CASE NUMBER

B225674

IN THE

COURT

OF APPEAL SECOND

OF THE

STATE DISTRICT 4

OF CALIFORNIA

APPELLATE DMSION

CHRISTOPHER Appellant,
V

DORNER,

Los Angeles County Case No. BS 120439

Superior

Court

) ) )
POLICE)

Hon. David P. Yaffe, Judge of the Los Angeles County Superior Court

LOS ANGELES DEPARTMENT

Respondent

) ) ) ) )

APPELLANT'S

OPENING

BRIEF

LAW OFFICE OF DAVID J. DUCHROW David J. Duchrow, State Bar No. 105617 Jill A. Piano, State Bar No. 193930 501 Santa Monica Boulevard, Suite 505 Santa Monica, California 90401 Telephone (310) 395-5511 Fax: (310) 395-6677 Attorneys for Appellant CHRISTOPHER DORNER

CASE

NUMBER

B225674

IN THE

COURT

OF

APPEAL

OF

THE

STATE DISTRICT 4

OF

CALIFORNIA

SECOND

APPELLATE DMSION

CHRISTOPHER Appellant,
V

DORNER,

Los Angeles Case No. BS

County 120439

Superior

Court

) ) )
POLICE)

Hon. David P. Yaffe, Judge of the Los Angeles County Superior Court

LOS ANGELES DEPARTMENT

Respondent

) ) ) ) )

APPELLANT'S

OPENING

BRIEF

LAW OFFICE OF DAVID J. DUCHROW David J. Duchrow, State Bar No. 105617 Jill A. Piano, State Bar No. 193930 501 Santa Monica Boulevard, Suite 505 Santa Monica, California 90401 Telephone (310) 395-5511 Fax: (3 I0) 395-6677 Attorneys for Appellant CHRISTOPHER DORNER

TABLE

OF CONTENTS

Table

of Authorities AND STATEMENT OF THE CASE-

ii 1 2 24 24 24 26 26

I. INTRODUCTION II. STATEMENT III. PROCEDURAL IV. V. VI. STATEMENT STANDARDS SUMMARY

OF FACTS HISTORY OF APPEALABILITY OF REVIEW OF ARGUMENT

VI. ARGUMENT

The

Superior

Court

Erred

in

Denying

the

Petition Application Hearing

for of 26

Administrative the Burden

Mandamus of Proof During

Based on an Incorrect the Administrative

The Superior of the Board

Court

Erred in Finding Were Correct

That the Factual Because

Findings So

of Rights

the Findings Improbable

Lack Evidentiary and Unreasonable VIII. CONCLUSION OF WORD

Support

That They Are Inherently

30 38 COUNT 39

CERTIFICATE

-i-

TABLE
Cases Antelope Breslin Valley Press v. Poizner

OF AUTHORITIES

(2008)

162 Cal. App. 4_ 839 (2007)

25

v. City and County of San Francisco 146 Cal. App. 4th 1064 v. City of Los Angeles v. City of Orinda (1980) (2002) (2000)

25, 27, 30, 33 4th 155 25, 27 30 31 32

Brown

102 Cal. App.

DiMartino Estate

80 Cal. App. 4th 329

of Larson

106 Cal. App. 3d 560 (1999) 20 Cal.4th 805

Fulcuda v. City of Angels

Kemp Bros. Const., lnc. v. Tital Elec. Corp. (2007) 146 Cal. App. 4th 1474 Kuhn v. Dept. Lopez of General Services (1994) O_ce 22 Cal. App. 4th 1627 (2008)

31 31

v. lmperial County Sheriffs 165 Cal. App. 4th 1 v. City of Fountain v. Superior Fletcher,

25 127 Cal. App. 3d 99 27 25, 27 28-29 25

Parker Rosenblit Sargent Schmitt

Valley (1981)

Court (1991)

231 Cal. App. 3d 1434 110 Cal. App. 4th 1658

lnc. v. Able (1985)

Corp. (2003)

v. City of Rialto

164 Cal. App. 3d 494

Statutes California California Code of Civil Procedure Evid. Code 500 904.1 (a)(1) 1, 24 27

Oth er A uth orities California Rules of Court, Rule 8.204(a)(2)

-ii-

APPELLANT'S

OPENING

BRIEF

I. INTRODUCTION This matter petition a decision Appellant appealable is an appeal

AND

STATEMENT

OF THE denying

CASE Appellant's to overturn

from a final judgment mandamus Police in which

for writ of administrative by the Los Angeles seeks reversal

he sought of Rights.

Department

Board

of the Superior California of Court, Domer

Court judgment.

The matter

is an

firlal judgment. Rules

Code of Civil Procedure Rule 8.204(a)(2);

904.1 (a)( 1); Califomia Appellant Department probationary Appellant

Christopher

was hired by the Los Angeles He served in the military

Police

("LAPD") period, returned

as an officer] earning

during his

many honors

for his actions.

After his service, status.

to work for the LAPD,

still on probationary officer

During disabled speaking Affairs, suspect

one call, Domer three times.

saw his training He initially

kick a mentally the kicks, but after

did not report

with his mentor he came forward Dorner was accused the arrest;

(an LAPD and reported of making

sergeant)

and a sergeant

from Intemal

the use of force. false statements, Affairs; first to the sergeant in a personnel

investigating complaint.

second,

to Internal

and third,

A Board Board issued

of Rights

hearing

was conducted.

At the conclusion, In the rationale,

the

its decision

as well as its rationale. whether

the Board or

of Rights not.

stated that it could not determine contends that in sustaining the Board

the kicks were made without the fending of proof,

Appellant

the charges

that the kicks did not occur,

misapplied

the burden

The references statements

to the Administrative in the Statement

-1-

Record of Facts,

for all factual below.

will be detailed

essentially

requiting

Appellant

to prove that the kicks occurred, prove all elements

contrary

to

the legal requirement by a preponderance Appellant supported inherently matter

that the Department of the evidence.

of the charges

also contends

that the Department's since the evidence a fmding

findings it relied

are not upon was evidence as a

by substantial improbable,

evidence, which

negates

of substantial

of law. Appellant contends that the Superior Court erred by of proof; the factual by and by findings;

misunderstanding, failing to exercise

and misapplying, its independent

the proper judgment fmdings

burden

regarding

and further substantial

that the Superior evidence.

Court's

are not supported

Appellant job with LAPD.

seeks reversal

of the trial court, and reinstatement

to his

1I. STATEMENT Charg_es Appellant being found was terminated

OF FACTS 2

from his employment

with LAPD

after

guilty of three charges: "Count 1. On or about August statements to sergeant 10, 2007, D. Deming, you, while on who was

duty, made conducting

false

an official 2.

investigation. On or about October 9, 2007, you, while on

"Count

References of Rights Hearing

to the five-volume will be abbreviated

Administrative herein as "AR

Record [volume,

of the Board in Roman

numerals]/[page]/[lines] In addition to the testimony, Appellant will lodge a single volume containing the documents from the administrative hearing, including all exhibits and the Rationale of the Board of Rights for its decision. -2-

duty, made false statementsto Detectives S. Gallegos and T. Lai, who were conducting an official investigation. "Count 3.
duty, made known a personnel

On or about August
complaint

10, 2007,

you, while

on

that you knew

or should

have

was false."

(AR I/5/10-21)

Officer

Christopher Appellant

Domer Christopher Domer 2005. testified that his employment with

LAPD

began

in February,

He was relieved

from duty from the to Harbor Division, in

Southwest which

Division.

Before

that, he was assigned after he graduated

was his first assigrnnent 2006. (AR III/95/5-24)

from the academy

February,

Domer due to being 21)

left the Department mobilized

in May, 2006,

returning unit.

in June 2007, (AR II1/96/9Domer's for

and deployed below,

with his military of Rights

In the proceedings package,

the Board

considered

personnel active

which

included

"a certificate

of release

or discharge

duty for Officer Medals National

Chris Domer

from the Navy.

And it indicates awarded Medals,

in the or Global

Declaration authorized

and Badges, Defense

Citations

and Campaigns, Iraq Campaign Ribbon,

Service

Medal,

War on Terrorist Ribbon, Armed

Service Forces

Medal, Reserved

Sea Service Medal,

Overseas Pistol

Inservice Pistol as

Marksman

- Special

Marksman." well.

