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Court of Appeal, Second District, Division 3, California.

Clarence JOHNS, Plaintiff and Appellant,

v.

LOS ANGELES COUNTY CIVIL SERVICE COMMISSION, Defendant and Respondent.

No. B180909.

(Los Angeles County Super. Ct. No. BS087896).

Jan. 26, 2006.

As Modified Feb. 8, 2006.

APPEAL from a judgment of the Superior Court of Los Angeles County. David P. Yaffe, Judge. Affirmed.

Law Offices of Ramon Cervantes and Ramon Cervantes for Plaintiff and Appellant.

Law Offices of Hausman & Sosa, Jeffrey M. Hausman, Larry D. Stratton and Vincent C. McGowan for Defendants and Respondents.

KITCHING, J.

INTRODUCTION

*1 Clarence Johns appeals a judgment in favor of defendant Los Angeles County Civil Service Commission ("the Commission") in Johns's petition for peremptory writ of administrative mandate (Code Civ. Proc., § 1094.5) alleging that the Commission abused its discretion in sustaining the Los Angeles County Sheriff's Department's discharge of Johns from his employment as a sheriff's deputy. We conclude that Johns has not shown error in the Commission hearing officer's admission of former testimony from Johns's criminal trial or from the failure to include exhibits referred to in that former criminal trial testimony in the record before the Commission. We also find that because the properly admitted testimony of two witnesses from Johns's criminal trial independently supports the Commission hearing officer's findings, Rules of the Los Angeles County Civil Service Commission, rule 4.10(B) ("Civil Service Rule 4.10(B)") permits admission of two exhibits from the criminal trial even though these exhibits were hearsay evidence. We affirm the judgment.

PROCEDURAL HISTORY

In a July 31, 2002, letter, the Los Angeles County Sheriff's Department ("the Department") discharged Johns as a deputy sheriff, based on three findings:

(1) That on March 31, 2000, Johns falsely reported to the West Covina Police Department that his 1998 Ford Expedition was stolen;

(2) That on April 3, 2000, Johns filed a false insurance claim with Clarendon Insurance Company, alleging that his 1998 Ford Expedition was stolen; and

(3) That on May 17, 2000, Johns made false statements in an interview with the California Highway Patrol regarding the theft of the 1998 Ford Expedition, including Johns's allegations that the vehicle was stolen and that the vehicle was at Johns's home when he left for work on the morning of March 31, 2000.

On August 20, 2002, Johns requested an evidentiary hearing before the Commission to appeal the discharge. The Commission hearing officer relied in part on the testimony of two witnesses who testified in a previous criminal trial in which the district attorney had prosecuted Johns, which had resulted in a mistrial and the dismissal of charges against Johns. After a four-day hearing, the hearing officer found allegations in the Department's July 31, 2002, letter that Johns gave false statements to police agencies and to his insurance company to be true, and recommended that the Department's decision to discharge Johns be sustained. The Commission gave notice of its proposed decision to accept the hearing officer's findings and recommendations and gave Johns the opportunity to file objections. In its October 22, 2003, order, the Commission overruled Johns's objections and adopted the findings and recommendation to sustain Johns's discharge.

On January 20, 2004, Johns filed a petition for peremptory writ of administrative mandate (Code Civ. Proc., § 1094.5) against the Commission, naming real parties in interest the County of Los Angeles, the Los Angeles County Sheriff's Department, and Leroy D. Baca. The petition claimed the Commission abused its discretion in sustaining the Department's discharge of Johns in that (1) the evidence did not support the findings, and the findings did not support the decision to discharge; (2) substantial evidence, and the weight of the evidence, did not support a determination that Johns was dishonest, engaged in insurance fraud, or violated the Department's Manual of Policy and Procedures; and (3) the decision to sustain the Department's discharge was an abuse of discretion in that the penalty of discharge was disproportionately harsh and excessive. The petition sought issuance of a writ of mandate to vacate the Commission's decision, reinstate Johns to his deputy sheriff position, require the Department to pay Johns back salary with interest from July 20, 2002, and recover costs and attorney fees.

*2 The trial court found that trial testimony of Roberto Lira and Rogelio Escalante was admissible under Evidence Code section 1291, that Johns's motive and interest in cross-examining these witnesses at his prior criminal trial and the administrative hearing were identical, and that both witnesses were unavailable to testify pursuant to Evidence Code section 240, subdivision (a)(4), and therefore it was unnecessary for the Department to show reasonable diligence under subdivision (a)(5). The trial court also found that the hearing officer properly admitted and relied on parking lot documents as business records pursuant to Evidence Code section 1271. The trial court also found that, based on an independent examination of the administrative record, the evidence supported the administrative decision to uphold the discharge of Johns. The trial court therefore ordered judgment entered in favor of real parties in interest the County of Los Angeles, the Department, and Leroy D. Baca.

