Merced County v. Kong-Brown CA5

Filed 11/19/21 Merced County v. Kong-Brown CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MERCED COUNTY,

F080450

Plaintiff and Appellant,

(Super. Ct. No. 19CV-00783)

v.

BARBARA KONG-BROWN, OPINION

Defendant;

BILLY BUSH,

Real Party in Interest and Appellant.

APPEAL from a judgment of the Superior Court of Merced County. Donald J.

Proietti, Judge.

Forrest W. Hansen, County Counsel, Janine L. Highiet-Ivicevic and Thomas E.

Ebersole, Deputy County Counsel, for Plaintiff and Appellant.

Rains Lucia Stern St. Phalle & Silver, Timothy K. Talbot and Zachery A. Lopes,

for Real Party in Interest and Appellant.

-ooOoo-

Merced County terminated the employment of Billy Bush, a jail corrections officer

employed by the Merced County Sheriff’s Department. Bush appealed his termination

and the matter proceeded to an administrative hearing before an administrative hearing

officer. The administrative hearing officer overturned the termination and ordered

Bush’s reinstatement. The county then sought judicial review of the administrative

decision by filing a petition for writ of mandate in the superior court. The superior court

denied the county’s petition for writ of mandate and upheld the administrative decision.

The county now appeals the denial of its petition for writ of mandate. Bush cross

appeals. He raises a single, limited issue in relation to the county’s appeal, but does not

contest the judgment. We affirm.

FACTS AND PROCEDURAL BACKGROUND

This case arose from the termination, on August 24, 2017, of Corrections Officer

Billy Bush’s employment as a jail corrections officer with the Merced County Sheriff’s

Department (sheriff’s department). Bush had been employed as a jail corrections officer

by the sheriff’s department since April 2005. The process that led to Bush’s termination

began when the sheriff’s department opened an internal affairs investigation regarding

Bush’s role in an incident that occurred at the Merced County Jail (the jail) on April 19,

2017. Bush was involved in the incident in his capacity as a jail corrections officer. The

internal affairs investigation concluded that Bush had violated multiple policies of the

sheriff’s department and Merced County (the county) and merited termination. Bush was

served with a written notice of the sheriff’s intent to terminate his employment with the

county; the intent-to-terminate notice charged Bush with violating multiple policies of the

sheriff’s department and the county. Bush sought a Skelly hearing regarding the charges

against him.1 Following the Skelly hearing, Bush was terminated.

1 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.

2.

Bush appealed his termination under the county’s Human Resources Rules and

Regulations, pursuant to which the matter was referred for an administrative hearing.

The administrative hearing officer overturned Bush’s termination and ordered his

reinstatement. The county then filed a petition for a writ of mandate (commencing an

administrative mandamus proceeding) in the Merced County Superior Court. The

superior court upheld the decision of the administrative hearing officer and denied the

county’s petition. Judgment was entered against the county. The county appealed to this

court (Bush also filed a limited appeal). We affirm the judgment.

A. The Administrative Hearing (August 9-10, 2018)

We will describe the jail incident that led to Bush’s termination, in summary form,

as reflected in the evidence presented at the administrative hearing and contained in the

administrative record. The incident occurred during the graveyard shift, on April 19,

2017, and involved a jail inmate, M.R. (M.R. or the inmate). Bush was one of the

correctional officers working the graveyard shift that night. The internal affairs

investigation into the incident faulted certain actions Bush took in interacting with M.R.

and determined that Bush had violated several policies of the sheriff’s department and

county, including policies concerning the use of force, disobedience, and incompetence.

The graveyard shift at the jail began at 11:00 p.m. Sergeant Christina Johann was

in charge of the shift. At the beginning of the shift, Johann briefed all the correctional

officers working the shift. Johann informed the correctional officers that M.R. was HIV

positive. The correctional officers also learned that, earlier that evening, M.R. had to be

confined in a “restraint chair” on account of erratic behavior and the risk he would harm

himself or pose a danger to the facility (M.R. had been kicking a glass window in his cell

and had cut his foot). The officers were further told that the inmate was either mentally

ill or under the influence of drugs or alcohol. Since jail inmates may not be indefinitely

confined in a restraint chair, M.R. was eventually moved to a “sobering cell” or “safety

cell.” He was in the sobering cell when the graveyard shift got underway. The incident

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at issue occurred in the sobering cell. The incident was captured on video; however, the

video had no sound or audio component. The video was played at the administrative

hearing and is part of the administrative record.

During the graveyard shift, shortly after midnight, jail staff became aware that

M.R. was engaging in significant self-harm. Specifically, M.R. started kicking a ground-

level glass wall panel or “window” at the front of the sobering cell; he then dropped on

all fours and began violently ramming his head into the window. M.R. proceeded to

remove all his clothes, and then continued, in the nude, to forcefully smash his head into

the window. He struck his head against the window approximately 42 times. He was

bleeding from his head and his feet. There was blood in the area where he hit his head

against the window, on the floor, and on his body. Witness testimony indicated there was

“a lot of blood” and blood was “everywhere.”

A number of correctional officers, namely, Bush, Stephen Harrison, Imelda

Vivero, and Megan Burk, rushed into the cell when the inmate’s violent, self-harming

conduct was detected. The actions Bush took in controlling M.R. over the next several

minutes lead to his termination. The inmate’s HIV positive status, the fact he was

bleeding, and the fact there was a large amount of blood splattered in the cell, were major

concerns for the responding officers. The only personal protective equipment (PPE) the

officers had was latex gloves. It was not a calm situation. Bush was the most senior line

officer among the officers there and took the lead in controlling the situation; he acted as

a “protector” to the other officers. Sergeant Johann entered the cell with the officers,

only to leave to get a camera; she later returned with a camera and took pictures of the

inmate.

Burk testified the corrections officers were not trained in techniques for

controlling combative inmates who are HIV positive, let alone HIV positive and

bleeding. Burk testified: “I remember the guy hitting his head so hard against the

window that it was – it was unlike anything that I had ever seen before, I know that.”

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Burk added: “There was blood all over the floor where he was hitting his head and on the

window where he was hitting his head and [he had] busted his head open.” Burk

explained the video did not reveal the full extent of the blood in the cell.

As Bush and Harrison entered the sobering cell, they gave verbal commands to

M.R. to stop ramming his head into the glass window. Burk also gave commands. M.R.

did not comply. At that point, Bush used his expandable baton to strike M.R. two times

on his thigh; M.R. stopped hitting his head into the glass and followed instructions to get

into a prone position on the floor of the cell.2 Harrison started to handcuff M.R.; M.R.

would not comply and was refusing to move his right arm. Bush then twice tapped

M.R.’s right arm with his expandable baton, using “medium to light” force, and

ultimately reached over and grasped M.R.’s arm and moved it so Harrison could handcuff

M.R. Sergeant Vince Gallagher, who subsequently conducted the internal affairs

investigation into the incident, testified that the use of the baton on the inmate’s arm

constituted an “unjustified” use of force.

Since M.R. was bleeding from his head, the jail’s medical staff was alerted, and a

nurse came to the cell. The nurse was nervous about attending to the inmate given his

erratic behavior and the blood in the cell. Bush turned the inmate over onto his back, so

the nurse would better be able to examine his head wound. It was not possible to position

a spit mask over the inmate’s head because the nurse needed access to the inmate’s head.

The county focused, at the administrative hearing, on three instances where Bush

used his feet to control the inmate, from this point forward. Sergeant Gallagher testified

that Bush’s use of his boot to control the inmate—which included stepping on the

inmate—in these three instances, constituted unwarranted use of force under department

policy.

2 This conduct did not factor into the county’s decision to terminate Bush.

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In the first of the three instances, Bush briefly placed his boot on the top of the

inmate’s head, presumably to prevent movement while the nurse attended to the inmate’s

wounds. Bush testified at the administrative hearing that his boot was not touching the

inmate’s head but, rather, he hovered it above the inmate’s head, better to control the

inmate should the latter make any erratic movements while the nurse attended to his head

wound. More specifically, Bush testified: “I actually was not on [the inmate’s] head. I

was slightly above it just in case he tried to throw his head backwards or make a sudden

movement with his head to try to get the blood from his hair onto [others].”

