Opinion
Certified for Partial Publication
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II, III and IV.
Review Granted Aug. 12, 1998.
Previously published at 63 Cal.App.4th 1426
Franscell, Strickland, Robertss&sLawrence, David D. Lawrence, Pasadena, and S. Frank Harrell, Santa Ana, for Plaintiff and Appellant.
Curiale, Dellaverson. Hirschfeld, Kellys&sKraemer, Jeffrey Sloan, San Francisco, for Defendant and Appellant.
RAYE, Associate Justice.
In 1991, police officer Timothy Fukuda was named Officer of the Year of the City of Angels Camp Police Department. In March 1992, as president of the Police Officers Association, he arranged for a presentation on the benefits of unionization. In August 1992, Fukuda was placed on administrative leave and in November 1992, he was terminated for the assistance he provided the Calaveras County Sheriff and the California Highway Patrol in pursuing an erratic driver approaching the city at a speed in excess of 100 miles per hour. Following an administrative hearing, a hearing officer and the City Council sustained the decision of the Chief of Police terminating Fukuda's employment. Fukuda petitioned the superior court for a writ of mandate contending the weight of the evidence did not support the findings and the termination constituted unlawful retaliation for his protected union activities.
The trial court held the City had the burden of proving by a preponderance of the evidence that the weight of the evidence supported the findings. The court ruled the City sustained the burden only in proving Fukuda executed a rolling roadblock, a violation of a written department policy. The court otherwise found the weight of the evidence did not support findings Fukuda had not been requested to assist in the pursuit, did not notify his superiors, or had been dishonest either in his written reports or during the internal investigation. Since Fukuda had conducted an improper roadblock, the court concluded he would have been subject to disciplinary action even if he had not participated in the union activities. The court therefore rejected Fukuda's retaliation claim but found the termination was excessive as a penalty for an isolated technical violation which had not endangered the public. The court remanded to City to redetermine an appropriate penalty in light of the court's findings.
In the published portion of this opinion, we conclude that pursuant to section 1094.5 of the Code of Civil Procedure the burden of proof in administrative mandamus proceedings involving a fundamental, vested right is the same as the burden of proof before the administrative tribunal. The trial court properly held the City had the burden of proving the preponderance of the evidence supported the findings.
In the unpublished portion of the opinion, we find ample evidence to support the trial court's findings. We agree the City abused its discretion by terminating Fukuda for a solitary lapse of judgment under circumstances in which he was acting to protect the public. Since we affirm the judgment commanding the City to vacate Fukuda's discharge, his cross-appeal seeking the same remedy is moot.
I.
The City does not dispute that Fukuda's right to continued employment as a police officer is a fundamental right. The scope of trial and appellate court review of an administrative agency's decision involving a fundamental right is well established. "When an administrative decision substantially affects a fundamental vested right, the independent judgment standard of review applies." (301 Ocean Ave. Corp. v. Santa Monica Rent Control Bd. (1991) 228 Cal.App.3d 1548, 1555, 279 Cal.Rptr. 636.) In exercising its independent judgment of the evidence, The City attacks the following ruling by the trial court: "[Fukuda's] right to continued employment is a fundamental right. [The City] must therefore establish that the weight of the evidence supports the findings. This means that [the City] has the burden of proof to produce a preponderance of evidence in support of the findings." The City contends the trial court thereby misallocated the burden of proof. According to the City, Fukuda, as the complaining party in the mandamus proceedings, bore the burden of proving the findings were not supported by the weight of the evidence. Moreover, the City insists the administrative findings are entitled to a presumption of validity.
The City confuses the basic concepts of scope of review and burden of proof. The confusion is understandable. Both the Legislature and the courts intermingle the concepts and confuse the terminology. Thus, Code of Civil Procedure section 1094.5, subdivision (c) provides in pertinent part: "Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence."
