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Court of Appeal of California

Second Appellate District

Division Five

Gordon Collier,

Plaintiff and Appellant,

v.

Long Beach Civil Service Commission et al.,

Defendants and Appellants.

B147806

2002 Cal. App. Unpub. Lexis 8639

September 16, 2002, Filed

 

Notice: Not to be published in the official reports California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(B). This opinion has not been certified for publication or ordered published for purposes of rule 977.

 

GRIGNON, J. We concur: TURNER, P.J., MOSK, J.

 

 

 

Appellants Long Beach Civil Service Commission, City Manager James Hankla, Chief of Police Robert Luman, and the City of Long Beach appeal from the judgment granting a petition for writ of administrative mandate directing the Commission to set aside its decision demoting respondent Long Beach Police Department Sergeant Gordon Collier to the rank of corporal and reinstate him to the rank of sergeant. Sergeant Collier appeals from that part of the judgment limiting his award of back pay and benefits to six months from the date of his original demotion. We conclude substantial evidence supports the trial court's finding Sergeant Collier did not commit misconduct. We conclude further the trial court's finding of laches is unsupported in the absence of evidence of prejudice. We modify the judgment to increase the back pay and affirm.

PROCEDURAL BACKGROUND

On July 11, 1997, Sergeant Collier was charged with a single act of misconduct: "Between May 24, 1996, and June 24, 1996, you, while on duty, started and maintained an inappropriate personal relationship with Jessica Cordero, a minor." Sergeant Collier was demoted to corporal by the Department for this misconduct. n1 On July 14, 1997, Sergeant Collier requested a hearing before the Commission to appeal the demotion. A hearing was held.

 

At the hearing, Cordero testified she had a sexual relationship with Sergeant Collier, which began when Sergeant Collier asked to see her breasts on May 25, 1996, and culminated with an act of sexual intercourse on the roof of a 30-story building a few weeks later. Sergeant Collier denied any sexual relationship with Cordero, and the City did not attempt to establish a sexual relationship. Instead, the basis of the City's case against Sergeant Collier was his numerous personal, private contacts with Cordero, which enabled her to falsely allege a sexual relationship between them. The City introduced evidence that Sergeant Collier knew or should have known Cordero was an untruthful and unstable individual obsessed with the idea of engaging in sexual relations with police officers, and Sergeant Collier nonetheless encouraged a personal relationship with her.

 

On February 11, 1998, the Commission issued its decision finding the charge to be true and sustaining the demotion. A written copy of the minutes of the Commission's hearing was mailed to Sergeant Collier on March 4, 1998.

 

On March 24, 1998, Sergeant Collier's attorney wrote to the Commission seeking further clarification of its findings. On May 13, 1998, the Commission reconvened and issued seven factual findings supporting its conclusion of an inappropriate personal relationship. In addition to these findings, the Commission also expressly found Sergeant Collier to have been not credible and identified two specific areas of his testimony which the Commission found unworthy of belief. Sergeant Collier was informed of these findings by letter of May 22, 1998.

 

On July 10, 1998, Sergeant Collier filed his petition for writ of administrative mandate seeking review of the Commission's decision. Sergeant Collier did not file his notice of hearing and memorandum of points and authorities until March 23, 2000. He argued the weight of the evidence did not support the Commission's findings. Appellants responded that the evidence was more than sufficient to support the Commission's findings and additionally argued that, if relief were to be granted, Sergeant Collier's award of back pay should be limited due to his delay in setting a hearing date on his writ petition. Exercising its independent judgment on the evidence, the trial court concluded Sergeant Collier was the most credible witness at the Commission hearing and the weight of the evidence did not support the Commission's findings. However, the trial court found in favor of appellants on their laches defense.

 

Judgment was entered issuing the writ, commanding the Commission to set aside its decision and reinstate Sergeant Collier to the rank of sergeant. The judgment also awarded Sergeant Collier back pay and benefits, but limited the award to "six months from the date of the original demotion, as a result of an unreasonable delay in having this matter brought to hearing."

 

Appellants filed a timely notice of appeal. Sergeant Collier also filed a timely notice of appeal relating to the limitation of his award of back pay and benefits.

FACTS

 

Because we review the trial court's decision for substantial evidence, we set forth the facts in the light most favorable to the trial court's judgment, resolving all factual conflicts and indulging all reasonable inferences in favor of Sergeant Collier, the party who prevailed at trial. n2 (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659.)

