Filed 9/8/16 Laborers International Union etc. v. County of Riverside CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, et al.,
                                                                        E063886
         Plaintiffs and Appellants,
                                                                        (Super.Ct.No. RIC1410946)
v.
                                                                        OPINION
COUNTY OF RIVERSIDE,

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.

Affirmed.

         Rothner, Segall & Greenstone, Anthony R. Segall, Jonathan Cohen and Maria

Keegan Myers for Plaintiffs and Appellants.

         Woodruff, Spradlin & Smart, M. Lois Bobak and Daniel K. Spradlin for

Defendant and Respondent.




                                                             1
                                               I

                                      INTRODUCTION

       Plaintiff Samuel Merenda was employed as an investigator by the office of the

Riverside County Public Defender (OPD). His employment was terminated after he

wrote a memorandum damaging his credibility as an investigator. In the concluding

sentence of the memorandum—which documented his conversation with a witness in a

murder case—he wrote: “Let me know if you want an ‘interview’ report and I’ll get you

one, minus the confession.” On appeal, Merenda asserts he did not expect a “one-

sentence joke . . . to cost him his career.”

       Merenda appeals from the judgment denying his petition for writ of mandate. We

find that substantial evidence supports the trial court’s ruling. We affirm the judgment.

                                               II

                   FACTUAL AND PROCEDURAL BACKGROUND

       Merenda served in the Air Force and then worked for the San Bernardino County

Sheriff for 20 years. In 2003, he began working for the OPD. His employment was

terminated on August 23, 2012.

       As an investigator, Merenda’s duties included locating and investigating

witnesses, preparing written reports, and testifying. He prepared two types of written

reports: 1) investigative, or interview, reports, and 2) confidential memoranda. An

interview report contains factual information from a witness. A confidential

memorandum includes an investigator’s impressions and opinions. The former may be

disclosed to the District Attorney. Confidential memoranda are not subject to disclosure.

                                               2
       In 2008, Merenda was assigned to work on the defense of Juan Coronado, who

was charged with murder. At the direction of the OPD, Merenda reluctantly interviewed

Marquan Lee, a friend of Coronado’s. Merenda did not believe Lee was a credible

witness because he was a heavy user of drugs and alcohol. Lee told Merenda that

Coronado had confessed to the murder, stating that he and another person “put a ‘Lick’

on an old man and took his car,” meaning they had killed him.

       Merenda wrote a confidential memorandum of the interview for Addison Steele,

the lead public defender, including Lee’s statement about Coronado’s confession.

Merenda ended the report by stating, “Let me know if you want an ‘Interview’ report and

I’ll get one, minus the confession.” In August 2008, Merenda was transferred from the

Coronado case. In August 2011, another investigator, Gene Brisco, interviewed Lee and

prepared an interview report that did not mention Coronado’s confession.

       In 2011, both Merenda’s 2008 confidential memorandum and the 2011 interview

report were inadvertently disclosed to prosecutors. In December 2011, Judge Christian

Thierbach reviewed the two documents and ruled Coronado’s right to a defense was

“severely compromised, if not totally eliminated, by the breach of attorney-client

privilege” and even “more troubling is the very real appearance that defense investigators

employed by the public defender’s office have engaged in conduct suggesting a

willingness to fabricate or alter evidence, up to and including the subornation of perjury,

in an effort to mount a defense.” The judge removed the OPD from the Coronado case.




                                             3
       The OPD then filed a writ challenging the order of removal. This court found

there was substantial evidence of a potential conflict of interest and remanded to the trial

court. The OPD then declared a conflict and removed itself from Coronado’s case.

       In 2012, the OPD decided to terminate Merenda’s employment. An arbitrator

upheld the termination in August 2014. Judge John W. Vineyard denied Merenda’s

subsequent petition for writ of mandate challenging the arbitrator’s decision. Both the

arbitrator and Judge Vineyard focused on the evidence that showed Merenda understood

and admitted his error, as well as the effect it would have on his ability to perform his

duties as an investigator, especially his credibility when testifying in court.