There are three key phrases contained in this excerpt: 1) "independent judgment on the evidence"; 2) "abuse of discretion"; and 3) "weight of the evidence." In other familiar contexts, "independent judgment" and "abuse of discretion" usually define the scope of judicial review. "Weight of the evidence" is a reference to burden of proof. The Legislature has merged two standards of review and a burden of proof in one sentence. We examine the language within the conceptual framework of scope of review and burden of proof.
The scope of review in mandamus proceedings defines the deference to be accorded administrative decisions or the degree to which the correctness of the administrative determination is to be presumed. When a decision substantially affects a fundamental right, courts consistently have held that the judiciary is to exercise a vigilant and expansive role in reviewing the administrative decision. (Webster v. Trustees of Cal. State University (1993) 19 Cal.App.4th 1456, 1462, 24 Cal.Rptr.2d 150; McMillen v. Civil Service Comm., supra, 6 Cal.App.4th at p. 129, 8 Cal.Rptr.2d 548; 301 Ocean Ave. Corp. v. Santa Monica Rent Control Bd., supra, 228 Cal.App.3d at p. 1555, 279 Cal.Rptr. 636; San Dieguito Union High School Dist. v. Commission on Professional Competence, supra, 174 Cal.App.3d at p. 1180, 220 Cal.Rptr. 351.) The court must exercise its independent judgment on the evidence and the administrative decision is entitled to less deference when a fundamental right is implicated.
In this context, the trial court supplants the administrative agency as the ultimate finder of fact. (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1057, 1 Cal.Rptr.2d 195.) It is at liberty to independently assess credibility. (Bassett Unified School Dist. v. Commission on Professional Competence (1988) 201 Cal.App.3d 1444, 247 Cal.Rptr. 865; San Dieguito Union High School Dist. v. Commission on Professional Competence, supra, 174 Cal.App.3d at p. 1180, 220 Cal.Rptr. 351; Pittsburg Unified School Dist. v. Commission on Professional Competence (1983) 146 Cal.App.3d 964, 977, 194 Cal.Rptr. 672.) Burden of proof, as distinguished from scope of review, is an evidentiary concept. It means "the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid.Code, §§ 115, 605, 606.) "Burden of proof" encompasses two separate burdens. "One burden is that of producing evidence, satisfactory to the judge, of a particular fact in issue. The second is the burden of persuading the trier of fact that the alleged fact is true." (2 McCormick on Evidence (4th ed. 1992) Burdens of Proof and Presumptions, § 336, p. 425, fn. omitted.) There are three customary measures of the burden of persuasion: proof beyond a reasonable doubt, by clear and convincing evidence or by a preponderance of the evidence. A reference to "weight of the evidence" is a reference to preponderance of the evidence. (McCormick, supra, § 339, p. 438.) Thus, burden of proof as the "burden of persuasion" is central to the trial court's evaluation of the evidence. However, burden of proof as the burden of producing evidence rarely applies in mandamus proceedings because evidence is rarely produced in superior court. None was asserted in the present case.
Hence, I agree with the majority that the trial court properly allocated to the City the burden of proving by a preponderance of the evidence presented to the administrative tribunal that Fukuda's acts and omissions constituted good cause for discipline.
The only evidence considered is the evidence introduced before the administrative body unless in the exercise of reasonable diligence the evidence could not have been produced at the administrative hearing. (Code Civ. Proc., § 1094.5, subd. (e).)
Contrary to the City's claim, Evidence Code section 664 ("It is presumed that official duty has been regularly performed") does not create a presumption that the administrative tribunal's factual determinations are valid. If a disciplined employee claims the administrative agency failed to conduct a hearing, consider the evidence, or otherwise failed to proceed in a manner required by law, then this presumption would apply. However, with respect to the adequacy of proof of the charges against the employee, section 1094.5, subdivision (c) is a specific statutory provision that prevails over the general provision of Evidence Code section 664. Likewise, section 1094.5, subdivision (c) controls over Evidence Code section 500 ("Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting" [italics added] ).
