Preview
ORIGINAL
1 Lawrence R. De Fehr (SBN 179279)
Conflict Counsel
2 CALIFORNIA CORRECTIONAL FILED/ENDORSED
PEACE OFFICERS ASSOCIATION
3 CONFLICT DEPARTMENT NOV 2 7 2019
755 Riverpoint Drive
4 West Sacramento, CA 95605 By:. H. PorlMlanz,3
Telephone: (916) 340-3675 Deputy C'l
5 Facsimile: (916) 340-5030
Email: lawrence.defehr@ccpoa.org
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Attomey for Petitioner, Matthew Switzer
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
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MATTHEW SWITZER, CaseNo.: 34-2019-80003197
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Petitioner, PETITIONER'S REPLY TO REAL PARTIES
13 IN INTEREST'S MEMORANDUM OF
V. POINTS AND AUTHORITIES IN
14 OPPOSITION TO VERIFIED PETITION FOR
CALIFORNIA STATE PERSONNEL WRIT OF ADMINISTRATIVE MANDAMUS
15 BOARD, SUZANNE AMBROSE, in her (CCP §1094.5)
official capacity as EXECUTIVE OFFICER
16 for the CALIFORNIA STATE PERSONNEL Date: December 16, 2019
BOARD, Time: 10:00 AM
17 Dept.: 17
Respondent,
18 The Honorable James P. Arguelles
CALIFORNIA DEPARTMENT OF
19 CORRECTIONS AND REHABILITATION, Action Filed: August 7, 2019
RALPH DIAZ, in his official capacity as
20 SECRETARY for the CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
21 REHABILITATION,
22 Real Parties in Interest.
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PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS
1 I.
2 Introduction
3 Petitioner Matthew Switzer, (hereinafter as "Petitioner") hereby respectfullyfilesthis reply in
4 response to Respondent Califomia Department of Corrections and Rehabilitation's (Real Party in
5 Interest, hereinafter as "CDCR") Memorandum of Points and Authorities in Opposition to Petition for
6 Writ of Administrative Mandamus. Califomia State Personnel Board and Executive Officer Suzanne
7 Ambrose (hereinafter as "Respondent") did not file an opposition to Petitioner's Writ of Mandamus.
8 II.
9 Rebuttal Argument
10 A. Credibility Determination
11 CDCR erroneously argues that the Administrative Law Judge (hereinafter as "ALJ") properly
12 assessed the credibility of Officer Castro and Officer Aguilar. CDCR argues that it can be "reasonably
13 assumed" that the ALJ relied upon his observations of the witnesses while they testified. However, case
14 law holds just the opposite.
15 "The trial court reviews decisions of the SPB for substantial evidence, considering 'all relevant
16 evidence in the administrative record including evidence that fairly detracts from the evidence
17 supporting the agency's decision. [Citations.]' [Citation.]" {California Youth Auth. v. State Personnel
18 Bd. (2002) 104 Cal.App.4th 575, 585, 128 Cal.Rptr.2d 514.) In doing so, the trial court's task
19 necessarily "involves some weighing of the evidence to fairly estimate its worth." (County of San Diego
20 V. Assessment Appeals Bd No. 2 (1983) 148 Cal.App.3d 548, 555.) In addition, Govemment Code
21 section 11425.50 provides a specific method for court review of the administrative agency's
22 determination of credibility: "If the factual basis for [an administrative agency's decision] includes a
23 determination based substantially on the credibility of a witness, the statement [of the factual basis for
24 the decision] shall identify any specific evidence ofthe observed demeanor, manner, or attitude of the
25 witness that supports the determination, and on judicial review the court shall give great weight to the
26 determination to the extent the determination identifies the observed demeanor, manner, or attitude of
27 the witness that supports it." (Gov. Code, § 11425.50, subd. (b). Evidence Code, section 780.) The
28 1995 Law Revision Commission comments to Govemment Code section 11425.50 state: "Subdivision
PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS
1
1 (b) adopts the rule of Universal Camera Corp v. NLRB, 340 U.S. 474 [71 S.Ct. 456, 95 L.Ed. 456]
2 (1951), requiring that the reviewing court weigh more heavilyfindingsby the trier of fact (the presiding
3 officer in an administrative adjudication) based on observation of witnesses thanfindingsbased on other
4 evidence.... [If] Findings based substantially on credibility ofa witness must be identified by the
5 presiding officer in the decision made in the adjudicative proceeding.... However, the presiding officer's
6 identification of suchfindingsis not binding on the agency or the courts, which may make their own
7 determinations whether a particuleir finding is based substantially on credibility of a witness. Even
8 though the presiding officer's determination is based substantially on credibility of a witness, the
9 determination is entitled to great weight only to the extent the determination derives from the presiding
10 officer's observation of the demeanor, manner, or attitude of the witness. Nothing in subdivision (b)
11 precludes the, agency head or court from overtuming a credibility determination of the presiding officer,
12 after giving the observational elements of the credibility determination great weight, whether on the
13 basis of nonobservational elements of credibility or otherwise...." (Cal. Law Revision Com., Deering's
14 Ann. Gov. Code (2010 ed.) § 11425.50, p. 139.) Govemment Code section 11425.50 applies to SPB
15 adjudications of public employee disciplinary proceedings. (California Youth Authority v. State
16 Personnel Bd. (2002) 104 Cal.App.4th 575, 590.) Thus, when the hearing officer refers to a witness's
17 testimony as credible without identifying any evidence of demeanor, manner, or attitude that
18 supports such determination, the court does not accord great weight to the hearing officer's
19 determination." (Emphasis added.) (Patterson Flying Service v. California Department of Pesticide
