May 25, 2006. DEPUBLISHED August 16, 2006.
Appeal from the Superior Court of Tulare County, No. 05-214342, Paul A. Vortmann, Judge.
Dooley Herr Peltzer, Leonard C. Herr and Kris B. Pederson for Defendants and Appellants. Phillip J. Cline, District Attorney (Tulare), Don Gallian and Carol B. Turner, Assistant District Attorneys, Barbara J. Greaver, Deputy District Attorney, Kathleen Bales-Lange, County Counsel (Tulare), and Crystal E. Sullivan, Deputy County Counsel, for District Attorney's Office and County Counsel's Office as Amici Curiae on behalf of Defendants and Appellants. Joseph M. Arnold for Plaintiff and Respondent.
The City of Visalia Police Department's chief of police, Jerry Barker, terminated police officer Bryan Pinto for (1) failing to report a sexual relationship between a minor and an adult, (2) failing to report a sexual assault between an adult and a minor, (3) lying during the course of a criminal investigation, and (4) encouraging an involved party to lie during the course of a criminal investigation. Pinto appealed to the city manager, Steven Salomon, and requested an administrative hearing pursuant to the City of Visalia's administrative hearing procedure. After an evidentiary hearing before an arbitrator, the arbitrator found the evidence sufficient to sustain the first three allegations of misconduct and that each act was sufficient to sustain Pinto's termination. The city ratified the arbitrator's decision. Pinto filed a petition for writ of mandate, which challenged the city's findings of misconduct with respect to the first two incidents and requested the superior court to either set aside the city's decision and restore him to employment or remand the matter to the city with directions to set aside the decision to terminate him and impose a lesser penalty. The trial court granted the petition, finding the evidence insufficient to support the misconduct findings with respect to the first two allegations of failure to report sexual relationships between a minor and adult, and the city abused its discretion when it terminated Pinto for his admission of lying. The trial court remanded the matter to the city to impose a penalty less than termination. The trial court subsequently denied the city's motion to set aside and vacate its order, and awarded Pinto his attorney fees and costs pursuant to Government Code section 800. The City of Visalia, its city manager Steven Salomon, and its Chief of Police Jerry Barker (collectively the City) appeal from the judgment, contending the trial court erred when it: (1) found the second incident of failure to report a sexual assault between an adult and a minor was not supported by substantial evidence; (2) determined the penalty of termination was excessive and an abuse of discretion; (3) denied its motion to set aside and vacate its order; and (4) failed to make findings of fact to support the attorney fees award. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2001, the City of Visalia Police Department (VPD) hired Pinto as a police officer. On March 27, 2003, the VPD, through its Assistant Chief of Police Robert Williams, gave Pinto written notice that VPD intended to terminate his employment effective April 30, 2003. The notice specified four causes for the dismissal: (1) in December 2002/January 2003, he was "informed about a sexual relationship between a minor and an adult and failed to report it"; (2) in November 2002, he was "advised of a sexual assault between an adult suspect and minor victim and failed to report it"; (3) in January 2003, he "lied during the course of a criminal investigation"; and (4) in December 2002/January 2003, he "encouraged an involved party to lie during the course of the investigation." The letter listed seven policies of the Visalia Police Department Manual (VPDM) and two sections of the Visalia City Personnel Policy Guidelines which were claimed to have been violated, and notified Pinto of the opportunity to respond to the allegations. As pertinent here, one of these policies was VPDM section 330.3, which provides: "All employees of this department are responsible for the proper reporting of child abuse. Any employee who encounters any child whom he or she reasonably suspects has been the victim of child abuse, shall immediately take appropriate action and prepare a crime report pursuant to Penal Code Section 11166." Pinto submitted a response to the notice of intent to terminate his employment, which addressed the charges and requested Williams reconsider the termination decision or consider alternate forms of discipline. VPD Chief of Police Jerry L. Barker reviewed Williams's recommendation of termination, Pinto's response, and the documents from the internal affairs investigation, and concurred termination was appropriate. On April 25, 2003, Barker sent Pinto a notice of termination of employment, which informed Pinto he was being terminated effective April 30, 2003, for the same four reasons set forth in Williams's letter.
A. The Administrative Hearing Pinto requested an administrative hearing, which was held in January 2004. Documentary evidence was introduced consisting of the internal affairs investigation file, Pinto's employment records, relevant sections of the VPDM, and testimony received from Pinto, VPD Detective Steven Shear, VPD Lieutenant Michelle Figueroa, Williams, and Barker. The evidence disclosed the following facts. In September 2002, Pinto was taking a break in a gourmet coffee shop while in uniform and on duty. A woman approached him and identified herself as the stepmother of 20-year-old Justin Helt. The woman told Pinto Helt was having problems with an ex-boyfriend and needed some advice, and asked Pinto if he could talk to Helt. Pinto gave her his business card, which had his work cell phone and office phone numbers on it. About an hour later, Helt called Pinto on his work cell phone. Helt told Pinto he had recently broken up with 16-year-old C.F., who he had been dating, that he felt C. was stalking and harassing him, and asked what he could do. Pinto told Helt he could take a police report for stalking or harassment, and told him how to get a restraining order. Helt declined to do anything, stating he would deal with it and call Pinto back if the problem continued. Pinto's Relationships with Helt and C. Later that afternoon, Helt called Pinto again to ask a few more questions. During this conversation, Helt and Pinto agreed to meet socially at the coffee shop when Pinto was off duty to "hang out." While at the coffee shop that night around 9:00 p.m., Pinto saw a male come up behind Helt, put his hand over Helt's eyes, and say "guess who." Helt got up from the table and went around the corner to talk to this person. When their conversation ended, C. sat down a few tables away, then left the coffee shop. Helt came back to Pinto's table and told Pinto the person was his ex-boyfriend, C. Pinto was not introduced to C. and did not speak to him. A couple weeks later, Pinto was on the Internet in a gay chat room when a person who identified himself as an 18-year-old male from Tulare started talking to him there. Later in the conversation, the person sent Pinto a picture of himself, which Pinto recognized as C. Pinto told C. he knew both his identity and that he was not 18. From their Internet exchange, Pinto believed C. was upset and depressed about his relationship with Helt and life as a gay person. Pinto tried to encourage C. by telling him that although he is gay, he has a career as a police officer. Pinto agreed to pick C. up at his home in Tulare and take him to the coffee shop for coffee, believing he might be able to help mentor him, as Pinto was an explorer advisor for the VPD explorer post and, having been a gay teenager, may have shared some of C.'s experiences and feelings. At the meeting with C., Pinto became very uncomfortable with C.'s behavior, as it became apparent to Pinto that C. was not despondent and was openly making sexual advances towards him in an attempt to make Helt jealous. C. wanted to "hook up" with Pinto, which means he wanted to have sex with him. Pinto ended the meeting and drove C. back to his home. Pinto gave C. his personal cell phone number so C. could call him if he needed advice. Over the next four to six weeks, Pinto spoke on the phone with C. several times. In those calls, C. asked Pinto