No. B222441.

TERESA ANDERSON, Plaintiff and Respondent, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

Court of Appeals of California, Second District, Division Seven.

Attorney(s) appearing for the Case

Carmen A. Trutanich , City Attorney, Claudia McGee Henry , Senior Assistant City Attorney, and Gregory P. Orland , Deputy City Attorney, for Defendants and Appellants.

Stone Busailah , Michael P. Stone , Muna Busailah and Marc J. Berger for Plaintiff and Respondent.




Defendants, the City of Los Angeles and William J. Bratton, the former Chief of Police of the Los Angeles Police Department, appeal from the judgment granting the petition for writ of mandate filed by plaintiff Teresa Anderson (Anderson) and issuing a peremptory writ of mandate, commanding defendants to vacate the Board of Rights decision terminating Anderson's employment as a police officer, to calculate the amount of compensation she lost as a result of that decision and to pay her that amount. We affirm.1


Around September 10, 2008, Anderson, a sergeant with the Los Angeles Police Department (Department), received notice that she was being charged with misconduct. On January 21, 22 and 23, 2009, the Board of Rights, the Department's administrative tribunal, held a hearing on the complaint against Anderson.3 At the commencement of the hearing, the Chairman of the Board of Rights, Captain Joseph Curreri, read each count to Anderson before taking her plea.

Count 1 of the complaint alleged that "[o]n several occasions between June 2001 and February 2003, [Anderson] knowingly violated Departmental policy when [she] neglected to request compensation after working overtime." Count 2 alleged that "on several occasions between June 2001 and February 2003, [Anderson] neglected to report misconduct after witnessing unidentified sworn officers discourage subordinates from submitting requests for overtime compensation." The third and final count alleged that around September 10, 2007, while on duty, Anderson "made a false statement during a deposition when [she] stated that Department employees were aware that [she] violated Department Policies and Procedures involving the Fair Labor Standards Act." Anderson pleaded guilty to count 1 and not guilty to counts 2 and 3.

Following an evidentiary hearing and deliberations, the Board of Rights found Anderson guilty of all counts. The Board's finding of guilt on count 1 was not premised solely on Anderson's guilty plea. Although prior to deliberations Captain Curreri had advised Anderson's counsel that "we will most likely come to a guilty finding on Count 1 in that she pled guilty," he clarified that "we have to have some more evidence on it than just the plea." True to his word, Captain Curreri explained to Anderson that the Board's finding of guilt "not only comes from your guilty plea to this count, but also from your sworn testimony at a deposition, during which time you admitted several times that you worked overtime in preparation for roll call without submitting a request for compensation, doing this knowing you were permitting misconduct." The Board also found Anderson guilty of counts 2 and 3. The Board advised Anderson that it would recommend to the Chief of Police that her employment with the Department be terminated. The Board added, "If the Chief of Police decides to allow you to remain as a member of the Department to allow you to complete your 20 years of service, which is only nine months away, and therefore be eligible for retirement, we would recommend that he consider imposing a significant suspension and demote you to the rank of Police Officer II." The Chief of Police thereafter adopted the recommendation of the Board of Rights and terminated Anderson's employment with the Department.

On April 29, 2009, Anderson filed a verified petition for peremptory writ of mandate in the superior court pursuant to Code of Civil Procedure section 1094.5, seeking judicial review of the order of termination. On October 20, she filed a verified first amended petition.

Following a hearing on Anderson's petition, during which the administrative record was admitted into evidence, the trial court granted Anderson writ relief as to all counts. With regard to count 1, the only count with which we are concerned on appeal, the court stated that it "knows of no instance in which a police officer has ever been disciplined for [failing to seek payment for working overtime] and the court doubts that the employer has ever communicated to police officers that they may be fired simply for working overtime and not requesting to be paid for it."

The trial court ruled that Anderson "is entitled to a writ of mandate commanding her employer to vacate its administrative decision discharging her for misconduct, to compute the amount of back pay to which [she] is entitled because of that administrative decision, and to pay [her] the amount so determined." A judgment so commanding was entered on January 5, 2010, and this appeal followed.


Defendants do not challenge the trial court's grant of writ relief with regard to counts 2 and 3 of the complaint. They contend only that the trial court's ruling with regard to count 1 must be reversed and the matter remanded for reconsideration of the appropriate penalty to be imposed. We disagree.


