IRION, J.
The County of Riverside (the County) and the County's Sheriff-Coroner Stanley Sniff appeal from a judgment in favor of Gabriel Dennington in his petition for writ of mandate challenging the decision of the County's Sheriff's Department (the Department) to terminate his employment as a deputy sheriff for improperly deleting a photograph from a camera that he seized as evidence.
We conclude that substantial evidence supports the trial court's ruling that the Department failed to meet its burden to prove that Dennington deleted the photograph from the camera, and accordingly we affirm the judgment.
Dennington was hired by the Department in 2003 and was assigned to work at the Moreno Valley station in 2006. At approximately 12:50 a.m. on October 30, 2011, Dennington was on patrol duty and, according to Dennington's testimony, he observed a tow truck as it "blew through" an intersection controlled by a stop sign without stopping. Dennington also noted that the tow truck was towing a vehicle in an improper manner because the towed vehicle was protruding into the adjacent lane of traffic. Dennington conducted a traffic stop, and spoke with the two tow truck company employees in the truck: driver William Roman and Roman's assistant Jose Luis Arellano Brito (Arellano Brito).
Approximately two weeks before the traffic stop, Dennington attended a Department training about the laws governing the conduct of tow truck companies in towing vehicles from private property. Upon stopping the tow truck, Dennington asked his supervisor, Sergeant John Whiting, to come to the scene to consult with him about whether the tow truck employees were following the applicable laws. Sergeant Whiting retrieved the manual that had been used in the training and brought it to Dennington.
According to the applicable law set forth in the training manual that Dennington consulted at the scene, a tow truck company may tow a vehicle from private property according to either (1) specific authorization, which is given by the property owner or lessee on that particular instance (Veh. Code, § 22658, subd. (l)(1)(A)); or (2) general authorization, which is given in an agreement between the tow truck company and the private property owner. (Id., subd. (l)(1)(E)(i)-(ii).) When general authorization exists, the tow truck company may tow any vehicle that is "unlawfully parked within 15 feet of a fire hydrant or in a fire lane, or in a manner which interferes with an entrance to, or exit from, the private property." (Id., subd. (l) (1)(E)(i).) The law also requires that the tow truck operator take a photograph of the illegally parked vehicle before the vehicle is towed under general authorization. (Id., subd. (l)(2).)
According to Dennington, when he spoke to Roman at the scene, Roman told him that the vehicle he was towing had been parked in a red zone at the Cottonwood apartment complex and that the tow truck company had a contract with the owner of that apartment complex to tow illegally parked vehicles. Dennington testified that Roman stated he did not have a photograph of the vehicle showing it to be illegally parked, and Roman insisted that no photograph was required.
Dennington testified that while at the scene, he located a camera in the tow truck and scrolled through the photographs on the camera, but he did not see a photograph of the vehicle that was being towed. Dennington concluded that Roman and Arellano Brito were illegally towing the vehicle, and he arrested them.
Dennington seized the camera and a clipboard from the tow truck with the intention of booking those items into evidence, stating in his report that he had done so. However, Dennington failed to book the items into evidence and instead kept them in his locker at the station for several weeks until he was asked about them.
After the owner of the tow truck company, along with Roman and Arellano Brito, made complaints to the Department about the arrests and Dennington's conduct, the Department commenced an investigation into the matter, conducted by Sergeant Larry Gyll. During his investigation, Sergeant Gyll obtained from Dennington the camera that Dennington had seized from the tow truck and placed in his locker.
Sergeant Gyll sent the camera to Sergeant Seth Allen Hartnett, a forensic specialist who supervises the Department's Computer and Technology Crime High-Tech (CATCH) response team. Based on Sergeant Gyll's direction that he recover the images from the camera's memory card, Sergeant Hartnett created a protected copy of the images that he found on the memory card, including certain images that had been deleted from the camera but were still recoverable from the memory card. Sergeant Gyll did not ask Sergeant Hartnett to establish the date and time on which the photographs on the camera were either taken or deleted. While he had possession of the camera, Sergeant Hartnett took no steps to verify the accuracy of the camera's internal time and date settings. The camera was then returned to the tow truck company.
Sergeant Gyll reviewed the images recovered by Sergeant Hartnett from the camera and discovered that among the deleted images was a photograph of the vehicle that Roman was towing when stopped by Dennington.