 

Jessica Cordero was 16 years old. Cordero did not live with either of her parents, but had an apartment of her own. She did not go to school or have a job; her parents gave her money to pay for food.

 

Sergeant Collier is a 16-year veteran of the Department. As a sergeant, he supervises up to 14 officers at a time.

On May 24, 1996, Sergeant Collier first met Cordero when she was walking in an area of Long Beach known as the Promenade. Two Long Beach Police Department officers, who were on foot, were speaking with Cordero when Sergeant Collier arrived in his police car. One of the officers introduced Cordero to Sergeant Collier. Later that night, Sergeant Collier was approached by Cordero and a friend. Cordero asked Sergeant Collier to give them a ride home. Cordero's apartment was only a few blocks away, but the route abutted a questionable area, so Sergeant Collier agreed to give the two a ride. Along the way, Cordero asked if they could have a tour of the police station. Sergeant Collier agreed; the station was only one block out of their way, and he believed giving them a tour would foster good police/community relations. After a quick tour of the station, Sergeant Collier left Cordero and her friend at their apartment building.

 

Earlier, Sergeant Collier had been informed by a concerned citizen that a drug user/burglar lived in the area of Cordero's building. On May 25, 1996, the day after he first met Cordero, Sergeant Collier drove to Cordero's building looking for the drug user. Cordero approached Sergeant Collier's police car and spoke with him. Sergeant Collier asked Cordero if she knew of the drug user; Cordero said she did, and she pointed out the building in which the drug user lived. Cordero's apartment manager told Sergeant Collier she believed the drug user was selling drugs. Sergeant Collier decided to "work the area" until he found the drug dealer. This entailed creating a "high presence" by frequently driving through the area, in the hopes of catching the drug dealer outside and confronting him. Sergeant Collier identified the drug dealer on May 31, 1996, and thereafter stopped driving by the area of Cordero's apartment.

 

During the week that Sergeant Collier was frequenting the area looking for the drug dealer, Cordero would sometimes come down to his police car and briefly speak with him. Once, when a neighbor complained to Sergeant Collier that Cordero's music was too loud, Sergeant Collier went up to her apartment to have the music turned down. Additionally, sometimes Cordero would see Sergeant Collier when he was patrolling at the Promenade, and she would approach him. Sergeant Collier had given Cordero a business card with his pager number on it; Sergeant Collier answered Cordero's pages three or four times. Sergeant Collier frequently gave his pager number to members of the community. Sergeant Collier did not instigate any of the contacts with Cordero.

 

On May 29, when Sergeant Collier was patrolling the area near Cordero's apartment, Cordero spoke with him about Bill Wells, a neighbor who had once pointed a gun at her from his apartment window. Cordero tried to point out Wells's location to Sergeant Collier and eventually came around Sergeant Collier's police car and got into the passenger seat. Rather than order her out of the car, Sergeant Collier decided to follow Cordero's directions and drove around the corner to Wells's building. Once Cordero identified the apartment, she left the car and ran to Wells's upstairs apartment. From his seat in the police car, Sergeant Collier could hear Wells yell at Cordero, "Get the hell out of here." Cordero pointed to Sergeant Collier's car and yelled back, "The police are right down here; why don't you come down here and point a gun at them?" Cordero then returned to the police car. Sergeant Collier locked his doors so she could not get in. He rolled down his window and accused her of trying to use him to get at someone she did not like. He told her, "Don't ever do this to me again," and drove away.

 

On May 30, when Sergeant Collier was patrolling near Cordero's apartment, Cordero flipped up her skirt and flashed her buttocks at Sergeant Collier.

 

On May 31, Wells placed an anonymous telephone call to police, stating that Sergeant Collier was spending too much time at Cordero's apartment. An Internal Affairs investigation was begun, n3 and Cordero was interviewed. Internal Affairs found Cordero to be "somewhat evasive" and therefore asked her if she would consent to a polygraph examination. Cordero agreed; the polygraph examination was scheduled for June 3. Also on May 31, Sergeant Collier, concerned with Cordero's behavior the previous night, telephoned Detective Corporal Anthony Lembi of the Juvenile Division and posed a hypothetical question as to whether anything could be done about a 16-year-old girl living on her own. Sergeant Collier also mentioned the skirt-flipping incident. Detective Lembi told Sergeant Collier Juvenile Division would not intervene in the absence of an arrest and suggested he contact the Department of Children and Family Services. Sergeant Collier then telephoned the Department of Children and Family Services and reported Cordero.

