Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. CV028822
MORRISON, J.
The parties on appeal present irreconcilable narratives. According to one, two youth correctional counselors used excessive force against two wards after the wards attacked them, then they and other employees lied to cover up the misconduct. According to the other, after wards coördinated a vicious attack, the two counselors fought back and tried to subdue the wards as best they could, and all the employees involved gave honest accounts after the incident; however, when film of the incident was televised, all were fired, partly to deflect attention from mismanagement, that is, poor training and understaffing in the California youth correctional system.
The Department of Corrections and Rehabilitation (Department) dismissed six employees. They appealed to the State Personnel Board (Board). The Board adopted the decision of an administrative law judge (ALJ), reached after a lengthy hearing that included conflicting expert testimony. The ALJ found that the Department had not proved excessive force, failure to intervene, or dishonesty against any employee.
The Department filed this writ petition in San Joaquin County Superior Court to overturn the Board’s decision. The Department voluntarily dismissed another petition it had filed in Sacramento County Superior Court.
The trial court found that the film showed three employees inflicted harm on the wards after they stopped resisting, thus necessarily violating Department policy; further, none of the employees accurately reported the level of force used. Therefore, the trial court concluded that no substantial evidence supported the Board’s decision.
We find that the trial court misapplied the appropriate standard of review, which called for the trial court to uphold the Board’s decision if substantial evidence supported it. We have seen the film, actually, digital video images on DVD and CD-ROM, and it is disturbing. But the Board, considering all of the evidence, could rationally conclude that the film does not show everything that was happening and does not, viewed alone, fairly portray the circumstances facing the employees. We shall conclude that substantial evidence supports the Board’s decision that the Department did not prove any cause for discipline.
The Department raised two other grounds for overturning the Board’s decision. First, the Department claimed the ALJ was biased and engaged in improper ex parte communications with counsel for the employees. Second, the Department claimed the ALJ abused her discretion by not granting two mid-hearing continuance requests to enable the Department to have two employees medically examined. Because we conclude that neither of these claims provided grounds to overturn the Board’s decision, we shall reverse with directions to the trial court to deny the Department’s petition, thus reinstating the Board’s decision.
STANDARD OF REVIEW
“‘Review of disciplinary action by an appointing authority is directed in the first instance to the [State Personnel] Board. The Board acts as an adjudicatory body, weighing the evidence to determine the facts and exercising discretion to ascertain whether the charges sustained are sufficient for the discipline imposed. [Citation.] Because the Board is an agency of constitutional authority, its findings of fact are reviewable in an administrative mandamus proceeding under the substantial evidence test. [Citation.] “The record must be viewed in a light most favorable to the decision of the Board and its factual findings must be upheld if they are supported by substantial evidence.”’” (Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1403-1404 (Pollak).)
“Substantial evidence” does not mean “any” evidence: We must determine whether the evidence is of ponderable legal significance, reasonable, solid and credible, and that inquiry includes consideration of evidence that fairly detracts from the decision. (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584-586; Newman v. State Personnel Bd. (1992) 10 Cal.App.4th 41, 46-47 (Newman); Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.) We reject the Department’s view that this is a special standard of review for administrative appeals. In all cases raising substantial evidence claims, the reviewing court must consider all of the evidence, albeit viewed in favor of one party, and not merely look at the favorable evidence. (See People v. Johnson (1980) 26 Cal.3d 557, 576-578; Phelps v. State Water Resources Control Bd. (2007) 157 Cal.App.4th 89, 99.)
In part the Department challenges the fairness of the administrative hearing. “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482; see Fox v. State Personnel Bd. (1996) 49 Cal.App.4th 1034, 1040 [mixed question: facts on which determination is made are reviewed for substantial evidence, whether those facts show unfairness is a legal question].)
FACTUAL AND PROCEDURAL BACKGROUND
The Department filed six amended notices of adverse action against Delwin Brown, a Senior Youth Correctional Counselor, Marcel Berry, Linda (Bershell) Bridges and Daniel Torres, Youth Correctional Counselors, and Robert Dutra and Steve Chiu, Youth Correctional Officers. Their timely appeals were heard in a consolidated 10-day hearing before an ALJ. Berry’s case was designated the “master” case.
Normally we would begin by setting out the disciplinary claims, then reciting the hearing evidence, then describing the administrative and judicial findings leading to the appellate issues. However, to provide context to evaluate the charges and the evidence, we will begin with an excerpt of the facts stated in the Board’s decision to make it easier to correlate the disciplinary charges with the evidence. An Appendix with copies of some exhibits from the administrative record is attached to this opinion.
A. Facts from the Board’s Decision
“On the morning of January 20, 2004, at N.A. Chaderjian Youth Correctional Facility (Chad)[,] Brown, Berry, and Chiu came to work at Pajaro Hall. Bridges went to work at Owens Hall, the sister unit to Pajaro[,] and Torres was assigned to the Control [Tower] covering both Pajaro and Owens Hall. Dutra was assigned to institutional security. On Pajaro Hall the wards were showered, fed, schooled and programmed. At approximately 9:00 a.m., as part of programming, Brown explained the ‘No Violence Contract’ to the Northern Wards, who were on lock-down for a group disturbance. Wards [M.] and [B.] approached Brown to discuss the contract with him further. After some discussion, Brown told the wards he would discuss it with them later.”
“At approximately 11:45 a.m., Brown directed Chiu and Berry to release wards [B.] and [M.] and escort them to Brown’s office to discuss the ‘No Violence Contract.’
“The wards entered Brown’s office, and remained standing. Brown was sitting at his desk. Shortly thereafter, Berry entered the office and sat at the other desk. Without warning or provocation, ward [M.] attacked Brown by punching him in the face. As Berry started to get up from his chair, [B.] jumped on his back, put his arm around Berry’s neck and punched him in the left side of the head. Both appellants struggled with the wards in the office and then Berry and [B.] spilled out onto the day room floor. Brown and [M.] came out of the office struggling with each other against the YC counter, then into the lockers and, finally, onto the day room floor.
“After several seconds Berry gained control of [B.]. By placing his knee on [B.’s] back, Berry was able to get hold of [B.’s] arms and cuff him. As Berry stood up, [B.] raised his head and shoulders by pushing off the ground with this chest. Berry lightly kicked [B.’s] shoulder with his instep.
“When Brown and [M.] fell to the floor, [M.] was on his stomach with Brown sitting on top of him. Brown hit [M.] approximately 25 times as [M.] continued to struggle. [M.] made several attempts to push himself off the floor with both his hands and his legs.
“Chiu was conducting ward counts and was in front of room 25 when the attack began. Room 25 is across from Brown’s office. Chiu observed both altercations. Chiu pushed his FM alarm, pulled out his mace, and ran to the area as the fighting spilled out of the office. Chiu instructed first [B.] and then [M.] to get down or they would be maced. When [B.] did not comply, Chiu maced him; when [M.] did not comply, Chiu maced him. Chiu went back and forth between the two struggles trying to break them up before his mace canister emptied. At that time, Chiu stepped back.
“At about the same time, Bridges responded to the alarm and entered Pajaro Hall from Owens Hall with her mace canister in her hand. The noise level on the hall was very high. Wards were yelling and kicking their doors. Bridges was expecting to see a ward-on-ward fight. Instead, she saw Brown covered in blood and on top of [M.], hitting him. Bridges assumed Brown had been attacked by [M.] and that Brown was acting in self-defense. She was concerned that [M.] had a weapon because of the amount of blood on Brown. Bridges froze for an instant. When Chiu told Bridges that his mace had not been effective, she replaced her mace canister in her holster. Bridges expected her coworkers from [Owens Hall] to respond. Bridges looked towards the door but did not see them. Bridges called out to Brown several times. He did not respond. Bridges looked toward the front door and saw Dutra and other security staff arriving. Torres, up in the tower, yelled down at Chiu to grab [M.]’s legs. Chiu went around Brown and [M.] and grabbed [M.]’s legs. Bridges went over to Brown and started to grab his arm. When Dutra got to the immediate area Bridges stepped back, and Brown got off [M.]. Dutra yelled at [M.] to put his hands behind his back and cross his legs. [M.] did not respond. Dutra fired three water rounds from the pepperball launcher, hitting [M.] with two rounds on one arm and the third round on the other arm. Thereafter, [M.] complied with Dutra’s instructions. Additional staff arrived on the scene and [M.] was handcuffed.”
“As stated above, Torres was assigned to the Unit V Control Tower overlooking both the Pajaro and Owen Halls. Torres was required to juggle several duties when posted in the control tower. Torres was required to walk back and forth in the tower to keep watch over both halls . . . .
“During the altercation, Torres had to go back and forth in the tower to observe both halls. He had to watch the cameras, let security into Pajaro, and reset the alarm. As a result, Torres was only able to view bits and pieces of the altercation.”
“. . . Other than a few scrapes, [B.] was not injured. [M.] had a few scrapes and three bruises from the pepperball launcher. Neither ward complained of any injuries.”
“Berry was sluggish and had an altered level of consciousness. Berry had swelling on the left side of his temple and his right and left knuckles were red and swollen. Brown was bleeding from his nose and mouth. The right side of his face was swollen, as were his left knuckles. Brown had a broken nose and a significant laceration on his upper lip. Brown was dazed and confused and disoriented. Both Brown and Berry were sent to St. Joseph’s hospital for treatment, and then released to go home.”
B. The Notices of Adverse Action
The disciplinary notices each partly stated as follows:
“Your behavior was unprofessional and reinforces the image that staff are vicious, cruel, uncaring and dishonest staff. The public may come to believe that this is the ‘norm’ in the Youth Authority, especially in light of the fact that your actions were video taped and aired for the public to view on commercial television.”
This passage lends support to the view that the Department was concerned about the spotlight shined on its internal operations. The more specific grounds for discipline follow:
1. Berry
Count 1 charged Berry with unreasonable force in striking ward B. in the upper torso several times as ward B. “was on his stomach in a prone position beneath you when he was compliant and offering no resistance.” Count 2 charged Berry with kneeing ward B. “in the upper back, head and shoulders several times” while he was “compliant and offering no resistance.” Count 3 charged Berry with kicking ward B. “in the head and shoulder area” while he “was handcuffed and on his stomach in a prone position compliant and offering no resistance.” Count 4 alleged Berry was dishonest when he told two investigators that he “tried to follow a blood trail to find [Brown] and attempted to get back to the SYCC office but could not see.” Count 5 alleged Berry’s written report failed to state that ward B. was compliant while Berry was striking ward B. as alleged in counts 1 through 3.