about Helt, but also told Pinto about other people he was meeting over the Internet. Although C. asked Pinto if he wanted to hang out again, Pinto did not meet with C. again because C. "wanted one thing that night," and Pinto was not going to subject himself to that kind of behavior again. C. Calls Pinto for Advice In late October or early November 2002, Pinto had a one-time sexual "encounter" with an adult man named Aaron Rodriguez. In mid to late November or early December 2002, while he was at home and off duty, Pinto received a telephone call from C. on his personal cell phone, asking him for general advice. C. asked Pinto if he knew a guy named Aaron. Pinto said he didn't think so. C. told Pinto he had talked online to Aaron, who was about 25 years old, and they agreed to meet for sex. C. told Aaron he was 18 years old. C. said Aaron picked him up at his house and took him to Aaron's house. By the time they got there, C. decided maybe he didn't want to have sex, but he never told Aaron no. C. said Aaron "pressured him to finish" and offered him drugs. After having sex, C. went home. A couple days later, C. learned from others on the Internet that Aaron was HIV positive, and told Pinto he was worried about his health. Pinto told C. that: (1) he needed to tell his mother; (2) he needed to get tested for HIV; and (3) he needed to report the incident to the Tulare Police Department, and offered to drive him there so he could make a report. C. declined Pinto's offer and said he wanted to talk to his mother. This was the last conversation Pinto had with C. At the time of this conversation, Pinto had not made the connection that the "Aaron" C. was referring to was the Aaron Rodriguez Pinto had an encounter with, and Pinto did not believe the alleged sex act had taken place within the jurisdiction of the city of Visalia, as C. appeared to refer to the city of Tulare. Pinto did not report C.'s claims because he had no idea where the incident occurred, he received the information while off duty and was not engaged in any law enforcement activity at the time, and he believed he was not giving advice within the course and scope of his employment. Pinto acknowledged he would have been obligated to file a report had he received the information while on duty. Pinto believed C. contacted him as a civilian, not as an officer, because C. didn't directly ask him to make a report for him and instead asked him what he should do. The Police Report and Criminal Investigation C. eventually filed a police report with the Tulare Police Department on December 20, 2002. A few days later, Pinto learned from his roommate, Dan Martin, of a scenario a Tulare Police Department report writing instructor related to Martin's police academy class, which involved a gay male adult and gay male juvenile who met on an Internet chat room and agreed to have sex. The adult believed the juvenile to be an adult, based on repeated assurances of his age, and fully believed the one-time sexual encounter was consensual and between adults. Pinto realized from the scenario that this was referring to the case of C. and Aaron, and told Martin that. Sometime in late December 2002 or early January 2003, Pinto spoke with Helt on his personal cell phone while off duty. Helt told Pinto he learned from C. that Helt's and Pinto's names were mentioned in the police report, in which C. was accusing Aaron of a sexual act. Pinto asked what he was worried about. Helt admitted that he and C. not only dated, they were also involved in a sexual relationship. This was the first time Pinto learned Helt and C. were having sex and the first time he learned his own name was mentioned in the police report, although he did not know in what context. The police report was eventually transferred to VPD as it was within VPD's jurisdiction. On January 10, 2003, VPD Detective Steve Shear interviewed Pinto as part of the criminal investigation. Shear advised Pinto he was being interviewed because his name had been brought up both as a witness and suspect in a criminal investigation, but he did not tell Pinto what the investigation was about. Shear told Pinto he wasn't in custody and didn't have to speak to him, but Pinto agreed to do so. Pinto told Shear he believed the investigation had something to do with C. "hooking up" with people on the Internet. Shear asked Pinto why he thought that. Pinto responded that C. "is a troubled little boy" and he was introduced to him through Helt after C. and Helt broke up. Pinto admitted he had talked to C. online a couple times, C. was always asking Pinto for advice, which he gave him, and C. called him in regards to his situation with Aaron. Shear questioned Pinto about how he met Helt and C., and what C. told him about Aaron. Pinto told Shear he knew Helt and C. had a sexual relationship when C. was 16. When asked if he knew Aaron, Pinto admitted he knew who he was, who he hung out with, and that he had met him, but said he never "hung out [with Aaron] socially or anything like that." Pinto also admitted having talked to Aaron in person. Pinto told Shear that one time he picked C. up and took him to the coffee shop, and that C. wanted to "hook up" with him, but he turned C. down. Shear asked Pinto, "Did you have a relationship with Aaron at all ever?" Pinto responded, "No." Shear said, "Never?" Pinto again responded, "No." Shear then asked Pinto about his meeting with C. at the coffee shop and whether C. had ever been inside Pinto's house; Pinto denied that he had. When Shear asked if there was any reason C. should be able to describe his bedroom, Pinto responded no, "[u]nless he's heard it from other people." Shear then explained C. was alleging he had consensual sex with Pinto on two occasions and asked Pinto if it happened. Pinto stated "Absolutely not." Pinto explained that he and C. knew the same people, "so if this is just a big set up for me, there might be things that he might know about my house or my bedroom. . . ." Pinto agreed to allow Shear to take pictures of the inside of his house, but denied doing "anything with [C.]." Shear asked Pinto if he knew whether Aaron used a drug named amal nitrate. Pinto responded, "I have no idea. I — I'm not to — him on a personal basis. I've said hi to him, I've met him, we've never hung out, we've never had a personal conversation. I don't know." Shear said C. claimed he told Pinto about Aaron before C. ever learned about the "HIV issue[,]" that Pinto indicated to C. at that time that he knew Aaron, and C. called Pinto again for advice when C. found out Aaron may be HIV positive. According to Shear, C. said Pinto told him during the second conversation he knew about Aaron's HIV status during the first conversation but didn't say anything, and the same night C. had "hooked up with him," Pinto had hooked up with him too. Pinto told Shear, "I — I did not hook up with him that night. I have hooked up with Aaron once before way in the past." Pinto denied telling C. that he hooked up with Aaron. Shear explained further the allegations C. was making against Pinto and Aaron. The interview ended with Pinto agreeing to allow Shear to come to his house to take pictures. Pinto admitted at the administrative hearing that he initially lied when he did not tell Shear he had a sexual relationship with Aaron. Pinto explained he did not initially tell Shear about his relationship with Aaron because (1) he believed it was a matter involving his personal life, (2) it was none of Shear's business who Pinto had sex with, as there was nothing criminal about his relationship with Aaron, and (3) learning Aaron was HIV positive "freaked [him] out," as he was concerned for his health and the stigma he would carry if his colleagues learned he had sex with an HIV positive person. Pinto also did not see any connection between his sexual liaison with Aaron and his being a suspect in this case. Pinto testified he never had a personal conversation with Aaron or hung out with him socially; he described their relationship as an "encounter." Sometime between the time C. told Pinto about C.'s encounter with Aaron and Pinto's interview with Shear, Pinto had "put two and two together" and realized the Aaron C. referred to was in fact Aaron Rodriguez. Shear testified he asked Pinto about his relationship with Aaron to help corroborate C.'s account. The Internal Affairs