Division Three
Franklin Opp,
Plaintiff and Appellant,
v.
City of Huntington Beach
Personnel Commission et al.,
Defendants and Appellants.
G025947
2003 Cal. App. Unpub. Lexis
920
January 29, 2003, Filed
Sills,
P.J.
Franklin Opp discovered his estranged wife in bed with another man.
After sending her nude lover fleeing for his life, Opp attacked his wife, and
in a scene rather too reminiscent of the last act in Othello, almost strangled
her.
Opp was, at the time, a detention officer for the Huntington Beach
Police Department. The city fired him for the attack on his wife. Then he
contested the termination in superior court. The trial judge granted a writ of
administrative mandate directing the city to give him lesser punishment, on the
theory that there was an insufficiently strong nexus between the attack and Opp’s
duties as a detention officer.
We now reverse. Opp’s inability to control his anger as exemplified by
the near-killing of his wife is sufficient to justify his termination. Having a
“temper,” to use a now-quaint expression, is not a desirable trait for a police
officer who must regularly work with sometimes violent arrestees. If Opp ever
reacted to a personal affront from an arrestee the way he reacted with his
wife, a police brutality suit would be virtually inevitable. As it is, the
near-choking death of Opp’s estranged wife shows that the city could reasonably
view Opp as a police brutality lawsuit waiting to happen. Additionally,
toleration of this most egregious form of domestic violence within the police
ranks poses grave potential for morale problems. Termination was therefore
reasonable under the circumstances.
The incident that triggered the city’s
decision to terminate Frank Opp took place on the evening of April 17, 1994, at
about 11:00 p.m.
On that evening, Opp entered his estranged wife’s separate residence
with a duplicate key he had made without her knowledge or consent because he
suspected that she was seeing another man. Opp then proceeded to the bedroom
where he found his wife and another man naked in bed. He turned the lights on
and forced the man out of the apartment. Terrified, his wife went to the
telephone to call 911. Opp grabbed the phone, yanked the battery out and threw
the telephone against the wall. He then pushed his wife down to the bed,
straddled her, placed his hands on her neck and yelled he should “kill her.”
When his wife pleaded that she could not breathe, Opp let go of her throat,
grabbed her purse and left.
His wife then went to a nearby convenience
market where she dialed 911 and told the operator what had happened and
requested police assistance. A Garden Grove police officer was dispatched and upon
arriving at the convenience store began an investigation.
Following the attack, Frank Opp went to the
home of an acquaintance in the Huntington Beach Police Department, Mike
Metoyer. Metoyer and Opp took Opp’s wife’s purse to her parent’s home. Meanwhile
Metoyer contacted Lt. Clyde Stuart, another Huntington Beach police officer,
who wrote down a report of the incident. Lt. Stuart gave his report to Lt. John
Arnold. Lt. Arnold became the lead investigator in the subsequent internal
affairs investigation.
After interviewing Frank Opp, Metoyer, and the Garden Grove officer,
Lt. Arnold issued a report in June 1994 in which he stated that Opp had
committed trespass, battery and false imprisonment. He concluded that Opp had
violated Police Department Manual Section 2/765.03, which generally provides
that an officer shall obey all federal, state and local laws.
After considering the results of Lt. Arnold’s investigation, Huntington
Beach Police Chief Lowenberg served Opp with a notice of intent to terminate
him. On August 23, 1994, Chief Lowenberg afforded Opp an opportunity to be
heard with respect to the proposed termination at a “Skelly” hearing. After
hearing Opp’s arguments against termination, Chief Lowenberg decided that
termination was the appropriate disciplinary penalty.
Opp was never tried on any criminal charges for the attack on his wife.
In fact, in March 1997 in testimony for a city hearing officer, she retracted
her initial story.
Opp appealed his termination under city
administrative rules, and when the decision was upheld, Opp filed a petition
for writ of administrative mandamus under Code of Civil Procedure section
1094.5. The trial judge ruled that the city had abused its discretion in
terminating Opp because “the facts do not support the decision that there was a
legally sufficient nexus between [Opp’s] alleged acts and his job duties.” He
ordered the matter sent back to the city for some lesser punishment than
termination. This appeal then followed.
A. Opp’s
Cross Appeal
1.
The Statement of Decision
We will take Opp’s cross-appeal first,
because it raises the issue of whether Opp really did what the city and trial
court found that he did. The argument is founded on two comments uttered by the
trial judge in oral argument prior to signing the statement of decision.
The first comment was made in the context
of a motion for reconsideration by the city. There, the trial judge observed
that “A principal controverted issue at trial [the judge was referring to the
administrative hearings, there was no actual trial in the superior court] was
whether the respondents abused their discretion . . . by concluding . . . [P] .