Counts 1 through 3 hinge on whether the ward was compliant. Count 4 was dismissed during the hearing and is no longer at issue. Count 5 also hinges on whether “ward B. was compliant;” if substantial evidence shows that ward B. was not compliant, Berry was not dishonest in his written report.
2. Brown
Count 1 charged Brown with unreasonable force in striking ward M. “in the upper torso, head and back area in excess of twenty-seven (27) times as [the ward] was on his stomach in a prone position beneath you compliant and offering no resistance. On more than one (1) occasion you grabbed [the ward] by the hair with one (1) hand and held his head up while you struck him in the head with your other hand.” Count 2 alleged Brown’s written report failed to state that he struck ward M. while he was compliant. Count 3 alleged Brown’s report was false because he wrote that he was “‘assaulted by wards M. and B. in the performance of [his] duties.’ [Brown] deliberately misrepresented the facts in that ward [B.] never struck [Brown].”
Count 1 hinges on whether the blows struck were necessary for Brown to inflict to defend himself and secure the ward. As for Count 2, if ward M. was not compliant when Brown struck him, Brown’s report was not dishonest. As for Count 3, even if ward B. never struck Brown, because the wards acted in concert, legally,they were equally liable to prosecution for assault. (See Pen. Code, § 31.) But if Brown wrote his report to mislead and mean that ward B. actually struck him, that could be a basis for discipline due to dishonesty.
3. Chiu
Count 1 alleged Chiu was dishonest in the following particulars:
A. Chiu wrote that he “‘observed’” the wards attacking Brown and Berry but in an interrogation Chiu admitted he “did not see how the altercation began. What [Chiu] actually saw were staff and wards struggling with each other.”
B. Chiu wrote that the wards were punching Brown and Berry in the office, but Chiu admitted he “never saw any blows land while they were standing.”
C. Chiu wrote that Brown and Berry were fighting off their attackers while standing, but he admitted that “staff and wards were wrestling one another and attempting to strike one another. [Chiu] also admitted the reports gave the impression that the wards were the aggressors throughout the incident and that the staff were only defending themselves.”
Count 2 alleged Chiu failed to document that Brown struck ward M. after he stopped resisting. Count 3 alleged Chiu failed to document that Berry struck ward B. after he stopped resisting. Count 4, as amended at the hearing, alleged that Chiu failed to “intervene” to stop Brown.
Count 1 hinges on the finding that Chiu intentionally misstated what he saw, and Counts 2 through 4 hinge on the conclusion that Brown or Berry struck compliant wards.
4. Dutra
Count 1 charged Dutra with improperly using his pepperball launcher while ward M. “was compliant and not resisting.” Count 2 charged Dutra with unreasonable force, because ward M. “was compliant and not resisting.” Count 3 alleged Dutra was dishonest when he wrote that ward M. was hit “‘during a staff assault,’” when in fact the ward was compliant at that time, not assaulting staff. Count 4 alleged Dutra was dishonest when he wrote that Brown “‘backed away’” after Dutra fired the rounds, when in fact Brown then moved back toward ward M. and Dutra moved Brown away.
Count 3 was dismissed at the hearing. Counts 1 and 2 hinge on the view that ward M. was compliant. Count 4 hinges on the conclusion that by not stating that Brown moved back toward the ward, Dutra intended to mislead.
5. Bridges
Count 1 charged Bridges with failing to intervene when she saw Brown straddling ward M., punching him.
Count 2 charged Bridges with the following dishonest statements in her written reports:
A. Stating that Brown had blood all over his face and was exchanging blows with ward M. in self defense.
B. Stating that she tried to separate Brown and M.
Count 2(B) was dismissed at the hearing.
Count 1 hinges on the conclusion that there was a reason for Bridges to intervene, that is, that Brown was using excessive force. Count 2(A) hinges on the conclusion that by including her assumption about why Brown was hitting the ward, or stating the two were “exchanging blows,” she intended to mislead.
6. Torres
Count 1 charged Torres with dishonesty in his reports, as follows:
A. Stating that ward M. “‘was swinging wildly with a closed fist to SYCC Brown’s head area.’”
B. Stating that Chiu’s use of mace “‘appeared to have no effect as ward M. continued to assault Brown.’”
C. Stating Brown “‘had begun swinging at ward M. in self defense as the mace had not been effective.’”
D. Stating that after Brown got off of ward M., because the ward “‘was still non-compliant, it was necessary for YCO Dutra to discharge three rounds from his pepperball launcher.’”
Count 2 also charged Torres with dishonesty:
A. Torres “failed to report that SYCC Brown swung at [ward M.] for several seconds using both of his hands and that [Torres] could not see what ward M. was doing when he was on the ground with SYCC Brown.”
B. Torres “failed to report that YCO Stevie Chiu attempted to secure the legs of [ward M.] prior to security staff entering the building.”
As with the other employees, some of these claims hinge on the conclusion that the wards were compliant and others require a finding that his misstatements or omissions were intentional.
C. Administrative Hearing Evidence
Chiu, the correctional officer on Pajaro Hall when the assault took place, testified his written reports reflected his honest perceptions. He acknowledged that they were “one-sided,” because he prepared them knowing they would be used to prosecute the wards; accordingly, he did not describe what the officers did, only what the wards did. A senior employee instructed him to write that the wards had their stomachs to the ground, and he did so because it was accurate. He was told the report had to be finished that day because the wards were to be prosecuted. He was very upset as he wrote the report, but he wrote it as best he could with no intent to mislead.
Chiu was an intermittent employee, not a regular employee, and had only worked with Brown once and Berry once. He heard “furniture banging noises first,” then saw ward B. throw the first punch at Berry inside the office. He activated his radio alarm and began telling ward B. to get down or be maced; during the incident Chiu emptied his partially-full can of mace on the wards, giving each two one-second bursts, after they resisted his commands. Chiu saw Berry hitting ward B. on the ground, but did not know Brown was hitting the other ward on the ground until he saw the film, because he was focused on Berry. In his peripheral vision Chiu did see Brown’s arm swinging and it appeared to him that Brown was striking ward M. on the back of the head, perhaps over five times. Although ward B. was face down, his head was moving as Chiu maced him. He saw Berry punch ward B. in the back of the head, but did not see him kick the ward. Bridges arrived and asked Chiu if his mace had been effective and he told her it had not been. Torres ordered Chiu to grab ward M.’s leg to assist Brown, and Chiu did so; M. was not moving at that time. Brown was moving, but Chiu did not know what he was doing. Dutra then shouted at M. to show his hands, and Dutra shot M. three times with his pepperball gun. Chiu conceded that in light of the film, his reports were inaccurate. Chiu told investigators that the first thing he perceived was a noise, and then seeing Berry and Brown grappling with wards, but his memory now is that the first thing he saw was B. punch Berry, and then “bear hugging.” Chiu saw M. swinging his arms, attacking Brown. A former supervisor testified Chiu was very honest.
Bridges, the counselor who responded to an alarm, testified her reports were prepared to discipline the wards. She was “still shaken up and crying” but forced herself to finish the report before she went home, and she did it as best she could, with no intent to mislead. The first thing she saw was Brown on top of a ward, punching the ward; Berry was standing by the other ward, whose hands were behind his back. She was stunned to see her coworker covered in blood because she had expected to see a ward-on-ward fight. When Chiu told her his mace had not helped, she decided not to use hers. She called out to Brown to let him know backup had arrived but it was so noisy in the dorm it was hard to hear and Brown kept swinging, punching the ward in or near the head; eventually she grabbed his arm as Dutra fired his pepperball gun at the ward. At that point Brown got up off the ward, and she grabbed him when he went back toward the ward. After the incident “at least 20 people” were talking about what happened. A former supervisor testified Bridges was a good employee and was honest.
Dutra, the correctional officer who responded with the pepperball gun, testified his reports are written for disciplining and prosecuting wards, but if he saw improper staff conduct, he would include that, too. He wrote his report that day, although he “was tired, drained, exhausted,” and although he worked in security “I had never seen a staff member assaulted in that way in my entire time there.” Yet, he wrote the report to the best of his ability with no intent to mislead, and without talking to other employees. His pepperball gun was loaded with water rounds. When he arrived, ward M. was on the ground and Brown was “covered in blood. I thought he had been stabbed or sliced, a weapon was involved.” Because of this, he ordered ward M. “to put his hands behind his back, cross his feet.” When M. failed to comply, Dutra fired three water rounds at his arms. Brown immediately got up. The “dorm” was “very loud, very loud. Wards were kicking on the doors, the siren’s going off. They’re yelling out from the doors.” A former coworker testified Dutra was honest.
Torres, the counselor in the tower, also testified that the reports were written for purposes of discipline and prosecution of wards, but had to be honest and he had a duty to report staff misconduct; he did not discuss his reports with anyone before writing them. As the tower officer he was responsible for monitoring both Pajaro and Owens Hall. The tower housed the controls to open and close various doors. The Norteño wards had been “becoming much more defiant” and “were on lockdown on an institutional-wide basis”; there were rumors of planned violence against senior staff, that is “greenlighting,” and there had been some specific concerns that day, that they were acting “squirrelly.” As Torres watched Bridges and another employee attending to some wards “on the Owens side,” he heard noises from the Pajaro side and as he went to the other side of the tower he heard an alarm. As he reached the area he saw Berry on top of ward B, “trying to cuff him or gain compliance [of] some sort.” He thought Berry had pulled ward B. off of another ward and radioed that there was a “one-on-one,” meaning a fight between two wards. He became aware of blood and realized that Brown was struggling with ward M. at the same time, at which point Torres began to panic, and radioed that there was a “staff assault”; then he realized that ward B. was fighting with Berry, “got on the radio and yelled, ‘Double staff assault, Pajaro Hall.’” Torres then checked the Owens side, fearing that this was a wider, coördinated attack and checked that Bridges and the other employee on that side were securing their wards. Torres reset the alarm, to reduce noise and so he could tell if another alarm was triggered, and opened a door so a security team “could get through quicker.” Torres was scared because the situation was not controlled and security had not arrived, and he focused his attention on the door, although he did see Brown on top of ward M.