(AR V/219/17

- 220/2)

There were two commendations

(AR V/221/7-14) When he retumed under from military training Officer service, Teresa Domer Evans. was assigned (AR III/96/22 to -

Harbor 97/8)

Division,

On July 28, 2007, accompanied by Officer

Domer Evans.

was the passenger

in the patrol

car,

(AR Dept. Ex. 2) On that date, they -3-

received a radio call for a man refusing to leave the Doubletree Hotel. Domer and Evans discussedthe tools available to them, including a Taser andpepper spray. (AR 1II/99/1-23) Upon arrival they observedthe suspect,Christopher Gettler. Domer approachedthe suspect. When they were about 15 feet from the suspect,he noticed him sitting on a wooden bench,just staring straight ahead. (AR II1/100/7- 101/4) Dorner testified that he tried to talk to the suspect,but he was not responding. He usedhis right hand to grip the suspect's right wrist, and askedhim to stand up. They startedto walk northbound away from the bench. The suspectwas between Domer andEvans. Evans was standing on the suspect's left side. (AR II1/101/13 - 102/11) The suspectsuddenly stopped and stiffened up. The suspectlooked at Evans and swore at her. Evans then grabbedthe Taser from Dorner. The suspect's left hand clenched into a fist. Domer believed the suspectwas going to strike Evans, so he tried to drag the suspectto the ground. The suspectonly went down to a knee, so Dorner pushedhim forward toward, but not in, the bushes. The suspectbeganto pushDorner, saying something unintelligible. Domer usedhis body weight to psuh him down becausehe was trying to control his hands. (AR 111/102/12 104/2) Dorner testified that he and the suspectfell into the curb near the planter box. Dorner tried to straddle the suspectto control his hands,but the suspectwas flailing. Dorner was able to grab the suspect's left hand. (AR 111/104/12-23) At that point, Dorner heard two Taser bursts. He did not seewhere Evans Tased the suspect.(AR III/120/11-14) all to being Tased.
himself (AR Ili/120/15023) (AR II1/105/1-4; -4-

The suspectdid not react at

then tried to drag

The suspect II1/121/2-7)

into the bushes.

Domer was able to control the suspect's left ann and cuff it, while the right arm was under the suspect. (AR IIU105/5-17) Domer recalled Evans going around the bushes,and getting between the bushesand the hotel wall, as shehad testified. Sheyelled at the suspect to give Domer his right arm. Shegrabbedhim by the back of his hair and yelled at him. At the time, the suspecthad no blood on his face. (AR III/106/2-10) At that point, Evans tried to get up. Domer could not did not want to get up, becausehe had an advantagewhere the suspectwas on the ground, with one hand cuffed. At that point, Domer saw Evans kick the suspect with her right foot, in the left clavicle. Shortly thereafter, shekicked him again with a harder kick to the left clavicle. (AR III/106/11-19; III/125/1424) The suspectturned and yelled at Evans. Shethen kicked the suspect in the face, on the left cheek. (AR IIU106/20-25) With the third kick, Domer felt the suspect's body jerk. (AR III/130/10-20) Domer testified that although he did not think the kick was necessary,it did fall within the useof force policy. (AR III/141/16-24) At that time, Domer had been gone from the Department for over a year, and hadnot beento reintegration training as he had requested. (AR III/142/1-6) It was stipulated that Domer had requestedreintegration training after his military service. (AR V/19/2-6, Accused Ex. E) At that point, Domer testified, he saw blood on the suspect's
under his cheek, which he attributed to Evans' kick to the suspect's compliant III/126/8-10) face face.

(AR III/107/3-10; Domer

III/126/2-6) to cuff.

The suspect

became

and gave Domer

his other hand, the suspect.

(AR III/107/3-10;

handcuffed

After the suspect

was handcuffed, -5-

Dorner

saw Port Police

Officer

Hernandez arrive. Hernandez askedifDorner neededhelp. Hernandez helped get the suspectout of the bushes. (AR Ili/131/21 - 132/2) Dorner further testified that when Sgt. Jacksonarrived, he asked Dorner what he did, and Dorner answered. He did not tell Jacksonabout the kicks becauseJacksonaskedwhat he, Dorner, did during the use of force. (AR V/29/12-18) He also told Jacksonhe had heard Taser bursts. By the time Dorner thought he should mention the kicks, Jacksonwas alreadytalking to Evans. (All II1/136/17 - 137/15) Dorner believed at the time that Evanswould tell Jacksonaboutthe kicks. (AR V/32/5-11) Dorner did not tell Evans at the sceneto tell Sgt. Jacksonabout the kicks, becausehe had previously reported misconduct against someoneelse at the Department.
recruit a "nigger." While Dorner, in a van, two other recruits who is African-American Dorner were calling another told

(AR II1/9/16-19), was shunned

them to stop. other recruits III/143/12-20) Dorner Evans seemed

They got into a fight in the fan. in the academy,

by the (AR

and was not going to speak up again.

also did not trust Sgt. Jackson. to know

He believed

that Jackson (AR

and

each other very well and were

friends.

W34/20-24) After the incident, asked Dorner She responded (AR III/151/1-3) kicks. would. as Evans and Dorner were driving away, Evans He stated yes.

if he felt comfortable with, "We're He Evans

with the use of force.

not going to mention was taking responsibility

the kicks in the report." for reporting the she and

(AR V/33/7-11) (AR V/34/1-2)

He didn't

know that she would, day, Dorner

but he hoped the report

The following of the kicks.

checked

there was no mention Dorner testified

(AR W32/12-25) returned to the report writing

that he and Evans -6-

room later and he started writing the report. Evans came in, andthe two had a disagreement. Dorner had written to the point where the suspect swore at Evans, and had written three sentencesafter that. They disagreed about whether the suspectwas trying to hit Dorner or Evans. Evans pressed the "delete" key and deleted several sentences,all the way back to where Dorner had written about the suspectswearing. (AR III/157/1 - 158/1) Dorner testified that Evans took over writing the report at that point. (AR III/2-7) Dorner doesnot believe the arrest report is accuratebecauseit does not mention the kicks. (AR III/16 I/11-18) Dorner wanted to speakwith someonein Internal Affairs, so on August 9, 2007, he called Sgt. Perez. He consideredPerezto be a mentor. (AR V/67/12-18) He told Perezabout three kicks. Pereztold him to "Stop right there." Perez instructed Dorner to go speakto a supervisor. (AR III/164/2-24; III/165/18 - 166/8) Dorner testified that when he spoketo Sgt. Perez, he told the truth. (AR V/8/15-17) He also told the truth to Deming when he spoketo him. (AR V/8/22-24) Also, in his administrative interview, Dorner told the truth. (AR V/9/8-12) Dorner also testified that he had spokento Evans several times after he returned from military service aboutreceiving reintegration training. He was told by one officer in the training trailer that probationary officers do not receive reintegration training. (AR III/168/l 1-19) When askedabout the evaluation which Evans had just completed for him, Dorner testified that althoughhe learnedthat someof his ratings were "improvement needed," he was more focusedon the overall "satisfactory" evaluation, which was what he neededto passprobation. (AR III/191/5-24) Dorner never received
-7any "unsatisfactory" rating from

Evans. (AR V/70/23-25) He never received

during his entire Dorner described described V/10/13-22) Domer was angry Beach described Evans as difficult probationary_ period.

any "unsatisfactory"

ratings

(AR V/70/1-3)

testified

that when

Sgt. Perez had testified 3 that Dorner with Evans, that he had hands. (AR

personal

problems in which

he was having Evans

an incident

slapped

his (Dorner's)

to get along with because Evans had told Dorner

she

all the time.

(AR V/11/15-17) her for domestic list for sergeant. Police

that Long

police

had detained

violence

at her home while she Later, it was to Evans's had

was on the promotional stipulated residence

(AR V/12/2-24)

that the Long Beach for a domestic

Department

had responded

violence

call on June 7, 2007, - 143/4) in a "use of force" Evans

and that Evans

filed for bankruptcy. Dorner

(AR V/142/9

had also been involved

with Evans,

which

he did not sure if it was warranted. into custody taken V/69/6 by dragging treatment

took a 74 or 75 year old woman by the forearm. She had to be (AR

her to the ground because

for medical - 70/4) Dorner

the skin came off her forearm.

testified

that on the day of the incident, A" uniform, as Port Police Officer

he was wearing Hernandez had

short

sleeves, testified.

not a "Class

4 (AR V/27/16 in Accused

- 28/1) He was not wearing Ex. A holding the suspect Accused

a tie.

(AR V/28/8-10) is

He is depicted wearing
3

while he (Dorner) Ex. A)

short sleeves.

(AR V/28/11-29/9,

In the hearing, Sgt. Perez had testified testimony is summarized, below.