       Merenda has offered various explanations about what he meant by the last

sentence of the memorandum. In 2011, he submitted a declaration in which he stated he

could not honestly explain the last sentence. However, in the arbitration hearing in 2014,

he testified he intended the last sentence to express his frustration about having to

interview Lee, whom he regarded as a suitable witness only for the penalty phase. He

also claimed the sentence was meant as a joke because Steele had teased him about police

officers lying and changing their reports. Merenda believed that Steele and others with

the OPD understood he was not seriously proposing to prepare an interview report

omitting the confession. On appeal, he characterizes the sentence as an ill-advised joke

or as sarcasm.

       Other material facts are discussed in the body of the opinion.




                                              4
                                            III

                                STANDARD OF REVIEW

       The parties agree the standard of review on appeal is the substantial evidence test.

(Fukuda v. City of Los Angeles (1999) 20 Cal.4th 805, 824; Foreman & Clark Corp. v.

Fallon (1971) 3 Cal.3d 875, 881.) We agree with respondent that Merenda has not fairly

addressed the evidence and instead has focused mostly on the evidence supporting his

position. (Foreman, at p. 881.) Nevertheless, in the interest of justice, we will review the

record to determine if substantial evidence supports the judgment. (Roy v. Superior

Court (2011) 198 Cal.App.4th 1337, 1347.) We afford the prevailing party every

reasonable inference in support of the judgment. (Kazensky v. City of Merced (1998) 65

Cal.App.4th 44, 52.)

       To the extent, we engage in legal interpretation of the Memorandum of

Understanding (MOU) between the Union1 and the County of Riverside, we employ an

independent standard of review. (Riverside Sheriffs’ Assn. v. County of Riverside (2009)

173 Cal.App.4th 1410, 1424 [Fourth Dist., Div. Two], citing Service Employees Internat.

Union v. City of Los Angeles (1994) 24 Cal.App.4th 136, 143-144.)

                                            IV

                          GOOD CAUSE FOR TERMINATION

       Merenda’s employment is governed by Article XI of the MOU, which specifies

what constitutes misconduct and “good cause” for discipline. Among the grounds


       1   Laborers’ International Union of North America, Local 777.

                                             5
identified as good cause for dismissal are “Inefficiency or negligence in performance of

duties,” “Neglect of duty,” and “Conduct . . . which adversely affects the employee’s job

performance . . . .”

       Merenda argues there is not substantial evidence to support the trial court’s

independent finding that Merenda reasonably should have known his conduct could

adversely affect his performance and could lead to dismissal. Merenda cites Cranston v.

City of Richmond (1985) 40 Cal.3d 755, 770, which in turn cites the “seven tests” of good

or just cause: “The analysis we follow here is consistent with the principles commonly

applied by labor arbitrators in determining the propriety of discipline under the standard

of ‘just cause.’ ‘A fundamental component of the just-cause standard is that employees

must be told what kind of conduct will lead to discipline—especially if the penalty is to

be discharge. An employee can hardly be expected to abide by “the rules of the game” if

the employer has not communicated those rules, and it is unrealistic to think that, after

the fact, an arbitrator will uphold a penalty for conduct that an employee did not know

was prohibited.’ (Koven & Smith, Just Cause: The Seven Tests (1985) p. 25.)” (Ibid. at

fn. 13.)

       Both the arbitrator and the trial court concluded that there was good cause for

Merenda’s dismissal based on the following evidence and reasoning. The arbitrator held

that an employer must show good cause by establishing by a preponderance of the

evidence that the employee reasonably should have known that his conduct could lead to

discipline and its level of severity. The arbitrator found that Merenda admitted his lack

of judgment in drafting the memorandum regardless of how he intended it to be

                                             6
understood. Furthermore, Merenda expressed a subjective understanding of the potential

ramifications of his conduct. In particular, the arbitrator found Merenda reasonably

should have known that the memorandum could compromise his credibility when

testifying in court and therefore could result in discipline, including termination.

