vested in the sound
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RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
1 discretion of the agency, and must not be disturbed by a reviewing court absent clear abuse of
2 discretion. (Martin v. Alcoholic Beverage, etc. Appeals Board (1959) 52 Cal.2d 287, 291; Blake
3 v. State Personnel Board (1972) 25 Cal.App.3d 541, 553.)
4 IV. ARGUMENT
5 1. Petitioner’s Opening Brief exceeds the 15-page limit.
6 Petitioner’s Opening Brief contains 32 pages of narrative which exceeds the 15-page
7 limit. (Cal Rules of Court, Rule 3.1113, subd. (d)) Respondents are not aware of any attempt
8 by Petitioner to seek prior permission from the Court to do so. Respondents are prejudiced by
9 Petitioner’s extraneous arguments because of extra time, effort, and research to consider her
10 extraneous arguments. This is unfair and Respondents request the Court to disregard the
11 excess portion of Petitioner’s Opening Brief.
12 2. Count 2 was not vague.
13 On October 30, 2019, during the interview with Sgt. Melendez, Petitioner stated that her
14 partner had been putting a hemp product into her morning shake without her knowledge, which
15 is materially different from what Petitioner told Dr. Manukian a few months prior. At the Board
16 hearing, before the Opening Argument, the parties discussed this issue and the Department
17 put on the record that this statement was the subject of Count 2. (AR 100) The defense then
18 told the Board that they were satisfied with the explanation. (AR 102) There was no ambiguity
19 regarding Count 2.
20 3. The weight of the evidence supports the guilty finding on Count 2.
21 Petitioner told Dr. Manukian (June 13, 2019 interview) that she had been using a hemp
22 product for her knee since Jan 2019. She had a knee surgery in 2015. She did not mention to
23 Dr. Manukian that it was her partner who was putting the hemp product in her morning shake
24 without her knowledge. But on October 30, 2019, in the interview with Sgt. Melendez,
25 Petitioner claimed that her domestic partner had been putting the hemp product in her morning
26 shake without her knowledge. This is a material alteration of her statement from before which
27 shows that it was a false statement. Had this been the truth (that her partner had been putting
28 in a hemp product in her morning shake without her knowledge), she had no reason not to tell
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RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
1 Dr. Manukian before. The meeting with Dr. Manukian was one chance for Petitioner to provide
2 an explanation for her positive test, and therefore she would have wanted to explain it well,
3 with details. And the claim that she didn’t know her partner was putting the hemp product in
4 the morning shake is an important detail that would not have been left out if true.
5 And it appears that Petitioner and her attorney knew that her statement on October 30,
6 2019 would be a false statement by the way the interview proceeded. In this interview,
7 Petitioner was represented by her attorney Mr. Winslow. Interestingly, Mr. Winslow stopped
8 Sgt. Melendez twice from asking Petitioner what she said to Dr. Manukian on June 13. (AR
9 1209, 1210) Mr. Winslow guided the interview questions so that Melendez was able to ask
10 Petitioner directly what the explanation for the positive THC result was, but not what she told
11 Dr. Manukian before. (AR 1210) At one point, Mr. Winslow actually stopped her client and
12 stated, “Stop. Okay. You – we’re not talking about what you talked to the doctor about. Just
13 explain to him [Melendez] how and why you believe the test may have become positive.” (AR
14 1211) She then gave the statement that her partner was putting a hemp product in her
15 morning shake, without her knowledge. This appears to be a preplanned strategy to give a
16 particular statement that would deflect any blame from her.
17 In her Opening, Petitioner appears to argue that she cannot be charged with making a
18 false statement because Melendez did not confront her with what he thought was a false
19 statement. But there is no such legal requirement. It may be good practice in some cases to
20 do so, but if the investigator is clear that it happened, there is no legal procedure to stop the
21 Department from making such a charge. Further, Petitioner did have the chance to explain
22 everything away during the Board hearing.
23 Petitioner also argues that the Board’s reference to her statements on other interview
24 dates mean that the Board was finding new charges. But the Board’s reference to Petitioner’s
25 statements on dates other than October 30 is just the Board’s explanation to put Petitioner’s
26 October 30 false statement in context, and not finding her guilty of false statements on other
27 dates.