Investigation After the interview, Pinto was placed on paid administrative leave. As a result of the criminal investigation, an internal affairs investigation was initiated in February 2003 and completed in March 2003. VPD Lieutenant Michelle Figueroa was in charge of the investigation and found several violations of VPD policy including: (1) Pinto failed to report the sexual activity between Aaron and C., and Helt and C., which he was required to do because he learned the information in his capacity as a police officer and he knew he was a police officer 24 hours per day, seven days per week; (2) he urged Helt to lie during the course of the investigation; (3) he initially lied to Shear when questioned about his relationship with Aaron; and (4) he exercised bad judgment in continuing a relationship with C. Figueroa forwarded her findings to her supervisor, Lieutenant Wheeler, for his review, who in turn forwarded them to Assistant Chief of Police Bob Williams. Figueroa did not consult any legal opinions when determining whether Pinto was required to report the sexual relationships between C., Aaron and Helt. In her opinion, Pinto was a police officer 24 hours per day, seven days per week, even though no VPD policy states this; neither does any VPD policy state that officers are required to report child abuse when they learn the information while off duty. Figueroa further explained that because Pinto himself believed he was a police officer 24 hours per day, seven days per week, he was on duty and therefore obligated to report the sexual relationships. In her report, Figueroa stated that when she interviewed Pinto, she asked him if he would submit to a voice stress analysis test to clear up some inconsistencies if C. would also do so. Pinto said no. Figueroa denied, however, that Pinto's refusal was a factor in her determinations. Figueroa testified that although Pinto was under criminal investigation during the internal affairs investigation, by the time of the administrative hearing, there were no criminal charges pending against him. During Figueroa's investigation, Chief Barker issued a memorandum to all police personnel, which stated in pertinent part: "On February 11, 200, the news that one of our own was being charged with a criminal act with a minor was made public. As with other situations and allegations involving the actions of one person, those actions, to a degree, affect, not only each of us in this Department, but also members of our community. The universal questions being asked are how could this happen in our Department and how could someone we know be in this situation? We conduct extensive background investigations, grill the applicants with questions in interviews and assessment panels, conduct psychological exams, physical exams, and, I personally conduct one-on-one interviews with each person prior to being hired. The percentage of applicants hired versus the total number of applicants that apply to this organization is miniscule. When evaluating applicants and trainees, we have always looked as deeply as possible into their minds and hearts. To answer the questions that we are all asking ourselves, I am reminded of a comment a very famous Chief of Police made who found his own Department in a similar situation and stated, `The only thing wrong with police officers is that we have to hire them from the human race.'" Figueroa denied the memorandum indicated to her that Pinto was guilty of anything. Figueroa had no knowledge of Pinto lying before this investigation. Assistant Chief Williams reviewed the internal affairs investigation and requested that Lieutenant Wheeler present the case to senior staff, which included those with the rank of lieutenant and above, as well as two civilians. The group unanimously recommended termination. Williams also concluded termination was appropriate. Accordingly, he sent out the March 2003 letter notifying Pinto of VPD's intent to terminate him. Williams believed Pinto's conduct did not live up to VPD standards and was unbecoming to VPD because the conduct, if known by all, would lower VPD's image and the community's confidence in VPD. In Williams's opinion, the nature of a police officer's job is 24 hours per day, seven days per week, and a police officer is subject to the mandated reporting requirements regardless of whether the officer is on or off duty. Williams believed Pinto was acting as a police officer and was on duty when he gave advice to both C. and Helt, as the advice drew from his training and experience. According to Williams, a motto of VPD is "you lie, your career dies," and if an officer lies, his credibility is gone and difficult trust issues develop between officers. In Williams's opinion, a police officer is on duty whenever he learns about something that must be reported, although he admitted this expectation is not spelled out in VPD policy. According to Williams, Pinto has not been known to lie in the past and has not been punished by VPD for failing to tell the truth. Chief Barker testified he believed Pinto's conduct was unbecoming to VPD because he made a series of poor judgments and put VPD in a position of liability by his relationship with C. Barker believed when a police officer takes an oath of office he's an officer 24 hours per day and is held to a higher standard. According to Barker, an officer disciplined for lying would put cases in which he is involved in jeopardy. Barker admitted his policy is "you lie, you die." Barker testified that even if the only allegation that came forward out of this case was that Pinto lied during the course of the criminal investigation, he would still have terminated Pinto. Barker admitted, however, that if an officer lied once in an interview and then tried to "rectify a situation" by correcting the lie before the interview ended, "and there wasn't the allegation of criminal activity and the other things that surround this case," he didn't think he could have made the decision to terminate. The parties stipulated that if called as witnesses, VPD Sergeants Scoffield and Phipps, and Agent Brown (Pinto's supervisor in the Explorer unit), would testify that Pinto worked for them, they directly supervised him, his work was above average, and they never had any problems with any of these allegations while he was working with them. The Decision to Uphold the Termination of Pinto's Employment On March 14, 2004, the arbitrator issued a proposed decision in which he made findings of fact and concluded the evidence was sufficient to sustain Pinto's termination for the first three allegations, namely that Pinto failed to report the sexual relationships between C., Helt, and Aaron, and Pinto lied during a criminal investigation. He found the evidence insufficient, however, to sustain Pinto's termination with regard to the allegation he encouraged another to lie during a criminal investigation. The arbitrator further found that the acts of misconduct which the evidence sustained violated the VPDM sections and Visalia City Personnel Policy Guidelines enumerated in the notice of termination of employment. He made findings of fact in substance as follows: (1) VPDM section 330, which mandates all VPD employees to report instances of child abuse, does not limit the employee's reporting responsibilities to only times when the employee obtains the information while on duty; (2) nevertheless, Pinto was in performance of his duties when he obtained the information regarding the sexual relationships between C., Aaron and Helt, as the people who contacted him viewed him as an officer, sought his advice based on his status as an officer, and Pinto's advice was based on his knowledge and training as an officer; (3) the fact that Pinto learned Helt and C. were in a dating relationship required him to file a police report; (4) Pinto's awareness of the sexual relationship between C. and Aaron required him to file a police report; (5) Shear's question about Pinto's relationship with Aaron was a legitimate question for police investigation business, there was no excuse for Pinto's "untruth," and that Pinto recanted was irrelevant to the fact that he clearly lied. On April 14, 2004, City Manager Steven M. Salomon issued a final administrative decision upholding the arbitrator's proposed decision, and terminated Pinto from his employment effective April 30, 2003.