In Code of Civil Procedure section 1094.5, the Legislature has blended the scope of review with burden-of-proof terminology by defining administrative abuse of discretion, which most often describes a deferential standard of review, as a decision unsupported by the weight of the evidence. But the trial court, charged with reviewing the administrative decision, ironically is also charged with independently assessing the evidence. The question thus posed is this: When the trial court is compelled to exercise its independent judgment on the evidence and to determine whether the weight of the evidence supports the findings, does the petitioner seeking a writ of mandate bear the burden of persuasion, i.e. the burden of proving the preponderance of the evidence is contrary to the findings or does the respondent bear the burden of proving the preponderance of the evidence supports the findings?
The City relies on authorities which, on first reading, appear dispositive. Over fifty years ago, the California Supreme Court wrote: "The findings of the board come before the court with a strong presumption of their correctness, and the burden rests on the complaining party to convince the court that the board's decision is contrary to the weight of the evidence." (Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 85, 87 P.2d 848.)
The same principle was restated and reaffirmed in Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 371, 138 Cal.Rptr. 155 as follows: "[T]he standard of proof on review of factual determinations of a tribunal is not a function of the standard of proof in the original proceedings before such tribunal. The standard of proof on review is, instead, governed by the degree to which it is appropriate to presume correctness of such determinations. The holding in Strumsky [v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29] that an 'independent judgment' review is appropriate in the case of local administrative agency findings affecting vested fundamental rights is a determination that, as stated in Drummey, such findings 'come before the court with a strong presumption of their correctness....' [Citation.] Though this presumption does not invoke the substantial evidence test, it does require the party challenging such findings to 'convince the court that the board's decision is contrary to the weight of the evidence.' "
The City also relies on sections 500 and 664 of the Evidence Code. Section 500 provides, "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." Section 664 is an evidentiary presumption that an official duty is regularly performed. Taken together, the City argues, the trial court must presume the termination was justified and Fukuda bears the burden of proving the existence of the On the face of it, Drummey's holding seems odd--a court vested with independent judgment in reviewing an administrative decision must nonetheless presume the decision is correct until persuaded otherwise. Drummey's historical origins provide some insight into the anomaly.
The most telling historical fact is that Drummey was decided in 1939, six years before Code of Civil Procedure 1094.5 was enacted. Before 1939, a petition for a writ of certiorari was the proper vehicle for challenging the decision of an administrative agency. In Standard Oil Co. v. St. Bd. of Equalization (1936) 6 Cal.2d 557, 59 P.2d 119 and Laisne v. St. Bd. of Optometry (1942) 19 Cal.2d 831, 123 P.2d 457, however, the Supreme Court held certiorari would not lie to review administrative decisions, thereby leaving those aggrieved by administrative determinations without a remedy. Drummey was decided within this void.
Certiorari was inappropriate because certiorari lies only to review judicial action. In Standard Oil, the Supreme Court concluded the Legislature could not confer judicial or quasi-judicial powers on statewide administrative boards absent a constitutional provision authorizing such.
In Drummey, the State Board of Funeral Directors and Embalmers suspended the licenses of two embalmers for unlawful solicitation. (Drummey v. State Bd. of Funeral Directors, supra, 13 Cal.2d at p. 78, 87 P.2d 848.) Although the embalmers initially filed for a writ of review, they amended their pleadings to seek mandamus after Standard Oil was decided. (Ibid.) The trial court overruled the demurrers to the petitions for writs of mandate and ultimately granted the writs commanding the board to dismiss the proceedings and to restore the embalmers licenses. The Supreme Court sanctioned the use of mandamus stating that "where no other remedy is available, mandamus is the proper remedy for one improperly deprived of a professional license by an administrative board to secure the restoration of such license." (Id. at p. 82, 87 P.2d 848.)