Next, as seen on the video, Bush placed his boot on the inmate’s chest/upper

abdomen for approximately a minute. He momentarily appeared to shift his weight to the

foot that was on the inmate’s chest/upper abdomen, rolling his boot; however, the video

evidence is not entirely clear on this point. Bush explained his actions at the

administrative hearing: “For the most part he was not – how can I say this without

making it – [the inmate] wasn’t moving around to an extreme amount. He was applying

pressure or posturing or tensing which you might not be able to see in the video. You can

feel it if you’re standing on somebody if they flex their abs or tense their chest muscles to

try to make a move, just like if you have somebody in an arm bar and they are going to

try to pull their arm out, you’re going to feel the muscles in their arm contract before they

try to pull or while they try to pull, and you can react to that.” Bush added: “So that was

mainly why I … continued to put my foot on him. If he was completely laying there

perfectly still, wasn’t doing anything, then I would have no reason to put my foot on him

other than to make sure he didn’t make any sudden movements, especially while the

nurse was down there by his head that he may transfer his fluids onto her, because she

didn’t have any protective equipment on either outside of gloves.”

Finally, at a later point, the inmate, who was handcuffed, appeared to try to elevate

his upper body from a prone position; Bush then briefly placed his boot on the inmate’s

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right forearm.3 Bush said he was concerned about the inmate’s attempt to get up “only

because of his erratic behavior.” Since all the officers were in the cell, and none were in

the doorway of the cell or outside it, and because the inmate “was not leg shackled yet,”

there was a concern that he could have jumped up and run out of the cell, which would

then have required a more intense response.

Bush’s explanation that the inmate was not entirely compliant, and that the video

did not fully capture the reality confronting the officers, was borne out by other evidence.

Burk testified that the inmate was resisting. She explained: “When we were trying to

hold him down, he kept moving. He wouldn’t hold still, especially when medical came

in to check him.” She added the inmate “was just squirrelly [and] wouldn’t stay still.”

Burk noted that the inmate would tense up and this conduct was not discernible on the

video.

Bush testified that he used verbal commands to attempt to control the inmate

throughout. For example, Bush ordered the inmate to stop banging his head before the

officers entered the cell, to get down on the ground when the officers entered the cell, and

to stay still when the nurse was attending to his head wounds. This was the first time

Bush had been required to restrain an inmate who was HIV positive, acting erratic, and

bleeding. Bush, who took the lead role in controlling the inmate, explained that since the

inmate was HIV positive and bleeding, the situation was unique in the jail setting;

normally, more officers would move in and physically restrain the inmate. He further

noted: “If I was in a protective suit, I would have gone hands on just like any other time

I’ve ever done any use of force.” Under the circumstances, Bush relied more on his

baton and boot. In placing his boot on the inmate’s chest/abdomen, Bush “appl[ied] the

force necessary to make him not move”; Bush kept his foot there briefly as he felt the

3 Another officer, Burk, also used her feet to control the inmate’s legs, at one point,

“[b]ecause he kept moving.”

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inmate move multiple times and to try to get up, while the nurse was attending to his

head.

Lieutenant David Alvey, who reviewed the internal affairs investigation and

signed the letter of intent to terminate, was asked at the administrative hearing: “But we

don’t know if [the inmate] was tensing up or trying to raise up. We just don’t know that,

do we?” Alvey responded: “I would have to agree with that. [¶] There’s no audio. It

would help if there was audio, but there’s not.” Alvey was then asked: “[T]here’s no

audio so we don’t know what’s being said. We don’t know what sounds [the inmate is]

making. We don’t know what commands are being given at the time, correct?” Alvey

answered: “Correct.” Next, Alvey was asked: “And just five minutes before that [the

inmate] was banging his head against the wall[?]” Alvey replied: “Yeah.” Alvey was

then asked: “So we have no idea what this inmate would have done given his mental

state at the time, do we?” Alvey responded: “No.”

Bush explained that he was concerned about the blood because the only PPE the

officers had was latex gloves; they did not even have masks. Bush stated: “There was

blood on the lower window of the cell … where he was banging his head … and then

blood on the floor by the window, and then of course blood on the ground where he was

proned out.” Bush noted that “for the most part [he was] always the one that would go in

first, especially to protect [his] … coworkers.” Bush was concerned about contamination

from the blood and about the safety of his fellow correctional officers. Bush testified

that, following the incident, the sheriff’s department got better PPE, including cover

outfits, face shields, etc.

Burk also explained Bush’s use of his boot on the inmate in similar terms. Burk

testified: “[T]he reason why the situation was handled in [that] way was because the

inmate was HIV positive and we did not have – that’s why a boot was used versus hands.

Because Bush has never used his boot before on an inmate. We always go hands on. But

since there was blood and we knew that the inmate was HIV positive, that’s why it was

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handled that way.” Burk added: “Our gloves are awful. They rip super easily.” Burk

indicated that it was safer to “trust your boots” than to “trust your gloves that are going to

rip with an HIV-positive inmate.” Burk noted the inmate’s HIV status was “[a]bsolutely”

a cause for concern; Burk did not want HIV and did not want to take it home to her

family. Burk testified: “Bush handled that whole situation pretty much by himself so

everybody else wouldn’t have to come into contact with the HIV blood.”

Nurse Her also explained, in an interview conducted in connection with the

internal affairs investigation, that the inmate’s HIV status and the presence of blood in

the cell was a big concern for the officers. In the interview, Nurse Her said that the

corrections officers were trying to stay away from and not touch the inmate “because they

did not want any of his blood on them.” She said the corrections officers “were really

terrified.” Nurse Her did not recall the inmate being in pain when Bush placed his foot

across his chest; she would have remembered if the inmate had yelled for Bush to stop.

At the administrative hearing, Sergeant Johann, the sergeant in charge of the shift

at the time of the incident, acknowledged that a person with HIV is a risk to correctional

officers, as “[blood and] sputum are contaminants.” The sergeant recognized that the

inmate could have “flung” blood at the correctional officers as he was bleeding at the

time. The sergeant further acknowledged that, in terms of PPE, the officers only had

latex gloves, which are susceptible to tearing, and that the officers did not have anything

protecting their faces or eyes.

Bush did not have a prior disciplinary record. However, on one occasion, on July

7, 2016, the sheriff’s office took “corrective action” by providing Bush with a

“counseling memo” and having him undergo, on September 7, 2016, a general, four-hour,

use of force training in a one-on-one format with a sergeant. The latter training did not

address techniques for securing HIV-positive inmates or HIV-positive inmates who are

bleeding. Bush had never received training regarding how to handle an inmate who was

bleeding, HIV positive, and acting in a violent manner. At the administrative hearing,

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Sergeant Johann acknowledged that use of force situations tend to be fluid and unique.

Bush was asked, at the hearing: “Based on what you know now, would you have done

something differently?” Bush responded: “[I]f there were PPEs, yes, I would have done

it differently, but the same circumstances with the same staff under the same sergeant, no,

I would have done everything exactly the same.”

Sergeant Johann testified at the administrative hearing that she told Bush to “stop”

and “knock it off,” when he had his foot on the inmate’s torso during the incident in the

cell; she further stated that Bush complied with her request. However, Bush testified that

Johann did not issue any commands in connection with the incident and he was certainly

not intentionally disobedient. Furthermore, Johann approved the use of force report Bush

submitted after the incident and did not separately document any command given to Bush

or any disobedience on his part. Burk and Vivero both testified Johann did not issue any

commands during the incident; registered nurse Shoua Her, when interviewed for the

internal affairs investigation, also did not recollect such a command; Harrison believed

Johann told Bush generally to “chill” but did not order Bush to step off the inmate.4

Johann also testified that she had told Bush to “stop”; however, Burk, Vivero, and

Harrison either had no recollection of this or had a contrary recollection.

Evidence presented at the administrative hearing also showed that none of the

other correctional officers in the cell, nor the sergeant in charge of the shift, complained

about Bush’s conduct at the time of the incident. Bush prepared a use of force report

after the incident delineating that he put his foot on the inmate’s chest. Sergeant Johann

did not recall any hesitation in approving Bush’s use of force report. Bush testified that

Johann did not question his use of force report. Johann, as the supervising sergeant, was

required under department policy to write her own use of force report regarding the

incident. Although she testified that she “believe[d]” she had done so, Sergeant

4 Harrison had been with the sheriff’s department for three months, at the time of

the incident.

