Court of Appeal of California

Fourth Appellate District

Division Three


Franklin Opp, 

Plaintiff and Appellant,


City of Huntington  Beach

Personnel Commission et al.,

Defendants and Appellants.



2003 Cal. App. Unpub. Lexis 920

January 29, 2003, Filed

Sills, P.J.


I. Introduction


   Franklin Opp discovered his estranged wife in bed with another man. After sending her nude lover fleeing for his life, Opp attacked his wife, and in a scene rather too reminiscent of the last act in Othello, almost strangled her.


   Opp was, at the time, a detention officer for the Huntington Beach Police Department. The city fired him for the attack on his wife. Then he contested the termination in superior court. The trial judge granted a writ of administrative mandate directing the city to give him lesser punishment, on the theory that there was an insufficiently strong nexus between the attack and Opp’s duties as a detention officer.


   We now reverse. Opp’s inability to control his anger as exemplified by the near-killing of his wife is sufficient to justify his termination. Having a “temper,” to use a now-quaint expression, is not a desirable trait for a police officer who must regularly work with sometimes violent arrestees. If Opp ever reacted to a personal affront from an arrestee the way he reacted with his wife, a police brutality suit would be virtually inevitable. As it is, the near-choking death of Opp’s estranged wife shows that the city could reasonably view Opp as a police brutality lawsuit waiting to happen. Additionally, toleration of this most egregious form of domestic violence within the police ranks poses grave potential for morale problems. Termination was therefore reasonable under the circumstances.


II. Facts


   The incident that triggered the city’s decision to terminate Frank Opp took place on the evening of April 17, 1994, at about 11:00 p.m.


   On that evening, Opp entered his estranged wife’s separate residence with a duplicate key he had made without her knowledge or consent because he suspected that she was seeing another man. Opp then proceeded to the bedroom where he found his wife and another man naked in bed. He turned the lights on and forced the man out of the apartment. Terrified, his wife went to the telephone to call 911. Opp grabbed the phone, yanked the battery out and threw the telephone against the wall. He then pushed his wife down to the bed, straddled her, placed his hands on her neck and yelled he should “kill her.” When his wife pleaded that she could not breathe, Opp let go of her throat, grabbed her purse and left.


   His wife then went to a nearby convenience market where she dialed 911 and told the operator what had happened and requested police assistance. A Garden Grove police officer was dispatched and upon arriving at the convenience store began an investigation.


   Following the attack, Frank Opp went to the home of an acquaintance in the Huntington Beach Police Department, Mike Metoyer. Metoyer and Opp took Opp’s wife’s purse to her parent’s home. Meanwhile Metoyer contacted Lt. Clyde Stuart, another Huntington Beach police officer, who wrote down a report of the incident. Lt. Stuart gave his report to Lt. John Arnold. Lt. Arnold became the lead investigator in the subsequent internal affairs investigation.


   After interviewing Frank Opp, Metoyer, and the Garden Grove officer, Lt. Arnold issued a report in June 1994 in which he stated that Opp had committed trespass, battery and false imprisonment. He concluded that Opp had violated Police Department Manual Section 2/765.03, which generally provides that an officer shall obey all federal, state and local laws.


   After considering the results of Lt. Arnold’s investigation, Huntington Beach Police Chief Lowenberg served Opp with a notice of intent to terminate him. On August 23, 1994, Chief Lowenberg afforded Opp an opportunity to be heard with respect to the proposed termination at a “Skelly” hearing. After hearing Opp’s arguments against termination, Chief Lowenberg decided that termination was the appropriate disciplinary penalty.


   Opp was never tried on any criminal charges for the attack on his wife. In fact, in March 1997 in testimony for a city hearing officer, she retracted her initial story.


   Opp appealed his termination under city administrative rules, and when the decision was upheld, Opp filed a petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5. The trial judge ruled that the city had abused its discretion in terminating Opp because “the facts do not support the decision that there was a legally sufficient nexus between [Opp’s] alleged acts and his job duties.” He ordered the matter sent back to the city for some lesser punishment than termination. This appeal then followed.


III. Discussion


A. Opp’s Cross Appeal


1. The Statement of Decision


   We will take Opp’s cross-appeal first, because it raises the issue of whether Opp really did what the city and trial court found that he did. The argument is founded on two comments uttered by the trial judge in oral argument prior to signing the statement of decision.


   The first comment was made in the context of a motion for reconsideration by the city. There, the trial judge observed that “A principal controverted issue at trial [the judge was referring to the administrative hearings, there was no actual trial in the superior court] was whether the respondents abused their discretion . . . by concluding . . . [P] . . . that there was a legally sufficient nexus between petitioner’s alleged acts and his job duties . . . .” (Emphasis added.)