This radical expansion of traditional mandamus met with criticism. In Bodinson Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 328, 109 P.2d 935, the Supreme Court described the historical context in which mandamus had grown. "Historically the writ has been used for far narrower purposes than those for which it is used in this state today. Mandamus has traditionally been merely a proceeding to compel the performance of ministerial duties and has not been widely used as a method for reviewing the decisions of administrative agencies. [Citations.] ... In this state, however, the law is now established that mandamus is the remedial writ which will be used to correct those acts and decisions of administrative agencies which are in violation of law, where no other adequate remedy is provided. [Citations.] Our late decisions have recognized that the use of mandamus to review acts of administrative agencies is a departure from the traditional purpose of the writ, and that many historical theories concerning mandamus ... will not always be applicable where the writ is used to review the acts of administrative bodies." (Id. at pp. 328-329, 109 P.2d 935.)
In a scathing concurring and dissenting opinion in Dare v. Bd. of Medical Examiners (1943) 21 Cal.2d 790, 136 P.2d 304, Justice Traynor lamented the creation of an odd review marrying characteristics of certiorari, a motion for a new trial, and a trial de novo. He called for a repudiation of Standard Oil, Drummey, and their progeny and the resurrection of the writ of certiorari to review administrative decisions. (Id. at p. 816, 136 P.2d 304, Traynor, J. dissenting.)
At the heart of the debate was the persistent problem of the appropriate scope of judicial review and the degree of deference to be accorded administrative agencies, which were viewed by many at the time as a threat to civil liberties. As the United States Supreme Court had written in St. Joseph Stock Yards Co. v. United States (1936) 298 U.S. 38, at page 52, 56 S.Ct. 720, at page 726, 80 L.Ed. 1033, a case heavily relied upon by the California Supreme Court in Drummey: "[T]o say that [administrative] findings of fact may be made conclusive where constitutional rights of liberty and property are involved, although the evidence In sum, Drummey was decided in the midst of a dramatic shift in the law involving the use of the writs of certiorari and mandamus and early in the evolutionary development of the appropriate scope of judicial review of administrative decisions. In many ways then, the case was revolutionary for it afforded mandamus as a remedy for those allegedly aggrieved by administrative bodies. It also stands for the remarkable proposition that a court of law has the obligation to exercise its independent judgment on the evidence if a vested, constitutional right was at issue, a proposition which retains vitality today. At the same time, however, Drummey includes the very proposition advanced by the City. The City quotes the language from Drummey wherein the court observed that because administrative findings "come before the court with a strong presumption of their correctness," the party challenging such findings must "convince the court that the board's decision is contrary to the weight of the evidence." This so-called presumption of correctness was an abstraction and the court's remark that because of the presumption, a petitioner carries the burden of proof, was clearly dicta. Although no findings were made by the trial court, the court wrote, "It must be conclusively presumed on this appeal that the trial court weighed the evidence giving due weight to the presumption in favor of the board's findings, but nevertheless, exercising its independent judgment, found against the board." (Drummey, supra, 13 Cal.2d at p. 86, 87 P.2d 848.) Neither the presumption nor the burden of proof were at issue in Drummey.
The constitutional analysis in Standard Oil and Strumsky decisions was tempered in later decisions. It is now clear that the Legislature can "accord finality to the findings of a statewide agency that are supported by substantial evidence." (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346, 156 Cal.Rptr. 1, 595 P.2d 579.) In the absence of contrary statutory direction, the independent judgment standard survives as a judicially imposed standard of review applicable to decisions of nonconstitutional state agencies where fundamental vested rights are implicated.
It is incongruous to compel a court to exercise its independent judgment while purporting to accord administrative findings a presumption of correctness. The incongruity was apparent to many. In his sharp dissent in Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, Justice Burke observes, "The commentators assume that the so-called 'presumption' will be ignored by the trial courts, since it is totally inconsistent with the concept of an independent judgment review." (Id. at p. 154, fn. 12, 93 Cal.Rptr. 234, 481 P.2d 242, Burke, J. dissenting.) The presumption, according to commentators writing 25 years later, remains meaningless. "As a practical matter, however, when the administrative proceeding's record of evidence is before the court, the presumption that the evidence is sufficient is generally not meaningful, because the court usually bases its decision on the weight of the evidence without regard to the presumption." (Cal. Admin. Mandamus (Cont.Ed.Bar 1989) page 204.)