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Gallagher, who conducted the internal affairs investigation into the incident, testified he

did not locate any use of force report prepared by Johann. At the administrative hearing

Johann testified that Bush’s placement of his foot on the inmate’s chest was

inappropriate.

Evidence at the administrative hearing showed the inmate did not complain of pain

during the incident and did not sustain any injuries on account of the actions taken by

Bush. M.R.’s head wounds, which were self-inflicted, required further treatment beyond

that provided by the jail nurse, i.e., stitches. Accordingly, a decision was made to

transport M.R. to the hospital for further treatment. M.R. never made any kind of

complaint in connection with the incident in the sobering cell. Indeed, in conducting its

internal affairs investigation, the sheriff’s department did not interview, or even attempt

to interview, M.R; nor did the department obtain M.R.’s hospital records.

At the administrative hearing, and in its post-hearing brief submitted to the

administrative hearing officer, the county took the position that Bush’s actions—that is,

the use of his baton in the handcuffing process, the use of his boot to control the inmate,

and stepping on the inmate—represented unwarranted or excessive force as the inmate

did not resist the officers in a significant fashion in the minutes after he ceased banging

his head into the window. As for Bush’s post-hearing brief, Bush argued the county had

“failed to meet its burden of proof” to establish that Bush was terminated for “just cause,”

as required under the county’s rules, and requested the hearing officer to overturn his

termination.

B. The Administrative Hearing Officer’s Decision

The administrative hearing officer, Barbara Kong-Brown, issued a written

decision and findings on November 21, 2018. The hearing officer described the issue

before her as follows: “The issue presented in this case is whether the Merced County

[Sheriff’s] Department had just cause to terminate Billy Bush; if not, what is the

appropriate remedy?” The hearing officer determined: “Based on the [r]ecord as a whole

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the Sheriff’s Department has not met its burden of proof regarding just cause for [Bush’s]

termination and was not justified in terminating [Bush’s] employment. There is

insufficient evidence to support a basis for discipline.” The hearing officer concluded:

“Billy Bush shall be reinstated to his position as a correctional officer with the Merced

County [Sheriff’s] Department.”

(1) Hearing Officer’s Findings

In reaching her decision, the hearing officer found, inter alia, that Bush (i) was

inadequately trained, (ii) had inadequate PPE, and (iii) was inadequately supervised

during the incident.

As to training, the hearing officer found that Bush had not received “any training

on how to deal with a combative HIV positive inmate who had blood spewing all over the

cell floor.” She noted: “[Bush] received a training in July 2016 which consisted of a

power point presentation. The presentation did not include defense tactics [or] hands-on

training on how to deal with someone like inmate [M.R.]”

As to PPE, the hearing officer found: “None of the officers, including [Bush],

were provided with any meaningful personal protective equipment from the County. All

they had were latex gloves which were woefully inadequate in dealing with the

combative inmate who was HIV positive, had banged his head against the cell window 42

times, resulting in blood being strewn all over the cell floor. [Bush] was justified in

being concerned for fear of contamination from the inmate who had just moments before,

been acting in a very violent manner.”

As to supervision, the hearing officer found: “There was inadequate supervision

regarding the subject incident. Sergeant Johann knew in advance that the inmate was

HIV positive, had been violent and placed in a restraint chair prior to being placed in the

holding cell. She also knew that he had been bleeding because he had repeatedly kicked

his cell window. Although she entered the cell she left after a few seconds without

providing any supervision or guidance to [Bush] or the other officers. She simply left to

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get a camera so she could take photographs of the inmate. Knowing the inmate’s HIV

positive status and his violent behavior just prior to the officers entering the cell she

should have provided better supervision rather than just leaving the officers in the cell to

get a camera to take pictures.”

The hearing officer further noted, with regard to supervision: “Furthermore, at the

time of the subject incident Sergeant Johann did not question [Bush’s] use-of-force report

which included the use of his foot on the inmate’s chest. This belies her testimony that

she thought that [Bush] used inappropriate force. If she thought that his use of force was

inappropriate she should have questioned his use-of-force report. The fact that she did

not supports a finding that she did not find his use of force on the inmate inappropriate”

Finally, the hearing officer observed: “The situation cannot be viewed in a

vacuum. In reviewing the totality of the circumstances, [Bush] and the other officers

were faced with an inmate who had to be placed in a restraint chair a few hours before

because he was kicking the windows, and then repeatedly banged his head 42 times in the

cell window, causing blood to be strewn all over the cell floor, which posed a

contaminant threat.”

(2) Hearing Officer’s “Just Cause” Analysis and Determination

The hearing officer analyzed whether the sheriff’s department had established just

cause for termination by a preponderance of the evidence. The hearing officer set forth

the appropriate framework: “A review of discipline for alleged employee misconduct

usually requires an analysis of several factors, which includes reliance on a reasonable

rule or policy, prior notice to the employee of the relevant rule or policy, whether or not

the disciplinary investigation was fairly and fully conducted without a predetermined

conclusion, whether or not the employee engaged in the actual misconduct charged by the

employer, and whether the policy is applied even handedly, whether the penalty is

reasonably related to the proven offense and whether there are any countervailing or

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mitigating circumstances requiring modification or complete reversal of the discipline

imposed.”

The hearing officer addressed all the relevant factors. In applying the multi-

factorial “just cause” analysis, the hearing officer evaluated whether Bush had violated

any applicable departmental or county policies. Bush was charged with violating 19

policies, including five polices in the Merced County Human Resources Rules and

Regulations, 10 policies in the Merced County Sheriff’s Office Policy Manual, and four

polices in the Merced County Sheriff’s Office Corrections Policy Manual. The policies

at issue basically fell into three categories: improper or excessive use of force,

disobedience, and poor performance. The hearing officer found that Bush did not violate

any applicable departmental or county policy.

On the question whether Bush used inappropriate or excessive force on inmate

M.R., the hearing officer noted: “In hindsight, it may not have been the best practice for

[Bush] to place his foot on the inmate’s chest but in light of the exigent circumstances, he

handled the situation in accordance with his training and experience. He had never been

confronted with a non-compliant HIV positive inmate who was bleeding profusely[,]

before. He had never put his foot on an inmate before and there was heightened

sensitivity to the possibility of contamination from the inmate due to his HIV positive

status and that he was bleeding profusely and blood was everywhere on the cell floor.

There is no evidence of any injuries to the inmate’s chest.” The hearing officer

specifically found that Bush did not violate any applicable departmental policies

regarding the use of force.

The hearing officer similarly found that Bush had not violated applicable policies

regarding disobedience. The hearing officer observed: “[T]here is conflicting evidence

about whether Sergeant Johann told [Bush] to remove his foot from the inmate’s chest.

Officer Harrison’s testimony was not reliable. In his interview he told Sergeant

Gallagher that he heard someone tell [Bush] to move his foot. But during the hearing he

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testified that he did not hear anyone tell [Bush] to move his foot. Officer Burk, [Bush]

and Officer Viveros did not hear Sergeant Johann tell Mr. Bush to move his foot.” The

hearing officer concluded that even “if Sergeant Johann told Mr. Bush to remove his

foot,” she also “testified that he complied with her request,” ruling out any disobedience

on his part.

The hearing officer further found that Bush had not violated any policies regarding

incompetence. In this context, she noted that Bush was “inadequately trained and

supervised and not provided with proper personal protective equipment.”

Regarding the presence of mitigating factors and the reasonableness of the penalty,

the hearing officer observed: “[Bush] did not have any prior discipline regarding use of

force. The July 2016 incident was a counseling memo, not a disciplinary action. His

work history and performance evaluations were good to excellent … and several

witnesses testified to his excellent work ethic and good character and that he took on the

mantle of “protector” of his fellow workers, to ensure their safety in the work place. The

discipline of termination for his actions is excessive, in light of his twelve years of

experience with no prior discipline.”

The hearing officer determined: “Having heard all of the evidence presented and

having observed the demeanor and manner of the witnesses while testifying, I find that

[Bush’s] termination was not for just cause.”

(3) Hearing Officer’s Conclusion and Order

The hearing officer concluded: “Appellant Billy Bush shall be reinstated to his

position as a correctional officer with the Merced County [Sheriff’s] Department with

back pay, seniority and other benefits, less unemployment benefits and other earnings.”