Torres acknowledged that the film depicts ward M. in what could be a “cuffing position” before Dutra fired at him. He had stated in his report that he had seen ward M. swinging at Brown, because “that’s what I had seen based on the amount of blood and the movement” “with the brief look that I had,” “from my angle, it appeared so”; “that’s what I thought I observed, and that’s why I wrote it.” Torres checked the Pajaro side of the dorm, then returned to watching the Owens side and saw ward M. on the ground with Brown on top of him, swinging. In his report he wrote that Brown was acting in self-defense because of what he had seen initially and the amount of blood on Brown. Brown’s back was to him so he could not see what ward M. was doing, and twice Torres had to turn around to operate doors to allow other officers to enter the hall. Torres wrote that Chiu used mace that appeared to have no effect on the wards, and that reflected his understanding of what happened. He may have told Chiu to grab ward M.’s legs, but does not remember doing so “as it was very hectic.” He likened the volume to Arco Arena, meaning it was extremely loud; “Can’t hear yourself talk.” Before Dutra fired his pepperball gun, “by the gestures of his body, he looked like he was ordering the ward to do something. I could not hear as it was too loud.” After watching the video Torres concluded some parts of his report were inaccurate because they reflected his assumptions, rather than strictly his observations, but he had never been criticized for writing reports that way before and at that time saw nothing wrong with it, although he would write reports differently now. The cameras had been in place for several months and ran all the time. A coworker opined that Torres was truthful, and the parties stipulated that his supervisor would so testify.
Michael Harris, the “Treatment Team Supervisor,” testified that the unit was short-staffed “and we had different turnover staff on a daily basis.” Brown was the only “regular” staff on that unit; Berry and Chiu were “intermittent” staff. Although it was not designated as a specialized unit, the Pajaro unit was a violent unit with many Norteño gang members. When Harris responded to a “staff assault” message, the first thing he saw was Brown, “covered in blood.” A photograph of Brown in evidence was taken after he was partly cleaned up; in other words, he looked worse when Harris saw him. By then the wards were both handcuffed. “All the other wards at that time were down. They were yelling. It was just a chaotic scene at that point.” The wards in cells were yelling “Norte” and yelling at Harris to watch the film.
Assistant Superintendent Timothy Mahoney testified that the two wards had no visible injuries that day.
Brown testified behavior reports were used to discipline and prosecute wards and it was important that they be accurate. He wrote his reports as best he could and did not try to mislead. That day Brown discussed “gang interaction contracts” with the wards, and wards M. and B asked to speak with him about the contracts. The “Northern Hispanic wards” were on “lockdown,” due to problems with other gangs. M. and B. were searched and brought to Brown’s office by Chiu and Berry. At some point Berry came into the office and sat down. Although Brown did not realize it at the time, the wards were coming closer to him, and then one, he now knows it was M., punched him in the face. He has no clear memory after that, but he realized he was bleeding and that he was vulnerable in the office, so he struggled to get out and onto the main floor. He had trouble breathing and could not see; “everything just went white” after he was punched. He next remembers “I was on the floor, and I heard a series of pepperball launcher shots going off” and he got off the ward. A couple of days later he wrote his report. Although he spoke with Berry in the hospital, the conversation was not about the report, but was about the senselessness of the attack; all Berry said to him about the incident was that his hand hurt. Brown’s report states that both wards assaulted him. He told investigators he was “shocked” when he saw the film and saying he did not remember hitting the ward “like that” and wished he did remember so he could give a justification for it. The photographs of Brown in evidence were taken about 20 to 25 minutes after the incident. A former supervisor testified Brown was honest. A security officer who arrived after the wards were secured testified Brown “had blood all over his face and down his shirt. He looked very disoriented.” Brown testified he had no training in self-defense from the Department, and had asked for staff to be trained after an earlier, unrelated, assault on staff.
Berry also testified the reports were used against wards, but had to be truthful. Pajaro Hall was on lockdown that day “for some group disturbances involving the Northern Hispanic gang members.” Although M. and B. were objecting to part of the no-violence contract, the conversation was relaxed and the four people in the office (Brown and Berry and wards B. and M.) were chuckling and smiling. Then Berry saw ward M. punch Brown in the face, which left Berry “shocked, startled, frightened. And as I turned, [ward B.] came at me.” Ward B. was punching at him, and Berry “was mostly trying to get out the chair, and trying to block and duck and avoid the punches,” but after that his memory of the event, before he watched the film, was poor. In the confusion “I thought we lost the dorm and the wards had gotten out.” “A similar incident like that happened on Pajaro, where staff opened the door, two wards ran out, came down to the office to attack one ward on the phone.” Berry did recall fighting with ward B. on the ground. Generally, “what happened in the video and my memory at the time, they don’t match.” He wrote his report a day or two after the incident but did not discuss it with anyone. The parties stipulated that a coworker would testify Berry had a reputation “as an honest and truthful person,” and a former supervisor testified to the same effect.
Lieutenant Bob McCollum, a “master trainer for the department in all use of force,” testified as an expert for the Department, but parts of his testimony were helpful to the employees. He had trained the trainers who conducted the use-of-force training session in 2003 attended by the other employees, and he authenticated the Department’s “use of force binder.” He chose Dutra to be one of the trainers, had known him for 10 years and testified Dutra was a good officer. If an officer suspects a ward has a weapon, he or she is not supposed to try to restrain the ward; the binder “requires you to wait for additional assistance.” As for self defense, “you only use enough force to stop the situation, the threat or whatever the case may be and, at that point, you have to stop.”
McCollum testified that although the binder describes self-defense techniques, they had not been taught to staff as of the date of this incident. He also testified wards can still be a threat until they are “secured,” such as by being cuffed. McCollum testified that if a ward assaults a staff member who manages to get the ward to the ground, the ward would not be considered “compliant” if he was still moving; “as long as he’s moving his hands around, no, he’s not.” Similarly, if the ward was trying to get up, he would not be deemed compliant.
Steven Cambra, Jr., also testified for the Department as a correctional use-of-force expert. He reviewed the training materials from 2003 and opined that they adequately conveyed the Department’s policy at that time. He read transcripts of interviews of all the employees, read all of their reports, and watched the film.
Cambra was aware that Berry was attacked by ward B. in the office, but opined that the force Berry used in response became excessive when “the ward is in a prone position on his stomach by the position of his feet. [¶] So at that point, based on the policy, what staff should be involved in here is an attempt to cuff the ward, because he’s no longer a threat in this position.” The record shows this occurs “at 11:52:39.03.” This means this is the third frame at 11 hours, 52 minutes, 39 seconds.
This moment is before both wards have left the office: Berry fell on ward B. just outside the office by 11:52:34, and B. was maced by Chiu at about 11:52:36, but he is still struggling. At 11:52:40, Brown and ward M. spilled out of the office—causing the door to hit Berry—and were both on their feet struggling, as Berry and ward B. are still visibly struggling. Watching the film suggests that it is unrealistic to conclude that Berry should have relented in the middle of this scene, involving two ward-on-staff struggles in extremely close quarters.
Cambra continued to describe specific blows at specific times that he opined were outside Departmental policy, but ward B.’s legs can be seen flailing, although it is not always possible to see what else he is doing. By 11:53:18:06, Berry has risen and gives the ward a light kick on the shoulder, which Cambra opined violated policy.
Ward M. and Brown spilled out of the office and sparred back and forth for quite a while, before Brown got him to the ground at about 11:52:56, and Cambra opined that blows Brown struck beginning at 11:52:59 were excessive. Cambra counted 25 blows he opined were improper, based on his view that Brown “should have been cuffing the individual from the time the ward proned out. So all these blows, each one of them, are outside of policy and training.” The Department repeatedly asserts that at 11:53:14, Brown can be seen pulling ward M.’s hair back “in order to get a better shot” at punching the ward. Brown’s purpose is not shown on the film. But, as of 11:53:23, when other officers swarm the area, the film shows that ward M.’s legs are still flailing.
At about 11:53:24, Dutra aims his launcher at ward M., who does have his hands on his head, but who is still moving both his legs and head. By 11:53:32, after Dutra has fired at him, ward M. places his hands behind his back.
Cambra faulted Chiu because he “stood and watched Mr. Brown punching [ward M.] and didn’t intercede.” The same was true of Bridges. As for Dutra, Cambra believed that ward M. was compliant, and not a threat, and therefore use of the pepperball gun was improper.
Exhibit 23, a DVD made by Kendyl Roman, the Department’s computer expert, synchronizes the images of the two Pajaro cameras, and adjusts the speed to show the action in real time, rather than the “Charlie Chaplin-esque” way in which they were recorded. The DVD also has stills and film clips of specific employees, and some enlarged clips from each camera. The employees’ expert, Michael Schott, made exhibit A1-FF, a CD-ROM, which we discuss later.
Don Cameron, the employees’ use-of-force expert, testified that he agreed with the Department’s definition of unreasonable force, including any force “which exceeds the necessary force which an employee must exert to protect themselves, others, or to overcome resistance to their lawful authority. The use of force against a person who has been subdued, restrained or otherwise incapacitated, and who clearly no longer represents an immediate threat to CYA employees or to others, is unreasonable force.” From the original film he could not form an opinion about the reasonableness of the use of force because of the film quality and angle. By using the CD-ROM prepared by Schott, he was able to form opinions.
Cameron testified that even after 11:52:39:03, the time Cambra identified as the limit of Berry’s reasonable use of force, the ward was still resisting, including kicking, and was therefore not “in a prone position on his stomach.” Cameron went on to give his contrary view of other details of Cambra’s testimony, while describing the film frame by frame. For example, Berry’s act of placing his knee in the ward’s back “is basically a trained action. I have to put weight on them to hold them down, otherwise they’re going to come up and continue the assault on me.”