The dicta, however, ameliorated to some extent the radical departure the court had announced in allowing a court to exercise its independent judgment in mandamus proceedings. Referencing the demise of certiorari and the birth of a new form of mandamus with independent judgment, Justice Traynor noted in his dissent in Dare v. Bd. of Medical Examiners, supra, 21 Cal.2d at p. 809, 136 P.2d 304: "The attendant qualification that 'the findings of the board came before the court with a strong presumption of their correctness' suggests that the distinction between the new system and old may be more artificial than real."
Whether the dicta was politically expedient or theoretically sound, the opinion predates the enactment of the statutory basis for administrative mandamus. Code of Civil Procedure section 1094.5, subdivision (c) expressly defines the scope of judicial review. Although this language finds its genesis in City argues both the presumption of correctness and burden of proof are found in the Evidence Code. (§§ 500, 664.) True, the Evidence Code generally allocates the burden of proof on a fact to the party whose claim rests on the existence or non-existence of the fact. However, as discussed in Webster v. Trustees of Cal. State University, supra, 19 Cal.App.4th 1456, 24 Cal.Rptr.2d 150. Evidence Code section 500 applies "except as otherwise provided by law." Section 1094.5 provides otherwise. Thus, we conclude, in cases involving fundamental, vested rights, the burden of proving grounds for termination is on the administrative entity. In this case, the City. Moreover, we also agree with Fukuda "[t]he presumption of performance of official duty, contained in Evidence Code section 664, goes only to the burden of producing evidence." (Kleist v. City of Glendale (1976) 56 Cal.App.3d 770, 777, 128 Cal.Rptr. 781.)
Webster determined, without discussing Drummey, that the burden of proving a public employee's inadequate job performance rests with the employer both before the administrative agency and during review by the trial court.
We therefore conclude section 1094.5 does not impose on a petitioner in mandamus proceedings the burden to prove the preponderance of the evidence is contrary to the findings. Rather, the administrative entity's burden of proof before the trial court remains to prove the weight of the evidence supports termination of an employee. We see no justification in either the case law, the language of the statute, or public policy to lighten the public entity's burden before the trial court when that tribunal is compelled to exercise its independent judgment on the evidence. By adopting the allocation of the burden of proof articulated in Webster v. Trustees of Cal. State University, supra, 19 Cal.App.4th 1456, 24 Cal.Rptr.2d 150, we find the trial court properly allocated to the City the burden of proving termination was supported by a preponderance of the evidence. As we shall explain in part II, post, the trial court did not err in concluding the City was unable to meet its burden.
II.- IV.
DISPOSITION
The judgment is affirmed. The cross-appeal is dismissed.
Fukuda shall recover his costs on appeal.
NICHOLSON, J., concurs.
SCOTLAND, Acting Presiding Justice, concurring.
I concur but write separately to explain that although, in my view, credible evidence presented to the administrative tribunal supports its determination that Fukuda violated police department policy and then knowingly made false statements about his acts and omissions, the trial court's judgment to the contrary must be affirmed.
I
The City of Angels Camp (City) does not dispute that, in ruling on a petition for a writ of administrative mandamus challenging an administrative decision which affects a right that has been acquired legitimately or is otherwise "vested" and is of a fundamental nature from the standpoint of its "economic aspect" or its effect on an individual's " 'life situation,' " a trial court exercises its independent judgment in determining whether the factual findings of the administrative tribunal are supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (c); Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, 44, 112 Cal.Rptr. 805, 520 P.2d 29; Richardson v. Board of Supervisors (1988) 203 Cal.App.3d 486, 493, 250 Cal.Rptr. 1.)