Standard of Review

As this court observed in Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, "[s]ection 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. A trial court's review of an adjudicatory administrative decision is subject to two possible standards of review depending upon the nature of the right involved. (Code Civ. Proc., § 1094.5, subd. (c).) If the administrative decision substantially affects a fundamental vested right, [as in this case,] the trial court must exercise its independent judgment on the evidence. [Citations.] The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings. [Citation.] If, on the other hand, the administrative decision neither involves nor substantially affects a fundamental vested right, the trial court's review is limited to determining whether the administrative findings are supported by substantial evidence. [Citations.]" (Id. at p. 313.)

On appeal, the trial court's decision will be upheld if it is supported by substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) We resolve all conflicts in the evidence and draw all legitimate and reasonable inferences in favor of the decision made by the trial court. Where the evidence supports multiple inferences, we may not substitute our deductions for those made by the trial court. The trial court's factual findings only may be disturbed if the evidence, as a matter of law, is insufficient to support them. (Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1205.)

Relevant Departmental Directives

On September 3, 1999, in an effort to comply with the overtime provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.) (FLSA),4 as well as the then applicable Memorandum of Understanding, Bernard C. Parks, the Department's then Chief of Police, issued Administrative Order No. 20 (Order 20), which set forth the revised overtime compensation procedures for sworn employees. Order 20 stated: "Generally sworn employees, below the rank of captain, work 152 regular hours per Deployment Period (DP). Work in excess of eight-hours a day or 152 hours in a DP is generally compensated at time-and-one half the employee's regular hourly rate of pay, in accordance with Memorandum of Understanding No. 24 (MOU Overtime). The Fair Labor Standards Act (FLSA) requires that sworn employees below the rank of captain be compensated at that overtime rate only for the time in excess of 171 work hours in a DP (FLSA overtime) . . . . The difference between the MOU and the FLSA overtime thresholds is generally referred to as the 19-Hour Rule (171 hours minus 152 hours=19 hours)."

Order 20 further directed employees to "report overtime worked on an Overtime Report, Form 2.24.0, prior to their end of watch." If overtime was worked while off-duty, the employees were mandated to "submit the Overtime Report no later than the employee's next scheduled work day."

On August 27, 2001, Chief Parks issued Notice 2.1, containing a prohibition against working unauthorized overtime to prepare for roll call. The notice begins: "The Department is aware that some watch commanders and watch supervisors are seeking overtime for their time spent preparing for roll call. The purpose of this notice is to reiterate the Department's longstanding policy that no overtime may be worked by employees without first obtaining authorization from their immediate supervisor. Employees who do not receive prior authorization may not work on Department business outside of their regularly scheduled working hours. This Department policy, which complies with the law, applies to all work performed for the Department, including preparation for roll call by watch commanders and supervisors of a watch. Any employees found to be in violation of this Department policy will be subject to discipline."

Count 1

In urging reversal of the trial court's ruling as to count 1, defendants rely heavily on the August 27, 2001 notice issued by the Chief of Police. This notice reiterated the Department's policy against working overtime without first obtaining authorization and stated in explicit terms that any employee who violated this policy would be subject to discipline. This policy applied to all work performed for the Department including preparation for roll call. Defendants' reliance on this August 27, 2001 notice is misplaced.

Although Anderson did acknowledge at her Board of Rights hearing and at her deposition in an unrelated FLSA action in federal court that she worked overtime without authorization to prepare for roll call, count 1 does not charge Anderson with working unauthorized overtime to prepare for roll call or for any other purpose. Rather, as previously noted, count 1 alleged that "[o]n several occasions between June 2001 and February 2003, [Anderson] knowingly violated Departmental policy when [she] neglected to request compensation after working overtime." Significantly, the gravamen of this charge is the failure to request compensation for working overtime, not working unauthorized overtime. In fact, the charging allegation did not differentiate between authorized and unauthorized overtime. Although Anderson did admit that she committed misconduct by working unauthorized overtime and that she did not ask to be paid for the overtime she worked, as the trial court found, defendants have failed to point to a statute, rule or regulation, in force at the time the alleged misconduct was committed, that makes it an act of misconduct for a police officer to work overtime, whether authorized or unauthorized, and not ask to be compensated for it.5 Although Order 20 issued September 3, 1999 does state that overtime is to be reported on a specified form, it does not advise employees that the failure to do so is misconduct or will subject them to discipline and possible termination.

