Filed 11/25/15 Krause v. City of Westminster CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


PETER KRAUSE,

     Plaintiff and Appellant,                                          G050513

         v.                                                            (Super. Ct. No. 30-2013-00646815)

CITY OF WESTMINSTER,                                                   OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County,
Geoffrey T. Glass, Judge. Affirmed.
                   Law Offices of Robin L. Sergi and Robin L. Sergi for Plaintiff and
Appellant.
                   Jones & Mayer, James Touchstone and Denise Rocawich for Defendant
and Respondent.
                                          *                  *                  *
                                    INTRODUCTION
              The City of Westminster (the City) fired Police Officer Peter Krause after
an internal affairs investigation revealed he had violated portions of the Westminster
Police Department’s policy manual (the manual) for his participation in an off-duty brawl
in a restaurant parking lot. The trial court denied Krause’s petition for a writ of mandate
(the petition). Substantial evidence supported the court’s findings and decision, and
Krause failed to show his right to due process was violated. Accordingly, we affirm the
order denying the petition and the judgment thereon.


                                          FACTS
              Consistent with the applicable substantial evidence standard of review, we
recount the facts in the record in the light most favorable to the judgment.
              Krause was employed by the City as a police officer. After a night out
celebrating his birthday, during the early morning hours of July 17, 2009, Krause was
part of a group of 15 to 20 people in a Denny’s restaurant. Krause was intoxicated,
having had several alcoholic drinks at a bar before arriving at the restaurant.
              Around 2:30 a.m. to 3:00 a.m., while Krause’s group was sitting inside the
restaurant, a group that included four women, Caylee Hill, Lisa Alexander, Michelle
Ayache, and Belinda Avila, and two men, Brian Balga and Travis Lilley (collectively, the
Hill group) walked into the restaurant. Hill, Alexander, Ayache, and Balga worked
together. Members of Krause’s group whistled and made flirtatious comments directed
to the women in the Hill group and particularly to Hill. She was asked whether Balga
was her boyfriend. Krause told Hill, “[o]h ma’am, I’m cuter than this guy.” Members of
Krause’s group made comments to the women in the Hill group to the effect that they
“should come party with them” and “hang out with real men.”
              The Hill group and eight members of Krause’s group, which included
Krause, left the restaurant about the same time; six other members of Krause’s group

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remained inside. While Krause exchanged phone numbers with Alexander and was
talking to her and Ayache in the parking lot, other members of Krause’s group insulted
Balga as he and Hill stood by his car. They called Balga “a faggot and all of these
names” and told Hill that she and the other women in the Hill group “should party with
them, and come hang out with them.” Around that time, a group of about five or six of
Hill’s brother’s friends arrived and was seated inside the restaurant.
               Balga “finally got to the point that [he] couldn’t take it any more” and took
off his jacket in a manner which, he explained, was “like in a show of . . . ‘Get out of the
car and let me kick your ass real quick.’” Balga’s gesture was met with eight men of
Krause’s group, including Krause, getting out of their respective vehicles and moving
toward Balga.
               Krause, along with the seven others, started surrounding Balga. Krause
advanced on Balga in a manner that Balga described as though he were considering “a
good way to like get a good punch in.” Balga backed up to the restaurant’s door, turned,
ran inside, and told the servers to call the police because “[t]here are eight guys about to
attack me.” Balga ran into the kitchen, grabbed a large butcher knife, and waited to
defend himself.
               In the parking lot, Avila approached Krause, yelling at him; she had her
hands “up.” Krause grabbed Avila and pushed her, causing her to stumble back several
steps. That incident was observed by some of Krause’s group who had remained in the
restaurant and also by the group of Hill’s brother’s friends. At least some of each group
came pouring out of the restaurant, and “it all just went crazy from there . . . [with]
numerous fights going on.” After Balga had waited in the kitchen and no one came in
after him, he looked outside and saw what he described as a “huge brawl” going on in the
parking lot.
               One of Hill’s brother’s friends, James Carpenter, was knocked unconscious.
Hill saw a group of four men, including Krause, standing over Carpenter; she saw that the