4

before

Dorner

did; Perez's

Hernandez testimony

had already

testified

before

Dorner

did.

Hernandez's

is summarized

below. -8-

Richard

Gettler, Richard

Sr. Gettler, Sr., testified. (AR IV/13/15-24) He is the father of the arrestee, He testified that his son, as a He described other

Christopher Christopher, schizophrenic behavioral

Gettler.

lives with him. with severe characteristics

He said his son is "classified (AR IV/14/2-7) (AR IV/14/8-25)

dementia." of his son.

Mr. Gettler, persons home

Sr., testified

that he can place Christopher gives him a chance

on a missing to come for police

list irnmediately, first. (AR IV/15/1-6)

but that he usually He described officers

how it was not unusual are always out there

to bring his son home. you know,

"[G]ood

and always,

ready to help out."

(AR 1V/15/24-25) Christopher had been missing home by

He recalled from the family the police.

the July 28, 2007 event. After a couple

home.

of days, his son was brought

(AR IV/15/4-11) Sr., testified that when he saw his son's you looked face when he

Mr. Gettler, returned

from home on July 27, 2008, "When

at his face, there I

was a slight puffiness

and he had a little line down here (indicating). Did you get in a fight?

asked him what happened. 'Then how did that happen? That's When when

And he said no. I go, there, that (AR

How did you get that scratch he goes,

puffiness?' IV/16/6-13) hotel." there's

he responded, where

'I was kicked.'." Christopher

he asked

it happened,

told him "a "because

He understood only one hotel."

Christopher

to mean the Doubletree, They drove

(AR IV/16/21-24)

to the Doubletree, the hotel, to the left of (AR

and Christopher Christopher the doorway, IV/17/1

confirmed

that it was the hotel.

As they circled pointed

pointed

out the place where

he was sitting,

and said that something

had happened

over there.

- 18/1) -9-

Christopher was also able to describeto his father that he had been kicked by an LAPD officer. (AR IV/18/2-14) Gettler, Sr., deniedto Christopher that he had beenkicked by an LAPD officer, andtold Christopher, "You got to tell me what were you doing wrong." (AR IV/18/15-17) Eventually he decidednot to go to police authorities to report the incident, since "they've been good to us all thoseyears and it's obviously just an accident." (AR IV/19/20-25) Gettler, Sr., said "I was scolding him after I found out about the secondtwo kicks. And I just told him, it's LAPD and we're not going to do anything." (AR IV/112/21-25) Mr. Gettler and Christopher went to Domer's trial counsel's office on December 8, 2008. A photograph of Christopher was taken. (AR IV/22/3 - 23/2, Accused Ex. F) The photograph depicted a quarter-inch mark on Christopher's face, on the spot on which he had been injured at the Doubletree. (AR IV/23/18-25; Accused Ex. F) Mr. Gettler was presentwhen Dorner's trial counsel interviewed Christopher on December 8, 2008. Christopher was having a good day, and was more lucid than he normally was. (AR IV/24/15-22) Eventually it was decided that the Board would have LAPD officers go to the Gettler home and bring Christopher in to testify. (AR IV/33/7-18) During the hearing, Gettler, Sr., respondedto a call that he received from home, and learnedthat Christopher was not at home. (AR IV/39/8-15) Eventually, Christopher Gettler was located, and was brought to the hearing and was questioned. (AR IV/84/10-22) When that questioning proved ineffective (seesummary of Christopher Gettler testimony, below), Gettler, Sr., continued his own testimony. (AR IV/100/15) Get-tier,Sr., testified that before Appellant's trial counsel interviewed Christopher, there was no coaching at all, and the only conversation betweentrial counsel and Christopher was an introduction. (AR IV/100/16-10-

25)
He further testified that when officers puffiness brought Christopher home

from the Doubletree, redness and puffiness When photograph

he noticed for a week.

on his face, and that there was

(AR IV/109/2-12) showed Gettler, Sr., a

the Department's of the hotel, Gettler,

trial counsel

Sr., demonstrated

that his son had shown and was sitting happened on a

him that he had come out of the front of the hotel, bench to the left of the entrance, and west of the entrance. When incident, Gettler, and that something

north of the

entrance,

(AR IV/I 1I/i-17) by Det. Villanueva (AR IV/I 15/15-25) about the

Sr., was contacted blew her off."

he "just totally

Christopher

Gettler of the Board of Rights, "[W]e have seen that being able

As stated by a member even if you asked the questions, to say it is what 8) Gettler,

the likelihood it isn't,

of [Christopher]

it is or it is what

is not really there." degree of lucidity

(AR IV/96/4-

Sr., characterized

his son's interview

that day as "bad." (AR

On the day oft_he recorded IV/103/23-24) Based Appellant's recording 2008.

of his son, he was "talkative."

on its own questioning trial counsel

of Christopher, twenty

the Board second

allowed audio/video 8,

to play a two-minute of Christopher

of an interview

Gettler - 140/1)

recorded

December

(AR IV/96/3 The recording

- 98/8; AV V/139/19 was introduced (AR V/141/1

over the Department's - 142/8) It was played

objection, again at the (AR

and

played

for the Board.

close of evidence V/144/9 -25)

so that the Board

could hear the exact words.

In the recording,

Christopher

recalls -11-

having

contact

at the Doubletree

Hotel with police and being taken into custody. He recalled a struggle, and that during that struggle, he was kicked once in the face. He was kicked by a female officer. (ARV/145/1 - 147/7)

Sgt. Teresa While service.

Evans Appellant was on probation, he was activated into military

(AR 1/49/7-14) While Dorner was on probation, in his performance. Teresa ("Terri") his ratings were satisfactory and he

showed

improvement

(AR 1/49/15-22) Evans was a Field training Training for only a

On July 28, 2007, Officer. month (AR U64/8-I0) or two.

She had been Dorner's

officer

(AR 1/65/8-12) and Dorner responded to a call at a hotel in San

On that date, Evans Pedro about a man creating Evans observed testified

a disturbance.

(AR 1/68/19-23) arrived at the call, they to the hotel. - 124/1) from mental She

that when the officers of the call sitting _om

the subject

on a bench

adjacent

first saw Mr. Gettler that she believed or under

the patrol car. was "either

(AR I1/123/23 was suffering

She said illness

the subject

the influence."

(AR 1/75/8-18) recall her path of travel to the suspect. (AR

Evans I1/126/2-3)

could not clearly

According stand up. Domer guided box.

to Evans,

Dorner

made

initial contact,

and told the man to commands. left arm and

The subject

did not initially

comply

with Dorner's

walked

over and placed

a firm grip on the subject's to an area where

him northbound (AR 1/78/13

on a sidewalk,

there was a planter the subject -

- 79/10)

At that point, according at Dorner. (AR 1/79/18-23;

to Evans,

stopped 129/18)

and took a swing

AR I1/127/12

-12-

Evans further testified that the subjectswore at Domer, and swung his fight arm at Domer. Evans then unlaolsteredthe Taser which Domer
was wearing the Taser, "officer subject handcuff I1/129/19 and requested back up. (AR 1/80/2) After Evans unholstered

she called needs

over the police call.

radio for backup. Evans

She did not place an said she warned attempted to the

assistance"

(AR I1/141/1-7)

to stop or she would the subject, - 130/16; Dorner Evans 1/85/3-8)

use the Taser.

As Dorner

they fell into a planter 11/13 I/1-4) was using

box. (AR 1/80/2 - 81/15;

While the ground, 1/84/7-19, him.

his body weight

to hold the suspect

against (AR

testified

that she twice use the Taser was already

on the subject. when

The suspect

on the ground

she Tased the Taser

(AR 11/154/10-12) contact."

She did not use the "darts,"

she deployed

in "close

(AR 1/85/17-19) that she then repositioned "in a crouching position" herself, and went into the

Evans bushes

testified

in the planter

so she could assist in Evans entered the Domer on only

controlling planter

the suspect.

(AR 1/86/6-11; the bushes

I1/136/9-12) somewhere The suspect

box which

contained

north of where had a handcuff

and the suspect his left wrist resistant while

were.

(AR I1/138/4-7)

at that point. Tased

(AR I1/138/13-21) twice.

The suspect Evans

was still being testified that, free hand

after being

(AR I1/156/5-11)

in the planter

box, she placed

a "firm grip" on the suspect's (AR 11/155/21-23) both of the suspect's

and assisted

in moving

it to the handcuffs.