The trial court determined that the conduct charged against Anderson in count 1 did not constitute misconduct in the first instance. It is for this reason it concluded that Anderson's guilty plea, along with her deposition testimony, did not support the Board of Right's finding of guilt on count 1. Because we conclude that substantial evidence supports the trial court's determination with regard to count 1, and defendants do not challenge the trial court's decision to grant writ relief as to counts 2 and 3, we have no basis for disturbing the judgment of the trial court.6 (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.)7


The judgment is affirmed. Anderson is awarded her costs on appeal.

We concur.




1. On October 26, 2010, defendants filed a request asking this court to take judicial notice of various official city documents, as well as complaints in two pending federal matters, none of which were before the trial court. We take judicial notice of the existence of these documents (Evid. Code, §§ 452, 459) but do not rely on them in rendering our decision. (Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1173, fn. 11.)
2. In their briefs, defendants take great pains to emphasize the sizable sums of money they have had to pay and may have to pay as a result of lawsuits filed against them, alleging violations of the overtime provisions of the Fair Labor Standards Act. These extraneous facts have no relevance to this appeal.
3. The complaint is not part of the appellate record.
4. The overtime provisions of the FLSA apply to the Los Angeles Police Department. (29 U.S.C. § 203, subd. (e)(2)(C).)
5. Also introduced into evidence were a notice from the Chief of Police dated March 28, 2003 regarding employees' compliance with the FLSA, a notice from the Chief of Police dated June 29, 2005 regarding the obligation of all employees to ensure compliance with the FLSA and acknowledgements signed by Anderson confirming her receipt of the March 28, 2003 and June 29, 2005 notices.

The March 28, 2003 notice emphasized that the Department could "incur enormous liability for violating the FLSA" and that it would "take action against any employee who knowingly engages in a violation of the rules designed to help the Department comply with FLSA." The notice specified that with the exception of court appearances and emergencies, "sworn employees at the rank of Lieutenant and below (including those with supervisory responsibilities)" could not work overtime without prior authorization. In addition, work could not be performed outside scheduled work hours "without promptly submitting an overtime report." The notice also stated that "[e]mployees must not begin work prior to the start of their work schedule or watch to prepare for roll call or any other Department business unless directed to do so by their commanding officer or immediate supervisor." Most significantly, the notice informed employees that "[a]ny knowing violation of the foregoing rules, or any other knowing violation of the FLSA, by any employee, regardless of rank, title or position is misconduct and will result in disciplinary action, up to and including termination."

The June 29, 2005 notice states in no uncertain terms: "To account for all hours (or fractions of hours) worked by all employees, all time worked, whether pre-approved or not, shall be documented. . . . Failure to do so is serious misconduct. Failure to request overtime compensation for any overtime worked, whether pre-approved or not, is also serious misconduct."

Since count 1 alleges that Anderson's purported misconduct occurred between June 2001 and February 2003, the notices dated March 28, 2003 and June 29, 2005, as well as the acknowledgements signed by Anderson have no relevance to that count.

6. The question whether the City ultimately is responsible to pay Anderson for unauthorized overtime under the FLSA is not before us.
7. After oral argument, defendants filed a request for leave to file a post-oral argument letter brief, along with a supplemental request for judicial notice. We granted both requests on March 15, 2011, and gave Anderson permission to file a responsive letter brief.

In their supplemental request for judicial notice, defendants asked us to judicially notice specific sections of the Department's 1999, 2001 and 2002 Manuals. Defendants maintained that these particular Manual sections define misconduct and set forth the circumstances under which an employee may be charged with misconduct and thus are essential to an understanding of Order 20. Although we granted defendants' supplemental request for judicial notice, we emphasize that we only judicially notice the existence of the Manual sections. We do not consider or rely upon the provisions in rendering our decision on appeal.

A reviewing court is not the forum in which to make up for deficiencies in evidentiary proof at the administrative level or in the trial court. (People v. Jacinto (2010) 49 Cal.4th 263, 272, fn. 5.) We are charged with the responsibility of reviewing the correctness of the trial court's judgment at the time it was rendered. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) If, as defendants maintain, these Manual sections were essential to an understanding of Order 20, defendants should have introduced them into evidence at Anderson's Board of Rights hearing. Because defendants failed to do so, they were not part of the administrative record before the trial court at the time it ruled on Anderson's petition for writ of mandate. We therefore do not consider the documents in rendering our decision on appeal. (Bardales v. Duarte (2010) 181 Cal.App.4th 1262, 1267, fn. 2.)

None of defendants' additional arguments warrants reversal of the judgment.


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