                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 28 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAMES SELVITELLA,                                 No. 10-15151

              Plaintiff - Appellant,              D.C. No. 4:08-cv-04388-CW

  v.
                                                  MEMORANDUM *
CITY OF SOUTH SAN FRANCISCO,
CALIFORNIA, a Municipal Corporation;
et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                             Submitted March 16, 2011 **
                              San Francisco, California

Before: NOONAN, FERNANDEZ, and CLIFTON, Circuit Judges.

       James Selvitella appeals the district court’s order denying his petition for a

writ of mandamus under California Code of Civil Procedure § 1094.5. We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The district court correctly concluded that the city of South San Francisco

complied with its Personnel Rule § 13.02(B), which requires that the subject of

disciplinary action be allowed “to inspect copies of all materials upon which the

disciplinary action is based.” In Selvitella’s hearing before the Personnel Board,

the Board accepted testimony that the city produced all of the materials it relied on

in deciding to terminate Selvitella. The materials provided Selvitella with his

notice of termination were more than sufficient to prove the factual allegations

underlying his dismissal–indeed, Selvitella’s termination could have been

supported by his admissions alone–which constitutes substantial evidence

supporting the Board’s conclusion that Selvitella was allowed to inspect all

materials on which the decision to terminate him was based. See Rosenblit v.

Superior Court, 282 Cal.Rptr. 819, 824 (1991) (holding that foundational factual

findings material to whether an agency proceeded in the manner required by law

are reviewed for substantial evidence).

      The Personnel Board did not abuse its discretion by denying Selvitella’s

discovery requests. See Cimarusti v. Superior Ct., 94 Cal. Rptr. 2d 336, 342-43

(Cal. Ct. App. 2000) (holding that agency evidentiary and discovery decisions are

reviewed for abuse of discretion). Selvitella’s reliance on Shiveley v. Stewart, 55

Cal. Rptr. 217 (Cal. 1966) is misplaced for two reasons. First, Shiveley dealt with


                                          2
the right to practice one’s profession, not to retain a particular job. Second, even in

Shively, the doctors challenging the agency decision were denied discovery with

respect to “reports and documents gathered by investigators and employees of the

board.” Shiveley, 55 Cal. Rptr. at 69. The court held that “to secure discovery, there

must be a showing of more than a wish for the benefit of all the information in the

adversary’s files,” and that “some additional showing of need and specificity” was

required. Id. Selvitella has been incapable of even theorizing as to what types of

documents or other materials the criminal investigation may have produced that

could overcome the clearly established facts of his misconduct. Because the Board

properly found that Selvitella had been provided all the materials to which he was

entitled under local rules, the district court was correct to conclude that it did not

abuse its discretion in refusing to order additional discovery.

      Selvitella’s complaint that the Board’s decision was not supported by

findings related to the charges against him is without merit. In its decision, the

Board noted that it “voted, unanimously, to uphold the City’s decision.” The Board

also referenced the factual conclusions that underlay the City’s decision:

             The City terminated Mr. Selvitella’s employment after
             determining that Mr. Selvitella had engaged in repeated
             instances of illegal gambling while on duty, used City
             facilities to conduct illegal gambling activities and
             facilitated on-duty illegal gambling by a subordinate.


                                            3
Far from leaving any “analytic gap,” as Selvitella suggests, the links between the

factual allegations against Selvitella and the rule violations that resulted in his

termination were made abundantly clear in the several notices he received

regarding the disciplinary action against him, and did not require much explanation

in the first place. Cf. Topanga Ass’n for A Scenic Community v. County of Los

Angeles, 113 Cal. Rptr. 836, 841 (1974) (“[I]mplicit in section 1094.5 is a

requirement that the agency which renders the challenged decision must set forth

findings to bridge the analytic gap between the raw evidence and ultimate decision

or order.”) That the Personnel Board decision was brief and incorporated the City’s

decision by reference is inconsequential, for the communication of the charges to

Selvitella certainly satisfied “the liberal rules of administrative pleading,” which

“require only that the respondent . . . be informed of the substance of the charge

and afforded the basic, appropriate elements of procedural due process.” Cooper v.

Bd. of Med Examiners, 123 Cal.Rptr. 563, 570 (Cal. Ct. App. 1975); see also

Burako v. Munro, 345 P.2d 124, 126 (Cal. Ct. App. 1959) (“[C]ourts are more

interested in fair notice to the accused than in adherence to technical rules of

pleading.”).

      Selvitella’s emphasis on the Board’s statement that it “also note[d] that the

termination is warranted based on Mr. Selvitella’s acknowledged repeated


                                            4
instances of illegal conduct while on duty” is a red herring. That statement merely

indicates that, in addition to the several rule violations cited by the City, Selvitella

also deserved to be terminated based on the simple fact that his actions were

illegal. See South San Francisco Personnel Rule 13 (“The City may take

disciplinary action against any employee for misconduct of any violation of

. . . any laws.”).

       The Board did not abuse its discretion by terminating Selvitella for his

misconduct. Courts review agency penalties “with great deference to the

administrative agency.” Deegan v. Mountain View, 84 Cal. Rptr. 2d 690, 695 (Cal

Ct. App. 1999). “The appellate court reviews the agency’s selection of penalty and,

if reasonable minds can differ with regard to the propriety of the disciplinary

action, it finds no abuse of discretion.” Id. Every City official that reviewed

Selvitella’s case, including the Fire Chief, the City Manager, the Assistant City

Manager, and each member of the unanimous Board, determined that Selvitella

should be terminated. Their determination was based on the fact that Selvitella

violated City rules by engaging in conduct that he knew was illegal, by

encouraging at least one subordinate employee to do the same, and by using City

property and equipment to engage in that illegal activity. That is not an




                                            5
unreasonable basis. See Deegan, 84 Cal. Rptr. 2d at 695. The Board therefore did

not abuse its discretion in upholding Selvitella’s termination.

      AFFIRMED.




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