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RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
1 Petitioner also points out that Dr. Manukian may have been mistaken about Petitioner
2 putting the hemp product on her knee topically, as opposed to taking it orally. And it appears
3 likely that Dr. Manukian’s testimony was inaccurate on this point because his notes did not
4 contain how Petitioner took the hemp product and in his interview with Sgt. Melendez in
5 November 2019, he clearly said he didn’t know if Petitioner applied the hemp product topically
6 or took it orally. But this misses the big point. Petitioner’s statement to Dr. Manukian on June
7 13 clearly shows that she knew she was taking the hemp product, no matter which method.
8 And Petitioner failed to mention that she was unknowingly given the hemp product by her
9 partner in a morning shake. This is a big point to omit in a statement whose sole purpose was
10 to minimize culpability. She testified that by the time she spoke to Dr. Manukian, she knew
11 everything. (AR 755) And when she spoke to Dr. Manukian, she was under the guidance of an
12 attorney, Ira Salzman, even though he wasn’t there with her. (AR 1202) It wasn’t until October
13 30, 2019 interview with Melendez, at which point she had a new attorney, Mr. Winslow, that
14 she explained that she was being given the hemp product unknowingly by her partner in a
15 morning shake which makes it appear that this statement is a false statement she came up
16 with between June 13 and October 30.
17 4. There was nothing wrong with the Ex Parte.
18 It appears that during a break in the Board hearing dates, sometime between August 27
19 and October 5, 2020, defense investigator Mr. Munoz sent emails detailing what was
20 happening in the hearing such as witness identities and testimony, and the impression by the
21 defense, to outside entities such as L.A. Times and the Chief of Police. (AR 1101, 1103, 1299)
22 The Board hearing was a closed proceeding, so this was a breach of confidentiality. And the
23 ex parte Petitioner is concerned with here is the Department’s reporting of these emails to the
24 Board.
25 There was nothing wrong with this reporting by the Department because the Board has
26 the right to know if confidential information from the closed hearing was intentionally being
27 leaked by a party. The Board also stated that this communication did not include any
28 substantive information other than to point out that Mr. Munoz sent numerous emails to outside
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RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
1 entities. (AR 1101) The Board sent an email the defense to stop Mr. Munoz from continuing to
2 breach the confidentiality of the hearing, and set a date for both sides to make the record as to
3 what was happening, which occurred on the next hearing date, October 13, 2020. There was
4 no violation of due process here.
5 5. The Board’s striking of Munoz’ testimony was harmless.
6 Mr. Munoz sat through the entire hearing as defense investigator. Then he testified that
7 Sgt. Melendez did a terrible job of investigating this case. Specifically, as for Count 1, Sgt.
8 Melendez violated the MOU procedural protections, and as to Count 2, his investigation was
9 incomplete because he did not interview Petitioner’s partner, Mary Kladouris, for example. But
10 the Board ultimately found Not Guilty on Count 1, therefore striking his testimony regarding
11 Count 1 had no effect. As for his testimony regarding Count 2, it should be noted that he was
12 testifying just as an investigator for the defense, to offer his opinion how he would have done
13 the investigation differently. He was not a percipient witness or an expert on procedure or
14 science of investigation. And there is no such thing as the only correct way to investigate a
15 case, and thus his testimony amounts to argument, which the defense vigorously presented in
16 her closing. In other words, the Board’s striking of Munoz’ testimony, whether it was justified
17 or not, had no effect on the outcome.
18 6. The penalty was not excessive.
19 The Court must consider “the extent to which the employee’s conduct resulted in, or if
20 repeated is likely to result in, ‘[h]arm to the public service.’ Other relevant factors include the
21 circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v.
22 State Personnel Bd. (1975) 15 Cal. 3d 194, 218.) But an administrative agency’s choice of
23 penalty for employee misconduct should not be disturbed by a reviewing court absent clear
24 abuse of discretion. (Martin v. Alcoholic Beverage, etc. Appeals Board (1959) 52 Cal.2d 287,
25 291.)
26 Here, the Board gave 65 days of suspension, but clearly stated that she should be given
27 credit for the days she had been out of work up to that point, in effect, making it time-served.
28 Making a false statement in an official investigation is serious misconduct. It engenders
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RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
1 mistrust of public employees and undermines the internal investigatory process of LAPD. As
2 an experienced supervisor, she should be held accountable. The penalty was not excessive.
