Opinion
E039773
5-24-2007
CHERYL PONTO, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE et al., Defendants and Respondents.
James S. Link for Plaintiff and Appellant. Ferguson, Praet & Sherman and Shane D. Sullivan for Defendants and Respondents.
NOT TO BE PUBLISHED
This action arises from the County of Riverside terminating plaintiff and appellant Cheryl Pontos employment as a county probation officer for acts of dishonesty and making harassing telephone calls. Ponto challenged her termination through administrative arbitration. After the arbitrator upheld termination of her employment, Ponto filed in the trial court a petition for writ of mandamus against the County and County Chief Probation Officer, Marie Whittington (collectively, the County). The trial court granted the petition in part and remanded the matter to the arbitrator for reconsideration of Pontos penalty. Upon remand, the arbitrator once again upheld termination of Pontos employment, and Ponto filed a second petition for writ of mandamus. The County answered the writ petition and filed a motion for judgment on the pleadings.
Ponto appeals from the trial courts judgment in favor of the County, entered after the trial court granted the Countys motion for judgment on the pleadings. Ponto contends the trial court erred in relying on its rulings and findings made as to the first writ petition. Ponto also contends the dishonesty charge is barred by the one-year statute of limitations.
We conclude the trial court was not required to reconsider and decide those issues considered and decided in the first writ petition proceeding. The only remaining issue properly before the trial court in the second writ petition was whether Pontos statement made during her second interview supported termination based on willful dishonesty. Since the allegations in the second writ petition and the judicially-noticed orders and findings entered in the first writ petition established Ponto could not prevail on her challenge to termination based on willful dishonesty, the trial court did not err in granting judgment on the pleadings as to the second writ petition. The judgment is affirmed.
1. Factual and Procedural Background
Because Ponto is appealing the judgment on the pleadings, the following facts are taken primarily from Pontos second writ petition.
Ponto was employed with the Riverside County Probation Department as a probation officer from 1989 to March 2001. On August 16, 1999, she changed another probation officers recommendation for probationer Kimberly Crow, from four years in state prison to "reinstate and terminate" probation. The deputy district attorney complained vehemently about the change. Ponto reported the matter to her supervisor, which resulted in the county probation department investigating Pontos conduct.
Assistant Director of the Adult Division of the Probation Department, Paul Mueller, was assigned to investigate the matter. After obtaining written reports from all those involved, including Ponto, Mueller interviewed Ponto. Right before the interview, Pontos supervisor told her she would not be disciplined. The interview was unrecorded and lasted two hours.
During Pontos interview, Ponto stated that Michael Schaaf, the defense attorney for Crow, called her on August 16, 1999, and said he had heard that the probation department recommendation for Crow was being changed from prison to reinstatement and termination of probation. Schaaf asked Ponto if she could confirm this. Ponto called the probation officer previously assigned to the case. The officer said he was unaware of such a change in the recommendation but he had no problem with the change. On August 16, 1999, Ponto recorded the changed recommendation in the file and told Schaaf. Ponto also attended the hearing on the matter on August 25, 1999, and discussed the matter with Deputy District Attorney Valerie Mraz.
Mueller asked Ponto during her interview why Schaaf had contacted her. Ponto said that she had known him since 1989, when they had worked in Palm Springs and had been part of a group of attorneys and probation officers who regularly went out together for a beer after work. When asked about her relationship with Schaaf, Ponto said they had been very good friends.
After interviewing Ponto, Mueller concluded Ponto had not committed improper or unethical conduct since Ponto had not concealed her involvement in the case. She had documented and notified her supervisor of her actions. In accordance with Muellers recommendation, the probation department found there was no wrongdoing and closed the matter without further action.
In a separate matter, about a year later, on September 14, 2000, Mary Parks-Anderson (Parks), a local news reporter, filed a complaint with the police department, stating that she had been receiving harassing calls since March 2000. The calls were traced to Pontos office phone and work cell phone.