Pinto argued below, and continues to argue on appeal, that at the outset of the interview he was not aware the "Aaron" Shear was referring to was in fact Aaron Rodriguez. His testimony at the administrative hearing, however, is not clear on this point. He initially testified that he did not tell Shear that he had a sexual relationship with Aaron because "I was being — I had finally put two and two together who Aaron Rodriguez was. At that point I realized I had had sex with Aaron Rodriguez and he was HIV positive, it freaked me out. I thought of a lot of things. What kind of stigma is that going to carry with me, if I get shot on duty and it's known I had sex with an HIV positive person, I already have that stigma because I'm gay. Bottom line people think gay people have HIV. That was none of his business who I had sex with in the past, it's my personal life. Does he want a list of every person I've ever had sex with? Because it's none of his business, it's my business. That's why I didn't tell him at first. It shocked me. I was freaking out because I just found out I had sex with somebody knowingly that had HIV. I was worried about my health." When asked whether he responded "no" to Shear's question about his relationship with Aaron because he didn't know which Aaron Shear was talking about, Pinto responded, "I pretty much knew, but I finally put two and two together after the conversation with Steve Shear by the end I knew who it was by what — "When later asked when he put the connection between the Aaron C. told him about and the Aaron Rodriguez Shear was telling him about, Pinto responded: "I put the connection when the word `Rodriguez' came out. I put two and two together and then from what C. . . . had told me about the screen name, I kind of said, `Okay, I think I've talked to him before on the Internet and I think I know who that is.' He also said that Aaron was from Los Angeles or something like that, I believe. I don't remember exactly how he said it, but I was putting two and two together that this Aaron Rodriguez was the same Aaron Rodriguez that I knew." Pinto further testified it was during this interview that he heard for the first time that Aaron Rodriguez was HIV positive. On cross-examination, however, when asked whether it was during the course of the interview with Shear that he identified who Aaron Rodriguez was, Pinto answered "From the day C[.] told me Aaron and his name and by the time the investigation had gotten to me and I was interviewed, I put two and two together and realized, yes, I knew it was Aaron Rodriguez." Pinto further testified that when Shear asked him the first question, "I had put two and two together" and knew who Aaron Rodriguez was "at that point." We also note that Pinto told Figueroa in his internal affairs interview that C. told him the individual he had sex with was "Aaron Rodriguez" and C. "hinted" he had sex with Aaron on or near the same day Pinto did by asking "Well did you hook up with him at the same time I did?" Pinto told Figueroa he responded he "ha[d] no idea" and "who I meet and do adult things with is my business."
Figueroa noted in her internal affairs report that Pinto had been criminally charged with two counts of sodomy with a minor and three counts of oral copulation with a minor. A jury later acquitted Pinto of these charges.
B. The Petition for Writ of Mandate Pinto filed a petition for writ of mandate in superior court, in which he asserted the City abused its discretion as follows: (1) Pinto complied with VPDM section 330.3 in that he acted pursuant to Penal Code section 11166; (2) the City and VPD have no specific policies regarding mandated reporting requirements while off duty; (3) the City relied on unwritten or unknown policies, violating Pinto's due process rights; and (4) in terminating Pinto. The petition requested a writ issue directing the City to set aside the decision and restore Pinto to employment or, in the alternative, remand the matter to Salomon with directions to set aside the decision and impose a penalty less than termination. The petition also sought attorney fees as allowed under Government Code section 800. Following oral argument on the petition, the trial court issued a written order granting the writ and remanding the matter to the City to impose a penalty less than termination. With respect to the arbitrator's findings that Pinto was required to report the relationships between C., Helt and Aaron, the trial court found: (1) VPDM section 330.3 required Pinto to be either on duty or have received the information in his professional capacity before he was obligated to make a report; (2) there was no evidence that Pinto knew the relationship between C. and Helt was a sexual one; and (3) while Pinto knew of the sexual relationship between C. and Aaron, he was not on-duty or acting in his professional capacity when he obtained the information, as Helt, C. and Pinto were social friends. With respect to the allegation of lying, the trial court found that as there was no published "you lie, you die" policy, Pinto's due process rights would be violated if he was terminated for lying. The trial court also found Barker's letter and the reference to Pinto's refusal to take a voice stress analysis test were prejudicial to Pinto. The court concluded: "[Pinto's] conduct in not being truthful to the investigating officer is not conduct that the City, or the court, would want repeated, but the court cannot find that it justifies termination under these circumstances, and finds an abuse of discretion by the arbitrator and the City. ¶ Therefore, making its own independent judgment, the court finds the preponderance of the evidence does not support the finding of the arbitrator or the City for the first two allegations. The court finds the penalty was excessive, and an abuse of discretion, for the admission of lying under these particular facts." The court awarded Pinto his costs and attorney fees under Government Code section 800. C. The Motions to Set Aside the Trial Court's Order and for Attorney Fees The City filed a motion to set aside and vacate the trial court's order, which asserted, in pertinent part, the court's order was incorrect, erroneous and not consistent with the facts as (1) the trial court's conclusion that Pinto did not obtain the information about the relationship between Aaron and C. in his professional capacity was contrary to VPD's stated policy, (2) Pinto's due process rights were not violated, as there are published policies against dishonesty which Pinto's lying violated, and (3) the court abused its authority in substituting its own judgment for that of the City in determining the propriety of the penalty imposed, as the court must find a manifest abuse of discretion occurred and the order failed to reflect any such findings. Pinto opposed the motion. Following oral argument, the trial court denied the motion. In a written order, the trial court stated it did not construe the order granting the writ as a statement of decision because no statement of decision was requested. The trial court found the City failed to show the legal basis for the court's decision was incorrect or erroneous. The court further stated it had found termination was a manifest abuse of discretion, the City's imposition of the discipline of termination under these circumstances exceeded all bounds of reason, and "termination was excessive when it was not shown that this momentary discretion in answering a question regarding his private sex life affected the officer's ability to perform his duties and/or presented future harm to the public." Pinto filed a motion for attorney fees, which sought $4,000 in attorney fees, and a memorandum of costs. The City opposed only the request for attorney fees. The trial court granted the motion, noting that its order denying the City's motion to set aside stated the discipline imposed was arbitrary, capricious and a patently abusive exercise of discretion because it exceeded all bounds of reason, and this finding authorized the award of fees under Government Code section 800. The court also awarded the entire amount claimed as costs.