3 V. CONCLUSION
4 Based on the foregoing and any further argument that may be presented at the time of
5 the hearing, the Respondents respectfully request that this Court deny the Petition for
6 Peremptory Writ of Mandate.
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8 Dated: January 12, 2022 MICHAEL N. FEUER, City Attorney
CARLOS DE LA GUERRA, Sr. Assistant City Attorney
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YONG W. SOHN, Supervising City Attorney
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11 /S/
12 By: ______________________________________
HOON S. PARK
13 Deputy City Attorney
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RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
PROOF OF SERVICE
1
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
2
3 I, the undersigned, declare that I am employed in the County of Los Angeles. I am over
the age of 18 and not a party to this action or proceeding. My business address is Los
4 Angeles City Attorney's Office, Police Administrative Law Section, 200 North Main Street, 800
City Hall East, Los Angeles, CA. 90012.
5
6 On January 13, 2022, I served the document(s) entitled RESPONDENTS'
OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND
7 AUTHORITIES on all interested parties in this action 20STCP03744 by transmitting true
copies thereof addressed as follows:
8
9 LILIA VELASCO, PRO PER
13 Boulder Ridge Ct.
10 Azusa, CA 91702
11
Iii ia. velasco@aol .com
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[X] BY MAIL: I am readily familiar with the practice of the Los Angeles City Attorney's
13
Office for collection and processing of correspondence for mailing with the United
14 States Postal Service. In the ordinary course of business, correspondence is deposited
with the United States Postal Service the same day it is placed for collection and
15 mailing. On the date referenced above, I placed a true copy of the above document(s)
in a sealed envelope and placed it for collection in the proper place in our office at Los
16
Angeles, California.
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[X] BY ELECTRONIC MAIL: I transmitted the document(s) to the addressee(s)
18 via electronic mail at the address listed above.
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[ ] BY PERSONAL SERVICE: I placed a true copy of the above document(s) in a sealed
20 envelope and delivered the envelope by hand.
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I declare under penalty of perjury under the laws of the State of California that the
22
foregoing is true and correct. ~ ·. .. ·
23
Dated: January 13, 2022 -
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LANCE PORTER, Declarant
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RESPONDENTS' OPPOSITION TO PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIES
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 01/13/2022 11:06 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk MICHAEL N. FEUER, City Attorney 1 CARLOS DE LA GUERRA, Sr. Assistant City Attorney 2 YONG W. SOHN, Supervising City Attorney HOON S. PARK, Deputy City Attorney (SBN 186475) 3 200 North Main Street, City Hall East, Room 800 Los Angeles, CA 90012 4 Tel: (213) 978-8384 Fax: (213) 978-8787 5 NO FEE-GOV’T CODE 6103 6 7 Attorneys for Respondent(s) CITY OF LOS ANGELES and MICHEL MOORE, CHIEF OF POLICE 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES 11 ) CASE NO. 20STCP03744 12 LILIA VELASCO, ) ) RESPONDENTS’ OPPOSITION TO 13 ) PETITION FOR WRIT OF MANDATE; 14 Petitioner, ) MEMORANDUM OF POINTS AND ) AUTHORITIES 15 vs. ) ) [CCCP §1094.5] 16 ) CITY OF LOS ANGELES, a ) TRIAL DATE: February 15, 2022 17 Municipal Corporation; MICHEL MOORE, ) Chief of Police, City of Los Angeles, and TIME: 9:30 a.m. ) DEPT: 82 18 DOES 1 through 30, inclusive ) JUDGE: Hon. Mary H. Strobel 19 ) ) 20 Respondents. ) ) 21 ____________________________________ ) 22 23 24 Respondent(s) City of Los Angeles and Chief of Police MICHEL MOORE (collectively 25 “Respondents”), hereby submit the following Memorandum of Points and Authorities in 26 opposition to Petitioner’s Verified Petition for Peremptory Writ of Mandate. 27 /// 28 /// 1 _________________________________________________________________________________________ RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 In 2019, Petitioner Lilia Velasco (“Petitioner”) was a police officer employed by Los 4 Angeles Police Department (“LAPD” or “Department”) with the rank of Detective II, working as 5 a supervisor in the Homicide Unit at Central Division. (AR 738) 6 On April 30, 2019, Petitioner was subjected to a random drug test. Subsequently, her 7 urine sample came back positive for THC metabolite. The Department investigated and 8 sustained two misconduct charges against her. Petitioner was afforded an administrative 9 appeal hearing, a Board of Rights hearing which commenced on April 22, 2020. (AR 63) At 10 the Board of Rights hearing, Petitioner faced two Counts: 11 Count 1: On or about April 30, 2019, you, while on duty, submitted a urine sample 12 during a random drug test, which tested positive for marijuana (THC metabolite). 