. . that there was a legally sufficient nexus between petitioner’s alleged acts
and his job duties . . . .” (Emphasis added.)
The other comment was when counsel for the
city attempted to obtain the court’s ruling that the weight of the evidence
supported the finding that Opp had, indeed, attacked his wife and committed
trespass, battery and false imprisonment. The trial judge replied that “That is
all that I intended and all that I ruled upon on that day to my knowledge.”
In the actual statement of decision,
however, the trial court adopted the city’s version of the facts. That is, the
trial court signed the statement of decision submitted to it by the city. Opp
now complains it was error to do so.
The argument is meritless because the trial
court has the inherent power to change its findings of fact right up until the
entry of judgment (e.g., Phillips v. Phillips (1953) 41 Cal.2d 869, 874-875,
264 P.2d 926) and, a fortiori, between the time of some off-hand comments in
oral argument and when it signs the statement of decision. Thus even if the
trial court had initially hemmed and hawed over precisely what happened, its
decision to sign the city’s proffered statement of decision was itself the
manifestation of what it actually found.
Along these lines, one of the themes of Opp’s
brief is that the trial court abused its discretion in adopting a statement of
decision prepared by attorneys for the losing party. It is an interesting
point, though Beatrice Companies v. Superior Court (1986) 182 Cal. App. 3d 525,
227 Cal. Rptr. 316, relied on by Opp to make it, doesn’t really help him. In
Beatrice Companies the trial court denied a summary judgment motion, and when
the disappointed moving party asked the court, as was its right, to identify
the triable issue, it merely said that there was a triable issue as to the “liability”
of the moving party. (See id. at p. 527.) The court also directed the moving
party to prepare the order after the hearing. When the moving party sought writ
relief, the appellate court sent the case back for reconsideration because “liability”
was a mere conclusion, not the identification of a triable issue of fact. In
the process the appellate court observed that the trial court should not have
directed the losing party to prepare the formal order, even though that party
had complied “as best it could.” (Ibid.)
Unlike Beatrice Companies, this case does not turn on the need to
specify in a written order the precise triable issues of fact that preclude a
summary judgment motion. A straight summary judgment motion, as was the case in
Beatrice Companies, is a binary process. You win or you lose. The court is
either right, or wrong, in granting it, or denying it. Like pregnancy, it is
not something that happens “only a little bit.”
Unlike summary judgment motions, the review
of an administrative record to determine whether discipline exceeded the bounds
of reason is not a binary matter. The central issue is the proper gradation of
punishment -- was termination too much? So there can be part winners and part
losers: There is nothing inherently inconsistent in allowing the party who “lost”
on the issue of whether termination was too much but who “won” on the issue of
what actually happened to prepare the statement of decision.
True, a party preparing a statement of
decision does not have an incentive to make the trial court’s decision look
good on the point it lost. The present case is a perfect example. The statement
of decision evidences attentive, almost loving care in its statement of factual
findings. Page after page describes in detail Opp’s attack on his wife and the
subsequent investigation. But the statement of decision relegates the issue of
the nexus between the misconduct and the job duties to one begrudging
paragraph, in which the writers emotionally distance themselves from the result
by stating it in terms of what the “court has determined” (as distinct from
saying it directly) and by not making any effort to demonstrate the validity of
the point. In fact, the entirety of the statement’s substantive material on the
nexus issue is set forth in just one sentence: “The Court has determined that
the facts do not support the decision that there was a legally sufficient nexus
between Petitioner’s alleged acts and his job duties, and that in so deciding,
Respondents did abuse their discretion.” Not only does the sentence put all the
responsibility on the court, but it fails to offer a single reason to support the court’s conclusion.
Nor does any other matter in the statement of decision. If the statement of
decision were a law school exam, it is unlikely that the writer would be
awarded any points for the treatment of the nexus issue, other than for just “spotting”
it in the first place.
Even so, it was hardly an abuse of
discretion for the trial court to sign such a statement of decision. The other
side will have had the opportunity to call any actual sabotage of the point on
which it prevailed to the trial court’s attention before signing, a prospect
which keeps the preparer honest. More to the point, trial judges are grownups
with law degrees, most of them accustomed from private practice to editing
material submitted by subordinates, and they may be presumed to know that they
can edit a statement of decision to their heart’s content. Again, the very
decision to sign the document is in itself significant. If the trial judge
decides to sign a statement of decision that doesn’t make a strong case for the
conclusion he or she has reached, that is what the judge has decided to sign.
2.