A. Failure to Report Child Abuse The City first challenges the trial court's finding that Pinto did not engage in misconduct when he failed to report the relationship between C. and Aaron. The City argues (1) the trial court erroneously interpreted the City's personnel policy regarding mandated reporting as requiring an employee to report suspected child abuse only if the employee receives the information while on duty or within the employee's professional capacity, and (2) even if the trial court construed the policy correctly, substantial evidence does not support the trial court's decision that Pinto was not acting in his professional capacity when he received the information. Standard of review Code of Civil Procedure section 1094.5 provides the basic framework for judicial review of any final order or decision rendered by a state or local agency. ( Bixby v. Pierno (1971) 4 Cal.3d 130, 137 [ 93 Cal.Rptr. 234, 481 P.2d 242].) Where, as here, the administrative decision substantially affects a fundamental right, the trial court conducting such a review not only examines the administrative record for errors of law, but also exercises its independent judgment to determine whether the findings are supported by the evidence. ( Id. at p. 143; Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206 [ 124 Cal.Rptr. 14, 539 P.2d 774].) The trial court resolves evidentiary conflicts and assesses witnesses' credibility to arrive at its own independent findings of fact. ( Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45 [ 84 Cal.Rptr.2d 690] ( Deegan).) If the trial court concludes the agency's findings of misconduct are not supported by the weight of the evidence, it is required to find that the agency abused its discretion. ( Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 51 [ 76 Cal.Rptr.2d 356] ( Kazensky).) After the trial court has independently reviewed an administrative agency's factual findings, however, a different standard of review applies to the appellate court. ( Davis v. Civil Service Com. (1997) 55 Cal.App.4th 677, 686 [ 64 Cal.Rptr.2d 121].) An appellate court must sustain the trial court's findings if substantial evidence supports them. ( Kazensky, supra, 65 Cal.App.4th at p. 52.) Thus, the appellate court must resolve all evidentiary conflicts in favor of the party prevailing in the trial court and must give that party the benefit of every reasonable inference in support of the judgment. ( Ibid.) Moreover, where more than one inference reasonably can be deduced from the facts, the appellate court cannot substitute its deductions for those of the trial court. ( Ibid.) While we review a trial court's ruling on a petition for writ of mandate under the substantial evidence test, this standard does not apply to resolution of questions of law where the facts are undisputed. In such cases, we are not bound by the trial court's decision but may make our own determination. ( Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788, 794 [ 134 Cal.Rptr.2d 179]; Alba v. Los Angeles Unified School Dist. (1983) 140 Cal.App.3d 997, 1005 [ 189 Cal.Rptr. 897] ["When the facts do not conflict and the issues involve proper application of a statute or administrative regulation, a reviewing court is not bound by the trial court's determination."]) Accordingly, we must sustain the trial court's factual findings if they are supported by substantial evidence and reverse the trial court if it failed to make a necessary factual determination or made an erroneous legal determination. ( Kazensky, supra, 65 Cal.App.4th at pp. 52-53.) Interpretation of VPDM Section 330.3 VPDM section 330.3 provides: "All employees of this department are responsible for the proper reporting of child abuse. Any employee who encounters any child whom he or she reasonably suspects has been the victim of child abuse, shall immediately take appropriate action and prepare a crime report pursuant to Penal Code § 11166." Subdivision (a) of Penal Code section 11166 provides in pertinent part: "a mandated reporter shall make a report to an agency specified in [Penal Code] Section 11165.9 whenever the mandated 1186 reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect." A mandated reporter includes a peace officer. (Pen. Code, § 11165.7, subd. (a)(19).) The City argued below that VPDM section 330.3 is broader than Penal Code section 11166, in that it requires all employees to report all known and reasonably suspected incidents of child abuse, not just abuse an employee becomes aware of while in the scope of employment or acting within his or her professional capacity. The trial court, however, rejected that interpretation, finding instead that VPDM section 330.3 incorporates the restrictions of Penal Code section 11166, namely that a mandated reporter is only required to report suspected child abuse when the information is obtained in the employee's professional capacity or within the scope of employment, and therefore Pinto only could have violated section 330.3 if he failed to report suspected abuse he learned about either while on duty or within his professional capacity. The City contends the trial court's interpretation is wrong, repeating the argument raised below that VPDM section 330.3 requires reporting of child abuse whenever the employee acquires information of abuse. The City, however, does not cite any legal authority to support its argument or that shows the proper interpretation of the policy. Accordingly, we may treat the argument as waived. (See Akins v. State of California (1998) 61 Cal.App.4th 1, 50 [ 71 Cal.Rptr.2d 314] [contention waived by failure to cite legal authority]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [ 199 Cal.Rptr. 72] [a point asserted by appellant without argument or authority need not be discussed by reviewing court]; see also Cal. Rules of Court, rule 14.) We do so here, and therefore find no basis to reject the trial court's interpretation of VPDM section 330.3. Whether Pinto Violated the Policy The trial court found that Pinto did not violate VPDM section 330.3 when he failed to report the relationship between C. and Aaron because he did not obtain the information either while on duty or in his professional capacity. In so finding, the trial court rejected the arbitrator's determination that because Helt's stepmother contacted Pinto in his official capacity, C.'s later contact was also in Pinto's official capacity. Instead, the trial court found that Pinto did not obtain the information in his professional capacity because Helt and Pinto, both adults, had become social friends; Pinto met C. on the Internet and recognized his photograph as being the person he met with Helt; and Pinto took the call in which C. reported his relationship with Aaron while off duty on his private cell phone two to three months after Helt's stepmother contacted Pinto. The trial court reasoned that this passage of time, coupled with the fact that C. and Pinto had become social friends, showed that Pinto did not obtain the information in his professional capacity. The City argues these findings are not supported by substantial evidence. Specifically, the City asserts that because Pinto gave C. advice when C. called to discuss his relationship with Aaron, Pinto necessarily was acting in his professional capacity as a law enforcement officer because his responses were based on his police officer training, experience and knowledge. Essentially, the City is contending that when a mandated reporter receives information of suspected child abuse in a personal capacity, but then gives advice based on his or her professional training, the reporter is now acting in his or her professional capacity and therefore is required to comply with Penal Code section 11166. We do not agree the mere giving of advice means that Pinto received the information about C. and Aaron within his professional capacity. To hold otherwise would mean a mandated reporter who gives advice on an informal basis would be exposed to liability for failure to report suspected child abuse regardless of the circumstances in which the information was obtained. We note that Penal Code section 11166 imposes the obligation to report suspected child abuse on a "mandated reporter" who is acting in either a "professional capacity" or within the scope of employment. (Pen. Code, § 11166, subd. (a).) The apparent reason for including both limitations is that mandated