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unconscious Carpenter was being forcefully kicked in the head but she could not
remember by whom. She saw “blood all around” Carpenter and thought he was dead.
               Balga saw Krause standing over the unconscious Carpenter, “just throwing
a right hand, a vicious right hand, going straight down like that onto his head.” Balga
stated, “[Krause] rain[ed] down that one last blow that I got to see, which looked like an
absolutely brutal blow.” Alexander, who did not testify at the arbitration hearing, told
Huntington Beach Police Officer Steve Fong that she saw, inter alia, Krause punch and
kick Carpenter when he was on the ground.
               During the Westminster Police Department’s internal affairs investigation,
one of Krause’s friends and coworkers, who was there that night, stated that Krause had
been “aggressive since he had been drinking.” The friend also stated that Krause had told
him “he had started punching someone.”
               The former chief of police, James Mitchell Waller, issued a notice of intent
to terminate Krause’s employment in a memorandum dated March 8, 2010. The
memorandum synopsized the “events and causes and specifications” for the decision to
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terminate Krause’s employment. After holding a “Skelly meeting” with Krause and his
representative, a final notice of disciplinary action in the form of employment
termination, dated May 4, 2010, was issued.


                                     BACKGROUND
                                              I.
                               KRAUSE FILES THE PETITION.
               In May 2013, Krause filed the petition under Code of Civil Procedure
section 1094.5. The petition alleged Krause was employed by the City as a police officer
and was a permanent member of the civil service system, who enjoyed a vested and

 1
     See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215.

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substantial property right in his employment. In the petition, Krause acknowledged that
“Westminster City Council . . . was, pursuant to City Charter and Memorandum of
Understanding (MOU) . . . between the City of Westminster and the Westminster Police
Officer Association, entrusted with the final decision in disciplinary cases involving city
employees in the classified service.” Krause further acknowledged the City Council “is
required to allow evidentiary hearings before an independent arbitrator whose decision is
non-binding” and the “Westminster City Council may adopt or reject such decision and
render final decisions of appeals brought by employees of the City contesting disciplinary
actions imposed upon them.”
              The petition alleged Krause had been charged by Chief of Police Waller for
violating “Manual sections” dealing with his conduct as a police officer, six of which
were set forth in the dismissal letter dated May 4, 2010. The petition further alleged that
on those grounds, Krause’s employment was terminated by the City manager and Krause
timely appealed.
              The petition stated that a disciplinary hearing was commenced before an
arbitrator who determined at the conclusion of the arbitration proceedings that no cause
existed to discipline Krause and recommended that the employment termination decision
be overturned. The petition further stated that upon subsequent review by the City
Council, the arbitrator’s recommendation was rejected. Krause asserted, in the petition,
that by upholding the decision to terminate his employment, the City Council
prejudicially abused its discretion because it did not proceed in a manner required by law,
its findings were not supported by the evidence presented at the hearing, and its findings
did not support its decision.
              In the petition, Krause requested that the trial court exercise its independent
judgment on the evidence and determine that the City Council’s findings were not
supported by the weight of the evidence. He further requested that the court issue a writ
of mandate compelling the City Council and the City to set aside the employment

                                             5
termination decision, to reinstate Krause with full backpay and benefits to which he
would otherwise be entitled, and to make the necessary changes, corrections, and
deletions in his personnel files to reflect the order of the court.


                                               II.
             THE TRIAL COURT DENIES THE PETITION AND KRAUSE APPEALS.
              The trial court denied the petition. The court’s minute order stated in part:
“On May 4, 2010, the city served Officer Krause with the Final Notice of Disciplinary
Action terminating him from his position as a police officer. The city based the
termination on Westminster Police Department Policy § 340.3.2(a) (prohibiting
unauthorized or unlawful fighting, threatening, or attempting to inflict bodily injury on
another), § 340.3.5(o) (prohibiting criminal, dishonest, infamous or disgraceful conduct
adversely affecting the employee/employer relationship, whether on or off duty), and
§ 340.3.5(aa) (prohibiting any on duty or off duty conduct which any employee knows or
reasonably should know is unbecoming a member of the department or which is contrary
to good order, efficiency or morale, or which tends to reflect unfavorably upon the
department or its members).”
              The minute order also stated: “Mr. Krause appealed and a neutral arbitrator
held a hearing in November and December 2011. The arbitrator found there was no
evidence to sustain any of the allegations against . . . Mr. Krause. [¶] Per the MOU and
Article X Section 5, No. 8 of the City Manual, the findings and recommendations of the
arbitrator are advisory and the final decision rests with the City Council. Per Article X
Section 5 No. 9 of the City Manual, the City Council met and as memorialized in
Resolution 4435, the City Council rejected the advisory opinion of the arbitrator and
sustained the termination of Krause. The City Council found that Krause had violated
three policy sections as stated in the Final Notice of Termination. [¶] Krause then filed
this Petition for Writ of Administrative Mandamus challenging the decision made by the

