Cal. Dept. of Corrections and Rehabilitation v. Cal. State Personnel Bd. CA5

Filed 9/23/14 Cal. Dept. of Corrections and Rehabilitation v. Cal. State Personnel Bd. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, F067816

Plaintiff and Respondent, (Super. Ct. No. S-1500-CV-277683)

v. OPINION CALIFORNIA STATE PERSONNEL BOARD,

Defendant and Respondent;

MICHAEL LA PORTA,

Real Party in Interest and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill, Judge. Law Office of Michael A. Morguess, Michael A. Morguess for Real Party in Interest and Appellant. California Department of Corrections and Rehabilitation, Stephen A. Jennings, Staff Counsel IV, for Plaintiff and Respondent. No appearance for Defendant and Respondent. -ooOoo-

The California State Personnel Board (Board) ordered revocation of Michael La Porta’s dismissal by the California Department of Corrections and Rehabilitation (CDCR). The reason for the revocation was that, at a Board hearing, CDCR failed to present any evidence in support of its charge of illegal drug use, and La Porta testified that he did not do it. CDCR subsequently fired La Porta again. This time, the ground was that his testimony at the hearing was false. At a second hearing, CDCR succeeded in producing evidence of the failed drug screening and thus of the falsehood of La Porta’s prior testimony. The Board again ordered revocation of dismissal, however, on the ground that CDCR was not entitled to a second chance to prove the underlying facts. The superior court issued a writ of mandate reversing the Board. It saw no reason why the employer should not have that second chance. We reverse the superior court’s judgment. To show that the employee lied at the first hearing by asserting his innocence, the employer had to prove the drug allegation at the second hearing. But that allegation was litigated, and decided adversely to the employer, at the first hearing. Collateral estoppel barred relitigation of it. The Board’s decision was correct. FACTS AND PROCEDURAL HISTORY CDCR fired appellant and real party in interest La Porta from his position as a correctional lieutenant after La Porta allegedly tested positive for methamphetamine. At the Board hearing requested by La Porta, CDCR told the administrative law judge it needed a continuance because its one witness, a doctor who would have testified about the test results, was unavailable. The judge telephoned the witness, who said he had only been asked to attend the hearing at 10:00 o’clock the night before and had been unable to obtain coverage for his patients that day. Finding good cause to be lacking, the judge denied the request for a continuance. As a result, CDCR was able to call only La Porta as