After Evans hands were

was in the planter handcuffed. Evans

for about 30 seconds,

(AR 1/88/4-8; denied kicking

AR I1/161/1-5) the suspect in the face, shoulder or chest area.

(AR 1/88/15-20)
Evans circumstances, also testified would that a kick to the suspect's head, under the (AR

have been permissible -13-

and "appropriate."

II/165/3-15) Evans also testified that after the suspectwas in custody, Sgt. Phil Jacksonarrived. (AR 1/89/10-20) Evans noticed that the suspecthad a laceration on his left cheek,and that blood was trailing toward his nose. (AR 1/90/1-17;
Evans Officer noticed, after the suspect was in handcuffs, Dept. Ex. 6) that a Port Police

arrived. Evans

(AR 11/140/21-25) that when Dorner she and Dorner believed were completing had swung the at

testified

reports Evans, suspect changes

of the incident, but she prevailed had swung to Dorner's

that the suspect his report

upon him to change

to say that the Evans herself made

at him (Dorner). report, particularly

(AR 1/103/7-25) regarding

use of force.

(AR I/105/5

- 106/3; "The verbiage

only changes

that were made were in regard the use of force.")

to specific

on the actions Evans

during

also testified

about some of her evaluations Evans was Dorner's she completed required;"

of Dorner. training officer. of Dorner

Around

the time of the altercation, that on August 9, 2007,

She testified

an evaluation August

with some of the ratings the date on which conduct. Dorner

as "improvement complained

10, 2007 was about Evans's was 29,

to another

supervisor

(AR 1/117/4-24; delivered

Dept. Ex. 1, 11) until weeks

However,

that evaluation

not actually 2007.

to Dorner

later, on or about August is overall Dorner

(AR 1/122/8-23) - 123/4)

Even then, the evaluation The evaluation

"satisfactory." as using

(AR 1/122/24 "good tactics." Evans

also describes

(AR 1/123/15-25) was upset about the complaint at a desk and restricted although Dorner made, since it caused with other

her to be placed potential

her from moonlighting

employers,

it did not affect her full-time Even after Dorner -14-

employment her conduct,

with the LAPD.

(AR 1/118/12-24)

reported

shewas promoted to Sergeantat the next opportunity.

(AR I/119/6-8)

Christopher

Adrid Adrid testified that on July 28, 2007, he worked occurred. as a

Christopher Bellman

for the Doubletree

Hotel where the incident

At the time

of the hearing, Department. Adrid

he was a Firefighter (AR 1/131/10-24; had called

with the Los Angeles

City Fire

1/132/6-8) on July 28, 2007 because the Doubletree. problems," Adrid a man was The

the police inside

trying to sleep on a bench man appeared mumbling. bench to have

(AR 1/132/19-25) laughing and

"mental

including

(AR 1/133/8-16) the hotel.

spoke to the man and directed

him to a

outside Adrid

(AR 1/133/17-25) arrive, although he failed to recognize (AR 1/134/15-21) Dorner and the suspect. (AR Domer

saw the police as being

during the hearing Adrid

one of the officers, contact

described tackle

the initial the suspect,

between

He saw Dorner IJ136/9-17)

and fall over into the bushes. as being

Adrid

described

the bushes

four feet tall and about a

foot from the exterior According bushes, 1/143/19Evans

wall of the hotel. when Domer

(AR 1/141/18-24) and the suspect commands fell into the (AR

to Adrid,

went over and gave verbal

to the suspect.

144/1) Adrid testified, he could only see Dorner and the

At that point, suspect,

both in the bushes, Adrid testified

from the waist down.

(AR 1/144/2-5) The

that he saw Evans

use the Taser on the suspect. (AR 1/180/8-11) (AR 1/145/24

Taser came from "somewhere know how many times repeatedly suspect testified Evans

on her person." use the Taser.

He doesn't Adrid from the He

- 146/1)

that Evans

was "no more than five feet away" (AR 1/146/9-13; -151/180/25

when

she used the Taser.

- 181/2)

said that after the Taser was used,Evans went into the bushesto help.
Adrid bushes was told that Evans testified that she had gone between said he never the

and the wall of the hotel, but Adrid

saw her go there.

(AR 1/181/11-15) After the suspect had a cut on his face. Although tape recorded "better," Adrid stating, shows changed "I would Adrid Adrid interview was handcuffed, (AR 1/147/17-21) testified that he saw Domer tackle the suspect, was his according to Adrid, the suspect

of October seeing

19, 2007, when his memory the tackle - "I missed

that he denied his testimony

the tackle." the tackle,

to say that he had indeed yes."

missed

say the entire tackle,

(AR 1/149/4

- 151/24)

also admitted incident."

that he "did not have a clear and unobstructed (AR 1/152/23 - 153/1) Despite having Adrid what he

view of the entire called

an "unobstructed"

view of Evans's Evans used the Taser.

use of the Taser, (AR 1/168/12-18)

could not

say how many times Adrid recalled

that when he was interviewed whether the female officer

prior to the hearing,

he

said he was "unsure" (AR 1/155/5-9) Adrid

(Evans)

went in the bushes.

said he did not see any officers

kick the suspect.

(AR 1/146/19

- 147/8; 1/170/13-17)

Sgt. Leonard

Perez Perez testified that he knew Dorner Perez through the U.S. to the

Sgt. Leonard Navy Reserves; reserve center Perez LAPD.

at the time of the hearing, in Seal Beach.

was still assigned

(AR I1/8/2-13) in helping Domer become employed by the

was instrumental

(AR I1/38/1-4) Perez recalled hearing Dorner describe -16an incident while Dorner was

in training. In that incident, Domer heard a classmateuse a racial epithet, and, when the classmaterefusedto stop using the epithet, Dorner reported the incident to a superior. (AR II/10/19 - 11/5) Pereztestified that on August 9, 2007 - the day before Dorner made the complaint about Evans - he had received messages, nd had returned the a messages and had spoken to Dorner. (AR I1/84/7 - 86/7, II/88/2-9; 11/92/28; Accused Ex. B2) They also spokeover the next several days. (All 11/90/5-14) Sgt. Perez said Dorner told him, beginning on August
an "incident" involving Evans; that Evans "had kicked 9, 2007, about either cut

the suspect," (AR II/11/11 Perez

while handcuffed,

or with one handcuff After Domer describe a witness.

on at the time. mentioned

12/24; AR 11/19/19-25) Domer believed off before

the "kick,"

he could

too much of the incident, (AR I1/16/15-22;

since Perez

he could become

11/27/16-25; and directed

I1/101/19-25) him to either would

Perez told Dorner tell his watch

he needs

to tell a supervisor,

commander

or a supervisor,

or that he, Perez,

do so himself. Perez believed

(AR 11/13/1-13) that Dorner was telling him the truth. (AR II/35/20-

24) Perez I1/13/9-12; also recalled 11/17/1-9) the time when issues Perez knew Domer, about things. he never knew Dorner (AR 1I/31/3-9) Center, to that Evans had changed Dorner's report. (AR

During have integrity known Dorner

or to embellish

Perez had a

from their contacts Dorner joined

at the Navy Reserve LAPD, and contacts

during

ride-along

before

and conversations

over the telephone.

(AR 1I/31/5-11)

-17-

Sgt. Eddie Hernandez Los Angeles become a sergeant Port Police five months Sgt. Eddie Hernandez before the hearing; testified that he had at the

he was an officer

time of the incident.

(AR II/46/10-20). Hemandez was listening to the police When

On the date of the incident scanner

when he heard the call at the Doubletree. he saw both officers crouched

(AR II/47/10-25)

he arrived, not.

over, half in the bush and half was being

(AR 11/49/18-19) and picked

As he got out of his car, the suspect up by Dorner. that Dorner (AR I1/50/2-9; had his "Class up."

handcuffed

II/58/8-13) A" uniform on, and

Hernandez recalled during Dorner

recalled

that Dorner's cross examination was wearing agreed

tie was "messed of Hernandez, sleeves.

(AR I1/50/13-19)

However, that

the Department

stipulated

short

(AR I1/72/2-19i

Accused

Ex. A) (AR 11/73/21 -

Hernandez 74/8)

that "Class

A" uniforms

are long sleeved.

Hernandez 5; II/62/8-13;

did not see the Taser being used.