Johns filed a timely notice of appeal from the judgment.

STANDARD OF REVIEW

When, upon judicial review of an administrative order pursuant to Code of Civil Procedure section 1094.5, it is claimed that a prejudicial abuse of discretion has occurred because the evidence does not support the findings, the standard of review of adjudicatory determinations of administrative agencies is as follows. "Discipline imposed on city employees affects their fundamental vested right in employment. [Citations.] When an administrative decision substantially affects a fundamental vested right, the trial court uses an independent judgment standard of review, examines the administrative record for errors of law, and exercises its independent judgment upon the evidence. The appellate court must sustain the trial court's factual findings if substantial evidence supports them. [Citation.] This court's review must resolve all conflicts in the evidence and must draw inferences in support of the judgment. This court, however, independently determines questions of law." (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902, 4 Cal.Rptr.3d 325.)

FACTS

Before his discharge, Johns was employed as a deputy sheriff with the Los Angeles County Sheriff's Department. He leased a blue 1998 Ford Expedition.

On the evening of March 30, 2000, Johns attended a gathering at a TGI Friday's restaurant, where two friends saw Johns's car in the parking lot when they left between 10:30 and 11:00 p.m.

On March 31, 2000, at about 6:00 p.m., Johns reported to the West Covina Police that his Ford Expedition had been stolen. Johns told the police the car was taken between 4:45 a.m. that morning, when he left for work and saw it parked in his driveway, and 5:00 p.m., when he arrived home. Johns also reported the theft to his insurance company. In an affidavit of theft and in a recorded, transcribed interview with an insurance company claims adjuster, Johns repeated his claim that the car was stolen between the time he saw it parked in his driveway at 4:45 a.m. on March 31, 2000, and the time he returned from work at 5:00 p.m. on that day.

*3 Johns's car was located at a Tijuana, Mexico airport parking facility and returned to the United States. At the time of the theft, CHP Officer Alberto Perez served as the California Highway Patrol vehicle theft liaison with Mexican police. Perez worked with Mexican police and other authorities to determine whether cars found near the border had been stolen from the United States and to recover those stolen cars. Perez routinely worked with Rogelio Escalante, general manager of the Tijuana Airport parking structure, and Escalante's staff.

As stated, the hearing officer relied on testimony by two witnesses in the earlier criminal trial against Johns. In that criminal trial, Rogelio Escalante, a general manager of the Tijuana International Airport, testified that his employee Roberto Lira conducted a daily inventory of vehicles parked at the airport parking structure. Lira prepared a handwritten list of such parked cars, and entered that information into a computer which could generate a computerized list of parked cars. After Lira compiled the inventory early in the morning, Escalante received that information daily. Escalante regularly informs the California Highway Patrol of cars having no license plates or documentation, and also sends (by fax) a list of vehicles parked at the Tijuana Airport for more than one week.

In the computerized list of cars parked at the Tijuana Airport parking facility, Escalante drew an arrow next to a blue Ford Expedition in Stall 303 to show that the police informed him this was a stolen car. Lira's computerized list recorded the Ford Expedition in the airport parking structure as of 3:20 a.m. on March 31, 2000. Escalante could not tell the exact time the Ford Expedition first arrived. Escalante authenticated his April 4, 2000, fax to Perez, and its message about three cars stolen in California.

Escalante sent a faxed document to Perez on April 17, 2000, and Perez telephoned Escalante to report which vehicles were reported stolen. Escalante made handwritten notes on those vehicles Perez told him were stolen. Escalante also authenticated his April 17, 2000, fax to Perez and two attached inventory lists which were written and computer-generated by Lira. That fax contained the message concerning a March 30, 2000, inventory reflecting a blue 1998 Ford Expedition, and stating that the employee who did the inventory began working his shift at 10:00 p.m. on March 30, 2000, and finished his shift at 6:00 a.m. on March 31, 2000. Escalante's fax identified that "03:20" as 3:20 a.m. on March 31, 2000.