The Retraction and Lack of Criminal Prosecution
On
the merits, there is no question that substantial evidence supports the factual
findings set forth in this statement of decision. The fact is that the conduct
of Opp and his wife in the aftermath of whatever happened on the night of April
17 corroborates the city’s version. If the whole story were his wife’s
fabrication, the odds are that she wouldn’t have called 911 from a nearby
market, and Opp wouldn’t have gone to another officer (who backed up the wife’s
story, not Opp’s) about it.
The fact that Opp’s wife subsequently
retracted her version no doubt gave the fact-finders pause. However, they
weighed the evidence, including her retraction, and still concluded there was
an attack, including a near-strangulation. Opp’s wife’s retraction was simply
found not to count for much, which is a not unreasonable conclusion under such
circumstances. Abused spouses often retract their initial stories of abuse to
protect the abusing spouse. (E.g., Beloof & Shapiro, Let the Truth Be Told:
Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of Court
Statements as Substantive Evidence (2002) 11 Colum. J. Gender & L. 1, 3 [“Non-cooperation
by recantation or failure to appear at trial is an epidemic in domestic
violence cases. . . . It is commonplace for domestic violence victims to recant
or minimize initial reports of abuse. The head of the Family Violence Division
of the Los Angeles District Attorney’s Office estimates that ninety percent of
domestic violence victims recant.”].)
The fact that Opp wasn’t prosecuted (perhaps
even because of the retraction) is also of no moment, though Opp argued in the
trial court that his firing violated Labor Code section 432.7 because he was
not prosecuted. Labor Code section 432.7 precludes use in an employment
decision such as termination of an “arrest or detention that did not result in
conviction.” The statement of decision actually signed by the trial judge said
that the statute had not been violated, and Opp now contends that “it is
inconceivable” that the court should have ruled on the point when it only
showed “minimal, if any, interest” in it.
This argument fails in manifold ways.
Apropos what we have just said, the trial judge did rule on the point by
signing the city’s statement of decision. And he was right on the merits of the
Labor Code section 432.7 issue. First, Opp was not arrested or detained; there
was, at most, only an “incident report” from the Garden Grove police officer.
Second, subdivision (b) of the statute allows even information in an arrest
report to be used to trigger “an independent, internal investigation of a peace
officer.” Third, subdivision (e) of the statute says that “persons already
employed as peace officers . . . are not covered by this section.”
B.
The City’s Appeal
Having established that Opp attacked his wife in a jealous rage, the
next question is whether the trial court was correct in determining that the
city abused its discretion in meting out the harsh punishment of termination.
(See Lake v. Civil Service Commission (1975) 47 Cal. App. 3d 224, 228, 120 Cal.
Rptr. 452 [in determining whether an agency abused its discretion in assessing
a particular penalty, a court will look to whether reasonable minds may differ
as to the propriety of a penalty imposed]; see also Kazensky v. City of Merced
(1998) 65 Cal.App.4th 44, 54 [general statement of abuse of discretion standard
in administrative discipline cases].)
That is, we are not concerned with whether
the trial court’s decision was an abuse of discretion, but whether the trial
court was correct in determining that the city abused its discretion. (See
Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46 [“The appellate
court conducts a de novo review of the penalty assessed, giving no deference to
the trial court’s determination.”].)
The trial court found that the facts did not support termination
because there was no legally sufficient “nexus” between Opp’s acts and his job
duties. As we have pointed out above, the trial court wasn’t exactly verbose in
explaining itself.
Had the trial court tried to explain
itself, it might have seen the flaw in its reasoning. The court seemed to be
saying that because Opp had only attacked his estranged spouse, and not
somebody connected to his job duties, like a prisoner, the nexus between the
attack and his job duties was insufficient to justify full termination. Or, to
put it another way, the court was saying that a single instance of an inability
to control one’s temper in a domestic context -- even to the point of possibly
choking his wife to death -- is legally insufficient to fire a jailer.
We simply cannot agree with the trial court. Of course the inability to
control one’s temper when it almost leads to the death of a person by
strangulation with one’s own hands is legally sufficient. One of the biggest
risks that a city faces in operating a police force are “excessive” force
claims. When an officer displays such temper off the job that a person’s life
is jeopardized -- any person’s life, including (perhaps especially) his or her
spouse’s -- the city may reasonably conclude that the officer poses a
significant danger of overreaction on the job.
Jailers do not have the liberty of overreacting to personal slights
directed toward them, particularly in the application of their hands to other
people’s necks. Embarrassing investigations and lawsuits can follow in the wake
of such overreaction. Unlike forgiving spouses, prisoners are likely to sue if
they are almost choked to death. (Carson v. Polley (5th Cir. 1982) 689 F.2d 562
[police brutality suit based on, inter alia, choking of suspect after arrival
in jail]; see also Springer v. Coleman (5th Cir. 1993) 998 F.2d 320 [perjury
case arising out of denial by jailer that he had choked prisoners and suspects
in his custody].)