C. Proceedings in the Superior Court

(1) County’s Petition for Writ of Mandate

Following issuance of the administrative hearing officer’s decision, the county

filed, in the superior court, a petition for writ of mandate pursuant to Code of Civil

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Procedure section 1094.5. The county’s petition requested a writ of mandate “setting

aside[,] nullifying[,] and rendering invalid” the hearing officer’s decision and compelling

the hearing officer to resolve the matter in favor of the sheriff’s department. The petition

alleged that the hearing officer’s decision was “invalid” because the hearing officer

“committed a prejudicial abuse of discretion in that the admissible evidence did not

support, and was contrary to[,] the decision and findings.” The petition further alleged

the hearing officer’s decision was “invalid” because “no reasonable person, based upon

the entire record,” “could reach the decision reached by the Hearing Officer,” that (1)

“Bush’s inappropriate and excessive force on an inmate was appropriate”; and (2)

“Bush’s insubordinate activities warrant no discipline.” However, there was no

discussion or analysis in the county’s writ petition and supporting papers, of the hearing

officer’s multi-factorial “just cause” analysis and determination. Bush filed an answer to

the county’s petition asserting that Bush was entitled to a determination in his favor.

Oral argument was held before the superior court on September 9, 2019. At oral

argument, the county argued: “[T]ypically, on an administrative writ, substantial

evidence is the standard of review. But when an employee has a vested right – a vested

interest into the right of future employment, the crux of the review is de novo.” The

court observed: “So, yeah, the employee has a vested right. But in this case the petition

is not by the employee. It’s by the employer.” The court asked the county’s counsel:

“What is the vested right [for purposes] of the standard of review for the employer?” The

county’s counsel responded: “The employee has the vested right to future employment.

So the standard of review for either side [as to] the administrative writ is de novo. It

doesn’t matter which party is appealing that. It depends on what the right is at issue.”

The court again asked: “What is the employer’s vested interest?” The county’s counsel

replied: “So the standard of review has to do [with] what right is at issue in the

underlying hearing. Our right isn’t at issue. It’s the employee’s right. So whichever

party appeals still has the same standard of review.” Bush’s counsel contended:

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“[T]hat’s not an accurate recitation of the law.” Bush’s counsel added: “[The]

fundamental right of the employee doesn’t crossover. There’s no reciprocity with the

employer.”

(2) Superior Court’s Decision Denying County’s Petition for Writ of Mandate

The superior court issued its decision on September 24, 2019, denying the

county’s petition. The superior court summarized the matter before it as follows: “This

is an administrative writ proceeding that was heard by the Court on September 9, 2019.

At issue is Petitioner’s decision to terminate real party in interest, Billy Bush, from his

position as a Correctional Officer following an incident of applied force to quell a

combative jail inmate. Although several officers participated in the incident, real party in

interest is the only one to suffer an adverse employment action. That decision was

overturned by an administrative law judge (hereinafter ‘ALJ’). Petitioner contends that

the ALJ abused her discretion (see Code of Civil Procedure section 1094.5(b)), and now

seeks judicial intervention.” (Footnote omitted.)

The superior court then addressed the standards for mandamus review. The court

stated: “Before reaching the merits, it is important to put into context the proper scope of

review. Under [Code of Civil Procedure] section 1094.5, there are two alternative

standards: independent judgment when the underlying decision involves a fundamental

vested right; and substantial evidence for all others. When a public employee challenges

a final determination upholding termination, that challenge always implicates a

fundamental vested right subject to the independent judgment standard. [Citations.]

However, the petition at bar is not analogous. It may seem like it is, but in fact this case

presents the inverse of ordinary, and the equivalent of an administrative unicorn, to wit:

an employer’s ‘right’ to fire a public employee. Does the County, as employer, also have

a fundamental right to terminate employees for cause?”

The court ultimately adopted the county’s position on the question of the

appropriate standard of review. The court emphasized that while it harbored “serious

17.

reservations” on the issue, it had concluded “that a county employer has a fundamental

vested right in its power to terminate an employee, and that in seeking judicial

intervention by way of a writ of mandamus, a county employer is entitled to have the

[administrative] decision reviewed under the independent judgment standard.”

The court’s decision next addressed the mechanics of the independent judgment

standard. The court stated: “Applying the independent judgment standard is not,

however, as empowering as one might think. While a trial court is technically allowed to

‘reweigh’ the evidence considered by [the administrative hearing officer] in deciding the

matter, a trial court cannot overturn that decision without first finding that the [hearing

officer] abused her discretion. Abuse of discretion is defined as rendering a decision that

‘is not supported by the findings, or the findings are not supported by the evidence.’

§ 1094.5(b).” The court noted: “Here, Petitioner contends that the [hearing officer’s]

findings clearing Bush are not supported by the evidence presented.”5

(i) Use of Force

The superior court then reviewed the hearing officer’s determination that Bush’s

use of force was not improper or excessive. The court determined that the relevant policy

in this regard was Policy 07.01, as set forth in the Merced County Sheriff’s Office

Corrections Division Policy Manual. The court described the policy in detail. The policy

provides that corrections officers “maintain a constant state of readiness and ability to act

in instances where, in their perception, the use of force or deadly force is appropriate.”

(Italics omitted.) The policy specifies that corrections officers “use only the amount of

force necessary to bring inmates into compliance, protect life, and protect the integrity of

the facility.” The policy further specifies that “[t]he amount of force used by Corrections

Officers must be reasonable when confronting resistance in the performance of their

duties.” The policy defines various levels of resistance, including compliant behavior,

5 The county’s petition alleged that the hearing officer’s findings were not

supported by the evidence presented.

18.

passive resistant, active resistant, assaultive: threat of bodily harm, and assailant: threat

of serious bodily harm or death.

The policy provides that when an inmate is “passive resistant,” the “most

appropriate level of response is ‘hands on’ controls, including strong or forceful control

holds, physical movement of the inmate, forced removal from his cell or area, etc.”

(Italics omitted.) When an inmate is “active resistant,” the most “appropriate response is

compliance techniques,” which “may include all reasonable means to bring the inmate

into compliance as soon as reasonably possible,” such as “use of chemical weapons, use

of an electrical control device …, hard physical techniques, or using other forms of

physical force.” (Italics omitted.) When an inmate is “assaultive,” that is, perceived as a

threat of bodily harm, the “appropriate level of response is immediate defensive tactics,”

which may include “impact weapons, use of personal weapons, or any other reasonable

means available and at hand to stop the aggression, defend against attack, and bring the

inmate into compliance.” (Italics omitted.) The policy provides that “[o]nce inmates are

perceived as active resistant, assaultive or an assailant, officers should maintain control

until the subject is fully secured in an isolated cell.” (Italics omitted.) The policy further

provides that “[i]t is understood that reasonable officers, while employing defensive

tactics, may cause injury, serious injury, and in some isolated instances, death without

intending such consequences.”

The superior court noted: “The parties disagree regarding the degree of resistance

presented by [the inmate], and thus the amount of force Bush was supposed to constrain

himself to.” The court continued: “Although the [hearing officer] does not specify the

level of resistance at issue here, the evidence permits the finding that Bush was—at all

pertinent times—dealing with some degree of resistance.” The court found that M.R.’s

conduct fell “somewhere between active resistance and assaultive behavior” and noted

that the county had conceded, in its memorandum of points and authorities in support of

its petition, that “[M.R.] was at least actively resistant.” The court concluded that, at a

19.

minimum, Bush was “authorized to use ‘hard physical techniques’ ” and other reasonable

force, under the corrections division’s excessive force policy.

The court also concluded that Bush’s use of force was reasonable given the

exceptional circumstances at issue. In this context, the court stated:

“Petitioner is at fault for failing to provide jail officers with personal

protective attire beyond latex gloves and a spit shield [for the inmate]. In

an apparent effort to deflect responsibility for failing to properly equip its

employees, Petitioner pretends that coming in contact with an unstable

individual trying to spill pathogenic blood is just another day at the office.

Not so. Only [M.R.] knows why he smashed his own head into the cell 40+

times, but a reasonable individual could conclude that he did this to

challenge authority and (hopefully) infect others. [M.R.] must have known

that smashing his head into the wall 40+ times would cause bleeding, and

that failing to honor verbal commands would necessitate officers coming

into the cell. This would be an excellent way of ‘hurting’ officers without

actually touching them. With a bloody head, all [M.R.] had to do was snap

his head around and [let] pathogens fly. Nobody wants to wrestle with an

HIV-positive individual who is bleeding profusely and acting erratic—not

because someone infected is a ‘lesser’ human but because that individual is

capable of delivering great harm to others without even trying.