On September 15, 2000, Parks called the Probation Department Assistant Division Director, Michael Stachowski, and reported that she had been receiving harassing calls from Ponto and had filed a criminal complaint with the police department. Stachowski obtained a copy of the complaint and instigated an administrative investigation. The investigation revealed that, in addition to the calls made to Parks, Ponto had also made approximately 130 calls to Schaaf.
On November 13, 2000, Mueller and others from the Probation Department interviewed Ponto concerning Parkss complaint. Ponto admitted making the calls but claimed she had done so because she was desperately attempting to reach Schaaf to tell him to repay $12,000 he owed her. Ponto loaned him the money between 1997 and 1999 to help Schaaf start his law firm.
When Mueller asked Ponto about her relationship with Schaaf, Ponto said that she and Schaaf had had a romantic relationship but it had ended around January 1999. Ponto also admitted she had not fully disclosed her relationship with Schaaf when Mueller interviewed her in September 1999. She had not mentioned her existing financial relationship or prior romantic relationship with Schaaf.
By letter dated January 25, 2001, Ponto was notified that her employment with the County was terminated. The issue of whether there was just cause for Pontos termination was submitted to administrative arbitration.
On July 31, 2003, the arbitrator issued his decision upholding the Countys termination of Pontos employment. The arbitrator concluded in his written opinion that the County had carried its burden of establishing that Ponto had made unjustified, harassing calls to Parks. He further concluded that such misconduct called for progressive discipline but not discharge of Pontos employment.
The arbitrator did not determine what progressive discipline should be implemented because the arbitrator also found that Ponto was willfully dishonest and such misconduct supported termination. Pontos willfully dishonest conduct consisted of willfully failing to disclose during her 1999 interview the true nature of her relationship with Schaaf. Although Ponto stated that she was very good friends with Schaaf, she did not disclose that she had had a romantic relationship with him and that he owed her $12,000.
The arbitrator declined to decide if during the course of the 1999 interview, Mueller violated the Public Safety Officers Procedural Bill of Rights Act (POBR, Gov. Code, § 3300, et. seq.) by not advising Ponto of her constitutional and statutory rights. The arbitrator concluded he did not have jurisdiction to decide POBR issues.
Unless otherwise noted, all statutory references are to the Government Code.
Ponto appealed the arbitration award by filing in the trial court a verified petition and amended petition for writ of mandamus. Ponto argued that the arbitrator improperly based his decision on inadmissible evidence obtained during her September 1999 interview. She claimed the interview violated her POBR rights because she was not advised of her constitutional and statutory rights under Miranda v. Arizona (1966) 384 U.S. 436, Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, and POBR. She also complained that she was told before her interview that she would not be disciplined.
The trial court found the County had violated Pontos POBR rights and therefore all statements and evidence relating to the 1999 interview were inadmissible. As a consequence, there was insufficient evidence to support the dishonesty charge and termination. The trial court granted Pontos writ petition in part, ruling that the arbitrator erred in upholding termination of Ponto based on willful dishonesty. The trial court further ordered that, because the 1999 interview was unlawfully conducted, all documents related to it were to be expunged from Pontos personnel file.
The trial court upheld the arbitrators second finding that Ponto made harassing telephone calls to Parks, and remanded the matter to the arbitrator for reconsideration of the penalty.
The County filed a motion for reconsideration or clarification of the trial courts statement of decision granting the writ of mandate. The County argued that evidence relating to the 1999 interview was admissible for impeachment purposes. The trial court denied the Countys motion for reconsideration on the ground there was nothing to impeach. In the courts written statement of decision, the court explained that "[the County] states . . . that [Ponto] admitted upon reinterview that she had not fully disclosed her relationship with Mr. Schaaf. This will be before the arbitrator when he reconsiders his ruling. [The County] apparently wants the prior statements to be used to show that [Ponto] was dishonest, but [Ponto] has already admitted that. The prior statements would therefore be part of [the Countys] case in chief, not impeachment."