       The arbitrator concluded: “This record, the 2008 memorandum itself, and

[Merenda’s] own admissions establish the damaging perception the 2008 memorandum

has caused. There can be no doubt . . . that this memorandum has created, at minimum,

the specter of conflict and concern in any case that [Merenda] touches from here on out.

Such is the proven harm here. [¶] . . . [T]he essential functions of his job include

testifying in court and, through investigation, assisting in the representation of PD

criminal defendants sometimes on trial for their lives. Be it couched as negligence or

conduct which adversely affects his job performance or operation of the PD, his lack of

judgment in this single instance and the resulting harm have created a hurdle to his

continued employment that neither Employer nor its client criminal defendants should be

forced to overcome. Discharge from service was reasonable in light of the

circumstances. Employer has proven all elements of the ‘good cause’ analysis necessary

to establish the charges and sustain [Merenda’s] termination.”

       In its statement of decision the trial court independently ruled that good cause had

been shown: “Merenda does not argue or point to any evidence that establishes that he

was not aware of the contents of the MOU during his employment or that the conduct

complained of—indicating in a memorandum his willingness to prepare an investigative

report where evidence is left out, did not constitute such violations under the MOU. [¶]

                                              7
Merenda’s credibility is an important aspect of his job. He was aware of this fact.

[Citation.] An investigator can be questioned on the stand regarding facts outside the

case that could affect his or her credibility. [Citation.] Merenda testified that the last

sentence in his 2008 memorandum gave the perception not just to the court and the

district attorney that he was willing to remove information from a witness statement, but

also to his employer. [Citation.] Due to this, there is sufficient evidence that Merenda

was aware that conduct that called into question his credibility fell within the MOU’s

ground for dismissal.”

       Based on our review of the record, we agree with the arbitrator and the trial court.

The facts contradict Merenda’s contention that he had no notice that writing a private

joke in a confidential memorandum could affect his job performance and lead to

termination. Substantial evidence belies a claim that the confidential memorandum was

“private.” The report was available to anyone in the public defender’s office with access

to the Coronado case file. Although Merenda repeatedly asserts that the last sentence

was meant as a private joke, there is substantial evidence to the contrary. In his 2011

declaration, Merenda wrote he could not honestly explain why he wrote the sentence. He

also suggested he was trying to provoke Steele for not reading the reports he prepared.

Before the Coronado writ petition was filed, Merenda told the OPD that he did not mean

the statement as a joke. During the administrative hearing, Merenda testified that he did

not know if he was joking but that he was trying to get Steele’s attention. Merenda also

testified he was upset with Steele because he believed interviewing Lee was a waste of

time and he wanted to force Steele to ask him to write a second report. The foregoing

                                              8
evidence supports a finding that Merenda did not write the last sentence as a private joke

but, instead, because he was frustrated with Steele.

       In any case, whether Merenda was joking or had another motivation, he

reasonably must have known his conduct could subject him to discipline. Article XI of

the MOU puts all union employees in the OPD on notice of the types of misconduct

considered good cause for termination of employment, including inefficiency or

negligence in the performance of duties, neglect of duty, and conduct that adversely

affects the employee’s job performance. Merenda admitted that he knew it was improper

to remove a material fact from a report. Merenda admitted his offer to write a second

report omitting Coronado’s confession showed poor judgment.

       Merenda also knew such conduct could adversely affect his credibility. As he

stated in 2011, “I understand there is ‘no good’ explanation for having a sentence

included in a memo that leaves anyone, who may read it, coming away thinking I was

willing to change reports to fit a situation” and “I do admit it does show my ignorance or

my lack of thought and judgment at the time, of any Appeals processes, and the obvious

damage to our credibility.” During the arbitration, Merenda testified that it would be

“very difficult” for him to rebut the perception of a lack of integrity. Merenda also

testified that it was “obvious” that his integrity, credibility, and ability to testify in court

had been compromised.