Cameron disagreed with Cambra’s view that Brown’s conduct after 11:52:59 was excessive. “There’s no point in this confrontation where [ward M.] is not moving his legs. He’s moving his upper body, his shoulders are coming up off the ground. It’s difficult from this angle, because the camera’s shooting straight onto his head, to see what his arms are doing. But he actually maneuvers his feet against the wall so he’s able to turn himself almost a 90 degree angle and push both himself and Mr. Brown out away from . . . a wall or lockers. And at that point, you can see him protecting his face with a fist on one side, but he’s pushing up off the ground on the other side, and you can see Mr. Brown is reaching down, he attempts to pull the arm back to him. [Ward M.] pulls the arm away. He shifts to the other side.” “He’s constantly moving from side to side. His legs are not fixed. At one point, he brings . . . his right leg up to a full bent position and on the same side, puts his arm on the ground. That’s very indicative of trying to flip someone off the top of you.”
Similarly, Cameron disagreed with Cambra’s view that use of the pepperball gun was unreasonable, largely because of his view that ward M. was still resisting, as stated above; it was not until after Dutra shot M. with water balls that M. became compliant. In Cameron’s view, all three men acted reasonably and within the Department’s policy. He also opined that neither Berry nor Brown had been properly trained by the Department in self-defense.
A nurse testified she checked both wards and found no injuries. Ward M. had “some very minor scratches” on his arms. She acknowledged some photos showed marks where the waterballs hit him, but bruises were not visible at the time. This tends to show that despite what seem to be strong blows as shown on the film, in reality, none of the blows were delivered very forcefully, or effectively.
Another Department nurse cared for Berry “Cuz he wasn’t in any position to walk,” was “sluggish,” “dazed,” and had an altered level of consciousness. His report noted swelling on Berry’s temple and other injuries. He also treated Brown, and testified the photographs did not accurately depict how bloody Brown was. Brown’s “nose was extremely swollen,” his upper lip was cut, his face was swelling and red, his chin was scraped and his right eye “was swollen and was actually starting to turn dark.”
An officer who arrived after the wards were secure described the area as “crazy” and he thought a cell door might pop open; it was “Pretty much a noise riot. Many of the doors were being pounded on from the inside. They were shaking. I could actually see them shaking, and the wards were yelling stuff out the doors.” Some yells were Norteño yells. The desk in the office had been pushed around and there was “blood all over the place.” He saw no injuries on B., and B. lodged no complaints.
Several use-of-force rules were introduced into evidence and discussed by witnesses. In part, rule 2080 states an “employee may use force in self-defense or in the defense of others. In such situations, employees shall use only the minimum force necessary to ensure their safety or the safety of others.” (Bold in original.) Part of rule 2082 defines reasonable force as “The necessary amount of force which an employee must exert to protect themselves, others, or to overcome resistance to their lawful authority.” Rule 2085 partly states that restraints, which would include waterballs, are not to be used as punishment.
Dr. Kenneth Deffenbacher, a professor and psychology department chair at the University of Nebraska, has qualified as an expert witness before and had a specialty of human perception and memory. He opined the events were very stressful and would not be conducive to accurate perception and recall, and “they all experienced a robust intense stress response.” A person multi-tasking (e.g., Torres, in the tower) would have even greater difficulty with perception and recall.
Dr. Albert Globus, a noted forensic psychiatrist who in part testifies about head injuries, has qualified as an expert witness many times before. He examined Berry twice and reviewed medical records from the facility nurse and the hospital emergency room, film of the incident and written reports. His opinion was that Berry “had a head injury which included at least a concussion.” The differences between Berry’s report and the film did not show a desire to minimize culpability, but are consistent with a concussion, including his fear, his inability to perceive Brown during the event, his lack of memory of alarms and other points; further, the nurse recorded that Berry had an altered level of consciousness after the event. Such an injury could cause loss of memory. It could also cause misperceptions during the event, that is, cause Berry to misapprehend the level of danger; and Berry “was acting, in essence, somewhat like a person who has had a general anesthesia.” Berry’s memory would be affected by watching the video of the incident; indeed, Berry became upset when Dr. Globus discussed the video with him and Berry said he was not the person on the video.
Dr. John Chamberlain, a forensic psychiatrist, assistant clinical professor and assistant director of the Psychiatry and the Law Program at UC San Francisco, in part deals with people with head injuries and psychological trauma, and he has qualified as an expert witness in other cases. He testified that based on photographs, film and written reports, as well as his examinations of Brown, Brown had memory problems “consistent with his having experienced a traumatic event” and “potentially consistent with a head injury.” He also testified “I think Mr. Brown would not have been able to reliably tell when the threat had ended.”
In rebuttal the Department presented testimony of two experts, each of whom also had qualified as an expert witness in the past and each of whom also had impressive credentials.
Dr. Richard Rappaport is a forensic psychiatrist and associate clinical professor of psychiatry at UC San Diego; he has published in the field and has qualified as in expert in several courts. He reviewed case material and the reports and testimony given by Drs. Chamberlain and Globus. He did not believe Brown “had a decreased response” to events; Brown had a head injury, but there was no evidence of a brain injury affecting judgment.
Dr. Richard Rubenstein is a neurologist who in the past had been an neurology professor at UC Davis and then UC San Francisco, and he has qualified as an expert witness in neurology many times; his focus is traumatic brain injury and its effect on memory and behavior. He reviewed the case records and Dr. Globus’s testimony and disagreed with Dr. Globus’s opinion regarding Berry. He did not believe Berry had a concussion, in part based on the images on the DVD, which showed “goal directed” movements by Berry in response to the attack, and Berry’s coherent conversations immediately after the attack.
The employees wanted to introduce the records of the wards, to show that they were extremely violent, thereby bolstering the view that the amount of force used was reasonable. The ALJ excluded this evidence, concluding it was unduly prejudicial and time-consuming. To the extent any employee was aware of the violent tendencies of these wards, this ruling is questionable. A person is entitled to use force necessary to repel the perceived attack (see People v. Jackson (1965) 233 Cal.App.2d 639; CALJIC No. 5.30) and if a person is aware that an attacker is especially dangerous, that may well justify using greater force to subdue the person. (See People v. Davis (1965) 63 Cal.2d 648, 656; People v. Spencer (1996) 51 Cal.App.4th 1208, 1219.) But in view of our ultimate conclusion, any error was not prejudicial to the employees.
D. The Board’s Decision
The Board credited the testimony of the employees, finding that the Department’s expert had speculated as to what the employees thought, the employees did not talk to each other before preparing their reports, their superiors had not asked them to be any more specific, they knew cameras were filming the incident, they were not able to view the film before writing reports, they were under great stress, many of their statements were accurate, “Brown and Berry had been brutally assaulted . . . resulting in head injuries” that “affected Brown’s and Berry’s ability to recall the events,” and “it is an unrealistic expectation that human recall would be as comprehensive as the video recording of the incident.
It is not clear whether, in stating that the employees had not been asked to be more specific, the Board overlooked Chiu’s testimony that he had been asked to change his report to say that the wards had their stomachs to the ground; most likely that point was deemed de minimis, as it was irrelevant to the dishonesty charges against Chiu.
The Board found that the Department did not prove Brown, Berry or Dutra used excessive force, and that Bridges did not fail to intervene to prevent excessive force.
As for Brown, the Board found that ward M. was noncompliant until Dutra shot him with the waterballs, therefore “Brown acted in self-defense and his use of force was reasonable considering the surrounding circumstances.”
As for Berry, the Board found that ward B. “was not in full compliance with Berry’s directions, until the light kick with the instep of Berry’s foot to [ward B.’s] right arm. . . . Berry responded to the best of his ability given the circumstances. It is found that Berry acted in self-defense and that his use of force was reasonable.”
As for Dutra, The Board found that Cameron “testified that the ward was not yet compliant because he was still moving. He further testified that it was not until Dutra shot the water rounds that [ward M.] complied with Dutra’s commands. Cameron’s testimony is consistent with the videotape when viewed in slow motion. In addition, Schott was also able to isolate the precise moment Dutra shot the water rounds with the pepperball launcher. At that moment, [ward M.]’s arms and legs were still in motion and he was not yet restrained. Respondent’s own witness, Lieutenant Bob McCollum, Master Trainer at CYA for the use of force, testified that a ward could be a threat until he is restrained. He further testified that as long as the ward is moving his hands while on the ground, after the ward has assaulted an officer, the ward is not yet compliant.”
As for Bridges, the Board found the Department did not prove she failed to intervene to stop excessive force.
The Board found the Department did not prove dishonesty by any employee. Berry did not intentionally mislead investigators, and in writing their reports the employees did not “intentionally misrepresented what they observed.”
In conclusion, the Board found:
“Each of the appellants was charged by respondent with violating Government Code section 19572, subsections (d) inexcusable neglect of duty, (f) dishonesty, (m) discourteous treatment of the public or other employees, (o) willful disobedience, and (t) other failure of good behavior, on or off duty, causing discredit to the appellant or the appointing authority.
“The facts of this case do not support a determination that any of the appellants violated any of the alleged legal cause for adverse action.”
E. Trial Court’s Decision
In part the trial court found:
“Each of the officers agreed and acknowledge[d] that the CDCR policy on Use of Force states that an officer has the right to use reasonable and necessary force. They further agreed and acknowledge[d] that the right to use force ends when resistance to that force ends.
“Section 2085 states the standards to be used in applying restraints to wards. The types of restraints are chemical, physical, and mechanical. Most importantly, the policy makes clear that restrain[t]s of any type are not to be ‘used as punishment, retaliation, or for disciplinary purposes.’
“Section 2091 defines the techniques that the CDCR recognizes as acceptable for an employee to use in self-defense or in the defense of others. . . . There is no mention of kicking a handcuffed ward or repeatedly punching a ward in the head. [¶] . . . [¶]
“The Court recognizes that the wards . . . violently attacked Delwin Brown and Marcel Berry in the first instance. The officers had the right to use reasonable and necessary force, and the right to use force ends when resistance to that force ends.
“The DVD evidence shows Brown straddling the ward’s back and pounding him on either side of the head for 25 seconds, delivering 27 blows, after the ward put his hands behind his head, signifying compliance. The DVD evidence shows Berry continuing to punch and knee the other ward for 14 seconds after he is compliant. He then hand cuffs the ward, stands up and kicks him.