   The other comment was when counsel for the city attempted to obtain the court’s ruling that the weight of the evidence supported the finding that Opp had, indeed, attacked his wife and committed trespass, battery and false imprisonment. The trial judge replied that “That is all that I intended and all that I ruled upon on that day to my knowledge.”


   In the actual statement of decision, however, the trial court adopted the city’s version of the facts. That is, the trial court signed the statement of decision submitted to it by the city. Opp now complains it was error to do so.


   The argument is meritless because the trial court has the inherent power to change its findings of fact right up until the entry of judgment (e.g., Phillips v. Phillips (1953) 41 Cal.2d 869, 874-875, 264 P.2d 926) and, a fortiori, between the time of some off-hand comments in oral argument and when it signs the statement of decision. Thus even if the trial court had initially hemmed and hawed over precisely what happened, its decision to sign the city’s proffered statement of decision was itself the manifestation of what it actually found.


   Along these lines, one of the themes of Opp’s brief is that the trial court abused its discretion in adopting a statement of decision prepared by attorneys for the losing party. It is an interesting point, though Beatrice Companies v. Superior Court (1986) 182 Cal. App. 3d 525, 227 Cal. Rptr. 316, relied on by Opp to make it, doesn’t really help him. In Beatrice Companies the trial court denied a summary judgment motion, and when the disappointed moving party asked the court, as was its right, to identify the triable issue, it merely said that there was a triable issue as to the “liability” of the moving party. (See id. at p. 527.) The court also directed the moving party to prepare the order after the hearing. When the moving party sought writ relief, the appellate court sent the case back for reconsideration because “liability” was a mere conclusion, not the identification of a triable issue of fact. In the process the appellate court observed that the trial court should not have directed the losing party to prepare the formal order, even though that party had complied “as best it could.” (Ibid.)


   Unlike Beatrice Companies, this case does not turn on the need to specify in a written order the precise triable issues of fact that preclude a summary judgment motion. A straight summary judgment motion, as was the case in Beatrice Companies, is a binary process. You win or you lose. The court is either right, or wrong, in granting it, or denying it. Like pregnancy, it is not something that happens “only a little bit.”


   Unlike summary judgment motions, the review of an administrative record to determine whether discipline exceeded the bounds of reason is not a binary matter. The central issue is the proper gradation of punishment -- was termination too much? So there can be part winners and part losers: There is nothing inherently inconsistent in allowing the party who “lost” on the issue of whether termination was too much but who “won” on the issue of what actually happened to prepare the statement of decision.


   True, a party preparing a statement of decision does not have an incentive to make the trial court’s decision look good on the point it lost. The present case is a perfect example. The statement of decision evidences attentive, almost loving care in its statement of factual findings. Page after page describes in detail Opp’s attack on his wife and the subsequent investigation. But the statement of decision relegates the issue of the nexus between the misconduct and the job duties to one begrudging paragraph, in which the writers emotionally distance themselves from the result by stating it in terms of what the “court has determined” (as distinct from saying it directly) and by not making any effort to demonstrate the validity of the point. In fact, the entirety of the statement’s substantive material on the nexus issue is set forth in just one sentence: “The Court has determined that the facts do not support the decision that there was a legally sufficient nexus between Petitioner’s alleged acts and his job duties, and that in so deciding, Respondents did abuse their discretion.” Not only does the sentence put all the responsibility on the court, but it fails to offer a single  reason to support the court’s conclusion. Nor does any other matter in the statement of decision. If the statement of decision were a law school exam, it is unlikely that the writer would be awarded any points for the treatment of the nexus issue, other than for just “spotting” it in the first place.


   Even so, it was hardly an abuse of discretion for the trial court to sign such a statement of decision. The other side will have had the opportunity to call any actual sabotage of the point on which it prevailed to the trial court’s attention before signing, a prospect which keeps the preparer honest. More to the point, trial judges are grownups with law degrees, most of them accustomed from private practice to editing material submitted by subordinates, and they may be presumed to know that they can edit a statement of decision to their heart’s content. Again, the very decision to sign the document is in itself significant. If the trial judge decides to sign a statement of decision that doesn’t make a strong case for the conclusion he or she has reached, that is what the judge has decided to sign.