Escalante's employee, Roberta Lira, also testified in Johns's criminal trial. Lira worked in the Tijuana Airport parking structure. His duties included taking a nightly inventory of all autos in the lot. He began work at 10:00 p.m. After the last flight landed, Lira checked every car in every stall in the parking structure. He did this every day. Working with the previous day's list of parked cars, he recorded stall numbers and license plate numbers, noting every vehicle that was not parked the previous day and deleting from his list cars which are no longer parked, and thus constantly updating the inventory. Even though the inventory dated March 30, 2000, stated the time of the inventory as 3:20 a.m., in fact that referred to 3:20 a.m. the next day, March 31, 2000. He began his shift at 10:00 p.m. on March 30, 2000, but started the inventory after midnight and completed the inventory at 3:20 a.m. the next day, March 31, 2000.

*4 Lira marked an arrow on his handwritten inventory for the vehicle in Stall 303 and described the make and color of the blue 1998 Ford Expedition because that vehicle had no license plates. When Lira finished his handwritten inventory he entered the information into a computer, which could then generate a computerized document. Lira identified his signature on the handwritten inventory. The computerized inventory, captioned " 'Vehicle Inventories After 12:00,' " gives the hour as "04:27:45" and the date as "03/31/00 ." Lira testified that this referred to the time of the document as four in the morning, twenty-seven minutes, forty-five seconds on March 31, 2000, which was the time the computerized inventory was completed and the document printed. Although he did not know when the vehicle first arrived in the lot, Lira inventoried the blue 1998 Ford Expedition in the Tijuana Airport parking lot on March 31, 2000, at 3:20 a.m. Lira gave this information to Escalante.

On or before April 4, 2000, Escalante and Perez discussed a blue 1998 Ford Expedition, with Vehicle Identification No. 1FMPU18L9WLB55379, parked in the Tijuana Airport parking facility.

Using the VIN number, Perez determined that a report was made to the West Covina Police Department that the vehicle had been stolen. Perez obtained a copy of the West Covina Police stolen car report containing Johns's claims about the Expedition vehicle. Perez noted a discrepancy between Johns's statement that his car was stolen on March 31 between 4:45 a.m. and 5:00 p.m., and Escalante's information that Johns's car was seen in the Tijuana parking structure on March 30. Perez obtained information from Escalante that Roberto Lira, an airport employee, first observed the blue 1998 Ford Expedition at about 3:20 a.m. on March 31 during his nightly inventory.

Perez and another CHP officer investigated Johns's car theft claim. Perez interviewed Johns, who at first repeated his claim that the car was stolen between 4:45 a.m. when Johns left for work and 5:00 p.m. when Johns arrived home. When confronted with documents showing that the car was seen at the Tijuana airport in the early morning hours of March 30 or March 31, however, Johns expressed confusion and changed his story. Johns then suggested that the car might have been taken before he left for work.

When he went to Tijuana on April 9 to examine the vehicle, Perez found that it showed no visible damage to windows, door locks, or ignition. Victor Nuņo, a Chula Vista Ford dealership service manager, performed a computer scan of its anti-theft system, which revealed that no keys other than those in Johns's possession had been used to start the car. Nuņo found no evidence of tampering or forced entry in the ignition system or door locks.

Clarendon National Insurance Company filed a suspected fraudulent automobile insurance claim with the California Department of Insurance. It stated that Johns reported his vehicle stolen from his residence but one day after the alleged theft, the vehicle was recovered abandoned in the Tijuana Airport with no signs of damage.

ISSUES

*5 Johns claims on appeal that:

1. Lira and Escalante's testimony at Johns's criminal trial should not have been admitted in the Commission hearing because that testimony contains multiple hearsay and relied heavily on exhibits not incorporated in the transcript;

2. Officer Perez should not have been allowed to lay the foundation for the Department's exhibits 10, 11, 12, and 43; and

3. The preponderance of the evidence does not support the Commission's conclusion that Johns falsely reported when he first observed the Ford Expedition missing from his driveway.

DISCUSSION

1. Johns Has Not Shown Error in the Commission Hearing Officer's Admission of Prior Testimony From His Criminal Trial or From the Failure to Include Exhibits Referred to in That Prior Testimony

Johns first claims that over his objections, the Commission hearing officer erroneously admitted the testimony of Rogelio Escalante and Roberto Lira from Johns's criminal trial, and that defendant failed to include exhibits, relied on by Escalante and Lira, in the record before the Commission.

a. Evidence Code Section 1291, Subdivision (a)(2) Allows Admission of Testimony of Unavailable Witness From a Prior Criminal Trial

Johns cites Civil Service Rule 4.10(B), which states in relevant part: "Hearsay evidence may be admitted for any purpose, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." (Los Angeles County Code, title 5, appendix 1, p. 5-203.) Given the final clause of Civil Service Rule 4.10(B), the question is whether the testimony of Escalante and Lira in Johns's criminal trial would be admissible over objection in civil actions. We find that this evidence was admissible under the former testimony exception of Evidence Code section 1291, subdivision (a)(2).