“The evidence shows [Chiu, Bridges, Dutra and Torres were] present during these events, but they included none of this information in their reports.
“The reports of all the [employees] give the reader the impression that Delwin Brown and Marcel Berry were using reasonable and necessary force at all times. The DVD evidence shows otherwise.
“This Court finds that there is not substantial evidence support the findings of the SPB as to the allegations against each of the [employees].”
The trial court ordered that the Board decision be set aside and a new hearing before a different ALJ be held. The employees timely appealed.
DISCUSSION
I. Substantial Evidence
The trial court and this court face the same question: Is the Board’s decision supported by substantial evidence? (Newman, supra, 10 Cal.App.4th at pp. 46-47.) Two procedural rules guide us to the appropriate answer. First, the Department had to prove cause for discipline by a preponderance of the evidence. (California Correctional Peace Officer Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153.) Second, we do not reweigh evidence. (Newman, supra, at p. 47.)
We recently stated: “Even where there is a conflict among competent experts, that will not normally meet a petitioner’s burden to show ‘that the administrative findings were contrary to the weight of the evidence[.]’” (Sager v. County of Yuba (2007) 156 Cal.App.4th 1049, 1061 (Sager), partly quoting Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, 1138.) Here, because of the Board’s quasi-judicial powers, the burden on the Department in this case was not merely to show that the findings were “contrary to the weight of the evidence,” as in ordinary administrative cases; the Department had the higher burden to show no substantial evidence supported the Board’s decision. (Pollak, supra, 88 Cal.App.4th at pp. 1403-1404; Newman, supra, 10 Cal.App.4th at p. 47.) Thus, it had to show that the employees’ evidence, including expert evidence, lacked substantial value when the whole record is considered.
The ALJ credited the testimony of the employees, that they had not used excessive force and that they were coöperative and honest during the investigation. The ALJ explained why the film, although startling in its apparent depiction of excessive force, fails accurately to depict all relevant events. The ALJ was persuaded by Cameron’s testimony that no excessive force was used, which was partly supported by Lieutenant McCollum’s testimony. The Board adopted the ALJ’s view.
The Department attacks the evidence relied on by the Board in several ways, which we will address in turn.
Before doing so, we observe that the Department fails to provide an appropriate statement of facts. The record citations are sparse and long passages of purported “fact” are bereft of any citations, a violation of appellate rules. (See People v. Gidney (1937) 10 Cal.2d 138, 142-143.) More importantly, the facts are presented in the light favorable to the Department. The failure to present a faithful statement of facts can result in a forfeiture of substantial evidence claims. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Given the importance of this case, and the fact that the Department is the respondent and the employees have provided adequate citations, we will not deem the Department’s substantial evidence claims forfeited.
A. Schott’s Testimony and Exhibits
The Department attacks the images prepared by Schott, the employees’ video expert. The Department excoriates Schott, claiming he altered the images that Cameron used in forming his opinion about whether appropriate force was used. Under the Department’s view, Cameron’s opinions based partly on those images lacked any value: “It is simply absurd to credit an expert opining about acts shown on an altered video over an expert relying on an unaltered video.”
This is an inappropriate invitation to reweigh evidence. Viewed in the light favorable to the Board’s decision, no inappropriate alterations were made. Because the Department hinges much of its case on this point, we address it in detail.
Schott worked for 17 years with the Contra Costa County Sheriff’s Department and retired as a sergeant. He is a licensed private investigator and expert in videography and crime scene reconstruction. He was hired by the State of California todovideowork on a federal case involving guards at Corcoran State Prison: During the administrative hearing, the Department did not object to Schott’s expert qualifications.
Schott examined MPEG files from the original CDs that had the images from the two cameras in Pajaro Hall, as well as the DVD prepared by the Department’s expert, and other materials. He testified that a video clip “is really a series of single images. Think of it as a high speed slide show playback.” The “American” standard is about 30 such images, or frames, per second, however “Surveillance videos are shot in fewer frames per second to save space on the disk. The particular Camera 1 and Camera 2 videos I examined were 15 frames per second.” Images on a video clip can thus be identified by frame number, that is, beginning with the first captured frame, and numbering them, in this case at the rate of 15 frames per second. That is how Schott identified frames, so a hypothetical frame number 40 would be the 40th frame on the video, and would occur partway into the third second of tape (at 15 frames per second). However, Roman, the Departments’s expert, used a time sequence, noting the hour, minute and second, followed by another number indicating which of the 15 frames in that second of time is meant. For example, 8:23:15:04 would refer to the fourth frame occurring at 8:23 and 15 seconds on the film.
The original images were recorded at a resolution of “352 by 240,” in Schott’s opinion “about the lowest resolution you can get in video.” This was done to save disk space, but “it’s really inferior, and these videos, in that regard, make that point. You cannot identify a single person by facial features.” Further, he explained:
“15 frames per second means that you’re capturing one-fourth of the movements that occur. For 15 frames, that means 15 times in one second the camera is taking a snapshot that lasts one-sixtieth of a second. That’s the shutter speed on these cameras, and it’s an American standard.
“So literally, you have fifteen-sixtieths of a second of recorded images for every one second in realtime. In watching it, it appears that you’re seeing continuous motion, but that’s largely an illusion, because interstitially, you’re really – your mind is required to connect the dots and to fill in the gaps. You’re not seeing everything that’s going on.”
To try to enhance the images to overcome the poor quality of the originals, Schott created a “four-plex” video by first synchronizing the images of the two cameras, then providing close-up views of the relevant action.
Schott also created a “realtime frame identifier” to correct a speed problem with “the raw videos,” namely “that on a standard player playing back at 30 frames per second, everything is at high speed because it was recorded at 15, but it’s playing back at 30. So the people are moving like out of a Charlie Chaplin movie. It’s way too fast.”
Schott also “enhanced it because quality was a problem, and I did that by applying a gamma correction of 1.70, saturation of 50, contrast of 10, and then I used sharpening and softening filters and I was able to improve the quality of the video. I also then, once it was improved, enlarged it to 640 by 480, I believe, pixels, and it created an image that was easier to see and had somewhat greater clarity.” Schott also added a frame counter on the bottom, so the images are numbered sequentially for nearly 10 minutes, about 8,500 frames, and he prepared some frames as still photographs, and “applied brightness and [contrast] enhancements to selected portions of the screen to which we want to draw attention and also to make them more visible.” He did this because “The camera is taking its light meter reading from the center of the floor, which is quite bright, and some of the incident, especially involving Officer Berry, is occurring in a corner where it’s seriously underexposed, and I was able to brighten those areas to make them more visible.”
Finally, Schott prepared some still PNG, or “portable network graphics” frames, “And what these still frames are from Cameras 1 and 2, applying a video editor software that dismantles the video into its component still frames, and the particular format is PNG.”
“In this PNG format, it allows us to still animate these frames, move through them very quickly so that we can look at a particular sequence or action and run a few frames forward and backwards. And some of them, because of the low resolution, that’s the only way you can actually catch the movement is to put them into motion be able to examine them . . . several frames at a time. And there’s a folder that contains the duration of the incident both from Camera 1 and Camera 2 dismantled into its component still frames.
“Q. Did you change any of the content of the video?
“A. No. The only changes in these PNG still frames are . . . to define a circular area and then use brightness and contrast controls to make it more visible and to bring out the details to the extent possible.”
Schott did not think the DVD images were of better quality than Schott’s CD-ROM images. He testified that the original recordings he worked from were in a compressed format, and Roman agreed with this point.
The Department tried but failed to get Schott to concede that he had materially altered the images:
“Q. Did you compress the video on your CD with MPEG?
“A. Well, it arrived at a MPEG compression, and after the enhancement I performed on it, it was once again compressed as a MPEG.
“Q. All right. Did you compress the pictures on your video with JPEG?
“A. No. They’re portable network graphics. They’re not JPEG images.
“Q. I’m sorry, Portable . . . .
“A. Portable network graphics. JPEG is considered a lossy, L-O-S-S-Y. It’s a term which indicates an inferior compression that will cost data.
“Q. Are you aware that by compressing the video, you are introducing compression artifacts?
“A. That’s a possibility. In this case, I did my best to overcome compression artifacts.
“Q. Are you aware that compressing the video lowers the quality of the exhibit compared to the original?
“A. I think when you compare the original to our exhibit, you’ll see that just the opposite occurred.
“Q. Would you agree that by compressing the video, you added distortion?
“A. That can occur. That’s – certainly compression is always a compromise.
“Q. Would you agree that by compressing the video, that you lose evidence?
“A. Compression is not [a] universal phenomenon. In this case here, the video effects which I applied to enhance the video actually made it – improved the clarity.
“So [in] a technical sense, if it could be argued that, you know, a pixel was distorted, I would say look at the overall video and if it’s clearer now than before, the enhancements were a positive effect.
“Q. But you agree that certain pixels might have been distorted?
“A. Well, might have been is speculation.
“Q. Well, would you agree that some were?
“[Objection overruled.]
“A. My position is that the video that we introduce on our CD ROM is of better quality than the video I worked with from the institution, and that these enhancements give us greater clarity and, in fact, allow us to see things that we couldn’t see before.
“Secondly, most of the detailed analysis is occurring in the PNG graphic still frames which are not compressed. The video that we’ve introduced as the realtime frame, I think, identifier, the purpose of that one was to show the frame number, the absolute frame number on the video, as well as, of course, to enhance it. But all of the detailed analysis was done on the still frames which [were] not subjected to MPEG compression.”
In what seems like an argument to a fact finder, on appeal the Department describes this testimony as follows:
“[Schott] admitted under cross-examination that he compressed the original video, which added additional compression artifacts and used some ‘sharpening and softening filters.’ Mr. Roman testified that by smoothing the video Schott blurred subtle details and by sharpening he introduced artificial things (some of which are seen as red blotches). Thus, Appellants’ expert altered the video that they introduced into evidence and upon which their Use of Force Expert Don Cameron relied.” (Bold in original, record citations omitted.)