Neither party appealed the trial courts judgment and writ granting in part Pontos petition for writ of mandate. On remand, the arbitrator did not hold a hearing on the matter or consider additional evidence. The arbitrator acknowledged in his written decision the trial courts ruling that all evidence related to Pontos 1999 interview was inadmissible under POBR. Nevertheless, the arbitrator concluded Pontos termination was proper based on her admission in her second investigative interview a year later that she had not fully disclosed her relationship with Schaaf during the 1999 interview. The arbitrator therefore once again upheld the Countys termination of Pontos employment based on a finding that Ponto was willfully dishonest.
Ponto filed a second petition for writ of mandamus, challenging the arbitrators decision on remand. The petition allegations were almost identical to those contained in the first writ petition. Ponto alleged, among other things, that the arbitrator improperly relied on evidence related to the unlawful 1999 interview and therefore erred in upholding her termination based on the finding she was dishonest during the 1999 interview.
The County filed a motion for judgment on the pleadings seeking dismissal of Pontos second writ petition and entry of a final judgment upholding the Countys termination of Pontos employment. The Countys attorney filed a supporting declaration, attaching copies of the following court documents: (1) the trial courts first statement of decision on the writ of mandate, dated July 20, 2004 (ex. A); (2) the courts minute order, dated August 10, 2004, denying the Countys motion for reconsideration or clarification (ex. B); (3) the judgment and writ granting the petition for writ of mandate filed on October 25, 2004 (ex. C); (4) the Countys supplemental brief, dated August 13, 2004, submitted to the arbitrator following remand (ex. D); and (5) the arbitrators opinion and award, dated December 10, 2004, entered following remand, entitled "Arbitrators Supplemental Opinion and Award" (ex. E).
Although the County did not request judicial notice of these documents, the County stated in its reply to Pontos opposition that the trial court must take judicial notice of all documents in its own file, which included the documents provided in defense counsels supporting declaration. Those documents, the County argued, contained the trial courts prior finding that Ponto admitted she did not disclose the true extent of her relationship with Schaaf and that Ponto admitted she was dishonest during her 1999 interview.
In the Countys motion for judgment on the pleadings, the County argued that Ponto could not prevail on her second writ petition because Ponto admitted in the second interview that she had failed to disclose the true extent of her relationship with Schaaf. This established that she was willfully dishonest and supported termination of her employment.
The trial court agreed and granted the Countys motion for judgment on the pleadings. The trial court stated during the hearing that it was not required to reconsider and decide again those issues which it had already decided in the first writ petition proceeding. The trial court concluded Ponto could not state facts sufficient to allege claims upon which relief could be granted in her second petition because the arbitrator appropriately upheld Pontos termination based on her admission during her second interview that she did not disclose her true relationship with Schaaf during her 1999 interview.
Ponto appeals from the trial courts judgment and writ order entered on November 23, 2005, granting the Countys motion for judgment on the pleadings.
Apparently due to oversight, the judgment filed on November 23, 2005, lacks language, following the statement, "IT IS HEREBY ORDERED, ADJUDGED AND DECREED," stating that the trial court entered judgment denying Pontos second writ petition. Nevertheless, the judgment is enforceable, despite this technical defect, since the title on the face sheet of the judgment states, "Judgment by court order under section 438," and the first paragraph of the judgment states the trial court "ordered entry of judgment as requested" in the Countys motion for judgment on the pleadings to Pontos second writ petition. In addition, the judgment states that the County shall recover from Ponto costs of suit. It is clear from the judgment title and language in the document, that the trial courts intent was to enter judgment on the writ petition in favor of the County. Accordingly, the judgment filed on November 23, 2005, will be treated as such. (Progress Glass Co. v. American Ins. Co. (1980) 100 Cal.App.3d 720, 722, fn. 1.)