(AR 11/51/1-6;

11/60/1-

11/63/12-14) did not see Mr. Adrid when agreed that, if there he arrived. (AR I1/65/9-11)

Hernandez Hernandez arrival, asked he would if anyone Hernandez

had been _

kicks prior to his Hernandez never

not have seen that. had been kicked. left without

(AR 11/67/16-25)

(AR I1/68/1-3) to Evans. (AR 11/61/23 - 62/1)

talking

Ashlye

Perez Ashlye Perez testified that she was employed (AR Ill/6/5-9, at the Doubletree 111/7/19-21) employees had seen the on

the date when the events Ms. Perez testified suspicious person in town

occurred.

that she and other hotel before.

On July 28, 2007, she saw the suspect -18-

who was "sweating," and shebelieved he was under the influence of alcohol or drugs, and that he was "mumbling to himself." (AR III/8/7-14) Ms. Perez said she stayedinside until after the officers f'trst contactedthe suspect,then she went outside andwas "worried about the guests" who were outside. (AR III/11/10 -12/13) Shedescribedthe suspectas being uncooperative, and the officers' attemptsto handcuff him. "Then all I remember after that - I don't know within how - the time frame, but they Taseredhim." (AR III/17-25) Then, the suspectfell to the ground, where the busheswere. (AR III/12/24 - 13/4) Ms. Perez testified that Evans usedthe Taser on the suspect"before" they were down in the bushes;andthat shewas "a distance away" when she did so. (AR III/36/3-13) Evans was "six feet away" from the subject at the time of the Tasing. (AR III/37/13-18) Shesaw "something fly out [sic;

of?.]the Taser and strike the subject." (AR III/36/14-16) Shesaw two objects fly from the Taser and strike the subject, both striking the subject at the sametime. (AR III/37/3-12) Ms. Perez testified that shedid not seeEvans kick the suspect. (AR III/20/10-15) In fact, "She wasn't anywherenearhim at that time." (AR III/20/l 5) She "never" observedEvans behind the bushes. (AR III/28/1113)
Ms. Perez being did not see the subject to the patrol in handcuffs, car. nor did she see him AR III/28/14back into see to get

led from the bushes

(AR III/20/16-24; because

16) She did not see the subject the hotel, trying them actually guests to get guests because so I didn't

being cuffed

she walked

into the hotel;

as she testified,

"I didn't

cuffhim

after that I walked

in. I was trying

into the hotel,

see them cuff him and take him to the car. he was already in the car." (AR

But the next time I saw the suspect III/31/17-25; III/33/5-17)

-19-

Ms. Perezdid, at somepoint, seeblood on the suspect's face. (AR III/21/1-13) Shetestified that shesaw the suspect'shead hit a specific branch on the bushes. (AR 111/28/22 29/6) -

Sgt. Phil Jackson Sgt. Jackson time of the heating, testified that he was close to 37 years with LAPD were as a supervisor. at the

22 years of which

(AR Ili/40/3-6)

He was on duty on July 28, 2007, Doubletree other officers already Hotel. He arrived

and responded Evans,

to the call at the along with two or three The suspect was

when

Dorner,

and a Port Patrol

Officer

were all there.

in custody. Jackson spoke

(AR 111/40/10-22) first to Evans. then began She disclosed that she and Dorner had

used force. II1/41/16-25)

Jackson

investigating

the use of force. (AR

Jackson's twice Tased recollection subject. believed

report

of his investigation (AR Ili/43/14-21) that anyone reported

reminded Nothing seeing

him that Evans in his report or

had

the subject. indicated

kicks used to subdue face. He (AR

the

(AR 1II/48/17-

49/2) He saw blood bushes"

on Mr. Gettler's

it came from "thorn

on the side of the hotel. or smudge

II1/50/15-22) which would

He did not see any boot prints have appeared to have come

on Mr. Gettler (AR

from a shoe on his face. which he believed

1II/50/22-25) "the plant"

He saw some dirt on Mr. Gettler but "no boot or shoe marks." testified that he saw Evans report,

to be from

(AR III/51/2-6) become "frustrated" at how long to

Jackson it was taking

to write the arrest

and that she sat at the computer

make corrections. Jackson sleeves

(AR II1/63/3-9) viewed photographs, showing that Dorner was wearing Ex. A) short

at the scene of the incident.

(AR 111/71/9-20; -20-

Accused

Jacksontestified that if a kick had beenused, it would have been justified, but not to the head. (AR II1/75/19-25) Jacksondid not believe the blood on the suspect's face was consistentwith being kicked. (AR Ili/77/16-22) But he could not be sure that a kick could not have causedthat cut to the cheek. (AR Ili/83/3-11)

Sgt. Julie Mclnnis Sgt. Mclnnis the hearing, Appellant's was employed by the LAPD for 14 years at the time of She had been 2007. (AR 1II/85/22 (AR -

five years as a supervisor. supervisor during

(AR III/85/2-8)

June, July and August, supervisor

86/3) She was also one of Evans's II1/86/7-19) Sgt. Mclnnis Domer military while testified

at the same time.

that she recalled him, especially

Evans

telling

her about

she was training

that he had been in the

and was confident Sgt. Mclnnis testified

and assertive.

(AR III/88/1-11) a conversation with

that she did not recall

Evans officers.

in which

Evans

told her about Dorner Evans

discussing

the race of other that she had

(AR 111/89/6-17) with

had testified in which

to the contrary,

a conversation

Sgt. Mclnnis

she told Mclnnis organization"

that Dorner and he was

told her that he felt that the LAPD going to sue the Department Nor did Sgt. Mclnnis Dorner having "confiding" to Evans

was a "racist

after he retired.

(AR 1/119/7

- 121/6) about after

recall any conversation that he was having

with Evans

problems

adjusting

been deployed.

(AR II1/89/19-25)

Det. Shelly

Villanueva Villanueva for LAPD, testified holding that she is a Detective that position -21II working in

Detective Internal Affairs

for four years at the time of

the heating. Sheis formerly known as Shelly Gallegos. (AR IV/36/23 37/20) Villanueva investigated the complaint madeby Dorner, in which he was accusedof making false statements. (AR IV/38/15-25) Villanueva spoketo witnessesbut did not speakto Christopher Gettler. (AR IV/41/13-25) Sheunderstoodthat Christopher would not be able to answer simple questionsand had mental issues. (AR IV/42/1-8) Shedid speakto Gettler, Sr., who was thankful toward her and saidthat every time the LAPD has come in contact with his son, that he knows his son is difficult to deal with, andknows that they bring him home when he's missing. Villanueva did not tell Gettler, Sr., that the investigation had anything to do with the kicking of his son. (AR IV/44/12-16) Villanueva also interviewed Ms. CaseyNixon, who had worked at the Doubletree Hotel, but who was found to be "unavailable" for the hearing. (AR IV/45/9 - 49/10) Over objection, Villanueva testified that Nixon told Villanueva that she did not seeeverything, and did not seeany kicks. (AR IV/49/19-25) Ms. Nixon had observedthe suspectbeing When Villanueva interviewed

handcuffed on the ground. (AR IV/50/2-8)

Nixon, Nixon said shewas outside the entranceof the hotel but did not say exactly where she was standing during the incident. (AR IV/58/21-24) Villanueva never askedNixon if shesaw Evans between the wall and the bushes,or behind the bushes. (AR IV/62/15 - 63/8) Nothing in the written paraphrasingof the interview, which Villanueva was using to refresh her recollection, indicated that Nixon said anything about Evans standinginside the bushes. (AR IV/9-19) Villanueva also testified that Nixon said that the Port Police Officer drove away prior to the incident occurring. (AR IV/70/4-7) -22-

Villanueva testified that in her opinion, Dorner had made a false statementabout whether Evans had kicked the suspect;that was the only
false statement she had an opinion about. (AR IV/54/5-14)

Capt. Donald

A. Deming testified that on August Watch 10, 2007, Dorner Dorner contacted told Deming

Capt. Deming then-Sgt. Deming.

s the Assistant

Commander.

about the use of force was applying shoulder, Dorner handcuffs

by his partner, to a suspect,

Terri Evans. Evans

He said that while he two kicks to the - 36/25, 1/38/8-13) to Deming. do

delivered

and one to the suspect's was "visibly Dorner upset"

face.

(AR 1/35/11

at having

to report

the misconduct

(AR 44/2-8) anything

had asked (AR 50/9-19)

Deming

to promise believed

him that he wouldn't Dorner was attempting

to Evans.

Deming

"to do the fight thing." Deming Domer disclosed testified

(AR 1/52/3-7) that he learned that within two to three months urinated on his lot. after

the misconduct

to Deming,

someone

equipment (AR 1/58/11

bag, which - 59/7)

was left at the rear of the station

in the parking

Sgt. Joel Sydanmaa Sgt. Joel Sydanmaa "penalty" phase. testified in support of Dorner during the (AR to

Sgt. Sydanmaa

was Dorner's

first training with Dorner,

officer.