 

The next day, Cordero was arrested on a violation of the 10:00 p.m. curfew for minors. Sergeant Collier was not responsible for Cordero's arrest. When brought to the Juvenile Division, Cordero would not tell police the name of her parents, saying that she lived alone. She then requested the officers contact Sergeant Collier for her. Detective Lembi telephoned Sergeant Collier, telling him they had arrested the girl Sergeant Collier had discussed the previous day, and that she was asking for him. Sergeant Collier did not come to the station in response to Cordero's request. Cordero was eventually released.

 

Cordero continued to stop Sergeant Collier and speak with him at the Promenade after he had discontinued the patrols at her apartment. Once, Cordero asked him why she had not seen him around the apartment lately. Cordero told Sergeant Collier she felt pressured by Internal Affairs to take a polygraph examination. n4 At this point, Sergeant Collier was unaware that he was the subject of the Internal Affairs investigation. He told Cordero that this is the United States and she did not have to take the polygraph examination if she did not want to do so.

 

On June 3, the polygraph examination was administered to Cordero. Cordero showed deception on every question asked. During the course of the examination, the examining officers chose to "apply a little bit more pressure to maybe get to the truth," so purposely lied to Cordero. They told her that Sergeant Collier had admitted to engaging in oral sex with her.

 

On June 6, after curfew, Sergeant Collier spotted Cordero walking on the Promenade. Sergeant Collier rolled down his window and asked Cordero why she was not going home. Cordero replied that she was going to her real home, and her mother lived in the International Towers, a 30-plus story condominium. Cordero stated that she was glad she had seen Sergeant Collier, because she wanted to complain about Internal Affairs' treatment of her. Sergeant Collier agreed to speak with Cordero, because a complaint about a police officer had to be handled by a sergeant or lieutenant. Cordero asked if Sergeant Collier had ever been to the International Towers. When he said he had not, Cordero said Sergeant Collier should come up to the roof, as it was a good place from which to observe drug transactions. Cordero also said she wanted Sergeant Collier to meet her mother. For all of these reasons, Sergeant Collier agreed to meet Cordero at the International Towers and allowed her to escort him to the roof. Sergeant Collier properly punched out on his police car computer when he went into the International Towers building. On the roof, Cordero told Sergeant Collier that the officers at the polygraph examination had told her that Sergeant Collier had admitted engaging in oral sex with her. It was at this point that Sergeant Collier first learned he was the target of the Internal Affairs investigation. However, since Cordero confirmed that she had truthfully told the investigators she had not engaged in oral sex with Sergeant Collier, he did not feel the need to take any further action.

 

On June 27, Internal Affairs brought its investigation to the attention of Officer Katherine Watson, in the Sex Crimes Unit. Officer Watson interviewed Cordero, who told her she had a sexual relationship with Sergeant Collier which had culminated with them having intercourse on the roof of the International Towers. Officer Watson arranged for a recorded telephone call between Cordero and Sergeant Collier, in which Cordero attempted to get Sergeant Collier to admit they had engaged in sexual relations. On June 28, at approximately 9:00 p.m., Officer Watson called Sergeant Collier's pager with the return number of Cordero's residence. Sergeant Collier returned the page, and his subsequent conversation with Cordero was recorded. Cordero told Sergeant Collier she had been contacted by a detective in the Sex Crimes Unit and wanted to know what to tell the detective about their relationship. Sergeant Collier replied that Cordero should "tell her the truth. Tell her that I'm your friend, and that I've never done anything to touch you, and I've never done anything wrong. Tell her absolutely the truth. My God, don't lie." Cordero then asked, "You want me to tell them about how we had sex on the roof?" Sergeant Collier denied having sex with Cordero on the roof and asked why Cordero would fabricate such a thing. Sergeant Collier told Cordero that if she made up such a story, he would sue her and her mother, and the call ended.

 

Shortly thereafter, Sergeant Collier telephoned his lieutenant, seeking advice. Based on the telephone call he had just received, Sergeant Collier believed Cordero was about to tell detectives they had engaged in sexual relations on the roof of the International Towers, which he vehemently denied. On the advice of his lieutenant, Sergeant Collier had no further contact with Cordero.