2. Standard of Review
A motion for judgment on the pleadings may be brought on the same basis as a general demurrer, and the standard of appellate review is the same as that applied to a judgment following the sustaining of a demurrer. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 804.) As with a demurrer, the motion is confined to the face of the pleading, and the court accepts all facts alleged in the complaint as true. (Ibid.) "`Our task in reviewing a judgment of dismissal following the sustaining of such a demurrer [or judgment on the pleadings] is to determine whether the complaint states, or can be amended to state, a cause of action. For that purpose we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed." (Id. at p. 804, quoting Crowley v. Katleman (1994) 8 Cal.4th 666, 672.)
3. Allegations Relevant to Judgment on the Pleadings
The pleadings which are the subject of this appeal consist of Pontos second writ petition. The allegations contained in the second petition are almost identical to those contained in Pontos first writ petition, with the exception Ponto adds that the trial court granted in part her first writ petition; the trial court remanded the matter to the arbitrator; and the arbitrator made a new determination, again upholding termination of Pontos employment.
The writ petition allegations pertaining to the issue of whether the trial court erred in granting judgment on the pleadings are as follows. The County unlawfully interviewed Ponto in September 1999, in violation of POBR. The interview was in connection with an administrative investigation into the propriety of Ponto changing another probation officers recommendation concerning probationer Crow. During Pontos interview, Mueller asked her about her relationship with Crows defense attorney, Schaaf. Ponto told Mueller that she and Schaaf were very good friends. A year later, during a second interview concerning harassing phone-call misconduct, Ponto acknowledged she had not disclosed during the 1999 interview that she had a financial relationship with Schaaf and had previously been romantically involved with him.
According to the second writ petition, "The main reason Ponto was fired was because she allegedly made `omission of material facts in response to Muellers repeated questioning about Schaaf which was willful." Ponto alleged that, because the 1999 interview violated her constitutional and statutory rights, the County could not terminate her based on her statements made during the 1999 interview.
Ponto requested in her second writ petition that the court set aside the Countys decision to terminate her employment; eliminate the dishonesty charge because it violated the one-year statute of limitations; remand the matter to the arbitrator for determination of the appropriate remedy for the harassing phone-call misconduct; and declare that all of the Countys acts taken in violation of Pontos POBR rights be deemed void.
4. Reliance on First Writ Proceeding Findings and Rulings
On appeal Ponto argues that the trial court erred in granting judgment on the pleadings based on facts contained within documents from the first writ proceeding. She also argues that the rulings and findings made in the first writ proceedings do not have res judicata effect and are not binding in the second writ proceeding.
Relying on Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394 (Pollak), the County argues that the findings and judgment on the first writ petition are the "law of the case" and therefore Ponto is bound by those findings and rulings. In Pollak, a State Board of Equalization employee sought writ relief in the trial court from the State Personnel Boards (SPB) administrative decision sustaining disciplinary charges against him. The trial court sustained some of the charges and remanded the matter to the SPB for reconsideration of the penalty. The employee did not appeal. (Id. at p. 1397.)
After the SPB on remand imposed a lighter penalty, the employee filed a supplemental petition challenging the SPBs decision. The trial court denied the second petition on the ground the trial courts original writ petition had res judicata effect. Therefore the trial court refused to rehear issues it had already decided. As to the new penalty imposed, the trial court concluded there was no abuse of its discretion. (Pollak, supra, 88 Cal.App.4th at p. 1397.)
On appeal, the Pollak court concluded the employee could not relitigate in the second writ petition issues already decided in the original petition because, in effect, the employee was seeking a new trial of the factual issues but had failed to file timely a motion for new trial. The Pollak court stated: "[B]ecause Pollaks supplemental petition sought a readjudication of factual issues decided adversely to him by a judgment in the same action, he was seeking a new trial as to those issues. Yet Pollak never made a motion for new trial, and, in the absence of such a motion, the trial court properly declined to retry those issues." (Pollak, supra, 88 Cal.App.4th at p. 1405.)