“Petitioner continues to insist that Bush used excessive force despite

written polices permitting his response… Petitioner asked this Court to

review the video. [Real party in interest] did not object. That review only

confirm[ed] to this Court that the ALJ got it right, plain and simple.

[M.R.’s] antics, repetitive need for serious restraint, and HIV-positive

status combined to make this particular incident complex and

unprecedented. Bush’s response was not so out of step as to warrant the

professional death knell of termination.”

(ii) Other Claims

The superior court next addressed other aspects of the hearing officer’s decision as

raised in the county’s petition. The court stated:

“[T]he charges against Bush fell into three categories: excessive force

(discussed supra), disobedience, and poor performance. Outside the

concern regarding Bush’s application of force against [M.R.], the

disobedience and poor performance claims were all anchored by a single

accusation that Bush ignored a direct order from a superior officer to ‘stand

down’ or ‘stop’ (or words to that effect) using his boot on [M.R.]

20.

(hereinafter collectively referred to as ‘the order’). The evidence

supporting the contention is far from clear. Sergeant Johann reportedly

gave Bush the order only one time. Nobody else in the cell that evening

heard the order, though Harrison may have heard the Sergeant say ‘chill’ or

something like that. Sergeant Johann reviewed Bush’s Use of Force report

and did not insert any corrections regarding the order or Bush’s alleged

failure to comply therewith. Sergeant Johann did not complete her own

Use of Force report, which is required. Had she done so, that would have

been the time/place to clearly indicate that she gave the order, and whether

Bush complied. The video is of little assistance since there is no audio, but

even a liberal interpretation of what was happening confirms some degree

of chaos in the cell – which might explain why the ALJ questioned whether

the order was in fact ever given. In the end the burden of proof was on

Petitioner to show that (1) the order was given, (2) Bush heard it, (3) it was

safe to comply with the order, and (4) Bush did not comply with the order.

The ALJ concluded that Petitioner fell short of meeting that burden, and

this is not patently unreasonable given the record.

“First, it is not clear that an ‘order’ was in fact given, much less

ignored. Neither side has carefully analyzed this, but a request to ‘stop’ or

‘chill out’ is not on its face an order to stop applying any force — at least

not for purposes of discipline. Department policy permitted Bush to apply

the degree of force he was using to restrain [M.R.], particularly in light of

safety concerns to himself and others in the cell. Assuming Sergeant

Johann actually gave an order to stop applying force, one would expect

some dialogue to occur between Bush and Sergeant Johann regarding that

order. After all, ‘members who are presented with a lawful order that is in

conflict with department policy or other directive shall respectfully inform

the issuing supervisor of the conflict. The issuing supervisor is responsible

for … resolving the conflict.’ See MCSO Policy 340.3.

“Second, even if it was an order that had to be followed, where was

the mens rea? Disobedience connotes a specific violation of a command or

prohibition. Insubordination implies a general course of mutinous,

disrespectful or contumacious conduct. Both require proof of intent or

willfulness. [Citations.] There was no evidence before the ALJ that Bush

heard what he considered to be a direct order, and then intentionally or

willfully ignored that order. Bush denied hearing anything, but even so, the

fact that he stopped putting so much pressure on [M.R.] demonstrates

compliance, not disobedience. Even Sergeant Johann conceded that Bush

complied.”

21.

DISCUSSION

I. Standard of Review Employed by Superior Court in Denying Writ

Preliminarily, the county and Bush disagree as to the standard of review the trial

court was required to apply in reviewing the administrative decision. In the superior

court, the county argued that, in ruling on the writ pursuant to Code of Civil Procedure

section 1094.5, the court was required to apply the independent judgment standard. Bush

argued the superior court was required to apply the substantial evidence standard. Both

parties reprise these respective positions on appeal.6 We address this issue upfront

because it bears on other issues that are implicated in this appeal.

A. The Independent Judgment and Substantial Evidence Standards of Review

“ ‘Code of Civil Procedure section 1094.5 is the administrative mandamus

provision providing the procedure for judicial review of adjudicatory decisions

rendered’ ” in an administrative proceeding. (Paxton v. Board of Administration of the

Public Employees’ Retirement System (2019) 35 Cal.App.5th 553, 559; Poncio v.

Department of Resources Recycling & Recovery (2019) 34 Cal.App.5th 663, 668-669

(Poncio) [“ ‘Section 1094.5 of the Code of Civil Procedure provides the basic framework

by which an aggrieved party to an administrative proceeding may seek judicial review of

any final order or decision rendered by a state or local agency.’ ”].)

When the trial court reviews an administrative decision pursuant to a petition for a

writ of mandate under Code of Civil Procedure section 1094.5 (section 1094.5), it

reviews the decision for abuse of discretion. (§ 1094.5.) “Abuse of discretion is

established if … the order or decision is not supported by the findings, or the findings are

not supported by the evidence.” (§ 1094.5, subd. (b).) A trial court uses two alternative

standards of review in reviewing an administrative decision in an administrative

mandamus proceeding. The two alternative standards of review are the “independent

6 Bush’s cross-appeal addresses this single issue.

22.

judgment” standard of review and the “substantial evidence” standard of review.

(Benetatos v. City of Los Angeles (2015) 235 Cal.App.4th 1270, 1280 (Benetatos).)

We first address the “independent judgement” standard of review. “ ‘If the

administrative decision involved or substantially affected a ‘fundamental vested right,’

the superior court exercises its independent judgment upon the evidence … [and] must

examine the administrative record for errors of law and exercise its independent judgment

upon the evidence.’ ” (Benetatos, supra, 235 Cal.App.4th at p. 1280; Alberda v. Board of

Retirement of Fresno County Employees’ Retirement Assn. (2013) 214 Cal.App.4th 426,

433 (Alberda) [the trial court exercises its independent judgment upon the evidence when

it reviews an administrative decision that substantially impacts a fundamental vested

right].) “Where it is claimed that the findings are not supported by the evidence, in cases

in which the court is authorized by law to exercise its independent judgment on the

evidence, abuse of discretion is established if the court determines that the findings are

not supported by the weight of the evidence.” (§ 1094.5, subd. (c).)

In carrying out its independent review, “the trial court must afford the

[administrative] decision a strong presumption of correctness and must impose upon the

petitioner the burden of showing that the [administrative] findings are contrary to the

weight of the evidence, i.e., the decision was not supported by the preponderance of the

evidence.” (Alberda, supra, 214 Cal.App.4th at p. 433.) “ ‘Because the trial court

ultimately must exercise its own independent judgment, that court is free to substitute its

own findings after first giving due respect to the [administrative] findings.’ [Citations.]

Thus, while the trial court begins its review with a presumption of the correctness of the

administrative findings, the presumption is rebuttable and may be overcome by the

evidence. [Citation.] ‘When applying the independent judgment test, the trial court may

reweigh the evidence and substitute its own findings for those of the [administrative

adjudicator], after first giving due respect to the [adjudicator’s] findings.’ [Citation.]

This includes examining the credibility of witnesses.” (Alberda, supra, 214 Cal.App.4th

23.

at p. 433; see Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1000 [trial

court independently reviews the administrative record and may reweigh the evidence].)

As mentioned, “abuse of discretion is established if the court determines that the

[administrative] findings are not supported by the weight of the evidence.” (§ 1094.5,

subd. (c); Alberda, supra, 214 Cal.App.4th at p. 433.)

As for the substantial evidence standard of review, it applies “ ‘[w]here no

fundamental vested right is involved.’ ” (Benetatos, supra, 235 Cal.App.4th at p. 1280.)

Under the substantial evidence standard of review, “ ‘the superior court’s review is

limited to examining the administrative record to determine whether the adjudicatory

decision and its findings are supported by substantial evidence in light of the whole

record.’ ” (Ibid.; see § 1094.5, subd. (c).) “The reviewing trial court considers all

relevant evidence, including that which detracts from the decision. A court may reverse

an [administrative] decision only if, based on the evidence before the [adjudicator], a

reasonable person could not reach the [adjudicator’s] conclusion. [Citation.] In making

this determination the court presumes substantial evidence supports the [administrative]

decision [citation] and resolves reasonable doubts in favor of the findings and decision.”