The City also does not dispute that Timothy Fukuda's interest in continued employment as a City police officer is such a "fundamental vested right" that cannot be infringed upon unless the employing agency establishes good cause for doing so. (E.g. Pipkin v. Board of Supervisors (1978) 82 Cal.App.3d 652, 661, 147 Cal.Rptr. 502.) Hence, the City concedes that, in determining whether the administrative tribunal correctly found that Fukuda's acts and omissions constituted good cause for discipline, the trial court was required to exercise its independent judgment in assessing the evidence.
The City contends, however, that the trial court "made a fundamental error when it placed the burden of proof in the writ proceeding on the City" rather than on Fukuda, the party who sought relief in the trial court claiming the administrative tribunal "committed prejudicial abuse of discretion" in that its findings of misconduct are not supported by the evidence presented to the tribunal. The contention fails.
"Where it is claimed that the [administrative tribunal's] findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence." (Code Civ. Proc., § 1094.5, subd. (c); further section references are to the Code of Civil Procedure unless otherwise specified.) The phrase "weight of the evidence" is synonymous with "preponderance of the evidence." (Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 368-369, 138 Cal.Rptr. 155.)
The majority correctly concludes that, in applying this standard, a trial court reweighs the evidence and makes its own determination whether the employing agency met its burden of establishing, by a preponderance of the evidence, that the employee's acts or omissions constituted cause for discipline. (Maj. opn. at pp. 732, 737; Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d at p. 44, 112 Cal.Rptr. 805, 520 P.2d 29; Richardson v. Board of Supervisors, supra, 203 Cal.App.3d at p. 493, 250 Cal.Rptr. 1.)
In other words, the trial court "supplants the administrative agency as the ultimate finder of fact." (Maj. opn. at p. 734.) Accordingly, it is the employing agency's burden, in responding to a petition for writ of administrative mandamus, to convince the trial court, acting as an independent fact finder, that the preponderance of the evidence establishes the employee's acts or omissions constituted good cause for discipline, i.e., that the administrative tribunal's factual determinations are supported by the weight of the evidence. (Maj. opn. at p. 737.)
The determination of penalty, however, is not a "weight of the evidence" issue to be reweighed by the trial court using its independent judgment if the court finds the evidence supports the administrative tribunal's finding that disciplinary action was justified. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217-218, 124 Cal.Rptr. 14, 539 P.2d 774.) "Discretion in fixing the penalty for [an employee's improper conduct] is not vested in the trial court. That discretion remains in the administrative body, and will not be disturbed unless there has been a manifest abuse of discretion." (Zink v. City of Sausalito (1977) 70 Cal.App.3d 662, 665, 139 Cal.Rptr. 59; accord Holt v. Department of Foods&sAgriculture (1985) 171 Cal.App.3d 427, 436-437, 218 Cal.Rptr. 1.)
II
Where, as here, the trial court overturns administrative findings of fact and an appeal Applying this standard, I agree, albeit unenthusiastically, we must affirm the trial court's determination that all but one of the administrative tribunal's factual findings are not supported by the weight of the evidence and that the City must reconsider the penalty in light of the trial court's findings of fact.
In my view, credible evidence presented to the administrative tribunal supports its determination that Fukuda violated police department policy and then knowingly made false statements about his acts and omissions. However, the trial court assessed the evidence differently, accepting Fukuda's version of the events and giving him the benefit of the doubt in other particulars.
Since it is the exclusive province of the trial court to determine credibility and the truth or falsity of facts upon which that determination depends, I may not substitute my evaluation of the witnesses' credibility for that of the trial court. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103; Richardson v. Board of Supervisors, supra, 203 Cal.App.3d at p. 493, 250 Cal.Rptr. 1.)
As the evidence found credible by the trial court, and the inferences drawn therefrom, are sufficient to support the judgment, I agree with the majority that the judgment must be affirmed.
** See footnote *, ante.