The court in Pollak explained that "[t]he record demonstrates that, by his supplemental petition, Pollak was seeking a redetermination of issues of fact decided by the first judgment. Thus, when the trial court ruled in the first judgment that substantial evidence supported various of the charges against Pollak, it was determining issues of fact. . . . [¶] . . . [¶] Pollaks supplemental petition therefore sought a new trial with respect to issues of fact adjudicated by the trial court in its first judgment. (§§ 590, 656.)" (Pollak, supra, 88 Cal.App.4th at pp. 1406-1407.)
The Pollak case is similar procedurally to the instant case. In Pontos second or supplemental writ petition, Ponto realleged the same facts and arguments raised in her first petition. Thus, as in Pollak, we conclude the trial court correctly concluded it was not required to reconsider those issues it already considered and decided in the first writ petition.
We do not find convincing Pontos attempt to distinguish Pollak on the ground the court in Pollak did not address the one-judgment rule. The court in Pollak provides a sufficient basis for concluding, irrespective of the one-judgment rule, that the trial court need not relitigate issues already decided in the first writ proceeding.
As the Pollak court explained, "[W]e see no equity in Pollaks position. He was given full and fair opportunity to litigate the merits of his disciplinary charges the first time around. On remand, SPB took no new evidence. We see no reason why a busy trial court should be required to readjudicate the same issues, on the same record, as it did the first time. [¶] The trial court did not err in declining to readjudicate the issues it had adjudicated in its first judgment." (Pollak, supra, 88 Cal.App.4th at pp. 1408-1409.) Likewise, in the instant case, the trial court was not required to readjudicate the issues it had already adjudicated in the first writ proceeding.
The trial court in the instant case, however, expressly left unadjudicated the issue of whether Pontos second interview statement concerning her relationship with Schaaf supported termination of Pontos employment. This issue thus was before the trial court in the second writ petition proceeding. In deciding whether the trial court erred in granting judgment on the pleadings, the trial court and this court may consider only the second writ petition allegations and judicially noticed documents from the first writ petition findings and rulings.
5. Ruling on the Countys Motion for Judgment on the Pleadings
The trial courts ruling on the Countys motion for judgment on the pleadings is perplexing for several reasons. After the trial court conducted a relatively lengthy evidentiary hearing on the first writ petition and provided a detailed written decision, the trial court concluded all evidence relating to the 1999 interview was inadmissible and the dishonesty charge was not supported by any evidence; expunged all documents relating to the 1999 interview from Pontos personnel file; and remanded the matter to the arbitrator for the purpose of imposing a penalty based on the harassing phone-call misconduct. This all appears to be well founded and appropriate, but then the trial court added in its minute order denying the Countys motion for reconsideration that, on remand, the arbitrator could also consider Pontos second interview statement concerning her 1999 interview statement regarding her relationship with Schaaf.
The trial court stated in its motion for reconsideration minute order: "[The County] states at lines 22-23 of its page 2 [of its motion for reconsideration and or clarification] that [Ponto] admitted upon reinterview that she had not fully disclosed her relationship with Mr. Schaaf. This will be before the arbitrator when he reconsiders his ruling. [The County] apparently wants the prior statements to be used to show that [Ponto] was dishonest, but [Ponto] has already admitted that. The prior statements would therefore be part of [the Countys] case in chief, not impeachment." The trial court also included in its judgment and order on the writ petition: "[Pontos] admission upon reinterview that she had not fully disclosed her relationship with Mrs. Schaaf, will be before the Arbitrator when he reconsiders his ruling."