Sergeant Gyll conducted interviews with several witnesses during his investigation, including Dennington. During Dennington's interview, Sergeant Gyll confronted Dennington with evidence of the deleted photograph. Dennington denied previously seeing the photograph on the camera and specifically denied deleting it.
On September 28, 2012, the Department informed Dennington of its intent to terminate him, based on dishonesty, inefficiency or negligence, insubordination, willful violation of an employee regulation and conduct adversely affecting job performance or operation of the Department. The misconduct described by the Department focused on the deletion of the photograph, as well as the failure to book the clipboard and camera into evidence, and rude and discourteous behavior during the traffic stop. Following a Skelly hearing and the filing of a written response by Dennington,
Dennington filed an administrative appeal, and a hearing officer held a multi-day hearing at which several witnesses testified, including Dennington, Arellano Brito, the owner of the tow truck company, and two forensic experts (Sergeant Harnett for the Department, and Faraz Mohabbati for Dennington), who opined on whether it was possible to determine the date and time on which the photograph of the illegally parked vehicle was taken and deleted.
As relevant here, Arellano Brito testified that shortly before the traffic stop by Dennington, he was at the Cottonwood apartments with Roman where they noticed that the vehicle at issue was illegally parked in a red zone next to a fire hydrant.
The owner of the tow truck company testified that he instructs his employees to take a photograph of each vehicle that is towed, and he does not authorize his employees to delete any photograph.
Dennington testified to the details of the traffic stop that we have set forth above. He specifically denied having seen the photograph of the vehicle when he scrolled through the photographs on the camera, and he denied deleting the photograph. According to Dennington, he would not have made the arrests had he located a photograph of the vehicle that was being towed.
Sergeant Hartnett testified that based on the data recovered from the camera's memory card, the photograph of the vehicle was taken at 1:42 p.m., on October 29, 2011, and he was not aware of any way to determine the date and time that the photograph was deleted. Sergeant Hartnett also acknowledged that because he did not verify the accuracy of the date and time settings on the camera when Sergeant Gyll first sent the camera to him for analysis, he could not verify the accuracy of the date and time indicated in the data from the camera's memory card, and thus he did not know whether the photograph was actually taken at 1:42 p.m. on October 29, 2011.
Dennington's expert Mohabbati testified that according to the data that the Department copied from the camera's memory card, the photograph of the vehicle at issue was taken at 5:42 a.m. on October 29, 2011, and it was deleted on October 29, 2011, at 12:42 p.m. However, Mohabbati emphasized that he had no way of verifying whether the camera's internal date and time settings were correct, and thus he did not know whether the data from the camera's memory card reflected the actual date and time that the photograph was created and deleted. As Mohabbati pointed out, information about the accuracy of the camera's date and time settings was lost forever because the Department did not attempt to verify those settings when it first had possession of the camera.
The hearing officer issued a decision upholding the termination. The hearing officer explained that although it was not possible to determine from the data recovered from the camera's memory card exactly when the photograph at issue was taken and deleted, credible testimony from Arellano Brito established that the photograph was taken immediately before the vehicle was towed and that he did not delete the photograph. Further, the hearing officer observed that Arellano Brito had no reason to delete the photograph, in contrast to Dennington who had a motive to delete the photograph to support the legitimacy of his arrest of Arellano Brito and Roman. The hearing officer accordingly found that the "only conclusion is that [Dennington] himself erased or deleted the picture," providing a factual basis for the Department's decision to terminate Dennington's employment.
Dennington filed a petition for writ of mandate against the County and Sheriff-Coroner Sniff, in which he requested that the trial court issue an order requiring the Department to set aside Dennington's termination.
In his briefing in support of the petition for writ of mandate, Dennington argued that the trial court should exercise its independent judgment to determine that the evidence presented to the hearing officer did not support a finding that Dennington deleted the photograph. Among other things, Dennington argued that because the date and time settings on the camera were not verified, it was impossible to know when the photograph was taken and deleted, and thus the Department did not meet its burden to show that Dennington participated in the deletion. As Dennington posited, "Is it not possible that the vehicle in question was observed the day before, a photograph taken and deleted (because the vehicle was not immediately towed), and then, the next day, when the vehicle was again discovered parked in the same improper location, the decision was made to tow it away?" Further, Dennington argued that Arellano Brito's testimony should not be credited because he had a motive to lie about whether he took a photograph in this specific instance, in that the owner of the tow truck company required that photographs be taken prior to each tow, and because Arellano Brito's testimony contained other inconsistencies and contradictions that made it not credible.