reporters include occupations in which the individual is either an employee, such as teachers, instructional aides, administrators and peace officers, or a professional who renders professional services, such as a physician, psychiatrist, or psychologist, who is not necessarily an employee. (Pen. Code, § 11165.7, subd. (a).) In situations where the mandated reporter renders professional services, the obligation to report is imposed when the mandated reporter obtains the information while rendering such services. (See, e.g., Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 1223 [ 242 Cal.Rptr. 312] ["in most cases, mandatory child abuse reporting will be preceded by the rendering of professional services by the party making the report."].) Here, substantial evidence supports the trial court's finding that Pinto did not receive the information from C. about his relationship with Aaron either within the scope of employment or while rendering professional services. Pinto was not working as a police officer when C. called him and he gave C. advice, as he was off duty and at home when he received C.'s phone call; Pinto did not assume the duties of a police officer during the conversation; and C. and Pinto had a social relationship. That Pinto may have drawn on his training and experience as a police officer when giving C. advice does not mean he was rendering professional services, as Pinto was not working as a police officer at the time. Contrary to the City's assertion, Pinto did not receive the information in his capacity as a police officer, and therefore the fact he gave advice does not transform the conversation with C. into the rendering of professional services. In sum, the trial court's finding that Pinto did not receive the information about suspected child abuse either in the scope of his employment or in a professional capacity is supported by substantial evidence. Accordingly, the City's claim that Pinto committed misconduct in failing to report that information fails. B. Abuse of Discretion in Imposing Termination as a Penalty Having found substantial evidence supported only one of the three allegations of misconduct, the trial court determined the City abused its discretion in terminating Pinto for the one remaining incident of misconduct, finding the penalty excessive under the circumstances. The City challenges the trial court's determination regarding the penalty, arguing it did not abuse its discretion in deciding to terminate Pinto for his misconduct. Standard of Review We review de novo an administrative agency's exercise of discretion in imposing a penalty. ( Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 226-228 [ 282 Cal.Rptr. 240].) We give no deference to the trial court's determination with regard to penalty, but rather review the agency's selection of penalty and, if reasonable minds could differ with regard to the propriety of the disciplinary action, find no abuse of discretion. ( Deegan, supra, 72 Cal.App.4th at pp. 46-47.) "It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown." ( Id. at p. 47.) "Judicial interference with the agency's assessment of a penalty `will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.'" ( Kazensky, supra, 65 Cal.App.4th at p. 54.) "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."' [Citation.]" ( Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 106-107 [ 78 Cal.Rptr.2d 705].) As one appellate court explained, "[d]iscretion is abused where the penalty imposed exceeds the bounds of reason; the fact reasonable minds may differ as to the propriety of the penalty supports a finding the [administrative decisionmaker] acted within its discretion. [Citation.] In determining whether the penalty of termination was excessive as a matter of law, the overriding considerations are the extent of harm to the public service resulting from [the employee's] conduct or the likelihood such conduct, if repeated, would result in such harm; other considerations are the circumstances surrounding [the employee's] misconduct and the likelihood of its recurrence. [Citation.]" ( Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 970-971 [ 221 Cal.Rptr. 90]; accord, Deegan, supra, 72 Cal.App.4th at pp. 46-47; Kazensky, supra, 65 Cal.App.4th at pp. 53-54, 73, 75.) Abuse of Discretion Consideration of these principles in this case leads us to conclude the discipline imposed clearly was excessive. When the City ratified and adopted the arbitrator's decision, it concluded the termination of Pinto's employment was appropriate and warranted by the three acts of misconduct which the arbitrator concluded the evidence supported. As the trial court found, however, only one of those acts was supported by substantial evidence, namely Pinto's admission that he did not tell the truth when Shear asked him during the criminal investigation whether he had a "relationship" with Aaron. The issue then is whether termination was an excessive penalty given this one incident of misconduct. We believe it is. We first note the arbitrator's decision mischaracterized the incident. The arbitrator found that Shear asked Pinto "if he had had sex with Aaron," and Pinto responded by denying "knowing Aaron Rodriguez." The transcript of the interview, however, shows that Pinto never denied knowing who Aaron was, as Pinto admitted before Shear asked whether he had a "relationship with Aaron" that he knew who Aaron was, had met him, and had talked to him in person. After admitting he knew Aaron, Pinto answered "No" when Shear asked whether Pinto had "a relationship with Aaron at all ever?" Although the question did not ask specifically whether he had "sex" with Aaron, apparently Pinto believed that was what Shear was asking and therefore admitted he was not candid with Shear when he denied having a "relationship" with Aaron. Shear then continued questioning Pinto about his relationship with C. and whether C. had been inside his house, and explained C.'s allegations of consensual sex with Pinto, which Pinto denied. When Shear explained that C. was claiming Pinto had "hooked up" with Aaron the same night he did, Pinto immediately admitted he had hooked up with Aaron in the past. A review of the record reveals a lack of evidence directly showing how Pinto's lack of candor adversely affected the public service. The harm in Pinto's response to Shear's question was primarily to himself, as it lessened his credibility in the eyes of the investigating officers. It is apparent from Figueroa's testimony at the administrative hearing, however, that she did not believe Pinto regardless of his response to this question, as she accepted as credible the statements Helt, Helt's stepbrother, and C. made during interviews with Shear without interviewing them herself, but believed Pinto, who she did interview, was not credible because his statements conflicted with the other three. Figueroa and Shear also accepted as credible statements Helt made in a second interview with Shear despite the fact Helt lied throughout his first interview with Shear, because Helt returned voluntarily to Shear for the second interview the same day as the first one and admitted his culpability in a crime, namely his sexual relationship with C. Minimal harm resulted from Pinto's lack of candor because by the time the interview ended, Pinto had corrected his response and fully informed Shear about his relationship with Aaron, albeit after Shear explained why the information was relevant. Thus, the investigating officer had the facts before leaving the interview room. The City's primary concern appears to be that Pinto will never be able to be an effective witness in court because once the defense bar learns of his misconduct, he will be impeached with it on cross-examination. We note that, "[n]otwithstanding the prosecutor's duty to disclose material evidence to the defense, `"[t]here is no general constitutional right to discovery in a criminal case. . . ."' [Citations.] Thus, `the prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense.' [Citation.]" ( People v. Jordan (2003) 108 Cal.App.4th 349, 361 [ 133 Cal.Rptr.2d 434].) While a criminal defendant does have a statutory right to discovery of an officer's misconduct, a right commonly invoked through what is known as a Pitchess motion, to obtain access to an officer's personnel records the defendant must show, inter alia, the information sought is material to the particular