In short, the Department claims that Schott altered the images in a way that cast doubt on the validity of what was depicted. This claim is refuted by Schott’s testimony. A fair summary is that he did not use the “inferior” JPEG method of compression, much of his work was not compressed, and what was compressed did not degrade but instead enhanced picture quality.
Nothing in Schott’s testimony was inherently implausible or suggests that his qualifications or opinions about the video were suspect. (Cf. Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135-1136 [where expert opinion is speculative or based on unsupported assumptions or matters not reasonably relied on by other experts, “the expert’s opinion cannot rise to the dignity of substantial evidence”].)
The Department also emphasizes Roman’s testimony, implying it necessarily undermined Schott’s techniques. Again, the Department inappropriately presents its claim as if this court was in the position of fact finder.
Roman was a forensic computer scientist. In his initial testimony he explained that he, too, had to alter the speed of the images to produce a useable DVD, to which he added a “realtime clock.” He was not as critical of the quality of the resolution in the original images, testifying it was better than a VHS tape but worse than a movie theater. The original images were in compressed MPEG files. Compression can cause “artifacts,” because “it’s making a choice of what data to keep and what data to skip, and it makes an intelligent choice.” Thus, Roman did not testify that compression itself was bad or that artifacts were necessarily bad.
When recalled, Roman testified that he reviewed Schott’s testimony and images Schott had prepared. He testified Schott misnumbered frames and introduced splotches and other artifacts. He also testified:
“Mr. Schott, in his modifying of every single frame to produce this video, testified that he used sharpening and smoothing filters. Those filters actually modify the evidence. They alter – they alter the pixels. And I believe he also testified that some of the pixels are distorted. And that’s what I find here is that his filtering actually modifies the evidence.”
“The data has been modified. Inasmuch as the pixel data is factual, it has been modified. But I think where you’re going, did he insert frames where it shows major motion? And that, he did not do. But the subtle details have been blurred by smoothing, and then the sharpening actually introduced some artificial things so that it appears better, but it’s not really better.”
Roman never pointed to any image in which Schott introduced any material changes, he only opined that “artifacts” were introduced and that Schott’s film was not better. Yet, Roman had earlier testified artifacts were caused by compression and admitted the original media images had been compressed, that is, compressed before Schott did anything to them. Thus, viewing his testimony in the light favorable to the Board’s decision, Roman failed to undermine Schott’s testimony.
In sum, although Schott altered the video images, the evidence, viewed in the light favorable to the Board’s decision, shows that he did not warp the meaning of those images, he instead enhanced them. Indeed, we have watched the images on both Roman’s DVD and Schott’s CD-ROM, and those images support Schott’s view that he made the images easier to understand. Thus, the Department’s attack on Schott’s testimony and work product does not support the claim that the Board’s decision is not supported by substantial evidence.
B. Reasonableness of Force
In addition to attacking the images relied on by Cameron, the Department asserts that Roman’s images, particularly when coupled with Cambra’s testimony, conclusively show excessive force was used against unresisting wards. For example, as to Berry, the Department claims the images “show no resistance on the part of the ward. Any movement is incidental and in response to being punched, kneed and kicked. Incredibly, the [ALJ] justifies the kick to the ward lying on his stomach handcuffed because the ward lifted his head and shoulders. Again, the standard is not whether the ward was entirely motionless, but whether he was offering resistance.”
This and similar points as to Brown and Dutra amount to invitations to reweigh the evidence. All the experts and the Department’s written policy were in accord that unnecessary force was excessive, but beyond that a critical conflict emerged. Both Cameron and McCollum, one of the Department’s experts, testified that as long as a ward is noncompliant, force is appropriate. Specifically, as stated above, McCollum testified that if a ward assaults a staff member who manages to get the ward to the ground, the ward would not be considered “compliant” if he was still moving; “as long as he’s moving his hands around, no, he’s not.” Similarly, if the ward was trying to get up, he would not be deemed compliant. This testimony, from one of the Department’s use-of-force expert witnesses, dovetailed perfectly with Cameron’s testimony, to the same effect.
Further, there was testimony from several witnesses showing that the facility was understaffed and staff had not been given appropriate self-defense training. Brown and Berry (as well as Bridges and Torres) were counselors, not correctional officers, like Chiu and Dutra. Thus, when faced with attack, Brown and Berry were not able to quickly and decisively subdue the wards, as Cambra (and the trial court) believed they should have been: There is substantial evidence the employees did the best they could.
As we explained earlier, Cameron testified that the wards were still struggling after the point at which Department’s expert claimed they were subdued, reflecting not a disagreement about what is on the video, but a disagreement over the definitional point, that is, what form of movement by a ward constitutes resistance. Cameron, and the Department’s other expert, McCollum, viewed any movement as resistance; Cambra did not share that view. But the fact that experts disagreed does not mean the trial court, or this court, is free to credit one view over another. At best the Department demonstrates that reasonable minds may differ, but that does not show that no substantial evidence supports the Board’s decision. (See, e.g., Sager, supra, 156 Cal.App.4th 1049, at p. 1061 [even where trial court can weigh evidence, a mere conflict among competent experts does not show a lack of substantial evidence].)
The Department dismisses the adverse part of McCollum’s testimony, calling it an “offhand comment[.]” The testimony, although interrupted by objections, was clear that “as long as he’s moving his hands around, no” a ward is not compliant and “If he’s trying to get up off the ground after the officer’s put him down - - he’s got him down on the ground and he tries to get up, no, he’s not [compliant].”
The Department also faults the Board for relying in part on the fact that the wards started the fight, stating, “Who started the fight is not relevant.” We agree that the fact the wards started the fight did not authorize the employees to use force for the purpose of punishing the wards, or use more force than necessary to subdue them; but we disagree that the double assault on the counselors was irrelevant. The film does not capture the severity of the attack in the office, nor, because it lacks sound, does it capture the screaming and pounding of all the wards on Pajaro Hall, like “Arco Arena,” reflecting what was obviously a coördinated assault, at a time when gang members were on lockdown and there were rumors of planned violence. These facts help explain the fear the ill-trained and understaffed employees experienced as they tried with what ability they possessed to control two violent wards.
The trial court mentioned that a rule listed appropriate control techniques, which did not include “kicking a handcuffed ward or repeatedly punching a ward in the head.”
The rule in question, rule 2091, states in part:
“Youth Authority employees, to the extent possible, may use departmentally approved self-defense techniques to escape without injury, when faced with a potentially dangerous situation. In such situations, employees shall use only the minimum and reasonable force necessary to ensure their safety or the safety of others.
“Training in self-defense techniques will be provided to CYA employees to assist them in protecting themselves and others.
“The following are departmentally approved techniques and may be used only in self defense or in the defense of others[.]”
Rule 2091 says listed techniques may not be used except as needed for self-defense or defense of others. It does not say that only these techniques and no others may ever be used, even where the employees fear death or great bodily injury, as these employees did. Further, there was evidence that employees had not been given proper self-defense training. The Department cannot blame the employees for poor training.
Another critical fact overlooked by the trial court is that the wards were not hurt. For example, although the images show Brown straddling a ward and striking him back and forth with both arms, the fact that the ward was not injured shows that these blows were not telling blows. Viewing the images leaves one with the expectation that the ward was battered severely. This discrepancy between what the images seem to show and what actually occurred highlights the error in focusing so heavily on the images. The Board could rationally conclude that the blows by Brown or Berry reflected desperate efforts to control violent and recalcitrant wards, not the application of excessive force.
The Department asks rhetorically, as to Brown, “In this case, the ward was moving his hands in a desperate attempt to shield his head from the repeated blows raining down on him. Could any person remain completely motionless while getting punched in the head 25 times. The issue is not whether the ward moved his hands but whether the ward was offering resistance. The video clearly shows he was not.” The Department later states, as to Berry’s actions, “any movement [by the ward] is incidental and in response to being punched, kneed and kicked.” These statements are arguments to a fact finder, because the video does not explain why the wards kept moving and does not show that the motions in question were the ward’s defensive efforts, responses to strikes by the employees, or as the employees perceived them, efforts to escape or continue fighting. Thus, contrary to the Department’s view, and the trial court’s view, the images do not, of themselves, show that no substantial evidence supported the Board’s decision.
C. Reports and Interview Statements
The trial court found: “The reports of all of the [employees] give the reader the impression that Delwin Brown and Marcel Berry were using reasonable and necessary force at all times. The DVD evidence shows otherwise.”
Our conclusion above refutes the trial court’s reasoning as to false reports. The Department asserts that there is no evidence to support the Board’s conclusion that none of the employees were dishonest in their reports and post-incident interviews. By detailing a number of factors which could have been viewed differently, the Department inappropriately invites this court to reweigh the evidence.
The employees each testified he or she filled out the reports as best he or she could, and answered questions honestly. Further, each employee had at least one witness, mostly supervisors, testify as to his or her character for honesty.
The Department overstates a couple of snippets of testimony from which it asserts the employees colluded:
“[The ALJ] states that the appellants did not talk to one another regarding the content of their reports. The Decision’s reliance that there was never any evidence of collusion is simply wrong. The Decision is in error when it asserts on page 9 that, ‘None of the appellants spoke to each other prior to writing their reports.’ Evidence was offered on this point during the cross-examination of [Bridges]. In her investigatory interview, which was offered and accepted into evidence, she stated that Chiu, Berry and Torres were all there at the same de-briefing where they discussed the incident before writing their reports. Brown and Berry also spoke to each other about the incident before they wrote their reports.”
The record citations supplied by the Department in this passage do not support the claim of collusion.
Berry testified he did not discuss his report with anyone before he wrote it. Brown testified that at the hospital he spoke with Berry, but “not about this report.” “I believe I told Marcel Berry that the incident didn’t make sense because it was just a contract. I wasn’t talking too much because I had a large portion of my upper lip that was hanging into my mouth and made talking difficult, and it would bleed. So I wasn’t talking.” Berry told him “something about his hand was hurting, and that was it.” This testimony does not show collusion.
Bridges testified that after the incident many people were talking, but nothing on the pages of transcript cited by the Department supports its claim that she spoke with any of the other disciplined employees about their reports:
“Q. Was Officer Torres there?
“[Two pages of objections and argument omitted.]
“A. I remember the lieutenant asking where he was, because he was in the tower at the time of the incident, but I don’t remember if he was outside at that time.