 

The seven findings the Commission found to be evidence of an improper personal relationship between Sergeant Collier and Cordero between May 24 and June 24 are:

 

"1) On May 24, 1996, [Sergeant] Collier gave Ms. Cordero and her friend a ride to the police station and a tour of the police station in the late evening hours. [Sergeant] Collier never received permission from his superiors for the tour or the ride to the station.

 

"2) During the above mentioned time frame, [Sergeant] Collier gave Ms. Cordero an unauthorized ride in his black and white patrol car, to the front of Mr. Wells'[s] apartment complex. Ms. Cordero informed [Sergeant] Collier that Mr. Wells had pointed a gun at her. Despite this disclosure, [Sergeant] Collier did not prevent Ms. Cordero from going to Mr. Wells'[s] apartment by herself and did not accompany her. Furthermore, while [Sergeant] Collier waited in his locked patrol car, in the alley, he chastised Ms. Cordero, 'don't ever use me again.'

 

"3) During the above mentioned time frame, [Sergeant] Collier told [Detective] Lembi that Jessica Cordero, while standing on a balcony, flipped her dress up, making it obvious that she was not wearing underwear. Despite this erratic behavior, [Sergeant] Collier continued to have personal contacts with Ms. Cordero.

 

"4) During the above mentioned time frame, [Sergeant] Collier gave Jessica Cordero his pager number and returned several of her pages, including the page of June 28, 1996, wherein Jessica paged [Sergeant] Collier at the request of [Detective] Watson.

 

"5) During the above mentioned time frame, [Sergeant] Collier went alone with Jessica Cordero to the roof of the International Towers at approximately one o'clock in the morning. The encounter on the roof of the International Towers was not related to police or City business, and [Sergeant] Collier never informed police communications about his location.

 

"6) The Commission found that the juvenile Ms. Cordero was a person given to extremely capricious and erratic behavior, who lived alone and without supervision and because of her overall demeanor, could create problems in any relationship between herself and a mature adult male. Despite these obvious behavior problems, his knowledge of concerns expressed by other officers, and his own position of authority, [Sergeant] Collier continued to have numerous unaccompanied and unreported encounters with Ms. Cordero at her apartment complex, at the Promenade and at the International Towers.

 

"7) [Sergeant] Collier failed to take any appropriate steps to protect himself or the Department from the contacts and allegations ultimately made by Jessica Cordero."

 

The Commission did not find Sergeant Collier to be credible, particularly with respect to his explanation of the events surrounding Cordero's encounter with Wells, and his explanation for going to the roof of the International Towers with Cordero.

DISCUSSION

On appeal, appellants contend the trial court erred in: (1) failing to give appropriate weight to the Commission's determinations of witness credibility; (2) failing to make specific findings of fact sufficient to enable appellate review; and (3) concluding the weight of the evidence did not support the Commission's findings. Sergeant Collier contends the trial court erred by limiting his award of back pay and benefits due to laches when there was no evidence of any prejudice caused by his delay in bringing the matter to a hearing.

I. Standard of Review

A final administrative decision is reviewable by administrative mandate. Code of Civil Procedure section 1094.5, subdivision (b) provides that judicial review of such a decision shall "extend to the questions whether the [administrative agency] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [administrative agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence."

 

Depending on the rights involved, different standards of review may apply. Independent judgment review applies when the case involves a police officer's vested property interest in his employment. (Barber v. Long Beach Civil Service Com., supra, 45 Cal.App.4th at p. 658.) This is true whether the employee was terminated or merely demoted. (Duncan v. Department of Personnel Administration (2000) 77 Cal.App.4th 1166, 1173.)

 

In cases where independent judgment review applies, abuse of discretion is established "if the court determines that the findings are not supported by the weight of the evidence." (Code Civ. Proc., 1094.5, subd. (c).) Under independent judgment review, the administrative agency's findings, if based on substantial although conflicting evidence, are not binding on the trial court. Instead, the trial court must exercise its independent judgment on the facts. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811, 977 P.2d 693.) However, the administrative agency's findings come before the court with a strong presumption of correctness, and the complaining party bears the burden of proving the administrative agency's decision is contrary to the weight of the evidence. (Id. at p. 812.)

