Olguin v. City of Hollister CA6

Filed 11/14/22 Olguin v. City of Hollister CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

SEAN OLGUIN, H049386 (San Benito County Plaintiff and Appellant, Super. Ct. No. CU-21-00021)

v.

CITY OF HOLLISTER,

Defendant and Respondent.

The City of Hollister (city) terminated Sean Olguin from his position as a fire captain. He challenges the trial court’s order sustaining the city’s demurrer to his whistleblower retaliation lawsuit. Finding no error, we will affirm. BACKGROUND Plaintiff’s Termination Plaintiff was employed with the City of Hollister Fire Department for over 25 years before he was discharged for misconduct. He was hired as a firefighter, promoted to firefighter/engineer, and served as a fire captain for approximately five years before he was terminated. Following an internal affairs investigation, the city notified plaintiff on October 11, 2019, of its intent to terminate his employment. The written notice described the misconduct giving rise to the adverse action, which involved an altercation between plaintiff and his brother (also a city firefighter) at a birthday party the previous October.

A Skelly conference was held on November 21, 2019,1 and was attended by plaintiff, his attorney, a city fire captain, and the city’s management services director who served as the decisionmaker. Plaintiff opposed the proposed termination orally and in writing, and provided numerous documents to the director, including letters of support from colleagues. The director considered the statements, documents, and plaintiff’s remorse before issuing a final notice of termination on January 8, 2020. According to a declaration submitted by plaintiff’s attorney in the trial court, plaintiff presented evidence at the Skelly conference that he was not the initial aggressor at the October 2018 party; that his brother had been physically violent to him in the past; and that despite claimed injuries attributed to the October 2018 incident, his brother was physically active and earned money working side jobs while on paid medical leave. Plaintiff appealed the termination decision, and a de novo evidentiary hearing was held before the city manager. Testimony and exhibits were admitted in evidence, and the parties submitted pre- and post-trial briefs. The city manager upheld the termination in a written decision dated March 2, 2021. The city manager found plaintiff’s termination comported with due process; found by a preponderance of the evidence the grounds for termination; and found the decision to terminate was just and appropriate under the circumstances. As he had at the Skelly conference, plaintiff offered evidence at the administrative appeal hearing to demonstrate that his brother was not a credible witness. The city manager found that even if plaintiff’s brother lacked credibility, it was undisputed that plaintiff struck his brother in front of members of the public, including children. Further, independent evidence established plaintiff was the physical aggressor and neither he nor his wife were at risk of imminent danger at the time he struck his brother. The city