subject matter involved in the pending litigation. (Evid. Code, § 1043.) Even then, the statutory framework specifically excludes from disclosure: (1) evidence of misconduct that is more than five years old, (2) the conclusions of investigating officers, and (3) facts that are "so remote as to make disclosure of little or no practical benefit." (Evid. Code, § 1045, subd. (b)(3).) The incident at issue here is already over three years old. As time goes by, it is less and less likely a court will find it discoverable. (See City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 16 [ 124 Cal.Rptr.2d 202, 52 P.3d 129] [even though incident in question related to police officer's "general veracity," it was not discoverable because it was over five years old and did not involve the same type of misconduct alleged in the case at hand]; California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010 [ 101 Cal.Rptr.2d 379] [discovery request for records reflecting officers' dishonesty, including an investigation into a "time card issue," failed to provide good cause for disclosure].) As for the prosecution's general constitutional duty of disclosure, that duty is limited to evidence that is material in the sense its disclosure would be reasonably likely to affect the outcome of the case. ( Brady v. Maryland (1963) 373 U.S. 83 [ 10 L.Ed.2d 215, 83 S.Ct. 1194].) This standard of materiality "is narrower than the Pitchess requirements" ( City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 10), so it stands to reason that a criminal defendant would have a hard time arguing a Brady violation based on a prosecutor's failure to disclose Pinto's conduct in a given case. While we cannot say with absolute certainty that Pinto will never have to face questioning about his misconduct at some point during his career on the force, if that did occur, he would not be the first officer forced to confront a prior act of dishonesty. The human condition being what it is, few witnesses come to the stand with an unblemished record of telling the truth. Our adversarial system recognizes that and allows an accused the opportunity to delve into issues of credibility if they are germane to the issues at hand. Yet, the system also provides means for rehabilitation and the opportunity for explanation. In other words, it recognizes that there are usually two sides to every story and not every act of dishonesty will inevitably destroy a witness's credibility in the jury's eyes. Experience teaches this is true even when the witness happens to be a police officer. The City argues lying is a character trait that most likely will be repeated. No evidence was presented at the administrative hearing, however, that Pinto had a history of lying or deception, or that his immediate supervisors or coworkers had any difficulty with him in this regard. Thus, there is nothing in the record to indicate the incident was anything but an aberration. We are mindful of the cases the City cites that have sanctioned the termination of police officers and other state employees for dishonesty. Those cases are distinguishable, however, because they involved more serious misconduct than presented here. (See Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 716 [ 34 Cal.Rptr.3d 1] [sheriff's deputy was properly terminated for lying in an interview to cover up a fellow deputy's physical abuse of an inmate, even though the deputy ultimately told the truth one week later after his lie was discovered and he was pressed for the truth]; Nicolini v. County of Tuolumne (1987) 190 Cal.App.3d 619 [ 235 Cal.Rptr. 559] [upholding deputy sheriff's termination for dishonesty when he altered a prescription for a narcotic and filled the prescription while in uniform]; Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395 [ 193 Cal.Rptr. 190] [upholding officer's termination for misappropriating state-owned motorcycle parts by stating they were needed for his state-issued motorcycle and installing them on his privately owned motorcycle, and later denying he had done so to an investigating officer]; Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865 [ 130 Cal.Rptr. 292] [upholding termination of fish and game warden who misused state property (his state vehicle) for personal business and filed false reports for overtime and cash expense allowances].) In concluding termination is an excessive penalty, we also consider the unique circumstances surrounding the misconduct in this case, as well as VPD's decision to recommend Pinto's termination. It is apparent the VPD prejudged Pinto throughout its investigation, which clouded its judgment. This is shown by Chief Barker's memorandum, issued before the conclusion of the internal affairs investigation, which implied Pinto's guilt of the criminal charges against him and Figueroa's reference in her internal affairs report to Pinto's refusal to take a voice stress analysis test. In addition, both Figueroa and Shear accepted Helt's statements over Pinto's not only because they conflicted, but because, as Shear explained, Helt was "honest enough" to admit his own culpability in a crime, while Pinto "was trying to minimize his own culpability for a host of things." VPD's attitude toward Pinto is probably summed up best in the following exchange between Pinto's attorney and Chief Barker: "Q. Okay. And if an officer was in an interview, such as the case with Bryan Pinto, and he was asked a question — well, let's say any officer was asked a question, `Did you have a sexual relationship with this person?' And that officer stated, `No,' and then clarified later on before the interview was over, before the tape went off, and said, `Let me rephrase that, let me correct myself, yeah, I did have that,' you would consider that a mandatory termination? ¶ A. You're kind of arguing apples and oranges here. I mean, you're talking about one interview, about one set of circumstances that may or may not in its totality be a problem. If, for instance, Officer Pinto early on in the investigation would have said, `Okay, here's the deal, yeah, it's all true, this is what happened. I just didn't want to lose my job and this is why I said it,' it would have been difficult — I probably would have had to terminate him at that time. ¶ But the illustration you're using just on one instant [ sic] in an interview, if the officer was trying to rectify a situation and there wasn't the allegation of criminal activity and the other things that surround this case, I don't think I could have made that decision based on just that one reversal." In sum, the City decided to terminate Pinto based on three incidents of misconduct, only one of which the trial court ultimately found true and which we have upheld — Pinto's one-time lack of candor during his interview with Shear, which he corrected before the interview ended. Given that the misconduct on which Pinto's termination was based boiled down to only this one incident, which the police chief admitted would not by itself have justified termination, we must conclude the City's decision to terminate Pinto is an abuse of discretion. Contrary to the City's assertions, Pinto's misconduct does not exhibit manifest dishonesty that would affect Pinto's ability to perform his duties. We of course agree with the trial court that such behavior should not be condoned and Pinto engaged in a serious lack of judgment when he failed to answer Shear's question forthrightly and completely. But to terminate Pinto for his lack of candor is an abuse of discretion, particularly because his misconduct does not harm the public service. While the City is correct that it had broad discretion to impose the penalty of termination for Pinto's misconduct, its power is not absolute and its decision can be disturbed where there has been an abuse of discretion. ( Skelly v. State Personnel Board, supra, 15 Cal.3d at pp. 217-218.) In this case, considering all relevant factors in light of the overriding concern for averting harm to the public service, we are of the opinion the City clearly abused its discretion in subjecting Pinto to the most severe punitive action possible for his misconduct. Given this conclusion, the trial court properly ordered the City to set aside its decision to terminate Pinto and impose a penalty at a level less than termination. (See Richardson v. Board of Supervisors (1988) 203 Cal.App.3d 486, 493-494 [ 250 Cal.Rptr. 1].)