Applying an independent judgment standard of review, the trial court concluded that the Department had not met its burden to prove that Dennington deleted the photograph.
The trial court did not find Arellano Brito to be credible in his testimony that he took the photograph shortly before the traffic stop and did not delete it. Apparently referring to Arellano Brito's inconsistent testimony about whether he and Roman were called to the apartment complex to tow the specific vehicle at issue, the trial court explained that "the testimony of [Arellano Brito] relied on by the hearing officer was not credible in that his recollection of the events changed multiple times during the proceedings."
The trial court explained that the only evidence presented at trial as to when the photograph was deleted was (1) Roman's statement during the interview with the Department that he may have heard the "click" of the camera deleting a photograph when Dennington was handling the camera;
The trial court stated that "the Department did not investigate, and instead essentially destroyed, the definitive exculpatory evidence. Instead of verifying the time and date settings on the camera and verifying the time and date of deletion, the Department's expert merely determined that the photograph of the towed car had been deleted. Such evidence is not enough." The trial court therefore concluded that the weight of the evidence did not support the hearing officer's finding that Dennington deleted the photograph.
The trial court also concluded that, based on the evidence presented, the Department had not established that Dennington made "derogatory statements" during the arrests.
Noting that the parties had stipulated that the remaining charges against Dennington (based on his failure to book items into evidence), would not warrant termination, the trial court accordingly stated that "[t]he matter, therefore, must be remanded for a determination of the penalty, if any, that should be imposed, short of termination, for failing to timely book into evidence the camera and the clipboard seized from the tow truck." The trial court ruled that "[j]udgment shall be entered ordering a peremptory writ of mandamus to issue, remanding the proceedings to [the Department] to set aside its decision and to reconsider its action in light of this court's statement of decision." Judgment was entered accordingly on September 10, 2015.
The County and Sheriff-Coroner Sniff appeal from the judgment. They challenge the trial court's finding that the Department did not meet its burden to establish that Dennington deleted the photograph.
"`Section 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. . . . If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence.'" (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 926 (Saraswati), italics added.) Thus, "[w]here, as here, a case involves a police officer's vested property interest in his employment, the trial court is required to exercise its independent judgment." (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658 (Barber); see Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314 ["`[d]iscipline imposed on public employees affects their fundamental vested right in employment,' and therefore, when a public employee challenges an employer's disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment on the evidence."].)
In applying the independent judgment standard, "`[t]he trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings.'" (Saraswati, supra, 202 Cal.App.4th at p. 926.) The trial court "exercises its independent judgment upon the evidence disclosed in a limited trial de novo" (Bixby v. Pierno (1971) 4 Cal.3d 130, 143 (Bixby)) and "`has the power and responsibility to weigh the evidence at the administrative hearing and to make its own determination of the credibility of witnesses.'" (Barber, supra, 45 Cal.App.4th at p. 658.)
"After the trial court has exercised its independent judgment upon the weight of the evidence, an appellate court need only review the record to determine whether the trial court's findings are supported by substantial evidence." (Bixby, supra, 4 Cal.3d at p. 143, fn. 10.) "In reviewing the evidence, we resolve all conflicts in favor of the party prevailing at the trial court level and must give that party the benefit of every reasonable inference in support of the judgment. `When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.'" (San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1461.)
In the administrative proceeding leading to the dismissal of Dennington, the burden was on the Department to prove that Dennington committed the misconduct of which he was accused.
Here, the trial court's decision was based on its finding that the Department did not meet its burden to establish that Dennington deleted the photograph. Accordingly, our task is to determine whether substantial evidence supports the trial court's finding that the Department did not meet its burden.
The Department first argues that the trial court erroneously concluded that Arellano Brito's testimony was not credible. Specifically, in challenging the basis for the trial court's credibility finding, the Department points to the trial court's explanation that Arellano Brito's "recollection of the events changed multiple times during the proceedings." The Department contends that this characterization of Arellano Brito's testimony is not accurate. We disagree.
During his testimony, Arellano Brito gave inconsistent and confused testimony as to whether he and Roman were called to the apartment complex specifically to tow the vehicle in question, or whether they happened to be at the apartment complex when they saw that the vehicle was illegally parked and decided to tow it. When questioned by counsel for the Department, Arellano Brito at first testified that he and Roman were at the apartment complex so that Roman could get food at his apartment, and they saw the illegally parked vehicle and were towing it when they received a call regarding a different vehicle. However, when counsel for the Department confronted Arellano Brito with his prior statement to investigators, Arellano Brito changed his testimony, stating that he and Roman were called to the apartment complex to tow the specific vehicle at issue. When Dennington's counsel asked about the topic during his examination of the witness, Arellano Brito again was confused as to what happened and again gave both versions of events. Ultimately, Arellano Brito conceded that he did not remember very well because the incident occurred approximately two years prior. Based on Arellano Brito's testimony showing his confusion, poor memory and inconsistent recollections, the trial court did not mischaracterize the evidence when it set forth its basis for discounting Arellano Brito's credibility.
In attempting to challenge the trial court's negative credibility assessment of Arellano Brito, the Department also points to another sentence in the statement of decision. The trial court stated that Arellano Brito's "knowledge of the events was told to him by Mr. Roman, who did not appear at the administrative hearing, making [Arellano-Brito's] statements regarding the other allegations against Dennington not credible either." (Italics added.) As the Department appears to understand this statement, the trial court concluded that Arellano Brito's testimony that he took the photograph and did not delete it lacked credibility because Arellano Brito received his information on that subject from Roman. The Department argues that the trial court "got it wrong" because "Brito's direct testimony was that he personally photographed the illegally parked [vehicle] at about forty minutes after midnight" and then put the camera in the tow truck.
The Department's argument fails because it misunderstands the sentence that it relies upon. In stating that Arellano Brito's "knowledge of the events was told to him by Mr. Roman," the trial court was referring to the factual basis for "the other allegations against Dennington" (italics added), namely, the allegations that Dennington made derogatory comments during the traffic stop.
The Department also contends that the trial court's decision is not supported by substantial evidence because the trial court stated that it found Mohabbati's testimony "to be the only credible evidence regarding the timing of when the photograph of the towed car was deleted." Specifically, the Department argues that "Mohabbati could not have determined when the photo was created or deleted because the camera settings were incorrect to begin with." The Department argues that, accordingly, there was no substantial evidence to support the trial court's finding that Mohabbati determined the time that the photograph was deleted on October 29, 2011, at 12:42 p.m., which was before the traffic stop.
The Department's argument fails because the trial court did not rest its decision on a finding that Mohabbati determined that the actual time that the photograph was deleted was on October 29, 2011, at 12:42 p.m., before Dennington even had access to the camera. Instead, as shown by the statement of decision, the trial court fully understood that neither Mohabbati nor anyone else could confirm the accuracy of the date and time settings on the camera and thus could not determine when the photograph was deleted. As the trial court emphasized in making that finding, it was the Department's own fault that no one could determine the actual time that the photograph was taken and deleted because the Department failed to verify date and time settings on the camera when it had the chance to do so.
Because it was impossible to know when the photograph was taken and deleted (and in the absence of credible testimony from Arellano Brito), the Department did not meet its burden to show that Dennington deleted the photograph. Indeed, as Dennington reasonably argued in the trial court, it is possible to posit a situation in which the photograph was taken and deleted before Dennington ever came into contact with the tow truck. Because Roman lived at the Cottonwood apartment complex and was therefore often in that location, it is possible that he and Arellano Brito saw the same illegally parked vehicle on an earlier date and took a photograph of it, but they then decided not to tow the vehicle and deleted the photograph. It is possible that on October 30, 2011, they saw the same vehicle illegally parked in the same location, and they hooked it up and towed it without taking another photograph.
We accordingly conclude that the trial court's finding that the Department failed to meet its burden to establish that Dennington deleted the photograph is supported by substantial evidence.
The judgment is affirmed. Dennington shall recover costs from the County.
HUFFMAN, Acting P. J. and NARES, J., concurs.