V/225/15-20)

He testified officers

that when he worked he had trained

in relation

other probationary

with the same amount

of time on

At the time of the hearing,

Deming

held the rank of Captain

with the with

Lompoc Police Department, following his retirement as a Sergeant LAPD, the rank he held at the time of the events described herein. -23-

the job, it was his opinion that Dorner was "either averageor above average in all areas .... " (AR W226/13-18) He never believed that Dorner was upset about criticism, but insteadthat Dorner "was probably one of the more inquisitive Pl's that I ever had.... He was constantly asking

questions as to how he could improve, I believe he neededto improve on." (AR V/227/3-14) There was never any issueregarding Dorner's integrity. (AR V/226/13-19)
Administrative findings of Rights The Board found Appellant also recommended guilty of all three charges. termination from

The Board (AR V/216/5-13) employment.

(AR V/233)

III. Appellant Court. Yaffe, Superior of Entry The matter Judge timely

PROCEDURAL filed a Petition

HISTORY for Writ of Mandate, 26, 2010 argument, in Department on May in the Superior 86, David P.

was heard by April After heating

presiding. adopted

10, 2010, the Notice

Court

its tentative

decision,

denying

the Petition.

of Judgment

was served upon the parties. filed a Notice of Appeal on July 7, 2010.

Appellant

timely

IV. Appellant a petition 904.1(a)(I).

STATEMENT

OF APPEALABILITY following an order denying

appeals

from a final judgment California

for writ of mandate.

Code of Civil Procedure

V. The Court

STANDARDS reviews

OF REVIEW de novo the question of proof as a matter of law of whether of law. "In

of Appeal

the trial court misapplied

the burden

-24-

disciplinary

administrative

proceedings, the charges.

the burden (Caloca

of proving

the charges

rests upon the party making (2002) question 102 Cal. App. presented.

v. County de novo

of San Diego the legal (2007) Office

4th 433 (Caloca).)

We review

(Breslin

v. City and County Lopez

of San Francisco County Sheriffs

146 Cal. App. 4th 1064, (2008) 165 Cal. App. The Court review

1077.)"

v. lmperial

4th 1, 4. reviews agency factual decision determinations of a trial court's

of Appeal

of an administrative standard. support

using the "substantial findings unless they so lack a

evidence" evidentiary finding irrelevant Breslin 1077-78.

"We uphold

the trial court's

that they are unreasonable. improbable evidence

We may not uphold or evidence citation

based

on inherently before

that is omitted]

to the issues

us." [emphasis

added, (2007)

v. City and County

of San Francisco

146 Cal. App. 4th 1064,

Judicial is limited Antelope appellate

Review

of the penalty of whether

imposed

by an administrative abused

agency

to a determination Valley Press court

the agency

its discretion. The than

v. Poizner

(2008)

162 Cal. App. of the agency's (1985)

4th 839, 851. decision rather

looks to the correctness Schmitt

that of the trial court. 494, 500. The ultimate was procedurally are questions Court (1991) (2002)

v. City of Rialto

164 Cal. App. 3d

question unfair

of whether

the trial provided proceedings

by the agency were unlawful v. Superior

or whether

an agency's

of law to be decided 231 Cal. App.

de novo on appeal. 1443; Brown

Rosenblit

3d 1434,

v. City of Los Angeles

102 Cal. App.

4th 155.

-25-

VI. SUMMARY OF ARGUMENT Appellant respectfully submitsthat the Board of Rights, and Superior Court, erred in incorrectly placing the burden of proof upon Appellant; and that the factual findings are not supportedby substantial evidence, since the evidence is inherently improbable or comesfrom witnesses who admittedly did not seewhat happened.

VI.

ARGUMENT

A.

The

Superior

Court Erred Mandamus of the Burden Hearing

in Denying Based of Proof

the Petition

for

Administrative Application Administrative

on an Incorrect During the

The Board of Rights decision, the Board stated:

found

against

Domer.

In explaining

its

"The

Board

understands

that the primary alleged

issue

in this case was Evans to Hotel

whether

or not the three Gettler

kicks by Officer

Christopher occurred

during the use of force at the Doubletree After deliberating finding

or did not occur. make

and all of the evidence, The

the Board cannot Board searched

a factual

that the kicks occurred. the allegations physical of the three

for evidence testimony

to support of witnesses,

kicks to include evidence

and documentary - 212/5)

presented

to the Board.

(AR V/211/20

"Substantial includes within

evidence

review

in an administrative whether

mandamus

case body

it the duty to determine -26-

the administrative

committed errors of law in applying the facts before it. (See City and
County of San Francisco v. Board of Permit Appeals (I 989) 207 Cal. App. (2007) 146

3d 1099, 1111 .)" Breslin Cal. App. 4th 1064,

v. City and County

of San Francisco

1078, fn.14. question of whether the trial provided proceedings by the agency were unlawful v. Superior

The ultimate was procedurally are questions Court (2002) (1991)

unfair

or whether

an agency's de novo

of law to be decided

on appeal.

Rosenblit

231 Cal. App. 3d 1434, 1443; Brown 4th 155. provided

v. City of Los Angeles

102 Cal. App. "Except

as otherwise

by law, a party has the burden of which California

of to

proof

as to each fact the existence or defense

or nonexistence

is essential Evid.

the claim for relief 500, emphasis

that he is asserting."

Code

added. in disciplinary administrative proceedings, that the

"It is axiomatic, burden (Layton of proving

the charges

rests upon the party making (1976) 60 Cal. App.

the charges." 3d 58, 64; Martin Parker v. City of

v. Merit System

Commission

v. State Personnel Fountain Valley

Bd. (1972) (1981)

26 Cal. App .3d 573,582.)" 3d 99, 113.

127 Cal. App. principle to contest

A fundamental administrative employment prove Rights alleged states, hearings

of due process a public

is that the burden s termination

of proof from must of

in

employee'

lies on the employer,

not the employee. of the evidence." being on the employee;

The employer Yet the Board

its case by "a preponderance turned it into the burden

if the Department and if, as the Board then the The

that Dorner it "cannot

lied in that the kicks did not occur, a factual fmding

make

that the kicks occurred,"

Department burden

did not prove

its case by a preponderance to prove his innocence,

of the evidence. i.e., that the kicks the kicks did not

was not on Dorner the burden

occurred;

was on the Department -27-

to prove

Occur.

The Superior petition "Neither

Court

compounded The Minute

this error in its ruling Order

on the part,

for writ of mandate. the language record kicked quoted indicates

states in relevant

by petitioner

nor anything of Rights petitioner

else in the presumed that the

administrative training Domer] 10 para. officer

that the Board and required

the suspect,

[Appellant 4 - p.

to prove

otherwise." added)

(Appellant's

Appendix,

p. 9 paragraph

1, emphasis

But that was not what Appellant the burden

was alleging

as the error.

He alleged

that the Board placed

on him to prove burden to

the kicks did occur, prove

not that the Board gave him the Department's

that they did not occur. During argument in the Superior officer Court, the Court [Evans] kicked stated, "I don't I

really know whether mean, there's the Superior the charges

the female

this guy or not. (RT 5/6-10)

an inference Court against

that can be drawn

she did."

Thus,

also placed him.

upon the Appellant

the burden

of disproving

That clear legal error requires In discussing the burden

reversal. one court has stated: of key terms: Attorneys, burden and they of proof

of proof,

"We begin with a discussion and burden commentators represent. of producing evidence.

judges,

often have confused

these terms and the concepts Court observed, because

As the United

States Supreme of proof"

'For many the term

years the term "burden was used to describe frequently

was ambiguous concepts. Burden

two distinct

of proof was of the

used to refer to what we now call the burden notion that if the evidence of persuasion is evenly

persuasion--the party

balanced,

that bears the burden

must lose. But it was also of production--a

used to refer to what we now call the burden -28-

party's obligation to come forward with evidence to support its claim.' (Director, Office of Workers'Compensation
Greenwich Evidence Collieries (1994) Programs v.