“Q. How about Officer Chiu? Was he there?
“A. Initially, no, because we couldn’t find him. Someone went to locate him.
“Q. Now, how about Officer Brown?
“A. Officer Brown had been taken away, up front to the administration building.
“Q. How about Officer Berry?
“A. So had Officer Berry.”
This passage cited by the Department fails to support its claim of evidence of collusion.
The Department cites also Bridges’s interview transcript. In that interview Bridges explained that there were about 30 people in the area after the event, including Chiu and Berry and, she thought, Torres, and it was normal to “kind of debrief on what happened.” This does not show that the employees discussed how to write their reports; it shows the natural reactions of coworkers to a traumatic event. When shown her reports in the interview, Bridges testified she would have changed the part where she described Brown “exchanging” blows with ward M. to say “That he [i.e., Brown] was delivering the blows to [ward M.],” and that she would add that she remembered calling out to get Brown’s attention. She was emphatic that she prepared the report that day as best she could, while still distraught over the events.
In sum, the Board’s conclusion that the employees were not deceitful in their reports or interviews, is supported by substantial evidence, specifically, the direct testimony by the employees about their statements, as well as the good character evidence about their honesty, and the fact that their reports were substantially accurate, and the inaccuracies largely stemmed from their evident practice of including impressions or assumptions, instead of staying strictly to a narrative of what was directly observed. That may be an example of poor training but it does not show dishonesty.
D. Medical Evidence
The Department presents a lengthy attack on the expert medical testimony. Among the many grounds for crediting the employees, the Board stated that all were under stress and that Brown and Berry had been “brutally assaulted . . . resulting in head injuries to both appellants. These injuries affected Brown’s and Berry’s ability to recall the events[.]” At this point the Board states in a footnote:
“Medical experts, one of [whom] examined Berry, and one of whom examined Brown, testified regarding their respective head injuries. (Both experts also reviewed all relevant medical reports.) Both experts testified that the head injuries suffered by Brown and Berry were consistent with their lack of recollection of the incident.”
But, as indicated earlier in this opinion, the Board’s decision turned on the issue of reasonable force, the Board did not find that any head injuries excused unreasonable force.
We decline to respond to each point in the Department’s 24-page objection about the medical evidence, but we will address a few illustrative examples. The Department’s claims at best add up to no more than an argument to a fact finder. At one point the Department baldly states that “the weight of objective medical evidence” dictates a different conclusion, but that does not equate to a claim that no substantial evidence supports the Board’s conclusion. The Department takes the view that its doctors were better than the employees’ doctors, but even if that was objectively the case, it would not show that no substantial evidence supported the Board’s decision. The employees’ medical experts each had sufficient training and experience to be qualified as experts, each had qualified as expert witnesses in the past, and their testimony was not irrational.
For example, the Department claims the Board mistakenly concluded that Dr. Chamberlain “diagnosed that Brown suffered a head injury[.]” First, the Department points to Dr. Chamberlain’s report, where he referred to the fact that the emergency room doctor noted that Brown suffered significant facial injuries: “Not only does Dr. Chamberlain agree with emergency room physician, Dr. Isakari that Mr. Brown suffered no ‘head injury,’ but, instead, only facial injury, [the ALJ] fails to note this crucial concurrence in her decision.” This is sophistry: Both Drs. Isakari and Chamberlain “agree” that Brown suffered substantial facial injuries. The face is located on the head. Dr. Chamberlain testified that he was aware Brown was struck “with a significant amount of force,” such that his nose was broken, his lip was cut and he had swelling on the side of the head. Indeed, the Department’s brief concedes that Dr. Rappaport, the Department’s expert, testified that Brown did suffer a head injury, albeit not a brain injury. The quibbling about Dr. Chamberlain’s supposed agreement about head injury lacks merit.
As another example, the Department faults Drs. Chamberlain and Globus for not reading all of the relevant reports. Nowhere does the Department explain what parts of the allegedly-omitted reports were relevant. The Department goes so far as to fault Dr. Globus for introducing only a single page of Berry’s records and argues “the best evidence regarding Berry’s subjective complaints, the emergency room records, were never introduced into evidence.” Of course, if they were important, the Department could have introduced them into evidence. Further, as we explain in part III, post, the records show Berry had a head contusion and altered level of consciousness, which of itself shows that he had a head injury.
These illustrative examples show why we have no need to prolong this opinion by further parsing the Department’s attack on the medical evidence, which itself represents but a subsidiary part of the Board’s decision in this matter.
E. Conclusion as to Substantial Evidence
We have rejected each of the Department’s reasons why no substantial evidence supports the Board’s decision. At bottom, most of the claims are invitations to reweigh the evidence. Another Board might have come to a different conclusion, as the evidence was in conflict on several material points. However, the employees’ expert and one of the Department’s experts testified that force is appropriate until a ward stops resisting. The images show the wards continuing to move beyond the points identified by the Department’s expert as the points where force should have stopped. Whether those movements reflect resistance or perceived resistance is not clear from any of the images. On these facts we cannot say that no substantial evidence supports the Board’s decision, which credits the employees on the subject of reasonable force. Nor can we say the Board was required to find any employee was dishonest or took any improper steps. The fact that reasonable minds can differ means the trial court should not have set aside the Board’s decision in this difficult matter.
II. Ex Parte Communications & ALJ Bias
The ALJ issued an opinion that the Board vacated for a more detailed evidentiary discussion of specific points. In this vacated decision the ALJ had found that both parties presented qualified use-of-force experts who gave “articulate well-reasoned explanations,” but found Cameron “is more persuasive in light of all the evidence.”
In response to the Board’s remand for redrafting, the ALJ then issued a proposed decision in part as follows:
“Respondent and appellants both had well qualified experts testify regarding the use of force by Brown, Berry and Dutra. Respondent’s expert, Steve Cambra (Cambra) testified that these three appellants used unreasonable force under the circumstances of the inmate assaults. Appellants’ expert Michael Schott (Schott) testified that the three appellants used reasonable force under the circumstances. Both experts provided articulate well-reasoned explanations for their opinions. Applying the factors set forth in Evidence Code section 780, however, Schott’s testimony is credited over Cambra’s. In addition to being an expert in the area of use of force, Schott is also an expert in the area of crime scene reconstruction and forensic videography. This expertise gave Schott the ability to provide a more thorough, detailed and accurate analysis than Cambra of the videotaped use of force by Brown, Berry and Dutra.” (Underscoring added.)
The underscored portions of this passage are obviously wrong and reflect either scrivener’s error or misrecollection.
Although the facts about what happened next are not set out with clarity in the briefing, it is not disputed that counsel for the employees telephoned the ALJ to point out the mistake. As if that was not unfortunate enough, the ALJ accepted the call. The Department, in its rehearing petition before the Board, characterized the contact as follows: “Counsel [for the employees] advised [the ALJ] of an alleged error in [the decision]: [The ALJ] identified [Schott] as appellant’s Use of Force expert instead of Don Cameron. Neither [the ALJ] nor counsel [for the employees] called . . . any other counsel of record to take part in the discussion.” At the hearing in the trial court, Ms. Albertine, counsel for the employees, described the incident as follows: “So I called the judge up after a final decision and said it’s Mr. Cameron, not Mr. Schott, who was the use of force [expert], Mr. Schott was the video [expert]. That was the extent of the conversation, basically thank you very much, they issued an errata, [sic] and that was it.” Counsel for the Department in the trial court and on appeal did not dispute that that was the extent of the telephone call, although he disputed that the mistake in drafting was minor.
In any event, after the call the ALJ revised the proposed opinion as follows, with the important changes underscored:
“Respondent and appellants both had well qualified experts testify regarding the use of force by Brown, Berry and Dutra. Respondent’s expert, Steve Cambra (Cambra) testified that these three appellants used unreasonable force under the circumstances of the inmate assaults. Appellants’ use of force expert Don Cameron (Cameron) testified that the use of force by the three appellants was reasonable force under the circumstances. Both experts provided articulate well-reasoned explanations for their opinions. Cameron’s expert opinion was corroborated by the testimony of Michael Schott (Schott). Schott is an expert in the area of crime scene reconstruction and forensic videography. This [dual] expertise gave Schott the ability to provide a thorough, detailed and accurate analysis of the videotaped use of force by Brown, Berry and Dutra. Applying the factors set forth in Evidence Code section 780, Cameron and Schott’s testimony is credited over Cambra’s. The combination of the testimony of Cameron and Schott was of more convincing force [than] that of Cambra.fn.”
The footnote reads:
“Respondent also hired an expert videographer, Kendal [sic] Roman, to testify on its behalf. Roman, however, is not a crime reconstructionist and was not able to provide an expert opinion regarding crime reconstruction.”
This issue was tendered to the Board, which impliedly concluded it did not warrant a new hearing, and which referred to the change as an “Errata”.
The trial court applied independent review to the question whether the Department was deprived of a fair hearing in this matter by the telephone call, and found that the ALJ engaged in an improper ex parte communication. Without belaboring the point, we agree. (See Gov. Code, §§ 11430.10, subd. (a), 11475.20; Cal. Code Judicial Ethics, canon 3(B)(7).)
The trial court also concluded “the contact was limited to correcting the name of an expert in the decision, and [the ALJ] affirmed that the change made (name correction) ‘had no substantive input’ on [the] decision.” The Department did not dispute that the ALJ made such an affirmation. We agree with the trial court that because no evidence was taken and no argumentwas submitted during the ex parte communication, it did not violate the Department’s right to a fair hearing. (See Mathew Zaheri, Corp. v. New Motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1313-1320.) Further, in the vacated decision the ALJ had already concluded the employee’s expert was more persuasive: That critical conclusion never changed.
In the trial court, but not directly on appeal, the Department quoted many transcript passages to bolster its claim that the ALJ was biased and became an “advocate” for the employees, further showing that the Department did not receive a fair administrative hearing. These passages were tendered to the Board in the Department’s rehearing petition and impliedly rejected.