 

"On appeal from a judgment in a case where the trial court is required to exercise its independent judgment, our review of the record is limited to a determination whether substantial evidence supports the trial court's conclusions and, in making that determination, we must resolve all conflicts and indulge all reasonable inferences in favor of the party who prevailed in the trial court." (Barber v. Long Beach Civil Service Com., supra, 45 Cal.App.4th at p. 659.) "'Evidence is substantial if any reasonable trier of fact could have considered it reasonable, credible and of solid value.'" (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52.)

II. Procedural Issues

Before addressing the main issue on this appeal, the sufficiency of the evidence to support the trial court's conclusion, we first consider appellants' two procedural arguments. First, appellants contend the trial court applied the wrong standard of review, in that it failed to accord proper deference to the Commission's factual findings. We disagree. The trial court clearly understood the applicable standard, and even quoted from the controlling Supreme Court case at the hearing on the writ petition. Moreover, the judgment signed by the trial court expressly states the court "[took] into account the findings and decisions reached by the [Commission]." Appellants' only basis for contending the trial court failed to accord adequate weight to the Commission's findings is the fact the trial court ultimately disagreed with those findings. This is not a sufficient basis for inferring the trial court misapplied the standard of review.

 

Second, appellants contend we should remand and direct the trial court to issue specific findings clarifying its ruling in order to "enable this Court to conduct a meaningful review of the underlying basis for the Superior Court's decision." A trial court is not required to issue written findings of fact, and need only issue a statement of decision upon the request of a party. (Code Civ. Proc., 632.) This is true in administrative mandamus proceedings in which the trial court exercises its independent judgment in reviewing the administrative record. (Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 67.) By failing to request a statement of decision under Code of Civil Procedure section 632, appellants have waived any contention the trial court failed to make specific findings. We will therefore make all necessary inferences in favor of the trial court's judgment. (Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 551.)

III. Sufficiency of the Evidence

The trial court found Sergeant Collier did not have an inappropriate personal relationship with Cordero. In order to determine whether substantial evidence supports this finding, we first consider whether evidence supports findings contrary to each of the seven facts underlying the Commission's decision that Sergeant Collier engaged in an inappropriate personal relationship with Cordero and then consider the trial court's ultimate finding.

A. "On May 24, 1996, [Sergeant] Collier gave Ms. Cordero and her friend a ride to the police station and a tour of the police station in the late evening hours. [Sergeant] Collier never received permission from his superiors for the tour or the ride to the station."

It is undisputed that Sergeant Collier gave Cordero and her friend a ride home and a tour of the police station. It is also undisputed that Sergeant Collier did not obtain permission to do so. However, the evidence supports a finding Sergeant Collier was not required to obtain permission to give Cordero a short ride in his police car or a police station tour. Therefore, Sergeant Collier's failure to obtain such permission is irrelevant, and does not give rise to an inference of an inappropriate personal relationship with Cordero.

B. "During the above mentioned time frame, [Sergeant] Collier gave Ms. Cordero an unauthorized ride in his black and white patrol car, to the front of Mr. Wells'[s] apartment complex. Ms. Cordero informed [Sergeant] Collier that Mr. Wells had pointed a gun at her. Despite this disclosure, [Sergeant] Collier did not prevent Ms. Cordero from going to Mr. Wells'[s] apartment by herself and did not accompany her. Furthermore, while [Sergeant] Collier waited in his locked patrol car, in the alley, he chastised Ms. Cordero, 'don't ever use me again.'"

The evidence supporting this finding is also undisputed. However, Sergeant Collier was not charged with, or disciplined for, failing to accompany Cordero to Wells's apartment. The facts are only relevant to the extent they may show an inappropriate personal relationship between Sergeant Collier and Cordero. The facts show Sergeant Collier allowed Cordero in his police car only to point out the location of a possible criminal and immediately chastised her when it appeared that she was attempting to involve Sergeant Collier in her personal vendetta.

C. "During the above mentioned time frame, [Sergeant] Collier told [Detective] Lembi that Jessica Cordero, while standing on a balcony, flipped her dress up, making it obvious that she was not wearing underwear. Despite this erratic behavior, [Sergeant] Collier continued to have personal contacts with Ms. Cordero."