512 U.S. 267, 272; see 2 McCormick, of Proof, 8 336, p. 409.) of persuasion are of

(5th ed. 1999) Burden burden

"The terms synonymous. Proof,

of proof

and burden

(1 Witkin,

Cal. Evidence

(4th ed. 2000) Burden supra, Burden

8 3, p. 157; 2 McCormick,

Evidence, usage

of Proof, we

8 336, p. 409.) Because use that term here. "'Except of proof essential Code,

the California

is 'burden

of proof,'

as otherwise

provided

by law, a party has the burden or nonexistence of which is (Evid. on

as to each fact the existence to the claim

for relief or defense the party bearing sufficient

that he is asserting.' the burden to establish of belief Code, of proof

8 500.)

To prevail,

the issue must present

evidence

in the mind of (commonly 88 115, remains Mathis Rosa v.

the trier of fact or the court a requisite proof by a preponderance of proof

degree

of the evidence).

(Evid.

520.) The burden

does not shift during trial--it bears it. (Evid. Code,

with the party who originally Morrissey Police (1992) (2002)

8 500; v. Santa

11 Cal. App. 4th 332, 346; Smith

Dept.

97 Cal .App. 4th 546, 569; 2 McCormick, of Proof, 8 336, pp. 409-410.)" 110 Cal. App. 4th 1658, at

Evidence, Sargent Fletcher,

supra,

Burden

Inc. v. Able Corp. (2003)

1666-1667. The Department did no_.._!t occur, repeated error. failed to meet its burden upheld the charges. of proving that the kicks Court based upon that

yet the Board Appellant

The Superior reversal

that error.

respectfully

requests

-29-

B.

The Superior Findings Findings Inherently

Court

Erred

in Finding Were Support

That the Factual Correct That Because They Are the

of the Board

of Rights

So Lack Evidentiary Improbable reviews

and Unreasonable the factual standard; findings of the Superior so lack

The Appellate Court under

Court

the "substantial support

evidence"

if the findings

evidentiary

as to be unreasonable, in this matter_e

the fmdings

are reversed. the standard whether of

"When--as commission's review

trial court reviews judgment we determine

decision

under the independent this ruling on appeal, evidence

and we review provides

the record factual

substantial

supporting omitted]

the trial court's Applying the to the

findings.

[footnote

and citations

substantial evidence,

evidence but consider

test on appeal, that evidence

we may not reweigh

in the light most favorable inference

the trial court, trial court's omitted] substantial court's

indulging

in every reasonable all conflicts

in favor of the [citations reveals the trial the the that they

findings

and resolving

in its favor.

The question

on appeal is whether

the evidence

support-----contradicted that the weight

or uncontradicted--for of the evidence omitted] supports

conclusion

commission's trial court's

fmdings findings

of fact. [citations unless

We uphold support

they so lack evidentiary a finding

are unreasonable. improbable before Breslin 1077-78. "Substantial DiMartino

We may not uphold or evidence added,

based

on inherently

evidence

that is irrelevant omitted] (2007)

to the issues

us." [emphasis

citation

v. City and County

of San Francisco

146 Cal. App. 4th 1064,

evidence"

is not synonymous (2000)

with "any"

evidence. The

v. City of Orinda

80 Cal. App. 4th 329, 336. -30-

substantial evidencerule "does not meanwe must blindly seizeany evidencein support of the respondentin order to affirm the judgment. The Court of Appeal was not created.., merely to echothe determinations of the trial court. A decision supportedby a mere scintilla of evidence need not be affm-ned on review." Kuhn v. Dept. of General
Cal. App. 4th 1627, The "substantial trial court actually actually resolved 1633. evidence" rule is based on the assumption the evidence that the and thus Services (1994) 22

performed the factual

its function dispute.

of weighing

If the record because

demonstrates

otherwise,

the appellate evidence upon

court will not affirm which

merely

there was substantial appellant.

the trial court might have ruled against Inc. v. Tital Elec. evidence Corp. (2007)

Kemp Bros. 1477-1478. judge Estate failed

Const.,

146 Cal. App. 4th 1474, when factual the trial issues.

The substantial to weigh

rule is inapplicable and determine

all relevant

evidence

of Larson

(1980)

106 Cal. App.

3d 560, 567. on an incorrect the evidence, body. During simply argument,

In the present understanding rubber-stamped the Superior

case, the trial court relied and instead

of Fukuda

of weighing

the decision Court stated:

of the administrative

"I'm

supposed

to presume and unless record

that the administrative I can find something that they didn't, wrongly,

tribunal in the

got it right,

at least initially, administrative unless I'm

to indicate

I'm supposed I'm supposed

to to go

satisfied

that they decided and that's against

along with them, Angels case."

what I'm doing City of Angels,

here under

the City of Court

case, Fukuda (RT 5/13-21)

the Supreme

-31-

The Department has, andwill likely, argue that although the Superior Court was required to exercise its independentjudgment in this case,that the administrative decision is "presumed correct," citing to Fukuda
of Angels (1999) 20 Cal.4th 805. But one must be careful v. City

not to interpret whether

this statement there

to mean

that the Superior in the record of Fukuda

Court need only determine to sustain the findings

is sufficient

evidence

below.

The true meaning

is that a petitioner

has a responsibility

to point out to the reviewing objectionable Supreme search sifting Court findings

Court the violations

of law and the The California

and the lack of support advised record

therefore.

in Fukuda

the trial courts

that they did not have to had been no prior

the administrative of the evidence: "We agency

on their own as if there

reject the Court of Appeal's and findings

conclusion, be entitled

under

which at

determinations

would

to no weight supra, codified by its presumption and the party of to by

all, and afftrrn reaffirmed

the rule first articulated supra, and Sipper, 1094.5,

in Drummey, supra,

in Dare,

implicitly

the Legislature numerous independent of correctness challenging convincing the weight Fukuda, 20 Cal.4th judgment the challenged or conclusion judgment

in section

and thereafter supra:

reaffirmed

opinions

including

Bixby,

In exercising a strong

judgment, concerning

a trial court must afford the administrative decision

findings,

the administrative

bears the burden findings

the court that the administrative of the evidence. at 817. Thus, the Superior

are contrary

Court's Rather,

duty to exercise once a petitioner

its has

independent identified finding

has not been cancelled. fmdings or conclusions

and has shown

why such its

is erroneous,

the trial court is required

to exercise by the

independent

and may make its own f'mding -32-

unrestricted

agency'sprior decision. There is no requirement that the Superior Court give any preferential or deferential treatment to the agency's findings. "On factual issues,the trial court had a duty to weigh the evidence andto exercise its independentjudgment on the facts. In so doing, it was assistedby the commission's work in sifting the evidence and making its findings, which cameto the trial court with a strong presumption of correctness.[citations omitted] In the trial court, the officers had the burden of proof to show that the commission's decision was not supportedby the weight of the evidence--that is, that the decision was not supportedby the preponderanceof the evidence. [citations omitted] The presumption of correctnessis the starting point for the trial court's review, but this rebuttable presumption may be overcome by the evidence. When applying the independentjudgment test, the trial court may reweigh the evidence and substitute its own f'mdings for those of the commission, after first giving due respectto the commission's findings." [citations omitted]
Breslin 1077. Against evidence, provide because that legal background, it must be concluded and Christopher that the Gettler, does not and to v. City and County of San Francisco (2007) 146 Cal. App. 4th 1064,

other than from Dorner, substantial evidence

Evans

because

it is inherently

improbable

the witnesses,

by their own admissions, when

were not in a position the events transpired.

see anything,

or were not on the location does not rely simply testimony should

Appellant the witnesses' testimony witnesses

on his own statements no weight;

to show that

be afforded means

Sgt. Evans's for the

is an even more powerful who believe

of impeachment but did not.

they saw something, -33-

Evans, it will be recalled, testified that sheunholstered the Taser which Dorner was wearing andrequestedback up. (AR 1/80/2) She testified that she twice usethe Taser on the subject. (AR 1/84/7-19, 1/85/38) The suspect I1/154/10-12) contact." was already on the ground when she Tased she deployed him. (AR in "close

She did not use the "darts,"

the Taser

(AR 1/85/17-19) Adrid, the Bellman who became person, a firefighter, testified " (AR

Christopher that the Taser 1/180/8-11) feet away" 1/180/25 issue. Although tape recorded "better," Adrid stating, shows

came from on Evans's Adrid repeatedly testified when

not from Dorner.

that Evans

was "no more than five (AR 1/146/9-13; to Evans's on that

from the suspect

she used the Taser. is directly contrary

- 181/2)

His testimony

Adrid interview

testified

that he saw Dorner 19, 2007, when the tackle

tackle

the suspect, was

his

of October seeing

his memory

that he denied his testimony say the entire testimony

- "I missed

the tackle." the tackle,

changed "I would Thus,

to say that he had indeed tackle, yes."

missed

(AR 1/149/4 improbable.