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City Council in Resolution 4435.” Noting that Krause’s and the City’s briefing in the
trial court agreed that the court’s applicable standard of review was the independent
judgment review, the court confirmed, in ruling on the petition, that “[t]his court [wa]s to
determine whether the weight of the evidence as provided in the Administrative Record
supports the Council’s findings.”
              In the minute order, the trial court stated its ruling on the petition, as
follows: “After review of the petition, briefs and the entire administrative record, the
weight of the evidence supports the City Council’s decision. Krause was terminated for
violations of WPD Policy Manual § 340.3.2(a), § 340.3.5(o) and § 340.3.5(aa). The City
Council found that the evidence showed the petitioner assaulted Balga causing him to run
for safety, grabbed Avila shoving her and striking Carpenter while he was on the ground.
The City Council considered the entire administrative record in this matter, and sustained
the Chief’s determination, as does this court. [¶] This court has read the administrative
record, considered the evidence presented and conducted an independent judgment
review. [¶] This court denies the instant Petition for Writ of Mandamus.”
              No party requested a statement of decision and the trial court’s minute
order was not a statement of decision. No party raised objections to the minute order.
Judgment denying the petition was entered. Krause appealed.


                                       DISCUSSION
                                              I.

WE REVIEW THE TRIAL COURT’S DENIAL OF THE PETITION TO DETERMINE WHETHER THE
         COURT’S JUDGMENT IS SUPPORTED BY SUBSTANTIAL EVIDENCE.
              “Section 1094.5 of the Code of Civil Procedure governs judicial review by
administrative mandate of any final decision or order rendered by an administrative
agency. 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


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Civ. Proc., § 1094.5, subd. (c).) If the administrative decision substantially affects a
fundamental vested right, 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.]” (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.)
              “It repeatedly has been held that ‘[d]iscipline imposed on public employees
affects their fundamental vested right in employment,’ and therefore, when a public
employee challenges an employer’s disciplinary action in a mandamus proceeding, the
trial court is required to exercise its independent judgment on the evidence. [Citations.]”
(Wences v. City of Los Angeles, supra, 177 Cal.App.4th at p. 314.)
              “In exercising its independent judgment, a trial court must afford a strong
presumption of correctness concerning the administrative findings, and the party
challenging the administrative decision bears the burden of convincing the court that the
administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of
Angels (1999) 20 Cal.4th 805, 817.) “[T]he presumption provides the trial court with a
starting point for review—but it is only a presumption, and may be overcome. 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 agency’s findings.” (Id. at
p. 818.)
              When “the trial court is required to review an administrative decision under
the independent judgment standard of review, the standard of review on appeal of the




                                              8
trial court’s determination is the substantial evidence test.” (Fukuda v. City of Angels,
                                2
supra, 20 Cal.4th at p. 824.)
              As no party requested a statement of decision, and none was issued by the
trial court, the doctrine of implied findings applies. (County of Orange v. Barratt
                                                   3
American, Inc. (2007) 150 Cal.App.4th 420, 438.) We therefore “review the trial court’s
express factual findings, and any implied findings, for substantial evidence.” (Apex LLC
v. Sharing World, Inc. (2012) 206 Cal.App.4th 999, 1009.)