That Cordero once flipped her dress, revealing her buttocks, is undisputed. However, rather than "continuing to have personal contacts" with Cordero, Sergeant Collier immediately took action in response to this erratic behavior. He first telephoned Detective Lembi to see if some action could be taken regarding Cordero's living conditions, and when Detective Lembi said the Juvenile Division would not get involved, Sergeant Collier contacted the Department of Children and Family Services and reported Cordero. The next day, when Cordero was arrested and sought Sergeant Collier's assistance, he did not respond, further distancing himself from her. Moreover, as will be discussed below, Sergeant Collier had only a handful of contacts with Cordero following this event.

D. "During the above mentioned time frame, [Sergeant] Collier gave Jessica Cordero his pager number and returned several of her pages, including the page of June 28, 1996, wherein Jessica paged [Sergeant] Collier at the request of [Detective] Watson."

It is undisputed Sergeant Collier gave Cordero his pager number when he first met her. Sergeant Collier testified at that time, he did not know he should be wary of her. Sergeant Collier had given his pager number to other members of the community. Moreover, Sergeant Collier responded to only three or four of Cordero's pages, stopping when his lieutenant informed him he should cease all communication with her. The record is silent as to the dates of the pages prior to the last one, and it is therefore reasonable to infer that Sergeant Collier had no notice that Cordero was a danger at the time he responded to her initial pages.

E. "During the above mentioned time frame, [Sergeant] Collier went alone with Jessica Cordero to the roof of the International Towers at approximately one o'clock in the morning. The encounter on the roof of the International Towers was not related to police or City business, and [Sergeant] Collier never informed police communications about his location."

This finding was flatly controverted by Sergeant Collier's testimony, and the trial court was entitled to believe him. Sergeant Collier testified to three reasons for accompanying Cordero to the roof, two of which were related to police business (taking a citizen's complaint regarding another officer and investigating the location as a possible place from which to observe drug transactions). Moreover, Sergeant Collier testified he informed police communications that he was leaving his car.

F. "The Commission found that the juvenile Ms. Cordero was a person given to extremely capricious and erratic behavior, who lived alone and without supervision and because of her overall demeanor, could create problems in any relationship between herself and a mature adult male. Despite these obvious behavior problems, his knowledge of concerns expressed by other officers, and his own position of authority, [Sergeant] Collier continued to have numerous unaccompanied and unreported encounters with Ms. Cordero at her apartment complex, at the Promenade and at the International Towers."

This finding encompasses three distinct points: Cordero's erratic behavior; Sergeant Collier's knowledge of the behavior and the concerns of others; and continued contacts. We consider them individually.

 

Cordero's capricious and erratic behavior was well-documented before the Commission. Sergeant Collier did not attempt to dispute this evidence, but rather introduced further evidence of Cordero's capricious and erratic behavior both prior and subsequent to the month at issue in this case. For example, Cordero had previously developed a crush on another police officer and had taken her infatuation to such a level that, after the events in this case, that officer obtained a restraining order against her.

 

However, Sergeant Collier's knowledge of Cordero's capricious and erratic behavior was a matter of substantial dispute at the hearing. Although there was evidence that Sergeant Collier had been warned away from Cordero, Sergeant Collier testified he did not recall being told that Cordero was someone he should stay away from. As to Sergeant Collier's personal knowledge of Cordero's erratic behavior, it was based solely on two incidents, both of which triggered an immediate response: first, the Wells incident, for which Sergeant Collier immediately admonished Cordero; and second, the skirt-flipping, after which Sergeant Collier contacted the Juvenile Division and the Department of Children and Family Services to see if anything could be done about Cordero.

 

The key issue of Sergeant Collier's continued contacts with Cordero after he became aware of her behavior was also subject to significant dispute before the Commission. While the Commission found there were numerous contacts with Cordero at her apartment, the Promenade and the International Towers, the evidence supports a contrary finding. The incident at Wells's apartment took place on May 29, and Cordero flipped her skirt on May 30. On May 31, Sergeant Cordero found the drug dealer near Cordero's apartment and stopped patrolling the area. On June 1, Sergeant Collier did not respond to Cordero's plea for his personal assistance when she was arrested. After that date, there were only two or three further encounters between Cordero and Sergeant Collier, each taking place by chance on the Promenade.

G. "[Sergeant] Collier failed to take any appropriate steps to protect himself or the department from the contacts and allegations ultimately made by Jessica Cordero."