(Hagopian v. State of California (2014) 223 Cal.App.4th 349, 360; see Poncio, supra, 34

Cal.App.5th 663, 668-669; JMS Air Conditioning & Appliance Service, Inc. v. Santa

Monica Community College Dist. (2018) 30 Cal.App.5th 945, 967-968.)

B. What was the Correct Standard of Review in the Superior Court?

Bush’s interest in his public employment status implicated a fundamental vested

right. (See, e.g., Melkonians v. Los Angeles County Civil Service Com. (2009) 174

Cal.App.4th 1159, 1167 (Melkonians) [“Discipline imposed on public employees affects

their fundamental vested right in employment.”]; Seibert v. City of San Jose (2016) 247

Cal.App.4th 1027, 1042; Barber v. Long Beach Civil Service Com. (1996) 45

Cal.App.4th 652, 658; Davis v. Los Angeles Unified School District Personnel Com.

(2007) 152 Cal.App.4th 1122, 1130.) Therefore, had Bush been aggrieved by the

24.

administrative hearing officer’s decision and filed a petition for a writ of mandate under

section 1094.5, the trial court would have been required to exercise its independent

judgment in reviewing the hearing officer’s findings. (Davis v. Los Angeles Unified

School District Personnel Com., supra, at p. 1130.)

Here, however, the county, not Bush, filed a petition for writ of mandate in the

superior court, contending the court should set aside the administrative hearing officer’s

decision reinstating Bush. Therefore, the question is whether the county was entitled to

have the trial court exercise its independent judgment on the evidence? The county

argued in the trial court that it was entitled to have the court apply the independent

judgment standard of review. Bush contended the county did not have a fundamental

vested right in terminating Bush’s employment and urged the trial court to apply the

substantial evidence standard of review. The trial court agreed with the county and

applied the independent judgment standard of review.

On appeal, the county simply asserts, citing no authority whatsoever, that “[t]he

trial court appropriately held the proper standard of review at that level was the

independent judgment test.” Bush contests the county’s bare assertion, contending the

county cannot secure a more favorable standard of review, that is, independent judgment

review, based on Bush’s fundamental vested right, rather than that of the county.

On questions of law arising in mandate proceedings, courts exercise independent

judgment, with the superior court and appellate court performing the same functions.

(Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) In other words, we

apply our independent review without deference to the lower court’s rulings. (Ibid.;

Alberda, supra, 214 Cal.App.4th at pp. 433-434 [in an administrative mandamus action,

“when the appellate issue is a pure question of law,” such as whether the trial court

applied the correct standard of review, we review the issue de novo]; Melkonians, supra,

174 Cal.App.4th at p. 1168.)

25.

“[A] governmental entity’s interests in managing its department are not treated as

fundamental rights.” (Kolender v. San Diego County Civil Service Com. (2007) 149

Cal.App.4th 464, 470.) “ ‘ “It is well-established that an employer’s right to discipline or

manage its employees … is not a fundamental vested right entitling the employer to have

a trial court exercise its independent judgment on the evidence.” ’ ” (Ibid.; emphasis in

original.) Accordingly, where the employer seeks judicial review of an administrative

reinstatement of a disciplined employee, the trial court is required to review the

administrative decision under the “substantial evidence” standard. (Ibid.; see County of

Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 633; Los Angeles County

Dept. of Parks & Recreation v. Civil Service Com. (1992) 8 Cal.App.4th 273, 279;

Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 781 [“ ‘[A]

party has no standing to assert that an independent judgment review rather than a

substantial evidence review is required unless it possesses a fundamental vested right on

its own behalf which was involved in an administrative agency’s action.’ ”]; County of

Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 908 [“[T]here [is] no reciprocity

between the right of the employee to independent judicial review, and the right of the

employer … [in that] the employer [cannot] invoke the independent judgment test unless

it [can] claim its own [fundamental vested] right.”].)

In light of the foregoing authorities, we conclude the trial court was required to

review the administrative decision under the substantial evidence standard of review, not

the independent judgment standard of review. However, since the county argued for the

independent judgment standard of review, and the independent judgment standard of

review is more favorable to the county than the applicable substantial evidence standard,

the court’s error in this regard is neither prejudicial nor reversible, and remand is not

necessary. (See Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 512

[“appellant bears the burden to affirmatively demonstrate error, and must show that the

error was prejudicial”].)

26.

As noted, as it did in the trial court, the county continues to assert that the trial

court was required, and properly agreed, to apply the independent judgment standard of

review. The county argues, however, that while the trial court properly intended to apply

the independent judgment standard of review, it actually applied, inadvertently, the

substantial evidence standard of review. The county asks us to remand the case for the

trial court to apply correctly the independent judgment standard of review. We reject the

county’s argument as meritless and deny the request for remand.

Here, although it was not required to do so, the court applied, at the county’s

behest, the independent judgment standard of review, a standard that was more favorable

to the county. In its ruling, the trial court properly described the independent judgment

standard of review but, evidently inadvertently, appended some language that related to

the substantial evidence standard of review. Specifically, the trial court stated: “Here,

Petitioner contends that the [administrative] findings clearing Bush are not supported by

the evidence presented … [I]n exercising its independent judgment, this Court must

afford a strong presumption of correctness concerning the administrative findings, and

place upon Petitioner the burden of convincing this Court that the administrative findings

are contrary to the weight of the evidence or so lacking in evidentiary support as to

render them unreasonable.” (Italics added.) The county seizes upon the italicized phrase

in the above statement, and a related reference elsewhere in the court’s ruling, to argue

the court in fact applied the substantial evidence standard of review.

However, it is clear from the court’s ruling that the court understood its function

as exercising its independent judgment upon the evidence, including reweighing the

evidence as it saw fit. Earlier in its ruling, the court specifically noted that in evaluating

whether the administrative hearing officer abused her discretion, the trial court was

permitted to “reweigh” the evidence considered by the hearing officer in deciding the

matter. Furthermore, the court noted that, for purposes of independent judgment review,

the county had “the burden of convincing this Court that the administrative findings are

27.

contrary to the weight of the evidence.” The court thus correctly described the

independent judgment standard of review, but for the final phrase in its discussion of this

standard.7

In examining the substance of the superior court’s ruling, we are satisfied the court

applied the independent judgement standard of review, as it intended and as urged by the

county. The court independently considered the evidence, while giving appropriate

deference to the administrative decision within the parameters of the independent

judgment standard of review. Accordingly, we reject the county’s contention that the

trial court actually applied the substantial evidence standard of review. As noted, since

the court applied, with respect to the county, a more favorable standard of review than

required, we conclude remand is not necessary.

II. The County’s Has Waived Any Claim That Constitutional Civil Rights

Jurisprudence Applies to This Employment Matter

The county argues that the hearing officer committed legal error by failing to

consider whether Bush’s use of force was unconstitutional under civil rights

jurisprudence premised on the Fourteenth Amendment to the United States Constitution.

The county further argues the hearing officer and the trial court committed legal error in

failing to uphold Bush’s termination on grounds that Bush’s conduct violated civil rights

standards under the Fourteenth Amendment.

This is not a civil rights case brought by an individual alleging a constitutional

violation by an officer acting under color of state law. Rather, this is an employment

matter based on the termination, by the county, of Bush’s employment, on grounds he

violated various policies of the sheriff’s department and county as determined by an

internal affairs investigation into the underlying incident. The investigator who

7 The disputed phrase was derived from the county’s own petition for writ of

mandate, which stated that the hearing officer’s decision was “invalid” because, in light

of the record, “no reasonable person” could have made the findings at issue.

28.

conducted the internal affairs investigation, Sergeant Gallagher, testified at length at the

administrative hearing. Sergeant Gallagher never indicated he considered constitutional

law in evaluating Bush’s conduct; nor did he testify that Bush’s conduct amounted to a

violation of the federal constitution. Nor did the county present any evidence to the

effect that the sheriff’s office had determined that Bush violated M.R.’s constitutional

rights and thereby violated specific department and county policies.