                                             II.
          SUBSTANTIAL EVIDENCE SUPPORTED THE TRIAL COURT’S FINDINGS.
              Krause contends insufficient evidence supported the charges against him.
The trial court found that Krause’s employment was properly terminated because he
violated the following policy sections of the manual: (1) section 340.3.2(a) which
prohibits “[u]nauthorized or unlawful fighting, threatening, or attempting to inflict bodily
injury on another”; (2) section 340.3.5(o) which prohibits “[c]riminal, dishonest,
infamous or disgraceful conduct adversely affecting the employee/employer relationship,
whether on or off duty”; and (3) section 340.3.5(aa) which prohibits “[a]ny other on duty
or off duty conduct which any employee knows or reasonably should know is
 2
    The appellate court reviews de novo whether an agency’s decision to impose a
particular penalty constituted an abuse of discretion. (Cassidy v. California Bd. of
Accountancy (2013) 220 Cal.App.4th 620, 627.) Krause does not argue that the decision
to terminate his employment, based on the findings, constituted an abuse of discretion.
 3
    “Without a statement of decision, and timely objections to any ambiguities or
omissions in it, the doctrine of implied findings applies.” (County of Orange v. Barratt
American, Inc., supra, 150 Cal.App.4th at p. 438.) “The doctrine of implied findings
requires the appellate court to infer the trial court made all factual findings necessary to
support the judgment. [Citation.] The doctrine is a natural and logical corollary to three
fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all
intendments and presumptions are indulged in favor of correctness; and (3) the appellant
bears the burden of providing an adequate record affirmatively providing error.
[Citations.]” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)

                                              9
unbecoming a member of the department or which is contrary to good order, efficiency or
morale, or which tends to reflect unfavorably upon the department or its members.”
(Italics omitted.) These policy violations were based on substantial evidence that Krause
(1) assaulted Balga, which caused him to run for safety and notify authorities, (2) grabbed
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and pushed Avila, and (3) struck Carpenter while he was on the ground.
                                             A.
                  Substantial Evidence Showed Krause Assaulted Balga.
              The trial court found the weight of the evidence supported the City
Council’s finding that Krause assaulted Balga causing him to run for safety. Substantial
evidence of Krause’s assault on Balga included the arbitration hearing testimony of
Balga. His testimony showed that after Balga took off his jacket in the parking lot,
Krause and seven other men, who had been with Krause, got out of their vehicles and
started crowding Balga. Balga testified that Krause advanced on him as if Krause were
“trying to find . . . a good way to like get a good punch in or whatever.” Balga backed up
to the restaurant’s door as Krause and the others advanced on him, then Balga turned and
ran into the restaurant’s kitchen. That testimony was sufficient to support the finding that
Krause assaulted Balga causing him to run for safety.
              Krause argues Balga’s testimony was not sufficient to support that finding
because the arbitrator did not find Balga credible. The arbitrator’s role, pursuant to the
applicable memorandum of understanding between the City and the Westminster Police
Officers’ Association, and as acknowledged in the petition, was to “make a non-binding
recommendation to the City Council who shall be responsible for a final decision on the
matter.” Krause’s argument that the arbitrator’s credibility determinations must be
binding on the City is directly at odds with the express terms of the memorandum of
understanding, which establish the arbitrator’s findings are advisory only.
 4
   Krause does not argue that even if these findings were supported by substantial
evidence, they would not constitute violations of the cited policy sections of the manual.

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              In any event, it was the province of the trial court, in reviewing the City’s
decision by exercising its independent judgment, to itself reweigh the evidence and make
its own determination as to the credibility of witnesses. (Barber v. Long Beach Civil
Service Com. (1996) 45 Cal.App.4th 652, 658 [“[A]n exercise of independent judgment
does permit (indeed, it requires) the trial court to reweigh the evidence by examining the
credibility of witnesses. As we explained 20 years ago, in exercising its independent
judgment ‘the trial court has the power and responsibility to weigh the evidence at the
administrative hearing and to make its own determination of the credibility of
witnesses.’”]; see Fukuda v. City of Angels, supra, 20 Cal.4th at p. 819.) Krause does not
argue the trial court misunderstood or misapplied the applicable standard of review in this
case. We find no error.
                                             B.
            Substantial Evidence Showed Krause Grabbed and Pushed Avila.
              The trial court found Krause grabbed and shoved Avila. Multiple
witnesses, including members of Krause’s group, testified that Krause grabbed and
shoved Avila, causing her to stumble back several steps.
              Omar Ayala, who was part of Krause’s group and a fellow police officer,
testified, “Peter did grab her in the shoulders area and pushed her off and told her to ‘Get
off me,’ something to that effect.” Ayala saw Avila stumble several steps from the push.
Daniel Flynn, also a fellow police officer, testified that he saw Krause push Avila to
prevent her from striking him. Hill testified Krause grabbed and pushed Avila. Lilley
testified that “it was definitely an aggressive push” and the man who pushed Avila said
something to the affect of “I’m not afraid to hit a bitch.” (Lilley did not identify the man
who pushed Avila.)
              The grabbing and shoving of Avila was a significant event as the evidence
showed it triggered the brawl. Lilley testified that until Krause shoved Avila, nobody had
been harmed, there had been no fighting, and “all of the physical altercations started at