20 Regulation (2008) 161 Cal.App.4th 411.)
21 Here the ALJ does not identify any demeanor evidence. (Gov. Code, § 11425.50. Evi. Code §
22 780.) Thus, not only does the reviewing court have the duty to weigh the evidence for its worth, but in
23 doing so, it can not give much weight to credibility determinations that are not based on Govemment
24 Code section 11425.50/Evidence Code section 780, evidence. It is clear that Respondent has acted
25 improvidently and the reviewing coiut must correct this prejudicial error.
26 B. Skelly Issue.
27 Appellant must be able to rely on the evidentiary statutes and regulations established by the very
28 govemmental agency that enacted them and in who's judgment rests the fait of Appellant. Appellant
PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS
2
1 testified at length about being served with initial NOAA, subsequent NOAAs, and Skelly hearings.
2 (SPB002949:15-002955:8.) The first and second amended NOAAs only changed the effective date of
3 the NOAA, however the third amended NOAA was the NOAA that effectuated Appellant's dismissal.
4 (SPB002953:11-20, SPB003083, SPB003085.) As a result of being served with the third amended
5 NOAA, Appellant requested a second Skelly hearing which was initially refused. (SPB002953:19-25.)
6 The second Skelly was requested because it contained new factual allegations, as indicated by italics,
7 alleging that Appellant was dishonest in his December 29, 2016 email to Lt. Hampton. (SPBOOOOOl-
8 000023.)
9 Respondent's.rule requires that a party amending a pleading " . . . shall use highlighting or italics
10 or any other effective method to identify the changes made to the pleading." (SPB Rule 52.8 (a).) Not
11 allowing Appellant to rely on this mle would prejudice appellant by denying him the ability to address
12 the Skelly violation and Respondent's erroneous ruling as to this issue. Allowing Respondent to escape
13 the strict application of this mle deprives Appellant of his right to rely on the fair and consistent
14 administration of the SPB's procedural mles and also runs counter to the SPB's own precedents.
15 (Marina Lagarde SPB No. 07-02, p.5 and p.8.)
16 First, CDCR is required to file the NOAA with the SPB within 15 days of the effective date.
17 Govemment Code section 19574 (a)(5) states in pertinent part that, "[t]he notice shall be filed with the
18 board not later than 15 calendar days after the effective date of the adverse action." The mle does not
19 require CDCR to serve Appellant with a proof of service that it has filed the NOAA with the SPB.
20 Appellant must assume that CDCR has followed the mle and that SPB has the NOAA and any
21 amendments on record.
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26 ///
27 ///
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PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS
3
1 Second, SPB has held that its statutory requirements must be strictly followed. (Marina Lagarde
2 SPB No. 07-02, p.5 and p.8.) Appellant is entitled to rely on the fact that the SPB has to strictly follow
3 its own mles. Thus, Respondent must recognize the italicized paragraph in CDCR's Third Amended
4 NOAA as "changes made to the pleading" in accordance with SPB Rule 52.8 (a). The Third Amended
5 is part of the administrative record and thus, the prior NOAAs are not needed.