       Any perception that Merenda was not credible or not reliable would necessarily

adversely affect Merenda’s performance as an investigator, and therefore constitute

grounds for dismissal under the MOU. Merenda’s own statements constitute substantial

                                                9
evidence supporting the trial court's determination that Merenda should have known that

the last sentence in his June 2008 report “gave the perception not just to the court and

district attorney that he was willing to remove information from a witness statement, but

also to his employer.” Thus Merenda reasonably should have known he could be subject

to discipline, including termination.

                                             V

                        PRETERMINATION INVESTIGATION

       As an additional argument related to good cause, Merenda maintains the OPD did

not conduct a full and fair investigation before terminating his employment, citing Cotran

v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93 [involving private not public

employment], out-of-state administrative decisions, and the Koven & Smith treatise on

just cause.2 Merenda contends the pretermination investigation in this case was

inadequate because the OPD did not interview Merenda or any other witnesses about the

confidential memo. However, substantial evidence in the record demonstrates that the

OPD conducted an adequate investigation before deciding to terminate Merenda’s

employment.

       The OPD complied with case law governing public employment and due process.

(Cleveland Bd. of Educ. v. Loudermill (1985) 470 U.S. 532, 538, 545-548; Skelly v. State

Personnel Board (1975) 15 Cal.3d 194, 207-208; Townsel v. San Diego Metro. Transit

Dev. Bd. (1998) 65 Cal.App.4th 940, 949.) The “right to respond” includes the

       2 Although Merenda cites the 2006 edition we have only been able to obtain and
review the 1985 edition cited by the California Supreme Court in Cranston.

                                             10
administrative procedure known as a “Skelly hearing,” in which the employee receives an

opportunity to respond “either orally or in writing” to “the authority initially imposing

discipline.” In addition, the employer must provide an opportunity for a postdiscipline

evidentiary hearing. (Skelly, at p. 215.)

       We hold the OPD made an adequate investigation under the circumstances. As

conducted for the OPD, Gary Windom reviewed the June 2008 memorandum and

contacted Peter Scalisi, who reported that Steele had construed the last line of Merenda’s

memo as a joke. Windom interviewed Merenda, who admitted writing the memorandum

but could not explain the last sentence except as an attempt to get Steele’s attention.

Windom also reviewed Merenda’s December 2011 declaration, including case reports

authored by Merenda. In connection with the writ petition, Windom spoke to both Steele

and Brisco and the District Attorney. Windom tried to talk to Judge Thierbach who

refused to speak to him. After the writ had been filed, Windom consulted about

disciplinary action with the county’s human resources director and private outside legal

counsel.

       At the Skelly hearing, Merenda had an opportunity to present additional evidence

before a final decision was made. (Skelly v. State Personnel Board, supra, 15 Cal.3d at p.

214.) Windom testified that the Skelly hearing did not change his opinion regarding the

proposed termination. Merenda then received a full evidentiary hearing before a neutral

arbitrator. The circumstances of this case did not warrant anything more. As Merenda

stated in his declaration, he could not explain why he wrote the last sentence of the

memorandum but he assumed he did it to get Steele’s attention. Merenda’s admissions

                                             11
about his lack of judgment established the harm caused by the memorandum. What

could be interpreted as Merenda’s apparent willingness to manipulate evidence

irreparably damaged his credibility. Additional investigation would not have changed

that outcome. Under these circumstances, there was nothing more for Windom to

investigate. There was uncontroverted evidence that Merenda engaged in the conduct

that was grounds for the disciplinary action.

                                            VI

                             PENALTY OF TERMINATION

       We independently review Merenda’s additional claim that the penalty of

termination was an excessive abuse of discretion. (Antelope Valley Press v. Poizner

(2008) 162 Cal.App.4th 839, 851; Cadilla v. Board of Medical Examiners (1972) 26

Cal.App.3d 961, 966.) In Hughes v. Board of Architectural Examiners (1998) 68

Cal.App.4th 685, 692-693, the court held that an administrative penalty is not excessive

merely because there is no actual harm to the public service. Because the conduct of

public employees should be above reproach, even potential discredit to a public agency

may be considered cause for termination. (Lake v. Civil Service Commission (1975) 47

Cal.App.3d 224, 228.) In this case, there has been actual, demonstrable harm to

Merenda’s credibility and to the credibility of the OPD.