These statements are perplexing in that the trial court clearly and expressly ruled that all evidence relating to the 1999 interview was inadmissible and the documents related to the 1999 interview were expunged from Pontos personnel file. For this reason the trial court held that Ponto could not be terminated for dishonesty based on her 1999 interview. Evidence of Pontos admission during the second interview, that she had been dishonest during the 1999 interview, was before the trial court during the hearing on the first writ petition. It is thus perplexing as to why the trial court did not address the second interview statement when ruling on the first writ petition. The trial courts statement that the second interview statement could be considered by the arbitrator on remand also appears to be inconsistent with the trial courts other findings and ruling rejecting the dishonesty charge.
What is further troubling is that, despite the arbitrator acknowledging on remand the trial courts writ petition findings and order, the arbitrator entered the very same decision entered previously, upholding termination of Ponto based on dishonesty during the 1999 interview. The arbitrators second decision was entered without conducting any further evidentiary proceedings or considering any new evidence.
It is further puzzling that the trial courts ruling on the Countys motion for judgment on the pleadings on Pontos second writ petition seems to contradict its decision on the first writ petition, in which the trial court rejected the same dishonesty charge. The trial court, no doubt frustrated with Ponto refiling essentially the same writ petition, after the trial court had gone to great lengths to decide the first petition, simply concluded the issues raised in the second writ petition had already been decided in the first writ petition proceeding; there was nothing new alleged; and Ponto could not prevail on her second writ petition, because Ponto admitted being dishonest during the 1999 interview, and therefore the County properly discharged her based on dishonesty. Despite the trial courts seemingly contradictory rulings, we nevertheless conclude the ultimate result is correct.
According to the trial courts statement of decision and judgment on the first writ petition, the only issues remaining, which were not decided by the trial court during the first writ petition proceedings, were the penalty to be imposed for the harassing phone-call misconduct and the ramifications of Pontos statement that she did not fully disclose her relationship with Schaaf during the 1999 interview. In effect, all other arguments raised in the first writ petition, including the statute of limitations contention, were considered and adjudicated in the first writ petition proceeding. The trial court was not required to reconsider those issues in the second writ petition proceeding. (Pollak, supra, 88 Cal.App.4th at pp. 1408-1409.)
The only remaining disputed issue here is thus whether Pontos statement during her second interview is inadmissible under POBR. We conclude, based on the second writ petition allegations and first writ petition findings and decision, that the statement is admissible and provides a valid ground for the County discharging Ponto based on willful dishonesty.
As a probation officer, Ponto was entitled to the same protections provided to police officers under POBR. (§ 3301 and Pen. Code, § 830.5.) POBR provides, among other things, procedural guarantees and protections when a probation officer is under investigation and interrogated for conduct that might result in discipline: "`"[T]he act is concerned primarily with affording individual police officers certain procedural rights during the course of proceedings which might lead to the imposition of penalties against them." [Citations.] While granting certain rights to police officers, the Act balances the interests of the public in maintaining the integrity of the police force with the interest of the police officer in receiving fair treatment." (City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1512 (Labio), citing Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 568.) This applies equally to probation officers. (§ 3301 and Pen. Code, § 830.5.)
The County disputes the applicability of POBR section 3303, to Pontos statement made during her second interview. Section 3303 provides in relevant part "When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions."
The "following conditions" set forth in section 3303 include informing the officer, prior to interrogation, of the rank, name, and command of the interrogating officer (§ 3303, subd. (b)); the nature of the investigation (§ 3303, subd. (c)), and that failure to answer questions directly related to the investigation or interrogation may result in punitive action (§ 3303, subd. (e)). In addition, under section 3303, "[n]o statement made during interrogation by a public safety officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding [subdivision (f)]"; the interrogation may be recorded (§ 3303, subd. (g)); the officer shall immediately be informed of his or her constitutional rights if prior to or during the interrogation it is deemed that the officer may be charged with a criminal offense (§ 3303, subd. (h)); and, "[u]pon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation." (§ 3303, subd. (i).)