2. The Retraction and Lack of Criminal Prosecution


On the merits, there is no question that substantial evidence supports the factual findings set forth in this statement of decision. The fact is that the conduct of Opp and his wife in the aftermath of whatever happened on the night of April 17 corroborates the city’s version. If the whole story were his wife’s fabrication, the odds are that she wouldn’t have called 911 from a nearby market, and Opp wouldn’t have gone to another officer (who backed up the wife’s story, not Opp’s) about it.


   The fact that Opp’s wife subsequently retracted her version no doubt gave the fact-finders pause. However, they weighed the evidence, including her retraction, and still concluded there was an attack, including a near-strangulation. Opp’s wife’s retraction was simply found not to count for much, which is a not unreasonable conclusion under such circumstances. Abused spouses often retract their initial stories of abuse to protect the abusing spouse. (E.g., Beloof & Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of Court Statements as Substantive Evidence (2002) 11 Colum. J. Gender & L. 1, 3 [“Non-cooperation by recantation or failure to appear at trial is an epidemic in domestic violence cases. . . . It is commonplace for domestic violence victims to recant or minimize initial reports of abuse. The head of the Family Violence Division of the Los Angeles District Attorney’s Office estimates that ninety percent of domestic violence victims recant.”].)


   The fact that Opp wasn’t prosecuted (perhaps even because of the retraction) is also of no moment, though Opp argued in the trial court that his firing violated Labor Code section 432.7 because he was not prosecuted. Labor Code section 432.7 precludes use in an employment decision such as termination of an “arrest or detention that did not result in conviction.” The statement of decision actually signed by the trial judge said that the statute had not been violated, and Opp now contends that “it is inconceivable” that the court should have ruled on the point when it only showed “minimal, if any, interest” in it.


   This argument fails in manifold ways. Apropos what we have just said, the trial judge did rule on the point by signing the city’s statement of decision. And he was right on the merits of the Labor Code section 432.7 issue. First, Opp was not arrested or detained; there was, at most, only an “incident report” from the Garden Grove police officer. Second, subdivision (b) of the statute allows even information in an arrest report to be used to trigger “an independent, internal investigation of a peace officer.” Third, subdivision (e) of the statute says that “persons already employed as peace officers . . . are not covered by this section.”


B. The City’s Appeal


   Having established that Opp attacked his wife in a jealous rage, the next question is whether the trial court was correct in determining that the city abused its discretion in meting out the harsh punishment of termination. (See Lake v. Civil Service Commission (1975) 47 Cal. App. 3d 224, 228, 120 Cal. Rptr. 452 [in determining whether an agency abused its discretion in assessing a particular penalty, a court will look to whether reasonable minds may differ as to the propriety of a penalty imposed]; see also Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54 [general statement of abuse of discretion standard in administrative discipline cases].)


   That is, we are not concerned with whether the trial court’s decision was an abuse of discretion, but whether the trial court was correct in determining that the city abused its discretion. (See Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46 [“The appellate court conducts a de novo review of the penalty assessed, giving no deference to the trial court’s determination.”].)


   The trial court found that the facts did not support termination because there was no legally sufficient “nexus” between Opp’s acts and his job duties. As we have pointed out above, the trial court wasn’t exactly verbose in explaining itself.


   Had the trial court tried to explain itself, it might have seen the flaw in its reasoning. The court seemed to be saying that because Opp had only attacked his estranged spouse, and not somebody connected to his job duties, like a prisoner, the nexus between the attack and his job duties was insufficient to justify full termination. Or, to put it another way, the court was saying that a single instance of an inability to control one’s temper in a domestic context -- even to the point of possibly choking his wife to death -- is legally insufficient to fire a jailer.


   We simply cannot agree with the trial court. Of course the inability to control one’s temper when it almost leads to the death of a person by strangulation with one’s own hands is legally sufficient. One of the biggest risks that a city faces in operating a police force are “excessive” force claims. When an officer displays such temper off the job that a person’s life is jeopardized -- any person’s life, including (perhaps especially) his or her spouse’s -- the city may reasonably conclude that the officer poses a significant danger of overreaction on the job.


   Jailers do not have the liberty of overreacting to personal slights directed toward them, particularly in the application of their hands to other people’s necks. Embarrassing investigations and lawsuits can follow in the wake of such overreaction. Unlike forgiving spouses, prisoners are likely to sue if they are almost choked to death. (Carson v. Polley (5th Cir. 1982) 689 F.2d 562 [police brutality suit based on, inter alia, choking of suspect after arrival in jail]; see also Springer v. Coleman (5th Cir. 1993) 998 F.2d 320 [perjury case arising out of denial by jailer that he had choked prisoners and suspects in his custody].)