6
7 Date: November 27, 2019 CALIFORNIA CORRECTIONAL
PEACE OFFICERS ASSOCIATION
8 CONFLICT DEPARTMENT
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10 Lawrence R. De FemTTJonflict Counsel
Attomey for Petitioner
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PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS
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1 PROOF OF SERVICE
2 Case Name: Matthew Switzer v. California State Personnel Board, et al.
3 Case No: Sacramento County Superior Court Case No.: 34-2019-80003197
4 I, Peter Vue, declare as follows:
5 I am a resident of the State of Califomia and over the age of eighteen years, and not a party
to the within action. I am an employee with the Califomia Correctional Peace Officers
6
Association, 755 Riverpoint Drive, West Sacramento, Califomia 95605.
7
On the date shown below, I caused the following document(s) to be served on the
8 addressee(s):
9 PETITIONER'S REPLY TO REAL PARTIES IN INTEREST'S MEMORANDUM OF
POINTS AND AUTHORITIES IN OPPOSITION TO VERIFIED PETITION FOR WRIT
10
OF ADMINISTRATIVE MANDAMUS (CCP §1094.5)
11
Service was made on:
12
Katharine Smith, Attomey Dorothy Bacskai Egel, Senior Attomey
13 Department of Corrections and Rehabilitation State Personnel Board
14 Office of Legal Affairs 801 Capitol Mall
Employment Advocacy and Prosecution Team Sacramento, CA 95814
15 10111 Old Placerville Road, Suite 100
Sacramento, CA 95827 Attorney for Respondents, State Personnel
16 Board and Suzanne Ambrose
Attorney for Real Parties in Interest,
17 California Department of Corrections and
18 Rehabilitation and Ralph Diaz
19 By Mail: I caused such document(s), in sealed envelope(s) with postage thereon fully
prepaid, to be placed in the United States Mail at West Sacramento, Califomia. I am
20 familiar with CCPOA's practice for collecting and processing correspondence for mailing.
On the same day that the correspondence is place for collection and mailing, it is deposited
21
in the ordinary course ofbusiness, in the United States Postal Service in a sealed envelope
22 with postage fully prepaid.
23 By Personal Delivery: I caused such envelope to be delivered by hand to the
addressee(s).
24
25 I declare under penalty of perjury under the laws of the State of Califomia that the
foregoing is tme and correct.
26
Executed on November 27, 2019, in West Sacramento, Califomia.
27
28 Peter Vue, Litigation
Li Assistant
PROOF OF SERVICE
Preview
ORIGINAL 1 Lawrence R. De Fehr (SBN 179279) Conflict Counsel 2 CALIFORNIA CORRECTIONAL FILED/ENDORSED PEACE OFFICERS ASSOCIATION 3 CONFLICT DEPARTMENT NOV 2 7 2019 755 Riverpoint Drive 4 West Sacramento, CA 95605 By:. H. PorlMlanz,3 Telephone: (916) 340-3675 Deputy C'l 5 Facsimile: (916) 340-5030 Email: lawrence.defehr@ccpoa.org 6 Attomey for Petitioner, Matthew Switzer 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 MATTHEW SWITZER, CaseNo.: 34-2019-80003197 12 Petitioner, PETITIONER'S REPLY TO REAL PARTIES 13 IN INTEREST'S MEMORANDUM OF V. POINTS AND AUTHORITIES IN 14 OPPOSITION TO VERIFIED PETITION FOR CALIFORNIA STATE PERSONNEL WRIT OF ADMINISTRATIVE MANDAMUS 15 BOARD, SUZANNE AMBROSE, in her (CCP §1094.5) official capacity as EXECUTIVE OFFICER 16 for the CALIFORNIA STATE PERSONNEL Date: December 16, 2019 BOARD, Time: 10:00 AM 17 Dept.: 17 Respondent, 18 The Honorable James P. Arguelles CALIFORNIA DEPARTMENT OF 19 CORRECTIONS AND REHABILITATION, Action Filed: August 7, 2019 RALPH DIAZ, in his official capacity as 20 SECRETARY for the CALIFORNIA DEPARTMENT OF CORRECTIONS AND 21 REHABILITATION, 22 Real Parties in Interest. 23 24 25 26 27 28 PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS 1 I. 2 Introduction 3 Petitioner Matthew Switzer, (hereinafter as "Petitioner") hereby respectfullyfilesthis reply in 4 response to Respondent Califomia Department of Corrections and Rehabilitation's (Real Party in 5 Interest, hereinafter as "CDCR") Memorandum of Points and Authorities in Opposition to Petition for 6 Writ of Administrative Mandamus. Califomia State Personnel Board and Executive Officer Suzanne 7 Ambrose (hereinafter as "Respondent") did not file an opposition to Petitioner's Writ of Mandamus. 8 II. 9 Rebuttal Argument 10 A. Credibility Determination 11 CDCR erroneously argues that the Administrative Law Judge (hereinafter as "ALJ") properly 12 assessed the credibility of Officer Castro and Officer Aguilar. CDCR argues that it can be "reasonably 13 assumed" that the ALJ relied upon his observations of the witnesses while they testified. However, case 14 law holds just the opposite. 