After the conclusion of the internal affairs investigation, Bush was served with an

intent to terminate letter, in response to which Bush asked for a Skelly hearing. The

intent to terminate letter charged that Bush had violated multiple policies of the sheriff’s

department and the county. Following the Skelly hearing, the sheriff’s department

concluded, as reflected in a determination notification served on Bush, that he had

violated the policies at issue, and terminated him. Neither the intent to terminate letter,

nor the determination notification, indicated that Bush’s conduct had been determined to

violate the federal constitution and that he was being terminated for committing

constitutional violations. When Bush appealed his termination in an administrative

proceeding, the county once again took the position that the termination of Bush’s

employment with the county should be upheld because Bush had violated specific

policies of the sheriff’s department and the county. The county never alleged that Bush

was terminated for violating M.R.’s constitutional rights or even that constitutional

violations were within the scope of specifically identified policies.8

8 The hearing officer summed up the county’s position at the administrative hearing

stage as follows: “[The County argues that] [t]he Sheriff’s Office conducted an internal

affairs investigation into Mr. Bush’s conduct and the County established just cause for

termination by a preponderance of the evidence. [The County further argues] [t]he

operative events establish grounds for the termination. [The County alleges Bush’s]

conduct constituted unsatisfactory work performance, conduct unbecoming a county

employee and use of improper or excessive … force in violation of Human Resource

Rules and Regulations, Section 8.C-1, 3, 14, 16, 19; Merced County Sheriff’s Office

Policy Manual, Sections 320.3.5 (c) (e) (f) (m) (o) (u) (y) (z) (aa), 300.3; and Merced

County Sheriff’s Office Corrections Policy Manual, Sections 01.06.2, .5, .6, and 07.01.”

29.

In addition, the county’s post-hearing brief, submitted to the hearing officer at the

conclusion of the administrative hearing, did not assert the county had determined or the

evidence showed Bush had violated M.R.’s constitutional rights, provide authority

establishing that Bush had violated M.R. constitutional rights, or explain how any

constitutional violations committed by Bush amounted to violations of specific policies

applicable to him. Nor did the brief address how any constitutional violations by Bush

factored into the requisite analysis to determine whether the county had just cause to

terminate Bush’s employment.

The decision of the administrative hearing officer noted that, pursuant to the

county’s human resources rules and regulations, the question at issue in the

administrative proceeding was whether the county had “just cause” to terminate Bush.

(See Merced County Human Resources Rules and Regulations, § 8.) The hearing officer

found, inter alia, that Bush did not violate the specified polices and, in turn, that the

county did not have just cause to terminate him.

The county now faults the administrative hearing officer for failing to consider, in

finding that Bush did not violate various policies and making her “just cause”

determination, constitutional jurisprudence based on the Fourteenth Amendment to the

United States Constitution. The hearing officer was not required to address constitutional

civil rights jurisprudence in a vacuum. Indeed, since there was no evidence the county

terminated Bush for committing constitutional violations, even assuming these were

within the scope of some of the policies the county relied on in terminating Bush, the

county failed to establish the relevance of constitutional jurisprudence for purposes of the

administrative determination.

In sum, the county adduced no evidence at the administrative hearing to the effect

the county’s conclusion that Bush used improper, unwarranted, or excessive force was

based on a determination that Bush had violated M.R.’s constitutional rights. Nor did the

county present any evidence to the effect that Bush was terminated because of a

30.

determination that he had violated M.R.’s constitutional rights and was therefore in

violation of specific, applicable policies. Furthermore, the county did not argue at the

administrative hearing stage that Bush had violated M.R.’s constitutional rights and, as a

consequence thereof, various policies of the sheriff’s office and the county, and was

terminated, at bottom, on account of committing constitutional violations.

Given these circumstances, the county has waived any claims to the effect that

Bush violated M.R.’s constitutional rights and that the administrative hearing officer was

required to consider constitutional civil rights jurisprudence and standards in making her

“just cause” determination. (City of Pleasanton v. Board of Administration (2012) 211

Cal.App.4th 522, 541 [“The courts have consistently held parties may not advance new

theories in the courts that were not presented to the administrative agency.”].) The

county’s argument that the administrative hearing officer and the trial court committed

legal error in failing to uphold Bush’s termination pursuant to constitutional civil rights

jurisprudence is similarly waived.

Furthermore, even assuming error in this regard, we would not reverse the

judgment as the county has not shown that the error was prejudicial with respect to the

hearing officer’s multi-factorial “just cause” analysis and ultimate “just cause”

determination.

III. The Trial Court’s Factual Findings are Supported by Substantial Evidence

The county next asks us to review the trial court’s findings to ascertain whether

they are supported by substantial evidence. The county states: “Typically, regardless of

the standard of review at the trial court level, the appellate court’s review is limited to a

substantial evidence test.” The county argues: “[T]here is not substantial evidence to

support the factual findings and judgment in the trial court.” We conclude the trial

court’s findings and judgment are supported by substantial evidence and affirm.

“After the superior court makes an independent judgment upon the record of an

administrative proceeding our scope of review is limited. ‘An appellate court must

31.

sustain the superior court’s findings if substantial evidence supports them. [Citations.]

In reviewing the evidence, an appellate court must resolve all conflicts in favor of the

party prevailing in the superior court 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 Dieguito Union High School Dist. v. Commission on

Professional Competence (1985) 174 Cal.App.3d 1176; Shenouda v. Veterinary Medical

Bd., supra, 27 Cal.App.5th at p. 512 [“On appeal, the appellate court reviews the trial

court’s ruling under the substantial evidence test, ‘[e]ven where … the trial court …[has]

review[ed] an administrative decision under the independent judgment standard of

review.’ … ‘[O]ur function on appellate review is solely to decide whether credible,

competent evidence supports that court’s judgment.’ [Citation.] … If the record

contains facts to support that judgment, we must affirm.”]; Vinson v. Snyder (1999) 75

Cal.App.4th 182, 186, fn. 3 [same].)

As discussed above, the superior court exercised its independent judgment on the

evidence in reviewing the administrative findings, as urged by the county. However, the

superior could properly have applied the substantial evidence test, since the county did

not have a fundamental vested right at issue in the writ proceeding before the superior

court. When the superior court reviews the administrative decision for substantial

evidence, then, like the superior court, we simply review the administrative record to

determine whether substantial evidence supports the administrative findings. (Benetatos,

supra, 235 Cal.App.4th at p. 1281.) Nonetheless, since the superior court exercised its

independent judgment here, and both the county and Bush have primarily addressed the

superior court’s factual findings and decision, we will review, for substantial evidence,

the superior court’s findings rather than the administrative findings. Indeed, since the

superior court applied the independent judgment standard of review at the county’s

urging, under the doctrines of judicial estoppel and invited error, the county cannot now

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contend that we should review the administrative hearing officer’s findings. (See, e.g.,

Aguilar v. Lerner (2004) 32 Cal.4th 974, 986 [judicial estoppel]; Reilly v. Inquest

Technology, Inc. (2013) 218 Cal.App.4th 536, 552 [invited error].)

As noted, under the operative circumstances, “on appeal from a judgment denying

a petition for writ of administrative mandate, the focus is on the trial court’s findings and

whether there is substantial evidence to support those findings [citations], … and the trial

court’s judgment is presumed correct.” (Shenouda v. Veterinary Medical Bd., supra, 238

Cal.App.5th at pp. 513-514.) “As in all appeals, the appellant has the burden to show,

through analysis and citation to the record, that no substantial evidence supports the

court’s findings.” (Id. at p. 514; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875,

881 [the appellate court “ ‘starts with the presumption that the record contains evidence

to sustain every finding of fact’ ”].)

Upon reviewing the record, we conclude the superior court’s findings are amply

supported by substantial evidence therein. Furthermore, since the trial court’s findings

were consistent with the administrative hearing officer’s findings, our conclusion

effectively means the latter’s findings are also supported by substantial evidence. As

detailed in Bush’s briefs, the county mischaracterizes the record in important respects and

the county’s arguments are overstated. We are not persuaded by the county’s arguments.

A. Trial Court’s Finding that Bush Used Force in Compliance with Department

Policy is Supported by Substantial Evidence in the Whole Record

Here, the trial court did a detailed analysis of the evidence in the record. The trial

court found that Bush did not violate the department’s use of force policies for three

primary reasons: (1) the inmate’s behavior fell “somewhere between active resistance

and assaultive behavior”; (2) department policy imposed on Bush the obligation to

maintain control of the inmate until he was “fully secured”; and (3) a reasonable officer

in Bush’s position—confronting an exceedingly erratic inmate who was HIV positive and

bleeding—was entitled to rely on instruments such as his baton and boot to ensure

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compliance on the part of the inmate. The court’s analysis and findings are supported by

substantial evidence in the record.