13 Count 2: On or about October 30, 2019, you, while on duty, made a false statement to 14 Sergeant T. Melendez, who was conducting an official investigation. (AR 89) 15 The Board found her Not Guilty on Count 1 but Guilty on Count 2. The Board 16 recommended a 65-day suspension which she received. (AR 1306-1309) Petitioner now 17 seeks to reverse the Department’s action against her. 18 II. STATEMENT OF FACTS 19 At the time of the alleged misconduct, Petitioner was a 31-year veteran of LAPD, 20 working in the Homicide Unit, Central Division. (AR 737, 738, 1198) 21 On April 30, 2019, Petitioner was randomly selected to be drug tested at work. (AR 738) 22 She provided a urine sample. (AR 739, 1199) 23 On June 4, 2019, Petitioner was notified via email that she tested positive for 24 phentermine, a central nervous system stimulant, and positive for THC, a psychoactive 25 substance in marijuana. (AR 314, 316, 317, 739, 1199, 1200) The email instructed Petitioner 26 to contact Dr. Manukian and make an appointment with him and to produce any document to 27 explain the positive test results. (AR 739, 1200) 28 2 _________________________________________________________________________________________ RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES 1 On June 12, 2019, Petitioner met with Dr. Manukian who was working in the Personnel 2 Department, Medical Services Division. One of his duties is to review drug test results and 3 opine whether it’s verified negative or verified positive. (AR 647) If necessary, he will interview 4 the employee and check any prescription that may be submitted by the employee for 5 legitimacy. (AR 648) 6 Petitioner provided Dr. Manukian with a valid medical documentation excusing her use 7 of phentermine, but she offered no medical documentation for the presence of THC metabolite. 8 (AR 649, 650) And Petitioner told Dr. Manukian that she didn’t want to make any statements 9 and left without providing any explanation for her positive test for THC. (AR 649) Petitioner 10 later explained that she believed that Dr. Manukian mistaking her with another employee, a 11 sergeant, so she left without discussing her positive test for THC. (AR 740, 744) 12 The next day, June 13, 2019, Petitioner’s Captain called Dr. Manukian and told him that 13 Petitioner changed her mind and asked if she could come in to complete the interview. (AR 14 649) Petitioner was ordered to return to Dr. Manukian by her commanding officer. (AR 745) 15 According to Dr. Manukian, he took handwritten notes of what Petitioner told him that day, 16 which is that Petitioner had been using CBD oil which was purchased from a Pasadena health 17 store for her aching knees. (AR 651, 749) She also told Dr. Manukian she had a knee surgery 18 in 2015, and she’s been using the hemp product since January 2019. (AR 653, 654) Dr. 19 Manukian deemed the test result verified positive for THC because Petitioner did not have a 20 medically verifiable reason or cause to explain the presence of THC. (AR 656) 21 LAPD started an investigation. (AR 133-134) 22 Dr. Manukian later testified at the Board hearing that he believed that Petitioner was 23 applying the hemp product on her knee for pain control. (AR 698) According to Petitioner 24 however, she never stated or implied to Dr. Manukian that she was using the hemp product on 25 her knee. She only stated that she was using the hemp product which was purchased in 26 Pasadena, and that she had a knee surgery in 2015. (AR 752) Dr. Manukian’s testimony on 27 this point may be a misrecollection or a misinterpretation of his notes because he was 28 interviewed by Internal Affairs investigator Sgt. Tomas Melendez in November 2019 in which 3 _________________________________________________________________________________________ RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES 1 he stated that he did not know if the hemp product was applied topically or taken orally. (AR 2 1167) 3 On October 30, 2019, Petitioner and her attorney met with Sgt. Melendez for her official 4 interview. (AR 1195) During this interview, Petitioner stated that her domestic partner, Mary 5 Kladouris, had been putting a hemp product in Petitioner’s morning shake without her 6 knowledge. (AR 1211-1212) The hemp product is a hemp oil which was purchased at a health 7 food store in South Pasadena. (AR 1212) Petitioner provided a picture of the hemp product to 8 Melendez. (AR 1213) The bottle was labeled “Fountain of Health CBD oil.” (AR 1213) 9 Petitioner also stated that she had been taking the shakes since about January of 2019. (AR 10 1215) She estimated that she drank the shake probably three or four times a week. (AR 11 1215) She had no idea that the hemp product was in the shake. (AR 1216) 12 On November 21, 2019, Sgt. Melendez interviewed Petitioner again. The reason for the 13 second interview was that Sgt. Melendez forgot to ask an important question during the first 14 interview, “Did you ingest marijuana”, so he just needed to follow up. It was a brief interview. 