LEUNG v. CITY AND COUNTY OF SAN FRANCISCO

No. A144015.

ROBERT LEUNG, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

Court of Appeals of California, First District, Division Three.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

JENKINS, J.

Appellant Robert Leung appeals from a judgment denying his petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) challenging the termination of his employment as a police officer. The San Francisco Police Commission (Commission) terminated Leung's employment after sustaining five charges of misconduct, consisting of his alleged unauthorized access of California Law Enforcement Telecommunications System (CLETS) data (specifications one, four, and five), unauthorized dissemination of certain confidential information and CLETS data (specification two), and bringing discredit to the department based on his alleged unauthorized access and dissemination of confidential information and CLETS data (specification three). Specifications one, two, and three, related to data concerning B.B. and specifications four and five related to data concerning brothers L.W and L.W. At the oral proceeding on the petition, the trial court found a legal error had occurred at the administrative hearing, which rendered defective the sustained charges of misconduct based on allegations of unauthorized dissemination of confidential information and CLETS data concerning B.B. However, the court found Leung was not entitled to any writ relief because the legal error did not prejudicially impact the other sustained findings of misconduct based on allegations of unauthorized access of CLETS data concerning L.W. and L.W. (specifications four and five), and those latter charges were sufficient to support termination of Leung's employment.

On appeal Leung argues, and we agree, the judgment should be reversed and the case remanded to the Commission for the purpose of setting aside its order of termination and to reconsider the discipline to be imposed on the two sustained charges of misconduct (specifications four and five) as found by the trial court.1 "It is well settled . . . that in cases involving the imposition of a penalty or other disciplinary action by an administrative body, when it appears that some of the charges are not sustained by the evidence, the matter will be returned to the administrative body for redetermination in all cases in which there is a `real doubt' as to whether the same action would have been taken upon a proper assessment of the evidence. [Citations.]" (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 635.) We find this case "is one in which the principle of `real doubt' should properly be applied." (Ibid.) Concededly, there can be no question that the two sustained findings of misconduct based on unauthorized access of CLETS data (specifications four and five), standing alone, demonstrate serious misconduct that would support termination. Nonetheless, and despite the fact that Leung was previously disciplined for the same misconduct, we cannot say the Commission's discipline decision was not influenced by its sustained findings of misconduct concerning dissemination of confidential information and CLETS data, which the trial court found to be defective due to a legal error. Consequently, we believe the proper course is to remand the case to the Commission to set aside its order of termination and reconsider the discipline to be imposed on the two sustained charges of misconduct (specifications four and five) as found by the trial court. We note the trial court's written order did not reference the misconduct charges in specifications one, two, or three, relating to data concerning B.B. Accordingly, our decision should not be read and we express no opinion on what further proceedings should be held on those charges.

DISPOSITION

The judgment is reversed and the matter is remanded to the superior court with directions to issue a writ of mandate requiring respondents to set aside the order of termination and to conduct further proceedings in light of this opinion. Petitioner Leung is awarded costs on appeal.

McGuiness, P. J. and Pollak, J., concurs.

FootNotes


1. Contrary to respondents' contention, Leung's appellate contention seeking a limited remand is properly before us. The record shows Leung raised his appellate contention in the trial court in response to the court's tentative ruling issued before the oral proceeding on the petition. The court specifically ruled on the issue of a limited remand after considering extensive arguments from both counsel. At no time during the oral proceeding did respondents' counsel argue that the court should not consider the issue of a limited remand because Leung had not adequately briefed, or respondents' counsel was not prepared to address, the issue.

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