       A penalty is not a manifest abuse of discretion when reasonable minds can differ

regarding its propriety. (Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 54.) In

Kazensky, two city mechanics were fired for taking excessively long breaks and leaving

work early. The trial court concluded that the terminations were excessive, and ordered

                                            12
reinstatement. The appellate court reversed, holding that: “‘In reviewing the penalty

imposed by an administrative body, which is duly constituted to announce and enforce

such penalties, neither a trial court nor an appellate court is free to substitute its own

discretion as to the matter nor can the reviewing court interfere with the imposition of a

penalty by an administrative tribunal because in the court's own evaluation of the

circumstances the penalty appears to be too harsh.’” (Id. at p. 75.)

       Here, whatever his motives, Merenda’s conduct damaged his credibility and the

OPD by creating a perception that OPD investigators might manipulate or conceal

evidence. Windom testified that he considered Merenda’s conduct unethical and that it

adversely affected the OPD and its clients. Merenda himself acknowledged that he could

be confronted by the memorandum in future cases. An expert witness, Paul Meyer,

testified that Merenda’s lack of credibility would impact every future case. Meyers also

testified that the consequences of credibility issues are even more significant in criminal

cases because the witnesses often have criminal convictions or other issues and many

jurors favor the prosecution. Meyers opined that the OPD would have to obtain a client’s

waiver before permitting Merenda to work on any given case.

       Merenda argues that the testimony of Windom and Meyer regarding the damage

caused by Merenda’s statement is speculative and cannot support a penalty of

termination. However, the facts of Yancey v. State Personnel Board (1985) 167

Cal.App.3d 478 are distinguishable. Yancey involved the off-duty conduct of a state

correctional officer unrelated to his job duties—wearing nothing but female

undergarments in public. There was speculative testimony by a psychiatrist and another

                                              13
correctional officer that the off-duty incident would make it substantially more difficult

for the dismissed officer to do his job. (Id. at pp. 483-484.) The dismissed officer

countered with evidence that many other correctional officers had no concern about his

ability to work, thus negating the employer’s evidence. Therefore, the appellate court

held that, on “the basis of the record before us, we conclude that no substantial evidence

exists that appellant is unfit for his employment, and that if any discipline is warranted,

the penalty imposed was grossly excessive.” (Id. at p. 487.) Unlike the evidence in

Yancey, the opinions of Windom and Paul Meyer are not factually unsupported. Both

Windom and Meyer possess extensive experience in criminal litigation and are fully

equipped to testify about Merenda’s future effectiveness as a defense investigator.

       Furthermore, the evidence of how Merenda’s memorandum adversely affected the

Coronado case is not hypothetical, speculative, or conjecture. Judge Thierbach was so

concerned he removed the OPD from the case and made the memorandum public. This

court later agreed there was “substantial evidence to show that the public defender’s

office has a potential conflict of interest,” and remanded the case to obtain a waiver from

the Coronado defendant: “However, whether or not members of the public defender’s

office are actually guilty of suborning perjury or any misconduct is not as significant as

the fact that the nature of the investigation may become an issue during trial. Even if the

defense does not call Lee as a witness, the prosecution may very well do so, particularly

if the public defender asserts a ‘false confession’ defense. His statements given to the

investigators will then become an issue. Thus, trial counsel, whether it be Steele or

another deputy from the public defender’s office, may very well be placed in the position

                                             14
of defending the actions of the investigators and the entire defense team compromising

his efforts on defending his client. . . . It is also possible that their conduct may tarnish

defendant in the eyes of the jury. [Fns. omitted.]”

       Even though a trial court would have the discretion to exclude impeachment

evidence in future cases, it does not insure that the evidence will actually be excluded.