15 (AR 136, 137) 16 III. STANDARD OF REVIEW 17 The independent judgment standard of review applies to an administrative body’s 18 findings on guilt in cases involving a police officer’s vested property interest in his employment. 19 (Barber v. Long Beach Civil Service Comm’n (1996) 45 Cal.App.4th 652, 658.) “[I]n exercising 20 its independent judgment, a trial court must afford a strong presumption of correctness 21 concerning the administrative findings, and the party challenging the administrative decision 22 bears the burden of convincing the court that the administrative findings are contrary to the 23 weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) The trial court 24 must give “considerable deference” to the administrative decision, as well as to the technical 25 expertise of administrative officers and experts. (Mason v. Office of Admin. Hearings (2001) 89 26 Cal.App.4th 1119, 1131, 1138.) This deference to administrative findings also applies to 27 determination of witness credibility. (Fukuda, supra, 20 Cal.4th at 819.) The selection and 28 imposition of penalties by an administrative agency, however, are vested in the sound 4 _________________________________________________________________________________________ RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES 1 discretion of the agency, and must not be disturbed by a reviewing court absent clear abuse of 2 discretion. (Martin v. Alcoholic Beverage, etc. Appeals Board (1959) 52 Cal.2d 287, 291; Blake 3 v. State Personnel Board (1972) 25 Cal.App.3d 541, 553.) 4 IV. ARGUMENT 5 1. Petitioner’s Opening Brief exceeds the 15-page limit. 6 Petitioner’s Opening Brief contains 32 pages of narrative which exceeds the 15-page 7 limit. (Cal Rules of Court, Rule 3.1113, subd. (d)) Respondents are not aware of any attempt 8 by Petitioner to seek prior permission from the Court to do so. Respondents are prejudiced by 9 Petitioner’s extraneous arguments because of extra time, effort, and research to consider her 10 extraneous arguments. This is unfair and Respondents request the Court to disregard the 11 excess portion of Petitioner’s Opening Brief. 12 2. Count 2 was not vague. 13 On October 30, 2019, during the interview with Sgt. Melendez, Petitioner stated that her 14 partner had been putting a hemp product into her morning shake without her knowledge, which 15 is materially different from what Petitioner told Dr. Manukian a few months prior. At the Board 16 hearing, before the Opening Argument, the parties discussed this issue and the Department 17 put on the record that this statement was the subject of Count 2. (AR 100) The defense then 18 told the Board that they were satisfied with the explanation. (AR 102) There was no ambiguity 19 regarding Count 2. 20 3. The weight of the evidence supports the guilty finding on Count 2. 21 Petitioner told Dr. Manukian (June 13, 2019 interview) that she had been using a hemp 22 product for her knee since Jan 2019. She had a knee surgery in 2015. She did not mention to 23 Dr. Manukian that it was her partner who was putting the hemp product in her morning shake 24 without her knowledge. But on October 30, 2019, in the interview with Sgt. Melendez, 25 Petitioner claimed that her domestic partner had been putting the hemp product in her morning 26 shake without her knowledge. This is a material alteration of her statement from before which 27 shows that it was a false statement. Had this been the truth (that her partner had been putting 28 in a hemp product in her morning shake without her knowledge), she had no reason not to tell 5 _________________________________________________________________________________________ RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES 1 Dr. Manukian before. The meeting with Dr. Manukian was one chance for Petitioner to provide 2 an explanation for her positive test, and therefore she would have wanted to explain it well, 3 with details. And the claim that she didn’t know her partner was putting the hemp product in 4 the morning shake is an important detail that would not have been left out if true. 5 And it appears that Petitioner and her attorney knew that her statement on October 30, 6 2019 would be a false statement by the way the interview proceeded. In this