The City does not challenge the trial court's finding that the evidence was insufficient to support the arbitrator's finding that Pinto was informed of a sexual relationship between C. and Helt yet failed to report it.
The agencies specified in Penal Code section 11165.9 include "any police department or sheriff's department. . . ."
Both in its reply brief and during oral argument, the City asserted Pinto lied about his relationship with Aaron throughout the interview when he denied hanging out with Aaron socially or having a personal conversation with him. In making this assertion, the City makes assumptions about Pinto's relationship with Aaron that are not supported by the record. Pinto testified at the administrative hearing that these statements were all true: "And that's the truth. We've never had a personal conversation. It was an encounter is what I've had. I've never hung out with him socially." No evidence was presented about the relationship to contradict this testimony, a fact the City conceded at oral argument.
The additional cases amicus curiae Tulare County District Attorney's Office cites are also distinguishable on this basis, as they involve more serious misconduct than that at issue here. (See Haney v. City of Los Angeles (2003) 109 Cal.App.4th 1 [ 134 Cal.Rptr.2d 411] [termination of police officer upheld where officer was found guilty of absenting himself from his duty post without authorization and submitting a daily field activities report which he knew or should have known contained false information]; Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216 [ 40 Cal.Rptr.2d 583] [upholding termination of officer who, while off duty, negligently shot and nearly killed the driver of another vehicle following dispute over a trivial driving incident].)
As Pinto points out, this reference violated his right under the Public Safety Officers Procedural Bill of Rights Act to not have comments entered in investigator's notes that he refused to take a lie detector test, which includes a voice stress analyzer test. (Gov. Code, §§ 3300, 3303, 3307, 3309.5, subd. (a).)
C. Denial of Motion to Set Aside and Vacate the Trial Court's Order The City contends the trial court abused its discretion when it denied its motion to set aside and vacate its order granting the writ. Specifically, the City argues "the trial court abused its discretion by substituting its own judgment and discretion" in place of the City's, and the trial court's finding that Pinto lied required the trial court to uphold the City's decision to terminate Pinto. This argument, however, is merely a reiteration of the City's contention the trial court erred when it found the City abused its discretion in terminating Pinto, a contention we already have rejected. Moreover, since our review of the City's termination decision is independent of the trial court's, whether the trial court erred in denying the motion in this regard is irrelevant, as we have independently determined the City abused its discretion. (See Deegan, supra, 72 Cal.App.4th at p. 47 [in appellate review of whether agency's penalty was an abuse of discretion, the trial court's determination of whether an abuse of discretion occurred is not binding on the appellate court].) Accordingly, the City's claim of error with respect to the motion to set aside is without merit. D. The Award of Attorney Fees and Costs The trial court awarded Pinto attorney fees pursuant to Government Code section 800, which provides in pertinent part: "In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, . . . where it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect reasonable attorney's fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), where he or she is personally obligated to pay the fees, from the public entity, in addition to any other relief granted or other costs awarded." A finding that governmental conduct is arbitrary or capricious under Government Code section 800 is essentially one of fact left to the trial court's sound discretion. ( Mission Housing Development Co. v. City and County of San Francisco (1997) 59 Cal.App.4th 55, 88 [ 69 Cal.Rptr.2d 185]; Kreutzer v. County of San Diego (1984) 153 Cal.App.3d 62 [ 200 Cal.Rptr. 322].) Government Code section 800 provides for the award of reasonable attorney fees only if the administrative decision resulted from the arbitrary or capricious action of a public entity. ( Gilliland v. Medical Board (2001) 89 Cal.App.4th 208, 220 [ 106 Cal.Rptr.2d 863].) "The phrase `arbitrary or capricious' encompasses conduct not supported by a fair or substantial reason [citation], a stubborn insistence on following unauthorized conduct [citation], or a bad faith legal dispute [citation]." ( Kreutzer v. County of San Diego, supra, 153 Cal.App.3d at p. 78; see Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52, 79 [ 227 Cal.Rptr. 667, 720 P.2d 15]; Plumbing etc. Employers Council v. Quillin (1976) 64 Cal.App.3d 215, 221 [ 134 Cal.Rptr. 332].) Attorney fees will not be awarded simply because the agency's action was erroneous, or even "`clearly erroneous.'" ( Stirling v. Agricultural Labor Relations Bd. (1987) 189 Cal.App.3d 1305, 1312 [ 235 Cal.Rptr. 56]; Gilliland v. Medical Board, supra, 89 Cal.App.4th at pp. 220-221.) The City does not argue the trial court's finding of arbitrary and capricious conduct is not supported by the evidence. Instead, the City contends the trial court erred in awarding fees and costs under Government Code section 800 because its written order "does not disclose or make any specific findings that would support its conclusion that the City's actions were arbitrary, in bad faith, or capricious." Essentially, the City claims error in the trial court's failure to make factual findings. We disagree. When the trial court exercises independent review in administrative mandamus cases, Code of Civil Procedure section 632 applies, and provides that written findings of fact and conclusions of law are not required. Code of Civil Procedure section 632 requires the trial court to issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues only if requested. ( Kazensky, supra, 65 Cal.App.4th at p. 67.) Failure to demand a statement of decision results in a waiver of the right to have such findings. ( Hall v. Bureau of Employment Agencies (1976) 64 Cal.App.3d 482, 496 [ 138 Cal.Rptr. 725].) The record is devoid of any indication that the City requested a statement of decision. Therefore, the City cannot now claim any error in the trial court's failure to make factual findings. For the first time in its reply brief and without offering any good reason why it did not raise the issue in its opening brief, the City argues the trial court's written order is tantamount to a statement of decision and should operate as such. It is improper to raise new contentions in the reply brief. ( Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [ 265 Cal.Rptr. 788].) Therefore, this contention is forfeited. E. Attorney Fees on Appeal Pinto seeks attorney fees on appeal. "`[I]t is established that fees, if recoverable at all — pursuant either to statute or [the] parties' agreement — are available for services at trial and on appeal.'" ( Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927 [ 275 Cal.Rptr. 187, 800 P.2d 543], original italics.) Having affirmed the trial court's award of attorney fees and costs pursuant to Government Code section 800, Pinto is also entitled to attorney fees and costs incurred on appeal. "Although this court has the power to fix attorney fees on appeal, the better practice is to have the trial court determine such fees. . . ." ( Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 498 [ 191 Cal.Rptr. 134].)
The judgment is affirmed and the matter is remanded to the trial court for its determination of the amount of an award to respondent for attorney fees on appeal. Respondent is awarded his costs on appeal. Harris, Acting P. J., and Cornell, J., concurred.