The discretion afforded to a trial court under Evidence Code section 352 does not cure

the underlying problem regarding Merenda’s credibility and the need to obtain the

informed consent of every future criminal defendant.

       In mitigation, Merenda argues that he had no prior discipline and had received

positive work evaluations. He also contends he could be rehabilitated if challenged.

Unfortunately, as the arbitrator articulated, nothing can truly mitigate the damage to

Merenda’s ability to testify credibly in court. Merenda can no longer perform his job.

Merenda’s conduct—offering to write a new report omitting evidence damaging to the

defense—severely impaired Merenda’s credibility not only in the Coronado case, but in

every case on which Merenda might serve as an investigator. Regardless of how

thorough and ethical Merenda might have been in any subsequent investigations, the fact

that he offered to withhold relevant evidence would be used to challenge his credibility in

every future case on which he worked. Under these circumstances, termination of his

employment was not an abuse of discretion.




                                              15
                                             VII

                                   JUDICIAL ESTOPPEL

       Merenda argues judicial estoppel prevented the OPD from terminating his

employment based on a position contrary to the position it adopted in the writ

proceeding. In the writ proceeding, the OPD was legal counsel, advocating on behalf of

Coronado and arguing that Judge Thierbach’s order removing the OPD from the case was

wrong because he misinterpreted the 2008 memorandum. In the present case, the OPD

argues on its own behalf that the 2008 memorandum completely undermines Merenda’s

effectiveness as a defense investigator.

       A review of the evidence demonstrates that three of the five relevant factors of

judicial estoppel cannot be satisfied and therefore the doctrine does not apply. For

judicial estoppel to apply, the party asserting the defense must establish that: “(1) the

same party has taken two positions (2) the positions were taken in judicial or quasi-

judicial administrative proceedings (3) the party was successful in asserting the first

position (i.e., the tribunal adopted the position or accepted it as true) (4) the two positions

are totally inconsistent and (5) the first position was not taken as a result of ignorance,

fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)

The second and fifth factors are not disputed.

       The first obstacle Merenda confronts is the absence of privity. The party at issue

in this proceeding is the OPD, or the County of Riverside. The OPD was not a “party” in

the writ proceeding. Instead, the OPD represented Juan Coronado. The other parties

were the respondent, Riverside County Superior Court, and the real party in interest, the

                                              16
People of the State of California, represented by the District Attorney’s office. Because

the OPD acted as Coronado’s legal counsel, it was not a party as it is now.

       Moreover, the argument advanced by Coronado in his writ petition, regarding

Merenda’s memorandum, was not “totally inconsistent” with the positions advanced by

the OPD in this case. (Jackson v. County of Los Angeles, supra, 60 Cal.App.4th at p.

183.) The issue in this case is whether there was good cause to justify Merenda’s

termination because Merenda could not perform his job—not whether the OPD’s office

had a conflict of interest in the Coronado criminal case because Merenda had actually

tried to suborn perjury or hide evidence. This appellate court concluded only that

defendant Coronado was deprived of effective assistance of counsel and there was

substantial evidence to show that the OPD had a potential conflict of interest. The

argument advanced by Coronado in the criminal writ was not successful and the appellate

court’s decision actually supports the conclusions reached by the arbitrator and the trial

court in this case.

       The relevant parties in the Coronado writ proceeding and the instant action are not

the same. The positions advanced by Coronado in the criminal writ proceeding are not

totally inconsistent with the positions advanced by the OPD in this proceeding. Judicial

estoppel therefore does not apply.

                                            VIII

                                      DISPOSITION

       Whatever he meant by the words he used, Merenda’s ill-judged final sentence in

the 2008 memorandum has irreparably damaged his ability to serve as an investigator for

                                             17
the OPD. The OPD’s decision to terminate Merenda’s employment is supported by

substantial evidence in the record and was not an abuse of discretion. We affirm the

judgment. The parties shall bear their own costs on appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              CODRINGTON
                                                                                       J.

We concur:


RAMIREZ
                       P. J.


McKINSTER
                          J.




                                           18