- 151/24) He did not see seeing the Taser should

Adrid's

is inherently

any kicks, usage,

according

to his testimony, and changed

but he clearly his testimony.

missed

missed

the tackle

His testimony

not be considered Los Angeles testimony whether should Evans

as "substantial Port Police

evidence"

for anything. also testified, and his

Sgt. Eddie Hernandez as "substantial or not. ) Evans

not be considered the suspect

evidence" testified

regarding that as he got up by Dorner. kicks were that, if there (AR

kicked

out of his car, the suspect (AR 11/50/2-9; made. I1/58/8-13)

was being handcuffed Thus, he arrived

and picked

after the alleged Hernandez

He was not on the scene at the time. kicks prior to his arrival,

agreed

had been _

he would

not have seen that.

-34-

I1/67/16-25) Hernandez never askedif anyonehad been kicked. (AR I1/68/1-3) It is also at least questionablewhether Sgt. Hernandez knew who or what he was seeing. He was very clear aboutDorner's tie being "messed up" at the scene. (AR II/50/13-19) However, during cross examination of Hernandez,the Department stipulated
sleeves. uniforms Dorner (AR 11/72/2-19; - the uniforms would Accused that Domer was wearing agreed short A"

Ex. A) Hernandez

that "Class

with the tie - are long sleeved. a tie at all.

(AR 11/73/21 - 74/8) also testified

not have been wearing short sleeves.

Sgt. Jackson

that Dorner Ashlye Mr. Adrid, "substantial," Perez, Evans

was wearing Perez,

(AR Ili/71/9-20) employee, also testified. As with

another

Doubletree

Ms. Perez's

testimony

does not rise to the level of being improbable nature. According to Ms.

due to its inherently was "six feet away" As stated above,

l_om the subject Evans herself

at the time of the Tasing. said that she administered Ms. Perez further

(AR II1/37/13-18)

the Taser at close contact; testified subject."

she did not shoot anything.

that she saw "something (AR 1II/36/14-16) both striking

fly out [sic; of?.] the Taser and strike the fly from the Taser and

She saw two objects the subject

strike the subject, 12) Again, Evans,

at the same time. Ms. Perez's

(AR III/37/3testimony. (AR (AR

who used the Taser, testified

refutes

Ms. Perez Ili/20/10-15) 111/20/15) 13)

that she did not see Evans anywhere Evans behind

kick the suspect.

In fact, "She wasn't She "never" observed

near him at that time." the bushes.

(AR 111/28/11-

Ms. Perez

did not see the subject

in handcuffs,

nor did she see him AR 111/28/14-

being led from the bushes 16) Thus, gone, to the extent

to the patrol car.

(AR 1II/20/16-24;

she saw anything, at the crucial

Ms. Perez was either wrong, moment when it is alleged the

or not paying

attention

kicks occurred. -35-

The Department also presentedhearsaytestimony l_om Internal Affairs Detective Villanueva, who interviewed another Doubletree employee. Even that testimony is not "substantial," sufficient to sustainthe Board's findings. Over objection, Villanueva testified that Nixon told Villanueva that she did not seeeverything, and did not seeany kicks. (AR IV/49/19-25)
ground.

Ms. Nixon

had observed When

the suspect

being handcuffed Nixon, Nixon where

on the said she never

(AR IV/50/2-8)

Villanueva

interviewed

she was outside was standing asked Nixon

the entrance

of the hotel but did not say exactly (AR IV/58/21-24)

during

the incident.

Det. Villanueva

if she saw Evans (AR IV/62/15 which

between

the wall and the bushes, in the written

or behind of

the bushes. the interview, indicated

- 63/8)

Nothing

paraphrasing

Villanueva said anything

was using to refresh about Evans

her recollection, inside the bushes. and

that Nixon Evans

standing

(AR IV/9-19)

had also testified Villanueva

that she repositioned that Nixon occurring.

herself,

went into the bushes. Police Officer There Evans kicked drove were

also testified

said that the Port (AR IV/70/4-7) Dorner Not claims

away prior to the incident present

only three people

at the time when kicked

Gettler,

and two of them said Evans accused it. which with using

Gettler.

surprisingly, inappropriate There whether

only the person manner denies

the force in an

was a great kicked

deal of evidence Gettler's

has no direct

bearing

on

Evans

the suspect: Evans

schizophrenia, records

the supervisory and campsite etc.,

relationship receipts,

between

and Dorner, allegations

telephone

prior

and subsequent

of retaliation,

shrubbery, evidence

such that it might the kicks occurred: indirect evidence

be easy to overlook the testimony requires,

the only direct

of whether

of Dorner

and Gettler.

All of the other to tie it to the issue

at least, a leap of speculation

of whether

or not there were kicks. -36-

Usually, when a person is accusedof assaultinganother,there are two stories: the story by personwho did the hitting, andthe story by the person who was hit. In that situation it can be very difficult to decidewhat really happened. But this caseis different. In this case,there is a witness, one who might be expectedto automatically take the side of his superior: the probationary subordinate, Officer
silent, became Dorner. When Dorner holding initially remained

but soon knew that it was wrong. too much, and at the urging Dorner

in that knowledge

of his mentor,

he came forward. a false statement -

For his trouble, that Evans He asked had kicked

was accused

of making

the suspect

- three times, before

and was fired by the LAPD. of Rights. police a trier of

for, and received,

a hearing

the Board

It would officer's

seem that testimony would occurred. the Board of Rights

by the victim

and the accused to convince

subordinate

be more than sufficient

fact that an assault However,

also heard the testimony

about Gettler

being schizophrenic, complain the hotel Christopher filing

and being

a poor witness.

He did not immediately had a history with

to the Department. and with police. had to lie low. Better of Rights showed evaluation

But Gettler

and his family

They knew there would He didn't to move on.

be more

in the future. by

need to antagonize

the police

a complaint. The Board

also heard that there were "Improvement Required"

some areas where in some areas, even knew he needed Reserve, that

Dorner's though

evaluations the overall

was "Satisfactory."

Dorner

to improve; he asked evaluation

after he returned

from his tour of duty with the Naval Also, Dorner had not even received Evans's kicks. reverse

for more training. until weeks

after he disclosed requests

Appellant Court,

respectfully

that this Court

the Superior by the weight of

and fred that the Board's

findings -37-

are not supported

the evidence, and grant the petition for administrative mandamus. VIII. CONCLUSION

Appellant respectfully requeststhis Court to reversethe Superior Court's decision denying the petition for writ of administrative mandamus for the reasonsset forth above. Dated: January 27, 2011 LAW OFFICE OF DAVID J. DUCHROW

BY: ___uc_ow_'J
Attorneys for Appellant

-38-

CERTIFICATE (Cal. Rules

OF WORD of Court, Rule

COUNT 14(c)(1))

The WordPerfect

text X3

of this word

brief

consists

of 10,712 program used

words

as coumed the

by the Corel brief.

processing

to generate

Dated:

January

27, 2011

BY: DAVID

_4, J. DUCI_r_.O_. "

-39-

PROOF

OF SERVICE

I am employed in the County of Los Angeles at 501 Santa Monica Boulevard, Suite 505, Santa Monica, California 90401-2443. On the date of mailing, I am over the age of eighteen, described action. On January APPELLANT'S 28, 2011, I served and not a party to the above-

the within: BRIEF enclosed in sealed envelopes as stated on

OPENING

by placing the true copies the attached mailing list; BY MAIL:

thereof

I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid Los Angeles, California in the ordinary course of business. I am aware on motion of the party served, service is presumed invalid if postal cancellation date or Postage meter deposit for mailing in affidavit. at that

date is more than one day after date of

Executed on January 28, 2011, at Santa Monica, California. I declare under penalty of perjury under the laws of the State of California that the above is true _t_d correct.
/ /

c o4.
David J. Duci[row

/q

-40-

ATTACHMENT
DORNER To the Respondent: Gail D. Peterson, Esq.

TO PROOF OF SERVICE

APPELLANT'S OPENING BRIEF v. LOS ANGELES POLICE DEPARTMENT

Office of the City Attorney 201 N Los Angeles St #301 Los Angeles, CA 90012 To the Appellant: (confidential To the Trial address provided Court: to counsel)

Hon. David P. Yaffe Los Angeles Superior 111 N. Hill Street Los Angeles, Four Copies Court

CA 90012 to:

Clerk, California Supreme Court 350 McAllister Street San Francisco CA 94102-7303

-41-