15 "The trial court reviews decisions of the SPB for substantial evidence, considering 'all relevant 16 evidence in the administrative record including evidence that fairly detracts from the evidence 17 supporting the agency's decision. [Citations.]' [Citation.]" {California Youth Auth. v. State Personnel 18 Bd. (2002) 104 Cal.App.4th 575, 585, 128 Cal.Rptr.2d 514.) In doing so, the trial court's task 19 necessarily "involves some weighing of the evidence to fairly estimate its worth." (County of San Diego 20 V. Assessment Appeals Bd No. 2 (1983) 148 Cal.App.3d 548, 555.) In addition, Govemment Code 21 section 11425.50 provides a specific method for court review of the administrative agency's 22 determination of credibility: "If the factual basis for [an administrative agency's decision] includes a 23 determination based substantially on the credibility of a witness, the statement [of the factual basis for 24 the decision] shall identify any specific evidence ofthe observed demeanor, manner, or attitude of the 25 witness that supports the determination, and on judicial review the court shall give great weight to the 26 determination to the extent the determination identifies the observed demeanor, manner, or attitude of 27 the witness that supports it." (Gov. Code, § 11425.50, subd. (b). Evidence Code, section 780.) The 28 1995 Law Revision Commission comments to Govemment Code section 11425.50 state: "Subdivision PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS 1 1 (b) adopts the rule of Universal Camera Corp v. NLRB, 340 U.S. 474 [71 S.Ct. 456, 95 L.Ed. 456] 2 (1951), requiring that the reviewing court weigh more heavilyfindingsby the trier of fact (the presiding 3 officer in an administrative adjudication) based on observation of witnesses thanfindingsbased on other 4 evidence.... [If] Findings based substantially on credibility ofa witness must be identified by the 5 presiding officer in the decision made in the adjudicative proceeding.... However, the presiding officer's 6 identification of suchfindingsis not binding on the agency or the courts, which may make their own 7 determinations whether a particuleir finding is based substantially on credibility of a witness. Even 8 though the presiding officer's determination is based substantially on credibility of a witness, the 9 determination is entitled to great weight only to the extent the determination derives from the presiding 10 officer's observation of the demeanor, manner, or attitude of the witness. Nothing in subdivision (b) 11 precludes the, agency head or court from overtuming a credibility determination of the presiding officer, 12 after giving the observational elements of the credibility determination great weight, whether on the 13 basis of nonobservational elements of credibility or otherwise...." (Cal. Law Revision Com., Deering's 14 Ann. Gov. Code (2010 ed.) § 11425.50, p. 139.) Govemment Code section 11425.50 applies to SPB 15 adjudications of public employee disciplinary proceedings. (California Youth Authority v. State 16 Personnel Bd. (2002) 104 Cal.App.4th 575, 590.) Thus, when the hearing officer refers to a witness's 17 testimony as credible without identifying any evidence of demeanor, manner, or attitude that 18 supports such determination, the court does not accord great weight to the hearing officer's 19 determination." (Emphasis added.) (Patterson Flying Service v. California Department of Pesticide 20 Regulation (2008) 161 Cal.App.4th 411.) 21 Here the ALJ does not identify any demeanor evidence. (Gov. Code, § 11425.50. Evi. Code § 22 780.) Thus, not only does the reviewing court have the duty to weigh the evidence for its worth, but in 23 doing so, it can not give much weight to credibility determinations that are not based on Govemment 24 Code section 11425.50/Evidence Code section 780, evidence. It is clear that Respondent has acted 25 improvidently and the reviewing coiut must correct this prejudicial error. 26 B. Skelly Issue. 27 Appellant must be able to rely on the evidentiary statutes and regulations established by the very 28 govemmental agency that enacted them and in who's judgment rests the fait of Appellant. Appellant PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS 2 1 testified at length about being served with initial NOAA, subsequent NOAAs, and Skelly hearings. 