Evidence Code section 1291, subdivision (a) states: "Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] ... [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing."

Evidence Code section 1290 defines " 'former testimony' " as "testimony given under oath in: [¶] (a) Another action[.]" Lira and Escalante testified in "another action," the criminal proceeding in which Johns was a defendant. Thus their testimony was "former testimony."

Johns concedes that Lira and Escalante were "unavailable as a witness" pursuant to Evidence Code section 240, subdivision (a)(4), which defines unavailable witnesses as "[a]bsent from the hearing and the court is unable to compel his or her attendance by its process."

As the defendant in the criminal trial, Johns was a party to the action in which Lira and Escalante gave their testimony.

*6 In that former proceeding, Johns had the right and opportunity to cross-examine Lira and Escalante with an interest and motive similar to that which he had at the Commission hearing. In the criminal action, Johns sought to avoid criminal liability for insurance fraud and making a false police report. In the Commission hearing, Johns sought to avoid termination from employment for making a false insurance claim and making false statements to police. As the trial court found, Johns had an identical interest and motive in the criminal and civil service proceedings.

Thus Evidence Code section 1291, subdivision (a)(2) allowed admission of Escalante and Lira's criminal trial testimony in Johns's Commission proceeding. The criminal testimony of Escalante and Lira was admissible over objection, and therefore Civil Service Rule 4.10(B) makes it sufficient evidence in itself to support the Commission hearing officer's findings.

b. Exhibits 10 and 43 Were Before the Commission Hearing Officer

Johns also appears to argue that defendants did not include criminal trial exhibits in the record before the Commission, and thus the hearing officer lacked a complete record and could not gauge the credibility of Lira and Escalante's prior testimony. Exhibits 10 and 43, however, were before the Commission hearing officer, who referred to them in the "Recommended Decision, Findings of Fact, and Conclusions of Law."

c. The Criminal Trial Testimony of Lira and Escalante Is Clear Without the Criminal Trial Exhibits

Johns apparently argues that Lira and Escalante's criminal trial testimony cannot be understood without all exhibits it referred to. Their testimony, however, is clear without the exhibits. As Johns concedes, moreover, there is no authority for the position that it is erroneous to rely on former testimony without exhibits referred to by that testimony. Finally, Johns did not make this objection in the Commission hearing. There Johns objected to the admission of Lira and Escalante's criminal trial testimony as a violation of Evidence Code section 240. Johns has abandoned that objection on appeal. Failure to make a timely evidentiary objection in the trial court forfeits that objection on appeal. (Evid.Code, § 353; People v. Panah (2005) 35 Cal.4th 395, 476, 25 Cal.Rptr.3d 672, 107 P.3d 790.)

2. Exhibits 10 and 43 Were Admissible Despite Johns's Objections Based on Hearsay and Lack of Foundation

Johns claims that defendant's witness Perez was erroneously allowed to give the foundation for the admission of Exhibits 10 and 43. Exhibit 10 was Escalante's April 4, 2000, fax to Perez of Lira's computerized list of vehicles at the Tijuana Airport, one of which was the 1998 Ford Expedition. Exhibit 43 was Escalante's April 17, 2000, fax to Perez of Lira's handwritten inventory of automobiles parked at the Tijuana Airport and a computerized list of automobiles in Area I, showing the blue Expedition in Stall 303, dated March 31, 2000. In the Commission hearing, after Perez testified about the source, preparation, and contents of these two exhibits, Johns objected to these exhibits because of hearsay and a lack of foundation before they were moved into evidence. The hearing officer overruled those objections.

*7 Johns makes the same objection on appeal, which is that the admission of these two exhibits lacked foundation and were therefore hearsay. Civil Service Rule 4.10(B), however, allow the admission of hearsay evidence "for any purpose," subject to the limitation that hearsay evidence "shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." We have found that the testimony of Lira and Escalante in Johns's criminal trial was admissible, and their testimony provides independent evidence to support the Civil Service Commission hearing officer's findings. Therefore although Exhibits 10 and 43 were hearsay, Civil Service Rule 4.10(B) allows their admission.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to real parties in interest the County of Los Angeles, the Los Angeles County Sheriff's Department, and Leroy Baca in his capacity as Sheriff of the County of Los Angeles.

We concur: CROSKEY, Acting P.J., and ALDRICH, J.

Not Reported in Cal.Rptr.3d, 2006 WL 178497 (Cal.App. 2 Dist.) Not Officially Published, (Cal. Rules of Court, Rules 976, 977)

END OF DOCUMENT

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