interview, 7 Petitioner was represented by her attorney Mr. Winslow. Interestingly, Mr. Winslow stopped 8 Sgt. Melendez twice from asking Petitioner what she said to Dr. Manukian on June 13. (AR 9 1209, 1210) Mr. Winslow guided the interview questions so that Melendez was able to ask 10 Petitioner directly what the explanation for the positive THC result was, but not what she told 11 Dr. Manukian before. (AR 1210) At one point, Mr. Winslow actually stopped her client and 12 stated, “Stop. Okay. You – we’re not talking about what you talked to the doctor about. Just 13 explain to him [Melendez] how and why you believe the test may have become positive.” (AR 14 1211) She then gave the statement that her partner was putting a hemp product in her 15 morning shake, without her knowledge. This appears to be a preplanned strategy to give a 16 particular statement that would deflect any blame from her. 17 In her Opening, Petitioner appears to argue that she cannot be charged with making a 18 false statement because Melendez did not confront her with what he thought was a false 19 statement. But there is no such legal requirement. It may be good practice in some cases to 20 do so, but if the investigator is clear that it happened, there is no legal procedure to stop the 21 Department from making such a charge. Further, Petitioner did have the chance to explain 22 everything away during the Board hearing. 23 Petitioner also argues that the Board’s reference to her statements on other interview 24 dates mean that the Board was finding new charges. But the Board’s reference to Petitioner’s 25 statements on dates other than October 30 is just the Board’s explanation to put Petitioner’s 26 October 30 false statement in context, and not finding her guilty of false statements on other 27 dates. 28 6 _________________________________________________________________________________________ RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES 1 Petitioner also points out that Dr. Manukian may have been mistaken about Petitioner 2 putting the hemp product on her knee topically, as opposed to taking it orally. And it appears 3 likely that Dr. Manukian’s testimony was inaccurate on this point because his notes did not 4 contain how Petitioner took the hemp product and in his interview with Sgt. Melendez in 5 November 2019, he clearly said he didn’t know if Petitioner applied the hemp product topically 6 or took it orally. But this misses the big point. Petitioner’s statement to Dr. Manukian on June 7 13 clearly shows that she knew she was taking the hemp product, no matter which method. 8 And Petitioner failed to mention that she was unknowingly given the hemp product by her 9 partner in a morning shake. This is a big point to omit in a statement whose sole purpose was 10 to minimize culpability. She testified that by the time she spoke to Dr. Manukian, she knew 11 everything. (AR 755) And when she spoke to Dr. Manukian, she was under the guidance of an 12 attorney, Ira Salzman, even though he wasn’t there with her. (AR 1202) It wasn’t until October 13 30, 2019 interview with Melendez, at which point she had a new attorney, Mr. Winslow, that 14 she explained that she was being given the hemp product unknowingly by her partner in a 15 morning shake which makes it appear that this statement is a false statement she came up 16 with between June 13 and October 30. 17 4. There was nothing wrong with the Ex Parte. 18 It appears that during a break in the Board hearing dates, sometime between August 27 19 and October 5, 2020, defense investigator Mr. Munoz sent emails detailing what was 20 happening in the hearing such as witness identities and testimony, and the impression by the 21 defense, to outside entities such as L.A. Times and the Chief of Police. (AR 1101, 1103, 1299) 22 The Board hearing was a closed proceeding, so this was a breach of confidentiality. And the 23 ex parte Petitioner is concerned with here is the Department’s reporting of these emails to the 24 Board. 25 There was nothing wrong with this reporting by the Department because the Board has 26 the right to know if confidential information from the closed hearing was intentionally being 27 leaked by a party. The Board also stated that this communication did not include any 28 substantive information other than to point out that Mr. Munoz sent numerous emails to outside 7 _________________________________________________________________________________________ RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES 1 entities. (AR 1101) The Board sent an email the defense to stop Mr. Munoz from continuing to 2 breach the confidentiality of the hearing, and set a date for both sides to make the record as to 3 what was happening, which occurred on the next hearing date, October 13, 2020. There was 4 no violation of due process here. 5 5. The Board’s striking of Munoz’ testimony was harmless. 