As the trial court noted, the department’s use of force policy, in the corrections

context, provides that “[o]nce inmates are perceived as active resistant, assaultive or an

assailant, officers should maintain control until the subject is fully secured in an isolated

cell.” The court explained: “[M.R.] was causing himself great harm, and refusing to

comply with reasonable directives to stop. This falls somewhere between active

resistance and assaultive behavior (the policy does not speak to an inmate harming

himself).” The court also observed: “[M.R.] must have known that smashing his head

into the wall 40+ times would cause bleeding, and that failing to honor verbal commands

would necessitate officers coming into the cell. This would be an excellent way of

‘hurting’ officers without actually touching them. With a bloody head, all [M.R.] had to

do was snap his head around and [let] pathogens fly.”

Here, M.R. could not be fitted with a spit mask until the nurse had attended to and

wrapped his head. Moreover, there was evidence that M.R. refused to give up his hands

to be handcuffed and later did not comply with commands to stay still so his head could

be wrapped without blood being sprayed on the nurse and officers on the scene. It was

not until the end of the incident that his hands and ankles were restrained, his head was

wrapped, and he was fitted with a spit mask. Bush was therefore obligated by department

policy to maintain control of the inmate until that point.

The record amply supports a finding that M.R.’s behavior fell “somewhere

between active resistance and assaultive behavior,” permitting Bush, per department

policy, to use “all reasonable means to bring the inmate into compliance as soon as

reasonably possible,” including “chemical weapons,” “an electrical control device,”

“restraints,” “control holds,” “forced escort,” “hard physical techniques,” and “other

forms of physical force.” In addition, while the county asserts that Bush placed his

“entire” body weight on the inmate, the evidence on this point was unclear (the trial court

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properly observed that “[a]t times it appeared that Bush may have been leaning hard on

[the inmate], but neither the video nor the witness testimony provides much clarity”).9 It

also bears mention there was no evidence M.R. suffered any injury from, or complained

about, Bush’s conduct.10

We conclude the trial court could properly find that M.R.’s conduct, the

“repetitive need for serious restraint,” and M.R.’s “HIV-positive status,” “combined to

make this particular incident complex and unprecedented,” whereby “Bush’s response

was not so out of step as to warrant the professional death knell of termination.”

The county claims there was no substantial evidence for the trial court to find that

Bush was inadequately trained to handle the situation he encountered in the underlying

incident. While the court did not comment on Bush’s prior training, it did observe:

“Petitioner pretends that coming in contact with an unstable individual trying to spill

pathogenic blood is just another day at the office. Not so.… [T]hat individual is capable

of delivering great harm to others without even trying.” The evidence showed that this

was the first time Bush had to deal with a bleeding, HIV-positive inmate in a jail setting.

The evidence also showed that Bush and the other officers had not been trained in dealing

with a HIV-positive inmate who was bleeding and behaving erratically. M.R., who was

HIV positive and bleeding, had, moments earlier, acted in a way that suggested he was

unstable. Indeed, he had engaged in violent conduct and cut open his head; was not

complying with verbal commands; and was resisting the officers attempts to handcuff and

9 The hearing officer had noted in her decision, in summarizing the evidence

presented at the administrative hearing, that Bush had placed one boot on the inmate’s

abdomen and/or chest and the other on the floor, and at one point lifted the latter boot off

the floor. However, the hearing officer did not make an express finding of fact to the

effect that Bush placed his entire weight on the inmate at any point.

10 Bush testified at the administrative hearing that he weighed approximately 310

pounds, give or take, and with his uniform and gear, he would weigh “anywhere from

315-320” pounds.

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otherwise subdue him. We discern no error in the trial court’s conclusion that this was an

unprecedented situation that Bush was ill-prepared to handle.

The county further claims that, given the fact that Bush was wearing latex gloves,

there was no substantial evidence for the court to find that Bush had inadequate PPE. We

disagree. Sergeant Johann, the sergeant in charge of the shift at the time of the incident,

acknowledged that a person with HIV is a risk to correctional officers, as “[blood and]

sputum are contaminants.” The sergeant recognized that the inmate could have “flung”

blood at the correctional officers as he was bleeding at the time. The sergeant further

acknowledged that, in terms of PPE, the officers only had latex gloves, which are

susceptible to tearing, and that the officers did not have anything protecting their faces or

eyes. There was evidence that the medical training provided to officers by the sheriff’s

department described the requisite PPE for dealing with HIV-positive individuals as

including masks, eyewear, and face shields, in addition to gloves. Moreover, the

evidence showed that the officers were nervous and on edge in handling M.R. because

the only protective equipment they had was latex gloves (they did not have masks, face

shields, protective eyewear, or protective coveralls). Bush testified that the inmate’s

HIV-positive status, the fact that he was bleeding, Bush’s lack of training and experience

in handling this type of situation, and the lack of PPE, were central to his decision to use

his baton and boot to maintain control from a distance. We conclude the court could

properly find that “Petitioner is at fault for failing to provide jail officers with personal

protective attire beyond latex gloves and a spit shield [for the inmate].”

The county also faults the administrative hearing officer for referencing

“progressive discipline” in her decision, contending that the applicable policies do not

refer to this concept. First, we are reviewing the trial court’s findings for substantial

evidence and there is no mention of “progressive discipline” in the trial court’s ruling.

Second, the administrative hearing officer made only a single reference to the concept of

“progressive discipline,” which reference was made in the course of summing up Bush’s

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position. The hearing officer’s findings and decision did not substantively rely on this

concept. Third, the county claims, in this context, that Bush had a prior disciplinary

record. However, the county’s own witness clarified that Bush did not have a prior

record of discipline (and the county’s counsel acknowledged the same in his opening

statement). Finally, the county’s claim that the applicable policies did not refer to the

concept of progressive discipline is incorrect. The county’s own witness, Undersheriff

Jason Goins, testified that the department had a range of levels of discipline at its

disposal, “all the way from written reprimand, suspension and termination.” Indeed,

section 8, “Discipline Action,” of the Merced County Human Resources Rules and

Regulations, specifies that a county employee may only be disciplined for “just cause”

and specifies a range of levels of discipline, including written reprimand, suspension,

demotion, and dismissal. In any event, both the hearing officer and the trial court found

the county did not meet its burden to show that Bush had acted improperly under the

circumstances and hence Bush did not merit any discipline.

B. Trial Court’s Finding that County Failed to Establish Bush Willfully

Disobeyed a Direct Order, is Supported by Substantial Evidence in Record

The trial court affirmed the hearing officer’s finding that the sheriff’s department

failed to meet its burden to demonstrate Bush disobeyed an order from Sergeant Johann

to take his foot off M.R. The trial court found that “it is not clear that an ‘order’ was in

fact given, much less ignored,” and further found that Bush had not “intentionally or

willfully ignored [any] order.”

The trial court’s findings are supported by substantial evidence in the record as a

whole. Bush specifically denied that Sergeant Johann ordered him to remove his foot off

the inmate. Burk and Vivero, and Nurse Her, did not recall Johann saying anything at all.

Bush’s use of force report did not mention an order from Sergeant Johann to take

his foot off the inmate. Johann reviewed Bush’s use of force report; she approved it

without requiring any correction or supplementation. Under sheriff’s department policy,

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Johann was required to complete a “supervisor’s use of force report,” but she did not

fulfil that requirement. As the trial court noted, “[h]ad she done so, that would have been

the time/place to clearly indicate that she gave the order, and whether Bush complied.”

Finally, even assuming Sergeant Johann gave the aforementioned order, she

testified that Bush complied and took his foot off M.R.

C. Conclusion

We detect no error in the trial court’s findings and conclusions, which, in the end,

were consistent with those of the hearing officer. (See Shenouda v. Veterinary Medical

Bd., supra, 27 Cal.App.5th at p. 512 [“the appellant bears the burden to affirmatively

demonstrate error, and must show that the error was prejudicial”]; In re Marriage of

Behrens (1982) 137 Cal.App.3d 562, 575 [“ ‘The burden is on the appellant, not alone to

show error, but to show injury from the error.’ ”].) We therefore affirm the judgment.

DISPOSITION

The judgment is affirmed. Bush is awarded his costs on appeal.

SMITH, J.

WE CONCUR:

HILL, P. J.

SNAUFFER, J.

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