Briefly stated, these passages reflect ordinary exchanges between a judicial officer and counsel, and ordinary rulings on contested matters. For example, when denying the request for a continuance to allow Brown to be examined, discussed later, the ALJ stated “There’s no question that Mr. Brown had a head injury. The issue was how extensive was the injury.” The Department viewed this as bias, although it conceded Brown had nose and lip injuries. The Department faulted the ALJ for sustaining certain objections by counsel for the employees without requiring grounds to be stated, and at times overruling the Department’s objections by implication, instead of giving explicit rulings. Many examples of similar complaints are given. In none of the quoted instances did the ALJ demonstrate bias against the Department.
Mere disagreements about the way in which a judicial officer makes rulings or conducts a hearing do not of themselves show bias: “It was the trial judge’s duty to consider and pass upon the evidence presented to him. An opinion formed by a judge as the result of a judicial hearing, even though it is adverse to a party, does not amount to bias.” (Guardianship of L.V. (2006) 136 Cal.App.4th 481, 500; see Kreling v. Superior Court (1944) 25 Cal.2d 305, 312.) These points in the Department’s petition do not support a remand to the Board.
III. Denial of Continuance
The Department asserts that the ALJ abused its discretion by denying the Department’s two mid-hearing motions to continue so that the Department could arrange medical examinations of Brown and Berry. This issue was presented to the Board and impliedly rejected.
The Department claims the evidence about head injuries was “the heart of the case,” implying once again that the Board’s decision hinged on the finding that Berry and Brown had memory and perception problems. As stated above, the Board did not conclude that Berry or Brown should be excused from the consequences of inflicting excessive force because of head injuries, the Board concluded no excessive force was used. Thus, the continuance issue is not critical to the case. In any event, the Department’s claim of error lacks merit.
The trial court did not directly rule on the continuance issue: After concluding no substantial evidence supported the administrative decision, the court ordered the matter remanded for a new hearing before a new ALJ and stated:
“Further, the new ALJ should consider whether the [Department] should be allowed medical examination of [Brown and Berry] in order to fairly decide the issue of their claims of head injuries and memory losses.
“[The ALJ] heard only [the officers’] experts on this subject after a request for continuance by [the Department] for this purpose was denied.”
However, whether a continuance was warranted was not reviewable by the trial court and is not reviewable by this court. Government Code section 11524, subdivision (c) provides:
“In the event that an application for a continuance by a party is denied by an administrative law judge of the Office of Administrative Hearings, and the party seeks judicial review thereof, the party shall, within 10 working days of the denial, make application for appropriate judicial relief in the superior court or be barred from judicial review thereof as a matter of jurisdiction. A party applying for judicial relief from the denial shall give notice to the agency and other parties. Notwithstanding Section 1010 of the Code of Civil Procedure, the notice may be either oral at the time of the denial of application for a continuance or written at the same time application is made in court for judicial relief. This subdivision does not apply to the Department of Alcoholic Beverage Control.” (Italics added.)
The Department did not “make application for appropriate judicial relief” within 10 days and thus is “barred from judicial review” of the denials “as a matter of jurisdiction.” (Gov. Code, § 11524, subd. (c).)
Moreover, whether a continuance should be granted is committed to the sound discretion of the hearing officer:
“In exercising the power to grant continuances an administrative law judge must be guided by the same principles applicable to continuances generally in adjudicative settings. In this respect the litany must be ‘that “continuances be granted sparingly, nay grudgingly, and then only on a proper and adequate showing of good cause.”’ . . . In general, a continuance for a short and certain time is less objectionable than a continuance for a long and uncertain time [citations], and obviously there must be a substantial showing of necessity to support a continuance into the indefinite future. But ‘[t]he factors which influence the granting or denying of a continuance in any particular case are so varied that the trial judge must necessarily exercise a broad discretion.’ . . . And, since it is impossible to foresee or predict all of the vicissitudes that may occur in the course of a contested proceeding [citation], the determination of a request for a continuance must be based upon the facts and circumstances of the case as they exist at the time of the determination.” (Arnett v. Office of Administrative Hearings (1996) 49 Cal.App.4th 332, 342-343 (Arnett).)
In this case, both Berry and Brown were called as witnesses by the Department, which had access to their medical records.
The initial medical reports on Brown described his injury as “Copious bleeding from nose. Erthyma [sic, erythema, i.e., redness?]+ swelling present at septum. Noted laceration on upper lip at center.” A diagram on Brown’s chart also indicated “Swelling + erthyma [sic] [right] side of face[,]” and right “eye swelling + ecchymosis [i.e., bruise].” A chart from a health center later that day indicated “laceration inner upper lip” and “nose contusion.” A later report, from March 2, 2004, indicates “Post Face Contusion Headache” and “Nose Contusion & Fracture.” Further, Brown’s written incident report shows a serious head injury and clearly raises the issue of his claimed loss of memory:
“I looked away from [M.] to my contract paper and suddenly my head exploded, I’m not sure what happened next but I knew I was bleeding and I started defending myself, I was in fear of my life and I knew I had to get out of the office. Somehow during the struggle I managed to get to the Office door, the ward [M.] was hitting me and I was defending myself. Then we were in the dayroom struggling with each other near the YCC counter, somehow we were on the dayroom floor, I kept thinking if you [don’t] keep defending yourself he’s going to kill you and you have to keep going until security gets here. That’s what I remember, until I saw the green uniform of the security officer at which time I stopped and walked away.”
Berry’s initial medical report indicated “swelling + erthyma [sic] [left] side of head at temple. . . . Slow to answer direct questions; altered LOC [i.e., level of consciousness].” Berry’s chart from later that day includes “head contusion.” His report, more purple than Brown’s, stated he was disoriented and frightened, and:
“Faced with death amidst the deafening sound of the banging, yelling, and cheering of others, this writer then utilized his entire body and all the strength it could muster to survive this extremely vicious and unwarranted attack.”
Both Berry and Brown testified to memory issues several days before the Department made any motion. (All further dates are to 2005.) Both mentioned memory loss in testimony given on February 10. A nurse testified on February 14 that Berry had an altered level of consciousness and was “dazed,” and that Brown, who was covered with blood, had facial injuries. Berry testified on February 16 and again mentioned memory issues, and that he had thought he was fighting by himself for his life. The Department raised no issues about memory on February 16 or at the beginning of the February 23 hearing.
When the employees called psychologist Dr. Deffenbacher on February 23, and made an offer of proof that he would testify about the effects of stress on memory, the Department unsuccessfully objected that that was an issue within common experience and thus not appropriate for expert testimony. As stated above, Dr. Deffenbacher testified that these events were highly stressful, which could impair the employees’ memory and perception.
On the afternoon of February 23, the employees called psychiatrist Dr. Globus to the stand. As stated above, Dr. Globus’s opinion was that Berry “had a head injury which included at least a concussion.” In part this was based on the fact that the nurse recorded that Berry had an altered level of consciousness. On cross-examination the Department simply asked Dr. Globus to confirm that the emergency room report indicated Berry was oriented to time, place and person.
The Department did not seek any continuance on February 23. But before the next hearing day, March 1, the Department moved for a continuance to have Berry medically examined by the Department’s experts. The ALJ denied the motion on the ground that the medical reports from the day of the incident showed Berry had a head injury, and that was enough to alert the Department to the issue of possible memory loss. The ALJ also stated the Department could have invoked Government Code section 19253.5, pertaining to fitness-for-duty examinations, to have him examined. At the hearing, the Department did not dispute that the code section could have been used; it instead argued the Department had not been “tipped off” that it would be needed.
The employees then called Dr. Chamberlain to testify. When his report was mentioned, a recess was called and the Department moved to continue to have its expert examine Brown, arguing this was “the first indication we’ve had that Mr. Brown had any sort of head trauma or closed head injury.” The ALJ stated “with all due respect . . . I find that quite disingenuous considering the pictures and the medical records that are already in evidence. There’s no question that Mr. Brown had a head injury. The issue was how extensive was the injury.” In response, the Department argued that although it knew of the nose and lip injuries, that was not enough to indicate memory issues, and argued that the code section authorizing fitness-for-duty examinations applied only when there was an issue of a medical condition impairing an essential function of the job. Counsel for the employees argued that the Department knew Brown had trouble remembering, based on the investigatory interview, and the Department could have asked him if he had headaches or memory loss at any time, or triggered a fitness examination. The ALJ denied the motion.
As stated above, Dr. Chamberlain opined that Brown had memory problems “consistent with his having experienced a traumatic event” and “potentially consistent with a head injury,” and “I think Mr. Brown would not have been able to reliably tell when the threat had ended.”
On the last day of the 10-day hearing, March 2, 2005, the Department called Dr. Rappaport, who disagreed with Dr. Chamberlain’s conclusion that Brown suffered some injury affecting judgment. The Department also called Dr. Rubenstein, who disagreed with Dr. Globus’s conclusion that Berry had had a concussion.
The extent to which the initial medical records and employee interviews should have alerted the Department to the possibility of claims of memory loss due to the attack was a judgment call, and there was no indication how long the continuances would last. For these reasons the denials fell within the discretion of the ALJ: Although another ALJ might have ruled differently, if the issue had been preserved we could not say that this ALJ’s ruling was an abuse of discretion, or a misapplication of legal principles. (See Arnett, supra, 49 Cal.App.4th at pp. 342-343; Cf. Hays v. Viscome (1953) 122 Cal.App.2d 135, 140-141.)
IV. Conclusion
Because the Department failed to demonstrate any legal basis to overturn the Board’s decision, the trial court erred in setting that decision aside.
DISPOSITION
The judgment is reversed with directions to the trial court to deny the Department’s petition for writ of mandate.
The Department shall pay all costs on appeal. (Cal. Rules of Court, rule 8.278(1)(2).)
We concur: SCOTLAND , P.J., RAYE , J.
APPENDIX
Page 1: The Pajaro dayroom floor, showing the counselors’ counter, the office behind the counter and the two tiers of cells lining the dayroom.
Page 2: The highlighted circle shows the office struggle.
Page 3: Brown is on top of ward M., while Chiu is macing ward M.; Berry, on top of ward B., is behind them just outside the office door.
Page 4: Bridges stands next to Chiu; Berry kicks ward B. with the side of his shoe.
Page 5: Dutra, with one witness’s view of when he fired the waterballs indicated by lines added to the frames.