This finding is also controverted by the evidence. To the extent Sergeant Collier was aware of Cordero's erratic behavior, he immediately contacted Juvenile Division and the Department of Children and Family Services. Although several other officers testified they knew of Cordero's behavior, Sergeant Collier was the only officer to seek the intervention of the Department of Children and Family Services.

 

H. Ultimate Finding

The trial court found Sergeant Collier did not have an inappropriate personal relationship with Cordero. Substantial evidence supported this finding. Sergeant Collier met Cordero on May 24, 1996. In the interest of her safety, he gave her a ride home. In the interest of community policing, he gave her a short tour of the police station. Thereafter, Cordero approached him when he was in her neighborhood attempting to catch an alleged drug dealer and also when he was patrolling the Promenade. Sergeant Collier did not instigate any of these contacts. Sergeant Collier had no reason to avoid these superficial, friendly discussions with a 16-year-old girl, who clearly lacked an adult role model in her life. When Cordero first "crossed a line" by attempting to use Sergeant Collier to her own ends, he immediately set limits and told her to stop. When Cordero next exhibited sexually flirtatious behavior, Sergeant Collier immediately sought the intervention of the appropriate authorities. It is true that Sergeant Collier accompanied Cordero to the roof of the International Towers, but he had a legitimate law enforcement reason to do so. In short, the evidence supports the trial court's finding Sergeant Collier was doing his job and not conducting an inappropriate personal relationship with Cordero.

IV. Laches

The trial court applied the doctrine of laches to limit Sergeant Collier's award of back pay and benefits, due to his unreasonable delay in setting his writ petition for a hearing. Sergeant Collier does not contend his 16-month delay was reasonable, but contends the trial court erred in finding laches without a showing of prejudice. We agree.

 

Laches requires a showing of unreasonable delay and a showing of prejudice to the defendant. (Ragan v. City of Hawthorne (1989) 212 Cal. App. 3d 1361, 1368, 261 Cal. Rptr. 219.) Prejudice is not presumed; it must be affirmatively proven. (Ibid.) Unreasonable delay by a public employee in seeking reinstatement can work prejudice in two ways: either by requiring the employer to discharge a substitute employee; or by requiring double payment in the form of back pay to the reinstated employee and salary to the substitute. (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 360, 82 Cal. Rptr. 337, 461 P.2d 617.) However, these facts, if true, can easily be proven by the employer, and prejudice will not be presumed in the absence of such evidence. (Id. at pp. 360-362.)

 

Here, there was no evidence of prejudice. The City did not introduce evidence that another officer had been promoted into Sergeant Collier's position when he was demoted to corporal. Therefore, any finding of prejudice based on the theory of double payment is pure conjecture and cannot be upheld.

DISPOSITION

 

The judgment of the trial court is modified to strike that portion of the judgment limiting Sergeant Collier's award of back pay and benefits due to unreasonable delay, and to award Sergeant Collier back pay and benefits from the date of his demotion through the date of his reinstatement. As modified, the judgment is affirmed. Sergeant Collier is to recover his costs on appeal.

 

GRIGNON, J.

We concur:

 

TURNER, P.J.

MOSK, J.

 

1 The inappropriate personal relationship was alleged to have violated three sections of the Department's Policy and Procedures Manual and subjected Sergeant Collier to demotion under three subsections of the Civil Service Rules and Regulations. There is no issue on appeal as to whether an inappropriate personal relationship violates these sections; the appeal is related to the existence of such a relationship.

 

2 On an appeal raising issues of sufficiency of the evidence, appellants are required to set forth in their brief all the material evidence and not merely their own. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal. Rptr. 162, 479 P.2d 362.) In complete derogation of this rule, appellants filed a brief on appeal which sets forth only the evidence which supports the Commission's decision and none of the evidence supporting the trial court's contrary decision. Under these circumstances, appellants' contention regarding the sufficiency of the evidence is considered waived. (Ibid.) As we find substantial evidence supporting the trial court's decision, we discuss the issue on the merits.

 

3 Internal Affairs had previously investigated an earlier anonymous call alleging another police officer had been spending too much time at Cordero's apartment. Internal Affairs had just resolved that investigation, clearing the officer, when Wells called about Sergeant Collier.

 

4 The record is unclear as to whether Cordero asked Sergeant Collier about the polygraph during the same chance meeting as when she asked him why she had not seen him lately.

 

 

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