6 Mr. Munoz sat through the entire hearing as defense investigator. Then he testified that 7 Sgt. Melendez did a terrible job of investigating this case. Specifically, as for Count 1, Sgt. 8 Melendez violated the MOU procedural protections, and as to Count 2, his investigation was 9 incomplete because he did not interview Petitioner’s partner, Mary Kladouris, for example. But 10 the Board ultimately found Not Guilty on Count 1, therefore striking his testimony regarding 11 Count 1 had no effect. As for his testimony regarding Count 2, it should be noted that he was 12 testifying just as an investigator for the defense, to offer his opinion how he would have done 13 the investigation differently. He was not a percipient witness or an expert on procedure or 14 science of investigation. And there is no such thing as the only correct way to investigate a 15 case, and thus his testimony amounts to argument, which the defense vigorously presented in 16 her closing. In other words, the Board’s striking of Munoz’ testimony, whether it was justified 17 or not, had no effect on the outcome. 18 6. The penalty was not excessive. 19 The Court must consider “the extent to which the employee’s conduct resulted in, or if 20 repeated is likely to result in, ‘[h]arm to the public service.’ Other relevant factors include the 21 circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. 22 State Personnel Bd. (1975) 15 Cal. 3d 194, 218.) But an administrative agency’s choice of 23 penalty for employee misconduct should not be disturbed by a reviewing court absent clear 24 abuse of discretion. (Martin v. Alcoholic Beverage, etc. Appeals Board (1959) 52 Cal.2d 287, 25 291.) 26 Here, the Board gave 65 days of suspension, but clearly stated that she should be given 27 credit for the days she had been out of work up to that point, in effect, making it time-served. 28 Making a false statement in an official investigation is serious misconduct. It engenders 8 _________________________________________________________________________________________ RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES 1 mistrust of public employees and undermines the internal investigatory process of LAPD. As 2 an experienced supervisor, she should be held accountable. The penalty was not excessive. 3 V. CONCLUSION 4 Based on the foregoing and any further argument that may be presented at the time of 5 the hearing, the Respondents respectfully request that this Court deny the Petition for 6 Peremptory Writ of Mandate. 7 8 Dated: January 12, 2022 MICHAEL N. FEUER, City Attorney CARLOS DE LA GUERRA, Sr. Assistant City Attorney 9 YONG W. SOHN, Supervising City Attorney 10 11 /S/ 12 By: ______________________________________ HOON S. PARK 13 Deputy City Attorney 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 _________________________________________________________________________________________ RESPONDENTS’ OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES PROOF OF SERVICE 1 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 2 3 I, the undersigned, declare that I am employed in the County of Los Angeles. I am over the age of 18 and not a party to this action or proceeding. My business address is Los 4 Angeles City Attorney's Office, Police Administrative Law Section, 200 North Main Street, 800 City Hall East, Los Angeles, CA. 90012. 5 6 On January 13, 2022, I served the document(s) entitled RESPONDENTS' OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND 7 AUTHORITIES on all interested parties in this action 20STCP03744 by transmitting true copies thereof addressed as follows: 8 9 LILIA VELASCO, PRO PER 13 Boulder Ridge Ct. 10 Azusa, CA 91702 11 Iii ia. velasco@aol .com 12 [X] BY MAIL: I am readily familiar with the practice of the Los Angeles City Attorney's 13 Office for collection and processing of correspondence for mailing with the United 14 States Postal Service. In the ordinary course of business, correspondence is deposited with the United States Postal Service the same day it is placed for collection and 15 mailing. On the date referenced above, I placed a true copy of the above document(s) in a sealed envelope and placed it for collection in the proper place in our office at Los 16 Angeles, California. 17 [X] BY ELECTRONIC MAIL: I transmitted the document(s) to the addressee(s) 18 via electronic mail at the address listed above. 19 [ ] BY PERSONAL SERVICE: I placed a true copy of the above document(s) in a sealed 20 envelope and delivered the envelope by hand. 21 I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct. ~ ·. .. · 23 Dated: January 13, 2022 - 24 LANCE PORTER, Declarant 25 26 27 28 10 RESPONDENTS' OPPOSITION TO PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES