The opinion
Filed 7/22/21 Spence v. State Personnel Board CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KEN SPENCE, D076853
Plaintiff and Appellant, (Super. Ct. No. 37-2019-00012524-
CU-WM-CTL)
v.
STATE PERSONNEL BOARD,
Defendant and Respondent;
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
John S. Meyer, Judge. Affirmed.
Wayne J. Quint and Chris Uyemura for Plaintiff and Appellant.
Alvin Gittisriboongul, Chief Counsel, and Chain He, Senior Attorney,
for Defendant and Respondent.
Michael P. Doelfs for Real Party in Interest and Respondent.
Plaintiff Ken Spence appeals from the denial of his petition for a writ of
administrative mandamus under Code of Civil Procedure1 section 1094.5
(Petition) seeking to set aside the decision of respondent State Personnel
Board (SPB or Board)2 in K.S. v. Department of Corrections and
Rehabilitation (case No. 17-1944; Dec. 13, 2018). SPB in this action affirmed
in its entirety the decision of the administrative law judge (ALJ) upholding
the penalty of dismissal of Spence from his position as a correctional officer
(CO) at Richard J. Donovan Correctional Facility (RJD), an institution under
the control of respondent and real party in interest Department of
Corrections and Rehabilitation (CDCR).
On appeal, Spence raises several issues including that (1) the decision
of the ALJ to invoke issue preclusion during the evidentiary hearing denied
him due process of law as he was unable to present fully his defenses; (2) SPB
denied him due process of law because it ignored its own case law requiring
that he be subject to “progressive discipline”; and (3) the ALJ’s findings he (i)
asked a subordinate officer to withdraw a written complaint to the warden
after he had failed to repay a loan and, when that officer refused, (ii)
retaliated against the officer, is not supported by substantial evidence. We
will affirm.
OVERVIEW
Spence began his employment with CDCR as a CO in September 1995.
In 2001 he was promoted to correctional sergeant, and in 2006 to correctional
lieutenant. In March 2017 Spence was demoted to CO, a position he held
1 Unless otherwise noted, all further statutory references are to the Code
of Civil Procedure.
2 Respondent SPB filed a one-page brief stating it stood by its decision in
the instant case and would abide by this court’s ruling.
2
until he was dismissed by CDCR in November 2017. Spence’s 2017 demotion
is the subject of a related SPB precedential decision in K.S. v. Department of
Corrections and Rehabilitation (case No. 17-02; Nov. 2, 2017) (K.S.;
sometimes, Demotion Action).3
Demotion Action
While serving as a correctional lieutenant at RJD in the late 2000’s,
Spence borrowed money from three subordinate officers, including
correctional sergeant Steven Vasquez, who eventually filed a written
memorandum after Spence failed to repay him. During this time period,
Robert Hernandez was the warden at RJD. Hernandez received Vasquez’s
memorandum sometime in 2008 or 2009 and spoke to Spence about the
matter. (K.S., supra, SPB Precedential Dec. No. 17–02 at pp. 4-5.)
Hernandez Instructed Spence Not to Borrow Money from Subordinate
Officers
In the Demotion Action, the ALJ found by a preponderance of the
evidence the following facts: “Shortly after learning of the [Vasquez]
complaint, Warden Hernandez spoke to Appellant [i.e., Spence] about the
matter. Warden Hernandez told Appellant that it was inappropriate for a
supervisor to borrow money from a subordinate employee and that Appellant
needed to pay Sgt. Vasquez back. Warden Hernandez told Appellant not to
borrow money from subordinate employees.” (K.S., supra, SPB Precedential
Dec. No. 17–02 at p. 4.)
3 On this court’s own motion, we take judicial notice of the Demotion
Action, which the parties repeatedly reference in their briefings to this court.
(See Jones v. Whisenand (2017) 8 Cal.App.5th 543, 548, fn. 3; California
Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 168,
fn. 8.)
3
In making this finding, the ALJ in the Demotion Action stated there
was a conflict in the evidence but as trier of fact, found Hernandez’s
testimony more credible than Spence’s, explaining his reasoning in part as
follows: “Warden Hernandez testified that after he reviewed the complaint
by Sgt. Vasquez, he spoke to Appellant about the matter. . . . (K.S., supra,
SPB Precedential Dec. No. 17–02 at p. 9.) Spence denied that such a
conversation took place. Resolving this conflict requires a credibility
determination using the criteria provided by Evidence Code section 780.
“When determining credibility, the trier of fact may consider ‘any
matter that has any tendency in reason to prove or disprove the truthfulness
of [the witness’s] testimony,’ including witness demeanor; character of
testimony; extent of the witness’s ability to perceive, recollect or
communicate any matter about which she or he testifies; the existence or
nonexistence of bias, interest or motive; the existence or nonexistence of any
fact testified to by the witness; and the witness’s attitude toward the action
or testimony. (Evid. Code, § 780, subds. (a), (b), (c), (d), (f), (i) & (j).)
“Appellant generally testified in a clear manner and candidly admitted
conduct that did not portray him in a good light. However, Appellant
exhibited some difficulty recalling details and appeared to be evasive at
times. Although Warden Hernandez had difficulty recalling specific dates of
events that occurred several years ago, he demonstrated a specific
recollection of his discussion with Appellant. Warden Hernandez testified in
a clear, consistent, and unexaggerated manner. Warden Hernandez’s
testimony is logical because Sgt. Vasquez filed a complaint against Appellant
during the time period Warden Hernandez said he discussed the matter with
Appellant. Warden Hernandez had been retired for more than eight years at
the time of hearing, and had no apparent interest in the outcome of the
4
matter. Also, Warden Hernandez displayed no animosity toward Appellant,
and had no apparent motive to testify in a manner unfavorable to Appellant.
[¶] Accordingly, Warden Hernandez’s testimony is credited over Appellant’s
testimony.” (K.S., supra, SPB Precedential Dec. No. 17–02 at p. 9.)
Prior Adverse Actions
Spence was also subject to other adverse actions, as discussed in the
Demotion Action: “Respondent [CDCR] issued Appellant a 10-percent salary
reduction for 13 months, effective on March 31, 2015, for borrowing money
from CO Jeffrey Springer . . . . This [notice of adverse action (NOAA)] recited
Warden Hernandez’s direction to Appellant not to borrow money from CO’s.
Respondent also issued Appellant a 5-percent salary reduction for 24 months,
effective April 30, 2015, for failing to submit his time sheets in a timely
manner. Appellant appealed both adverse actions, and the parties entered
into a stipulated settlement to resolve both appeals by consolidating both
adverse actions into a single, combined official reprimand. [Footnote 2: This
proposed decision shall refer to the combined, stipulated adverse action as
the 2015 Consolidated Reprimand.] [¶] In March 2016, Appellant received an
adverse action of suspension for 15 work days for collecting money from CO’s
to purchase coupon books as part of a youth sports organization fundraiser,
and failing to deliver the coupon books or refund the money to those CO’s.”
(K.S., supra, SPB Precedential Dec. No. 17–02 at p. 5.)
Lopez Loan
The Demotion Action involved two loans by subordinate officers to
Spence. CO Richard Lopez in February 2014 loaned Spence $2,000, after
Spence had asked to borrow $5,000 and had promised to repay the money the
following month. Although Lopez and Spence worked in the same general
area at RJD, they did not have a personal relationship or socialize outside of
5
work. Spence ultimately ended up repaying Lopez only $300 of the money he
had borrowed. (K.S., supra, SPB Precedential Dec. No. 17–02 at pp. 6-7.)
The ALJ in the Demotion Action found Government Code section 19635
prohibited CDCR from disciplining Spence for initially borrowing the money
from Lopez because that activity occurred more than three years before
service of the NOAA in that action. (K.S., supra, SPB Precedential Dec. No.
17–02 at p. 11.) However, the ALJ also ruled any conduct of Spence
regarding the Lopez loan that occurred within three years of the NOAA in the
Demotion Action could be considered in determining whether to discipline
Spence. (Id. at p. 15.)
Mack Loan
The other loan in the Demotion Action involved CO Otis Mack, who
Spence supervised at RJD. Similar to Lopez, Spence and Mack did not have
a personal relationship and did not socialize outside of work. In late April or
early May 2016, Spence telephoned Mack at home and asked to borrow $200.
Mack felt sorry for Spence and agreed to make the loan. Spence promised to
repay the money in the next pay period.
Over the course of several months, Mack asked Spence to repay the
loan. On each occasion Spence made an excuse why he could not do so and,
as of August 2017 when the Demotion Action went to hearing, Spence still
had not repaid the $200 he borrowed from Mack. (K.S., supra, SPB
Precedential Dec. No. 17–02 at p. 8.)
Time Sheets
Similar to the 2015 Consolidated Reprimand and the instant case, the
Demotion Action also involved Spence’s failure to timely submit completed
and signed time sheets. CDCR in the Demotion Action alleged Spence failed
to submit time sheets for the pay periods between September 2015 and
6
August 2016, despite receiving monthly notices at his home address stating
he had failed to submit a time sheet along with a duplicate time sheet with
instructions to complete it. (K.S., supra, SPB Precedential Dec. No. 17–02 at
p. 8.)
Legal Conclusions
The ALJ in the Demotion Action reached the following conclusions:
“Appellant’s conduct constitutes cause for discipline under Government Code
section 19572, subdivisions (b) incompetency, (c) inefficiency, (d) inexcusable
neglect of duty, (e) insubordination, (o) willful disobedience, and (t) other
failure of good behavior. . . . [¶] Demotion from the position of Correctional
Lieutenant to the position of CO is a just and proper penalty.” (K.S., supra,
SPB Precedential Dec. No. 17–02 at p. 25.)
In reaching these conclusions, the ALJ found Spence “had a known
duty not to borrow money from subordinate employees. Warden Hernandez
specifically directed Appellant not to borrow money from subordinate
employees. In addition, the 2015 Consolidated Reprimand specifically
punished Appellant for borrowing money from CO Springer. Furthermore, a
supervisor’s solicitation of personal loans from a subordinate employee is so
clearly improper that specific notice is not necessary. Appellant should have
known that asking a subordinate employee to borrow money may cause that
employee to feel pressure to loan money to his supervisor, and may create the
appearance that Appellant’s supervisorial decisions could be affected because
of the employee’s decision whether to loan money. Thus, even if Appellant
had not received explicit direction, he should have known he had a duty not
to solicit personal loans from subordinate employees. Appellant breached
this known duty when he asked CO Mack for a loan.” (K.S., supra, SPB
Precedential Dec. No. 17–02 at p. 17.)
7
The ALJ also found Spence “had a known duty to turn in his monthly
time sheets in a timely manner. Appellant was aware of the requirement
under [CDCR’s Department Operations Manual] section 31080.7.9, as the
2015 Consolidated Reprimand specifically punished Appellant for his earlier
failure to submit time sheets in a timely manner. Despite his known duty to
submit time sheets in a timely manner, Appellant repeatedly failed to do so
for a period of one year. [¶] Appellant’s conduct therefore constitutes cause
for discipline . . . .” (K.S., supra, SPB Precedential Dec. No. 17–02 at p. 18.)
Instant Action4
Office of Internal Affairs Interview re: CO Springer
As noted ante, in May 2014 Spence asked CO Springer for a $500 loan,
which loan was the subject of the 2015 Consolidated Reprimand. Springer
felt pressured and obligated to lend Spence the money because Spence then
was a correctional lieutenant, a second line supervisor of CO’s, and had the
authority to give a CO such as Springer a direct order. Spence told Springer
he would repay him in two installments beginning in July 2014.
Springer repeatedly contacted Spence both in person and via e-mail,
text messages, and phone calls, after Spence failed to repay him. In
September 2014, Spence paid Springer $100. Still owed $400, in November
2014 Springer prepared a written memorandum to the RJD warden
regarding the loan, explaining he felt pressured to make it because Spence
outranked him, and asking for help to recoup the money. In December 2014,
Spence repaid Springer the balance due under the loan.
On October 17, 2016, Spence was scheduled to meet with CDCR’s Office
of Internal Affairs (OIA) in connection with allegations that he borrowed
4 The instant action also referenced the prior adverse actions discussed
ante.
8
money from subordinate officers that culminated in the Demotion Action. As
discussed in more detail post, the night before the investigatory interview
Spence called Springer at work and asked Springer whether he had stated in
the written memorandum that Spence had used his rank to secure a loan
from Springer, whether he had attempted to withdraw the written
memorandum and, if so, whether RJD administration had resisted his
attempt to do so. Toward the end of the conversation after Springer had
refused to withdraw the memorandum, Spence suggested Springer may “end
up in court.” Springer felt Spence was harassing him by calling him at work
and threatening to retaliate against him if he did not withdraw the
memorandum.
Kennard
On or about November 26, 2015, Spence approached CO Trevion
Kennard during a shift at RJD. After some small talk, Spence asked
Kennard for his personal cell phone number, despite the fact Kennard had
only been working at RJD for about a year and a half, had no prior existing
relationship with Spence, and had only known Spence through work. Shortly
after Spence’s shift ended, he called Kennard and disclosed he was going
through a difficult time and asked Kennard to “spot him $200.” Spence told
Kennard he was parked at a nearby gas station that had an ATM where
Kennard could withdraw the money.
Kennard felt pressure to give Spence the money because Spence then
was a correctional lieutenant. Kennard also feared Spence would retaliate
against him if he did not make the loan. Kennard met Spence at the gas
station, withdrew $200, and gave it to Spence, who promised to repay
Kennard as soon as his adverse action concluded.
9
About three weeks later, Spence called Kennard and again asked to
borrow money. Kennard told Spence he did not have the money to loan him.
Spence in response said he would pay Kennard $200 for an additional $100
loan. Although concerned Spence would use his rank to negatively affect
Kennard’s job status at RJD, Kennard refused to loan Spence more money.
Kennard called Spence between 10 and 15 times to collect the $200
Spence had borrowed. Spence gave Kennard various excuses why he could
not repay him. At the evidentiary hearing in this case, Spence admitted he
still owed Kennard $200.
Dunlap
Shortly after completing his suspension in April 2016 for selling
“coupon books” to subordinate officers and failing either to deliver the books
or refund their money, Spence asked to borrow $400 from CO John Dunlap.
On the day Spence asked for money, he engaged Dunlap in conversation
several times while Dunlap was assigned to the C Plaza gate at RJD. On his
fourth time through the gate, Spence told Dunlap he had just finished serving
a 45-day suspension allegedly for refusing to write up a CO. Spence asked for
Dunlap’s cell phone number.
After his shift ended, Dunlap received a telephone call from Spence
asking to borrow $400. Dunlap was “shocked” by Spence’s request, as Dunlap
believed it was inappropriate for a superior officer to be asking subordinate
officers for money. Dunlap initially refused to make the loan. Spence
persisted, however, noting he made “good money” and would be able to repay
Dunlap during “the next pay period.” Dunlap eventually agreed to the loan
and met Spence about 20 minutes later at an ATM. Dunlap told Spence he
really could not afford to make the $400 loan and “needed” it returned as
promised by Spence. Spence assured Dunlap he would repay the money
10
during the next pay period; and instructed him not to tell anyone about the
loan, adding he previously had gotten into trouble for “using his position for
his own gain.”
The next day, Spence called Dunlap and asked for an additional $300,
claiming he had used the $400 he had just borrowed to pay a utility bill.
Dunlap was reluctant to loan Spence any more money. Spence promised to
repay all the money before the end of the month. Although Dunlap found
Spence’s request stressful, he agreed to the additional $300 loan.
As was the case with some of the other CO’s he borrowed money from,
Spence failed to pay Dunlap back as promised. Dunlap on several occasions
spoke with Spence about repayment of the two loans. Spence in June and
again in September 2016 made partial payments to Dunlap, but did not repay
the full amount of the loan, despite Dunlap’s myriad attempts to recoup his
money. In January 2017, Spence stopped returning Dunlap’s messages and
when they saw each other at work, Spence ignored Dunlap. Dunlap
eventually filed a written complaint against Spence. In his complaint,
Dunlap stated he felt victimized by Spence in what he described as Spence’s
“unethical behavior and predatory tactics” in connection with the loan, and
expressed concern Spence was engaging in similar conduct with other
subordinate officers.
Martinez
On or about December 12, 2016, Spence asked CO Jose Martinez for a
$300 loan. Spence at the time was one of Martinez’s direct supervisors.
Spence had another CO summon Martinez to Spence’s office. On arrival,
Spence asked Martinez to close the door and then asked for his personal cell
11
phone number. Martinez was excited by these events as he believed Spence
was about to offer him a management position.
Shortly after his shift ended, Spence called Martinez, told him he was
in the middle of a divorce, and asked to borrow $300, promising to repay the
money on December 17. Spence in fact had been untruthful about why he
needed the money, as Spence used it to gamble.5
The following day, Spence called Martinez and asked to borrow an
additional $300. Martinez refused, stating he could not afford to loan Spence
any more money. Spence appeared frustrated and upset by Martinez’s
refusal to make the additional loan.
Spence did not repay Martinez as promised. Martinez called Spence
about 15 to 20 times asking about repayment. Spence in response began to
avoid Martinez at work. In March 2017, Martinez submitted a written
memorandum to the RJD warden detailing the circumstances of the loan and
Spence’s failure to repay the money, and asking for assistance in resolving
the matter. In August 2017, Spence and Martinez met in a parking lot at
RJD to discuss repayment of the loan, after Martinez had encountered
Spence in the RJD accounting office and had once again asked about
repayment. Spence then claimed he had the money to repay Martinez but
allegedly could not do so because of the memorandum prepared by Martinez.
Spence promised to talk to his attorney and get back to Martinez. At the
time of the hearing in the instant case, Spence still had not repaid Martinez.
5 Spence in the instant action did not testify when he sought help
through CDCR’s employee assistance program (EAP). However, the ALJ in
the Demotion Action found Spence had contacted EAP in August 2016 and
had begun attending Gamblers Anonymous meetings in October 2016.
12
Time Sheets
During the relevant time period, Spence was required to submit a
completed and signed Employee Record of Attendance (CDCR 998-A) form
(i.e., time sheet) by the third day of each pay period. The time sheets show if
an employee has used any accrued leave or was absent during any given
month, and certify the time entered is correct. As of July 2017, Spence had
not submitted times sheets for January, February, March, and April 2017.
Each month Spence failed to submit a time sheet, as before CDCR mailed
him a reminder that included a duplicate time sheet along with instructions
to complete and submit it. Because Spence took leave in each of these
months, CDCR was unable to accurately determine his pay.
OIA Interviews
CDCR’s OIA interviewed Spence on March 7, 2017. During this
interview, Spence denied harassing Springer or attempting to persuade him
to withdraw his 2014 memorandum. OIA interviewed Spence a second time
on March 14, 2017. During the March 14 interview, Spence “denied that
anyone had ever told [him] not to borrow money from subordinates.”
Dismissal and Appeal
In November 2017, CDCR served Spence with a NOAA dismissing him
from his position as a CO effective November 30, 2017. In the NOAA, CDCR
alleged Spence violated Government Code section 19572, subdivisions (b)
incompetency, (c) inefficiency, (d) inexcusable neglect of duty, (e)
insubordination, (f) dishonesty, (m) discourteous treatment, (o) willful
disobedience, (t) other failure of good behavior, and (x) unlawful retaliation.
The NOAA further alleged Spence violated these various subdivisions by (1)
wrongfully retaliating against Springer, a subordinate officer; (2) wrongfully
borrowing money from subordinate officers Kennard, Dunlap, and Martinez;
13
(3) failing to timely submit time sheets; and (4) being dishonest during the
OIA interviews. Spence appealed.
Following a June 2018 hearing, the ALJ on October 19, 2018, issued his
proposed decision sustaining the NOAA and the penalty of dismissal. In the
proposed decision, the ALJ concluded that Spence’s conduct constituted cause
for discipline under each of the alleged subdivisions of Government Code
section 19572 except for (x) unlawful retaliation. On December 13, 2018, as
noted, SPB adopted the proposed decision without modification. Spence on
March 6, 2019, filed the Petition to set aside the December 13 decision of
SPB.
On August 16, 2019, the trial court denied Spence’s Petition. It found
that the ALJ’s application of issue preclusion/collateral estoppel was “not
prejudicial”; that substantial evidence supported the dishonesty charges; and
that there “was no procedural unfairness or lack of due process” based on
Spence’s argument he was treated unfairly because he was not given
“progressive discipline.” The August 16 order was incorporated into an
August 29, 2019 judgment denying Spence’s Petition.
DISCUSSION
A. Guiding Principles
On a petition for administrative mandamus, we determine whether the
agency has proceeded without, or in excess of, jurisdiction; whether there was
a fair trial; and whether there was any prejudicial abuse of discretion by the
agency. (§ 1094.5, subd. (b); City of Hesperia v. Lake Arrowhead Community
Services Dist. (2019) 37 Cal.App.5th 734, 748.) Abuse of discretion “is
established if the respondent [agency] has not proceeded in the manner
required by law, the order or decision is not supported by the findings, or the
findings are not supported by the evidence.” (§ 1094.5, subd. (b).)
14
SPB is an agency of constitutional authority vested with quasi-judicial
powers. (Coleman v. Department of Personnel Administration (1991) 52
Cal.3d 1102, 1125 (Coleman); Telish v. State Personnel Bd. (2015) 234
Cal.App.4th 1479, 1487 (Telish).) As such, its decisions are reviewed only to
determine whether substantial evidence supports its findings. (Coleman, at
p. 1125; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742.)
The role of an appellate court in reviewing an SPB decision on a
petition for writ of administrative mandamus is the same as of the trial court
decision. (Department of Corrections & Rehabilitation v. State Personnel
Bd. (2016) 247 Cal.App.4th 700, 707.) We apply the substantial evidence
rule, examining “all relevant evidence in the entire record, considering both
the evidence that supports the Board’s decision and the evidence against it,
in order to determine whether that decision is supported by substantial
evidence.” (Telish, supra, 234 Cal.App.4th at p. 1487.) “This does not mean,
however, that a court is to reweigh the evidence; rather, all presumptions are
indulged and conflicts resolved in favor of the Board’s decision.” (Ibid.)
To the extent the appeal presents questions of law, our review is de
novo. (Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 13; Pollak v.
State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404.)
B. Issue Preclusion
1. Additional Background
The ALJ in the instant case found the Demotion Action “involved
certain of the same issues present in this matter,” adding: “The hearing in
[the Demotion Action] was held in August, 2017. Appellant and Respondent
were the same, and only, parties to the both actions. The same counsel
appeared on behalf of their respective clients at both hearings. Under his
authority under California Code of Regulations, title 2, section 56.1, to
15
control the proceedings, and under principles of collateral estoppel, the
undersigned informed the parties at the beginning of the proceedings they
would not be able to re-litigate the matters decided in [the Demotion Action].
“Among other things, the issue of whether Warden Hernandez had a
meeting with Appellant in which he directed Appellant not to borrow money
from subordinates was litigated in [the Demotion Action]. There, the ALJ
reviewed the evidence presented by both parties about the nature and
content of the meeting between Warden Hernandez and Appellant in the
2008 to 2009 time period and made factual determinations about it. The ALJ
found that Warden Hernandez received Sgt. Vasquez’s complaint about
Appellant borrowing money from subordinates, that Warden Hernandez
called Appellant to his office to discuss the complaint, that Warden
Hernandez told Appellant to pay Sgt. Vasquez back, and that Warden
Hernandez told Appellant not to borrow money from subordinates again. The
undersigned informed the parties in the present action that the issue of the
meeting between Warden Hernandez and Appellant, having been previously
litigated and the ALJ’s determination relied upon by the Board in reaching
its decision in [the Demotion Action] would stand for the present case.” (Fn.
omitted.)
In so doing, the ALJ was clear that, while this issue had been
previously litigated, whether Spence had been dishonest during his March
2017 OIA interview was still to be decided. The ALJ in the present action
thus noted CDCR was “allowed to present Warden Hernandez to testify about
the meeting for the sole purpose of [assessing] the current dishonesty
charge.”
16
2. Guiding Principles and Analysis
The term “ ‘res judicata’ ” is often used “as an umbrella term
encompassing both claim preclusion and issue preclusion, which [is]
described as two separate ‘aspects’ of an overarching doctrine. [Citations.]
Claim preclusion, the ‘ “ ‘primary aspect’ ” ’ of res judicata, acts to bar claims
that were, or should have been, advanced in a previous suit involving the
same parties. [Citation.] Issue preclusion, the ‘ “ ‘secondary aspect’ ” ’
historically called collateral estoppel, describes the bar on
relitigating issues that were argued and decided in the first suit.” (DKN
Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.)
“ ‘ “The prerequisite elements for applying the doctrine to either an
entire cause of action or one or more issues are the same: (1) A claim or issue
raised in the present action is identical to a claim or issue litigated in a prior
proceeding; (2) the prior proceeding resulted in a final judgment on the
merits; and (3) the party against whom the doctrine is being asserted was a
party or in privity with a party to the prior proceeding.” ’ ” (Boeken v. Philip
Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken).)
We independently conclude that the ALJ did not err in applying issue
preclusion in this case. (See Noble v. Draper (2008) 160 Cal.App.4th 1, 10
[application of the doctrine of issue preclusion is a question of law subject to
de novo review]; Groves v. Peterson (2002) 100 Cal.App.4th 659, 667 [same].)
The issue litigated in the Demotion Action (and in the 2015 Consolidated
Reprimand) was identical to the issue Spence sought to litigate in the instant
action, namely whether Hernandez during a 2008/2009 meeting instructed
Spence to refrain from borrowing money from subordinate officers, after
Vasquez had filed a written memorandum that came to Hernandez’s
attention as a result of Spence’s failure to repay a loan made by Vasquez.
17
Moreover, as the ALJ noted the parties in the instant case are the same
as in the Demotion Action (and the 2015 Consolidated Reprimand); and
SPB’s decision in the Demotion Action is final and deemed precedential, as
Spence did not appeal that decision. As such, we conclude the ALJ properly
invoked issue preclusion to prevent Spence from relitigating the issue of
whether he was instructed by Hernandez not to borrow money from
subordinate officers. (See Boeken, supra, 48 Cal.4th at p. 797.)
In light of our conclusion, we reject Spence’s related argument that he
was denied a “fair” administrative hearing under section 1094.5, subdivision
(b) because he allegedly was denied the opportunity to fully present his
defense that no such meeting between him and Hernandez ever took place.6
3. Harmless Error
Assuming the ALJ erred by applying issue preclusion, we conclude that
error was harmless. Indeed, the ALJ separately found that even if
Hernandez in 2008/2009 had not instructed Spence to stop borrowing money
from subordinate officers, Spence nonetheless should have known from the
Demotion Action and the 2015 Consolidated Reprimand—where he was
punished for borrowing money from subordinate officers—and from the
6 As a result of our decision on this issue, we reject Spence’s contention
that Hernandez’s testimony was insufficient to support the ALJ’s separate
legal conclusion that Spence was dishonest during the March 13, 2017 OIA
interview when he stated he was never told by Hernandez to stop borrowing
money from other CO’s.
18
obvious impropriety of seeking loans from coworkers, that such behavior
constituted serious misconduct supporting his dismissal from CDCR.7
C. Progressive Discipline
Spence next contends his dismissal violated due process of law because
CDCR did not follow the tenets of progressive discipline set forth in the
precedential SPB decision In re R.N. (1992) SPB Dec. No. 92-07 (R.N.).
CDCR argues Spence offered no legal authority (other than the R.N. decision
itself) or record citation to support this contention. (See People v.
Stanley (1995) 10 Cal.4th 764, 793 [failure to cite legal authority forfeits
appellate review of issue].) In any event, CDCR argues R.N. is inapplicable.
We agree with CDCR on this latter point.
Here, as noted ante the record shows Hernandez instructed Spence in
2008/2009 not to borrow money from subordinate officers, after Vasquez
complained when Spence failed to repay him. Spence was disciplined in 2015
for again borrowing money from a subordinate officer and not repaying the
loan, as noted in the 2015 Consolidated Reprimand, and again in 2017 in the
Demotion Action, as also summarized ante. In addition, the ALJ in the
Demotion Action found a supervisor’s solicitation of personal loans from
subordinate employees was “so clearly improper” that Spence should have
7 Spence also contends that the ALJ erred in applying issue preclusion
because counsel for CDCR allegedly withdrew this affirmative defense during
an unreported discussion between counsel and the ALJ. We note the ALJ
referenced this discussion after a lunch break, stating CDCR counsel wished
to withdraw her request that certain “facts” be established by issue
preclusion/collateral estoppel, but neither the ALJ nor counsel identified
those “facts” on the record. In any event, as a result of our conclusion that
application of issue preclusion in this case was harmless error, we reject this
contention even assuming arguendo CDCR withdrew this defense in
connection with the 2008/2009 meeting between Hernandez and Spence.
19
known not to solicit personal loans from his coworkers even if Hernandez had
not given him this explicit instruction.
The current case, involving repeated willful and serious misconduct by
Spence over the course of many years, is readily distinguishable from R.N.,
which involved a correctional officer who, over a 14-month period, fell asleep
three times while on duty. In R.N., SPB modified R.N.’s dismissal to a six-
month suspension, finding that, in cases of poor work performance, CDCR
should follow a sequence of warnings or lesser disciplinary actions before
imposing the ultimate penalty of dismissal. (R.N., supra, SPB Dec. No. 92-07
at p. 6.)
SPB in R.N. noted the purpose of progressive discipline “is to provide
the employee with the opportunity to learn from prior mistakes and to take
steps to improve his or her performance on the job.”8 (R.N., supra, SPB Dec.
No. 92-07 at p. 6.) SPB determined in R.N. that CDCR did not discipline the
plaintiff in a timely fashion, thus allowing her performance problems to
accumulate and go undisciplined before progressive discipline was initiated;
and that her dismissal did not take into account her improvement after she
was transferred to another post. (Id., at p. 7.)
In addition, the record shows that unlike the plaintiff in R.N., Spence
in the instant case was subject to progressive discipline. Indeed, as we have
repeatedly noted, Hernandez warned Spence in 2008/2009 not to borrow
money from subordinate officers. Despite this warning, and the fact
borrowing money from subordinate officers—including some directly
supervised by Spence—was clearly inappropriate even if Hernandez had not
8 SPB also noted, however, that while progressive discipline is well-
suited to treating problems of poor work performance, “serious willful
misconduct on the part of an employee may well warrant dismissal in the
first instance.” (R.N., supra, SPB Dec. No. 92-07 at p. 6, fn. 3.)
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previously so instructed Spence, the record shows Spence in 2014 obtained a
loan from Springer, who felt pressured and obligated to make the loan
because Spence was his superior officer. Ultimately Spence was subject to an
adverse action—a 10 percent salary reduction for 13 months—effective on
March 31, 2015, for borrowing money from Springer. Despite being punished
in the 2015 Consolidated Reprimand, Spence again borrowed money from
Lopez and Mack, which loans were the subject of the Demotion Action.9 We
note the Mack loan took place in May 2016, after Spence had been subject to
adverse action in the 2015 Consolidated Reprimand.
In the instant case, Spence again borrowed money from subordinate
officers, all of which again occurred after he had been subject to adverse
action in the 2015 Consolidated Reprimand for the same misconduct. Spence
borrowed money from Kennard in November 2015, from Dunlap in April
2016, and from Martinez in December 2016. In each instance he failed to
repay all the money. In connection with the loan from Dunlap, Spence went
so far as to instruct this CO not to tell anyone about the loan, noting he
previously had been in trouble for “ ‘using his position for his own gain.’ ”
Thus, unlike the plaintiff in R.N., the record shows Spence in the instant case
received progressive discipline before he was dismissed by CDCR. For this
separate reason, we find the R.N. decision inapplicable in the instant case.
We also reject Spence’s argument he was improperly dismissed because
he already had been demoted from Lieutenant CO to CO in connection with
the Demotion Action. As summarized ante, the NOAA in the Demotion
9 As noted ante, the ALJ found Spence could not be disciplined for
borrowing money from Lopez because that incident occurred more than three
years before CDCR filed its NOAA in the Demotion Action. As also noted,
however, the ALJ found any conduct occurring within three years of the
NOAA regarding the Lopez loan could be cause for discipline.
21
Action only involved the Lopez and Mack loans, and Spence’s failure to timely
submit time sheets between September 2015 and August 2016. However, the
NOAA in the instant case involved three additional loans, as noted; Spence’s
failure to timely submit time sheets for a different time period (i.e., January
through April 2017); and his conduct in connection with the March 2017 OIA
interviews. That the ALJ found demotion was the appropriate penalty in the
Demotion Action in no way prevented the ALJ in a separate administrative
proceeding—subject to a separate NOAA—from recommending dismissal, as
adopted by SPB.
Furthermore, we reject Spence’s due process challenge to his dismissal
as the record shows that he fully participated in the multiday hearing before
the ALJ, including calling and cross-examining witnesses, and offering his
own testimony; and that he was dismissed as a CO only after the ALJ found
Spence had (1) engaged in serious willful misconduct, including, as Spence
admitted, borrowing money from subordinate officers “under false pretenses,
and then failing to repay them”; and (2) been dishonest during his March
2017 interviews with OIA when he denied (i) trying to persuade Springer to
withdraw his November 2014 memorandum complaining that Spence had
borrowed money and failed to repay it, and (ii) receiving instruction from
Hernandez to stop borrowing money from subordinate officers.
D. Sufficiency of the Evidence
Spence argues the evidence is insufficient to support the finding that
during the October 16, 2016 telephone call with Springer he attempted to
persuade Springer to withdraw his November 2014 memorandum.
Specifically, Spence argues the ALJ recognized that Springer “appeared to be
exaggerating as he testified about the number and content of the calls” from
Spence after Springer wrote the memorandum; and that Springer only
22
memorialized the one call on October 16, despite claiming there had been
several threatening calls made by Spence between November 2014 and
October 2016. Spence thus contends the ALJ’s decision to credit the October
16 call by Spence but not the others show the former finding is not supported
by substantial evidence. We disagree.
1. The October 16 Telephone Call
The record shows at the time of the administrative hearing, Springer
had been a CO at RJD for 11 years. Prior to his employment with CDCR,
Springer had been in the Marine Corps for more than eight years, from which
he was honorably discharged.
Springer testified that shortly after his shift began at 10:00 p.m. on
October 16, 2016, he received a telephone call on an RJD landline. Because
he was busy with his assignment, Springer picked up the call on
speakerphone. Initially, Springer could not determine the identity of the
caller. After some small talk, the caller asked Springer to take him off
speakerphone. After Springer complied, the caller identified himself as
Spence and in a “friendly” manner asked Springer how he was doing.
Springer was unsure whether he should be speaking with Spence, as OIA had
given Springer a directive to refrain from communicating with Spence during
its investigation. Because Spence had repaid the loan and was otherwise
friendly on the phone, Springer decided to have a short conversation with
Spence, as Springer was otherwise busy at work and his supervisor was
present.
Once off speakerphone, Springer testified that Spence’s demeanor
“changed a little bit.” Spence began to question Springer about the
November 2014 memorandum, leading Springer to believe that Spence was
still “pretty pissed off” at him for writing it. Springer explained he wrote the
23
memorandum because he had loaned Spence $500, had then only been repaid
$100, and had wanted to let the warden know about the loan because he felt
“played” by Spence.
As they continued to talk on the telephone, Spence raised his voice at
Springer and, while “breathing hard,” asked Springer, “hey, what’s up with
the fucking memo, man? . . . You said you’re going—you’re going to pull it.
What’s up?” Springer explained to the ALJ that he was concerned by
Spence’s call, particularly because he was on duty when it came in, and
because he believed the matter had been resolved as Spence had since repaid
the loan. As they spoke on the telephone, Spence began talking over
Springer, telling him, “hey, look, if you were trying to withdraw that memo,
they cannot hold you or tell you not to withdraw it [¶] . . . [¶]—and basically
just telling me they can’t do that. If you want to withdraw something, you
should be able to do that.” As noted ante, near the end of the call Spence
said: “hey, look, man, you might end up in court but just in a different
way[.]” Springer interpreted this statement to mean that Spence might sue
him for writing the memorandum and refusing to withdraw it.
2. The ALJ’s Findings and Conclusions of Law
As noted, the ALJ found CDCR proved by a preponderance of the
evidence that during the October 16 call Spence first attempted to persuade
Springer to withdraw his November 2014 memorandum and, when he did not
do so and explained he also had not tried to do so, Spence next threatened to
retaliate against him. These findings supported the ALJ’s legal conclusions
that Spence’s conduct on October 16 constituted (1) inexcusable neglect of
duty; (2) dishonesty; (3) discourteous treatment of another employee; (4)
willful disobedience; and (5) other failure of good behavior.
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3. Substantial Evidence Supports the ALJ’s Findings Regarding the
October 16 Telephone Call
We conclude the record evidence is more than sufficient to support the
ALJ’s finding that on October 16 Spence called Springer at work in an
attempt to convince Springer to withdraw the November 2014 memorandum;
and that, when Springer refused, Spence threatened retaliation. (See Do v.
Regents of University of California (2013) 216 Cal.App.4th 1474, 1490 [noting
that “[o]nly if no reasonable person could reach the conclusion reached by the
administrative agency, based on the entire record before it, will a court
conclude that the agency’s findings are not supported by substantial
evidence”].)
That the ALJ credited certain testimony by Springer and not his other
testimony does not change our decision, as the ALJ as trier of fact was
entitled to believe all, some, or none of Springer’s testimony. (See Evid. Code,
§ 780.) As a court of review, we neither reweigh the evidence nor reevaluate
a witness’s credibility; rather, we examine “all relevant evidence in the entire
record, considering both the evidence that supports the Board’s decision and
the evidence against it, in order to determine whether that decision is
supported by substantial evidence.” (Telish, supra, 234 Cal.App.4th at p.
1487.) Based on this record, we find substantial evidence supports the ALJ’s
findings regarding the October 16 telephone call in which Spence threatened
retaliation against Springer unless he withdrew the memorandum.
4. Harmless Error
Assuming there is insufficient evidence to support the ALJ’s finding
that Spence, on the eve of his OIA interview, threatened to retaliate against
Springer if he did not withdraw the November 2014 memorandum, we
nonetheless conclude that error is harmless. Indeed, separate and apart from
25
the findings in connection with the October 16 call, there were other factual
findings made by the ALJ, based on evidence that Spence has not challenged
on appeal, which support various legal conclusions by the ALJ on which
Spence’s dismissal is separately based.
As noted ante, the ALJ found Spence’s conduct constituted inexcusable
neglect of duty as he had been “ordered . . . not to borrow money from
subordinate officers,” which “direction” was then well-known to Spence and
which direction he chose to ignore when he again borrowed money from
subordinate officers Kennard, Dunlap, and Martinez. The ALJ also found
Spence’s failure to timely submit signed time sheets separately constituted
inexcusable neglect of duty. Thus, even assuming arguendo the ALJ erred in
considering Springer’s testimony regarding the October 16 telephone call, the
other evidence and findings not challenged by Spence on appeal fully support
the ALJ’s conclusion that Spence’s conduct constituted inexcusable neglect of
duty.
Similarly, the ALJ found evidence other than the October 16 telephone
call supported the conclusion that Spence was willfully disobedient in that he
knowingly and intentionally violated a direct command, prohibition, or
policy, noting: “[D]espite CDCR’s prohibition against a superior officer
borrowing money from a subordinate, and prior action against him, Appellant
continued to borrow money from subordinates. So too with the time sheets,
despite CDCR’s policy requiring the timely submission of signed time sheets,
and prior action against him, Appellant continued to fail to turn in his time
sheets in a timely manner.”
Moreover, the ALJ found this same misconduct by Spence also
constituted other failure of good behavior, as this misconduct was rationally
related to his employment with CDCR. Thus, even if the ALJ abused its
26
discretion and erred in crediting Springer’s testimony regarding the October
16 telephone call, any such error was harmless in light of the other evidence
that supported the penalty of dismissal.
DISPOSITION
The judgment affirming the denial of Spence’s Petition under section
1094.5 is affirmed. Respondent and real party in interest CDCR shall
recover its costs on appeal, as shall respondent SPB to the extent it incurred
any such costs.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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