2 (SPB002949:15-002955:8.) The first and second amended NOAAs only changed the effective date of 3 the NOAA, however the third amended NOAA was the NOAA that effectuated Appellant's dismissal. 4 (SPB002953:11-20, SPB003083, SPB003085.) As a result of being served with the third amended 5 NOAA, Appellant requested a second Skelly hearing which was initially refused. (SPB002953:19-25.) 6 The second Skelly was requested because it contained new factual allegations, as indicated by italics, 7 alleging that Appellant was dishonest in his December 29, 2016 email to Lt. Hampton. (SPBOOOOOl- 8 000023.) 9 Respondent's.rule requires that a party amending a pleading " . . . shall use highlighting or italics 10 or any other effective method to identify the changes made to the pleading." (SPB Rule 52.8 (a).) Not 11 allowing Appellant to rely on this mle would prejudice appellant by denying him the ability to address 12 the Skelly violation and Respondent's erroneous ruling as to this issue. Allowing Respondent to escape 13 the strict application of this mle deprives Appellant of his right to rely on the fair and consistent 14 administration of the SPB's procedural mles and also runs counter to the SPB's own precedents. 15 (Marina Lagarde SPB No. 07-02, p.5 and p.8.) 16 First, CDCR is required to file the NOAA with the SPB within 15 days of the effective date. 17 Govemment Code section 19574 (a)(5) states in pertinent part that, "[t]he notice shall be filed with the 18 board not later than 15 calendar days after the effective date of the adverse action." The mle does not 19 require CDCR to serve Appellant with a proof of service that it has filed the NOAA with the SPB. 20 Appellant must assume that CDCR has followed the mle and that SPB has the NOAA and any 21 amendments on record. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS 3 1 Second, SPB has held that its statutory requirements must be strictly followed. (Marina Lagarde 2 SPB No. 07-02, p.5 and p.8.) Appellant is entitled to rely on the fact that the SPB has to strictly follow 3 its own mles. Thus, Respondent must recognize the italicized paragraph in CDCR's Third Amended 4 NOAA as "changes made to the pleading" in accordance with SPB Rule 52.8 (a). The Third Amended 5 is part of the administrative record and thus, the prior NOAAs are not needed. 6 7 Date: November 27, 2019 CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION 8 CONFLICT DEPARTMENT 9 10 Lawrence R. De FemTTJonflict Counsel Attomey for Petitioner 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETITIONER'S REPLY TO RPII'S MEMO OF Ps & As IN OPPO. TO PETITION FOR WRIT OF MANDAMUS 4 1 PROOF OF SERVICE 2 Case Name: Matthew Switzer v. California State Personnel Board, et al. 3 Case No: Sacramento County Superior Court Case No.: 34-2019-80003197 4 I, Peter Vue, declare as follows: 5 I am a resident of the State of Califomia and over the age of eighteen years, and not a party to the within action. I am an employee with the Califomia Correctional Peace Officers 6 Association, 755 Riverpoint Drive, West Sacramento, Califomia 95605. 7 On the date shown below, I caused the following document(s) to be served on the 8 addressee(s): 9 PETITIONER'S REPLY TO REAL PARTIES IN INTEREST'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO VERIFIED PETITION FOR WRIT 10 OF ADMINISTRATIVE MANDAMUS (CCP §1094.5) 11 Service was made on: 12 Katharine Smith, Attomey Dorothy Bacskai Egel, Senior Attomey 13 Department of Corrections and Rehabilitation State Personnel Board 14 Office of Legal Affairs 801 Capitol Mall Employment Advocacy and Prosecution Team Sacramento, CA 95814 15 10111 Old Placerville Road, Suite 100 Sacramento, CA 95827 Attorney for Respondents, State Personnel 16 Board and Suzanne Ambrose Attorney for Real Parties in Interest, 17 California Department of Corrections and 18 Rehabilitation and Ralph Diaz 19 By Mail: I caused such document(s), in sealed envelope(s) with postage thereon fully prepaid, to be placed in the United States Mail at West Sacramento, Califomia. I am 20 familiar with CCPOA's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is place for collection and mailing, it is deposited 21 in the ordinary course ofbusiness, in the United States Postal Service in a sealed envelope 22 with postage fully prepaid. 23 By Personal Delivery: I caused such envelope to be delivered by hand to the addressee(s). 24 25 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is tme and correct. 26 Executed on November 27, 2019, in West Sacramento, Califomia. 27 28 Peter Vue, Litigation Li Assistant PROOF OF SERVICE