Ponto argues that she was not provided with these protections during her 1999 interview and therefore under section 3303, subdivision (f), all of her statements made during her 1999 interview and all evidence relating to those statements constitute inadmissible evidence.
The trial court held in the first writ petition proceeding that the 1999 interview was conducted in violation of Pontos POBR rights under section 3303. Therefore the trial court ruled in the first writ petition proceeding that Pontos statements made during the 1999 interview were inadmissible. The trial court found in the first writ petition proceeding and Ponto alleged in the second writ petition that Ponto admitted during her second interview that she did not fully disclose during her 1999 interview the true nature of her relationship with Schaaf. In addition, the parties do not dispute that, before conducting the second interview, the County complied with POBR, with the exception Ponto complains she was not adequately advised of the nature of the second interrogation, in violation of section 3303, subdivision (c).
As to Pontos complaint that she was not advised of the nature of her second interview, the trial court stated in its written statement of decision on the first writ petition proceeding that, in addition to being advised of her Miranda and Lybarger rights, Ponto was also advised the second investigation concerned harassing phone calls and misuse of county property. Since the trial court found in the first writ petition proceeding that Ponto was advised of the nature of the second interview, Ponto could not prevail based on her contention the County failed to advise her of the nature of the second interview.
Furthermore, the County did not violate POBR by not telling Ponto before the second interview that Ponto would be questioned concerning her statements made during the 1999 interview because such questioning related directly to the harassing phone-call misconduct. The focus of the investigation was the phone-call harassment, which led to inquiry regarding Pontos relationship with Schaaf. During the second interview, Ponto disclosed that she had made calls to Parks, who was at the time romantically involved with Schaaf. Ponto also stated that she had recently terminated her romantic relationship with Schaaf. Pontos relationship with Schaaf and Pontos previous portrayal of the relationship during Pontos 1999 interview were thus relevant to the harassing phone-call investigation. Under such circumstances, the County did not violate POBR by not advising Ponto, before conducting the second interview, that it would ask questions about Pontos statements made during the 1999 interview.
Ponto argues that, even assuming the County fully complied with POBR during the second interview, her statement made during the second interview concerning Schaaf related to her 1999 statement and thus was inadmissible under POBR because it was "fruit of the poisonous tree." Her second statement concerned Pontos statements made during her 1999 interview. Therefore, Ponto argues, the second statement is inadmissible under POBR and cannot support a finding of willful dishonesty and termination.
The County argues Pontos second statement is admissible because the trial court ruled in the first writ petition proceeding that the arbitrator could consider it on remand. We note that in the first writ petition proceeding the trial court did not expressly find that the statement was admissible or that it could be relied on as a basis for terminating Ponto. The trial court merely stated that Pontos statement in the second interview, that she did not fully disclose her relationship with Schaaf, would be before the arbitrator on remand.
Ponto cites in her appellants opening brief Labio, supra, 57 Cal.App.4th at p. 1516, for the proposition her statement made in the second interview, concerning her 1999 statement, is inadmissible. In Labio, a police officer was terminated for on-duty misconduct. He filed a writ petition challenging his termination and seeking to exclude his statements made during an administrative investigation on the ground the interrogation was conducted in violation of POBR. (Id. at p. 1511.) The trial court granted the officers writ petition and ordered excluded the officers statements under section 3303, subdivision (f). (Ibid.) The Court of Appeal reversed the trial court ruling and issued a writ of mandate ordering the trial court to modify its order so as to allow the city to use the officers statements for impeachment purposes.(Id. at p. 1519.)
Section 3303, subdivision (f) provides in relevant part that "no statement made during interrogation by a public safety officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding."
In reaching its holding, the court in Labio concluded that POBR applied during the administrative investigative interview because the officer was not informed that he was under investigation or advised of the nature of the investigation, in violation of POBR. Nevertheless, the Labio court held that the statements were admissible for impeachment purposes under section 3303, subdivision (f)(3). (Labio, supra, 57 Cal.App.4th at pp. 1509, 1517, 1518.)