                                             11
that point.” Hill testified that after Avila had been pushed, “then that is when it kind of
started from there.” Substantial evidence supported this finding.
                                              C.
                Substantial Evidence Showed Krause Assaulted Carpenter.
              Balga testified that he saw Krause “throwing a right hand, a vicious right
hand, going straight down like that onto [Carpenter’s] head,” as Carpenter lay
unconscious on the ground in the parking lot. Balga stated that Krause “rain[ed] down
that one last blow” which, Balga said, looked “like an absolutely brutal blow.” In
addition, Ayala testified that during the internal affairs investigation, he told an
investigator that Krause had admitted to him that he “had started punching someone.”
              Fong, who responded to the fight, testified Alexander (who did not testify
at the arbitration hearing) told him she saw Krause punch Carpenter knocking him to the
ground and saw Krause punch and kick Carpenter when he was on the ground. Hill told
Fong that Krause kicked or punched Carpenter while on the ground more than five times.
Ayache, who also did not testify at the arbitration hearing, told Detective Scott Winks of
the Huntington Beach Police Department that she saw Krause kicking Carpenter while he
lay on the ground.
              Krause argues Alexander’s and Ayache’s statements to law enforcement
should not have been considered because they did not testify at the arbitration hearing
and were not subject to cross-examination. The trial court responded to this argument in
its minute order denying the petition, by stating: “The Westminster Personnel Policy
Manual and Westminster Municipal Code specifically permit the arbitrator to make
findings of fact supported by hearsay evidence in that they state that ‘technical rules
which are employed to exclude evidence in criminal and civil court trials shall not be
applied’ and that the Board is to consider ‘all evidence presented to it.’” Article X of the
Westminster Personnel Policy Manual contains the above language quoted by the trial



                                              12
court and is included in the administrative record. Krause does not address these
applicable evidentiary rules in his appellate briefs. We find no error.


                                             III.
                KRAUSE’S RIGHT TO DUE PROCESS WAS NOT VIOLATED.
              In his opening brief, Krause argues: “As part of the Final Notice of
Disciplinary Action the Department cites vari[ou]s policy violations allegedly committed
by KRAUSE. Included in the Notice of Final Disciplinary Action, Waller specifically
mentions four other events not associated with the incident occurring on 17 July 2009.
These four events were not a part of the Notice of Intent dated 8 March 20[10] or were
those four events discussed during the Skelly with Waller on 31 March 20[10]. [¶] One
of the four items not previously disclosed in the Notice of Intent was the existence of
another administrative investigation alleging KRAUSE engaged in similar conduct, that
is being removed from a club for attempting to engage in a fight. . . . Although a Skelly
hearing was conducted, it failed to provide all of the safeguards enumerated in Skelly,
supra. The department utilizing other material not previously disclosed and depriving
KRAUSE with an opportunity to respond to those new allegations violated those due
process safeguards. [¶] It is clear from the language used by Waller that at least some of
the four events not previously disclosed were part of basis for the level of discipline
imposed.”
              Again, the trial court addressed Krause’s argument in its minute order
denying the petition, stating, “the administrative record shows that Admin Case 09-037
was not used [as] a basis for any discipline imposed on the petitioner. The Notice of
Intent did not mention Admin Case 09-037. At the arbitration hearing, the Chief testified
that Admin Case 09-037 was listed in the Final Notice, but was not relied upon to make
any of the determinations in this case. The Chief testified that the Denny’s incident alone
was sufficient for termination.” Krause does not address the trial court’s reasoning. In

                                             13
any event, the record establishes Krause had ample opportunity at the arbitration hearing
to respond to any of the “new allegations,” which was not relied upon to uphold the
decision to terminate his employment. Krause has failed to demonstrate any violation of
his right to due process.


                                     DISPOSITION
              The judgment is affirmed. Respondent shall recover costs on appeal.




                                                FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




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