   The city’s jail facility where Opp worked holds up to 200 prisoners and serves as the booking facility for six neighboring cities. It is a stressful place, and the odds that Opp might get into an altercation with an obstreperous arrestee are not low. Should an arrestee direct some personal slight in Opp’s direction (e.g., an ad hominem remark or nasty gesture), heaven help the city’s treasury if Opp reacts like he did on the night of April 17. n1


   True, Opp is unlikely to meet his wife again in the professional capacity of a jailer. But this case is not about the danger to his wife. It is about the danger to the public fisc if one of its officers “loses it” when provoked. n2


   Our conclusion is only common sense. However, it is not without precedential support. Gray v. State Personnel Bd. (1985) 166 Cal. App. 3d 1229, 213 Cal. Rptr. 5 is a case uncannily similar to the one before us (except the trial court there agreed with the administrative result). There, a correctional officer was terminated by the state personnel board after assaulting a man he saw leaving his former girlfriend’s house and then using his gun to break into the house. The officer lost his job and sought a writ of mandate to be reinstated. The trial court denied the petition, and the officer appealed, claiming there was an insufficient nexus between the work and the misconduct.


   Not so, said the appellate court, in a short opinion largely quoting from the personnel board’s factual findings. (See Gray, supra, 166 Cal. App. 3d at p. 1231.) The court simply said that the officer’s “misuse of his weapon and loss of self-control raised doubts about his ability to remain calm under stressful circumstances at work.” The court also noted that to allow the officer to continue working would adversely affect morale among the other officers. Accordingly there was substantial evidence to uphold the nexus finding. (Id. at p. 1232.)


   Opp tries to distinguish Gray because in Gray there was the misuse of a gun and here there is no gun. That is true, but unpersuasive, because the core of the misconduct in Gray was the misuse of force after losing self-control. In fact, in Gray the misuse of the gun as a crowbar to break into property was less egregious than the use of a trained officer’s hands to inflict near-fatal personal injury. Opp has been trained to use his hands to keep inmates under control. Under the circumstances they functioned even more like weapons than did the gun in Gray.


   Finally, there is the matter of morale and good discipline within police ranks. Courts in other states have upheld the termination of police officers for cheating on their wives, much less physically assaulting them. (E.g., Wilson v. Swing (M.D.N.C. 1978) 463 F. Supp. 555.)


   As Blackstone realized, some acts are evil in themselves (malum in se) and some are merely crimes because the sovereign has made them so (malum prohibitum). There is thus a difference between battery and overtime parking. Here, we fear the trial judge minimized the gravity of the acts that Opp was found to have committed. Battery is not somehow more excusable if it also is spousal abuse, done in reaction to discovering one’s spouse (and here, one’s estranged spouse) in flagrante delicto with another. The battery here was severe and might have resulted in death. To let Opp “get away with it” by keeping his job (particularly in light of the prosecutor’s decision not to file charges) would send a bad message to the rest of the force: Egregious behavior will be tolerated, at least if perpetrated against a spouse.


IV. Disposition


   The city was well within reason to terminate Opp from his employment in the wake of his attack on his wife. Indeed, the maintenance of good order and discipline in a police department demands no less. In light of that conclusion, Opp’s argument in his cross-appeal that the trial court erred in not reinstating him with an award of back pay must also fail.


   The judgment issuing the writ of mandate precluding termination of Franklin Opp is reversed. The case is remanded to the superior court with directions to enter a new judgment denying the requested writ of mandate in favor of City.


   Given that Opp prevailed on the termination issue in the trial court, each side will bear its own costs in the interests of justice.


   Sills, P.J.


We concur:

Bedsworth, J.

Aronson, J.


1 The present case does not require us to speculate on the question of whether the record of Opp’s discipline might ever get before the jury in a hypothetical police brutality case occurring after Opp’s reinstatement and overreaction. However, just asking the question shows the reasonableness of the city’s position. Suppose the city hadn’t pressed for his termination, and then Opp, upon return to duty, nearly choked a prisoner to death. You don’t need a law degree to imagine what a good plaintiff’s attorney would try to do with the fact that the city hadn’t fired him. Whether the attorney would succeed is not before us.


2 Opp stresses that the whole event of April 17 was at most the result of the “heat of passion.” But even that point is undercut by disturbing indicia of premeditation. Opp made a copy of his estranged wife’s key without her knowledge or consent. (That was another point she retracted later, saying she had “probably” discussed Opp’s getting a key before the attack.) He used that key to enter into the house late at night, obviously suspicious of his separated wife’s activities. That is the sort of behavior that usually goes, in the present vernacular, under the rubric “control-freak.”


Notice:  Not to be published in 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.