Laborers International Union etc. v. County of Riverside CA4/2 (2016) · DecisionDepot
Laborers International Union etc. v. County of Riverside CA4/2
California Court of Appeal Sep 8, 2016 No. E063886Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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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-
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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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.
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AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the termination of a public defender investigator for cause, as his written offer to omit a confession from an investigative report irreparably damaged his credibility and ability to perform his duties.
Issues
Whether substantial evidence supports the finding of good cause for the termination of a public defender investigator.
Whether the employer conducted an adequate pretermination investigation.
Whether the penalty of termination constituted an abuse of discretion.
Whether judicial estoppel barred the employer from terminating the employee.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We find that substantial evidence supports the trial court’s ruling. We affirm the judgment.”
“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.”