Section 3303, subdivision (f)(3) provides: "(3) This subdivision shall not prevent statements made by a public safety officer under interrogation from being used to impeach the testimony of that officer after an in camera review to determine whether the statements serve to impeach the testimony of the officer."
As in Labio, here, Pontos 1999 interview statements were inadmissible under section 3303, subdivision (f) because Mueller did not conduct the interview in compliance with POBR. However, unlike in Labio, the trial court found the 1999 statements could not be used as impeachment because there was nothing to impeach. The County does not argue on appeal that the impeachment exception applies, no doubt because the trial court already had rejected the exception in connection with the first writ proceeding. In addition, the County ultimately prevailed on its motion for judgment on the pleadings despite the trial court not applying the impeachment exception. Labio is thus not dispositive in this case.
Ponto also relies on People v. Gwillim (1990) 223 Cal.App.3d 1254 (Gwillim), for the proposition that her second statement is inadmissible because, under section 3303, subdivision (f), not only her 1999 statement was inadmissible, but in addition, she was to "be tried as if [s]he had not made the immunized statement . . . ." (Gwillim, supra, at p. 1270.)
Gwillim is not on point and actually supports the position that Pontos second interview statement is admissible. In Gwillim, the defendant police officer was criminally charged with committing sexual offenses against another officer. While the criminal proceeding was pending, the police department conducted an internal administrative investigation. The police department interrogated the defendant officer concerning the alleged misconduct. (Id. at p. 1259.) Unlike in the instant case, the officer was apprised of his Lybarger and Miranda rights in compliance with POBR. The issue in Gwillim was whether the trial court erred in dismissing the criminal charges against the officer based on disclosure to the district attorney of the officers statements made during the internal interrogation. (Id. at p. 1270.) Under POBR, statements made during an internal investigation cannot be used in a criminal proceeding against the defendant officer.
The instant case does not concern immunity during criminal proceedings or use in a criminal proceeding of a statement obtained in an internal administrative investigation. Rather the instant case concerns exclusion of evidence due to the failure to comply with POBR protections. Nevertheless, Gwillim is instructive in addressing the issue of when evidence relating to inadmissible statements under POBR may be considered. In Gwillim, the court concluded that when the evidence used in the criminal trial was derived from a legitimate source wholly independent of the confidential statement obtained during the internal investigation, it was admissible. (Gwillim, supra, 223 Cal.App.3d at p. 1266.)
Here, Pontos statement in the second interview, that she did not fully disclose her relationship with Schaaf when interviewed in 1999, was derived from a legitimate source wholly independent of her statement made during the 1999 interview. She made the admission a year after the 1999 interview, during an administrative interrogation concerning harassing phone-call misconduct. She was fully and properly advised of her rights under POBR and was represented by an attorney during the interview.
Even though Ponto mentioned her 1999 statement in the second interview, her statements in the second interview concerned her conduct of being dishonest during the 1999 interview and were made wholly independent of her statements made in the 1999 interview. (Gwillim, supra, 223 Cal.App.3d at p. 1266, citing Kastigar v. United States (1972) 406 U.S. 441, 460.) In addition, Pontos second interview statements were not used to establish the veracity of Pontos 1999 statements or for purposes of impeaching them but rather to establish Pontos act of being dishonest during her 1999 interview.
Regardless of the content of Pontos statement in 1999, Ponto essentially conceded she was not honest during her 1999 interview. Pontos second interview statement, admitting she did not disclose the true nature of her relationship with Schaaf during her 1999 interview, thus does not fall within the purview of POBR. In turn, Ponto could not prevail on her second writ petition challenging the Countys discharge of Ponto based on her willful dishonesty during the 1999 interview.
6. Disposition
The judgment is affirmed. The County and Marie Whittington are awarded their costs on appeal.
We concur:
King, J.
Miller, J.