The city’s jail facility where Opp worked
holds up to 200 prisoners and serves as the booking facility for six
neighboring cities. It is a stressful place, and the odds that Opp might get
into an altercation with an obstreperous arrestee are not low. Should an
arrestee direct some personal slight in Opp’s direction (e.g., an ad hominem
remark or nasty gesture), heaven help the city’s treasury if Opp reacts like he
did on the night of April 17. n1
True, Opp is unlikely to meet his wife again in the professional
capacity of a jailer. But this case is not about the danger to his wife. It is
about the danger to the public fisc if one of its officers “loses it” when
provoked. n2
Our conclusion is only common sense.
However, it is not without precedential support. Gray v. State Personnel Bd.
(1985) 166 Cal. App. 3d 1229, 213 Cal. Rptr. 5 is a case uncannily similar to
the one before us (except the trial court there agreed with the administrative
result). There, a correctional officer was terminated by the state personnel
board after assaulting a man he saw leaving his former girlfriend’s house and
then using his gun to break into the house. The officer lost his job and sought
a writ of mandate to be reinstated. The trial court denied the petition, and
the officer appealed, claiming there was an insufficient nexus between the work
and the misconduct.
Not so, said the appellate court, in a
short opinion largely quoting from the personnel board’s factual findings. (See
Gray, supra, 166 Cal. App. 3d at p. 1231.) The court simply said that the
officer’s “misuse of his weapon and loss of self-control raised doubts about
his ability to remain calm under stressful circumstances at work.” The court
also noted that to allow the officer to continue working would adversely affect
morale among the other officers. Accordingly there was substantial evidence to
uphold the nexus finding. (Id. at p. 1232.)
Opp tries to distinguish Gray because in
Gray there was the misuse of a gun and here there is no gun. That is true, but
unpersuasive, because the core of the misconduct in Gray was the misuse of
force after losing self-control. In fact, in Gray the misuse of the gun as a
crowbar to break into property was less egregious than the use of a trained
officer’s hands to inflict near-fatal personal injury. Opp has been trained to
use his hands to keep inmates under control. Under the circumstances they
functioned even more like weapons than did the gun in Gray.
Finally, there is the matter of morale and
good discipline within police ranks. Courts in other states have upheld the
termination of police officers for cheating on their wives, much less
physically assaulting them. (E.g., Wilson v. Swing (M.D.N.C. 1978) 463 F. Supp.
555.)
As Blackstone realized, some acts are evil in
themselves (malum in se) and some are merely crimes because the sovereign has
made them so (malum prohibitum). There is thus a difference between battery and
overtime parking. Here, we fear the trial judge minimized the gravity of the
acts that Opp was found to have committed. Battery is not somehow more
excusable if it also is spousal abuse, done in reaction to discovering one’s
spouse (and here, one’s estranged spouse) in flagrante delicto with another.
The battery here was severe and might have resulted in death. To let Opp “get
away with it” by keeping his job (particularly in light of the prosecutor’s
decision not to file charges) would send a bad message to the rest of the
force: Egregious behavior will be tolerated, at least if perpetrated against a
spouse.
The city was well within reason to
terminate Opp from his employment in the wake of his attack on his wife.
Indeed, the maintenance of good order and discipline in a police department
demands no less. In light of that conclusion, Opp’s argument in his
cross-appeal that the trial court erred in not reinstating him with an award of
back pay must also fail.
The judgment issuing the writ of mandate
precluding termination of Franklin Opp is reversed. The case is remanded to the
superior court with directions to enter a new judgment denying the requested
writ of mandate in favor of City.
Given that Opp prevailed on the termination
issue in the trial court, each side will bear its own costs in the interests of
justice.
Sills, P.J.
We
concur:
Bedsworth,
J.
Aronson,
J.
1
The present case does not require us to speculate on the question of whether
the record of Opp’s discipline might ever get before the jury in a hypothetical
police brutality case occurring after Opp’s reinstatement and overreaction.
However, just asking the question shows the reasonableness of the city’s
position. Suppose the city hadn’t pressed for his termination, and then Opp,
upon return to duty, nearly choked a prisoner to death. You don’t need a law
degree to imagine what a good plaintiff’s attorney would try to do with the
fact that the city hadn’t fired him. Whether the attorney would succeed is not
before us.
2
Opp stresses that the whole event of April 17 was at most the result of the “heat
of passion.” But even that point is undercut by disturbing indicia of
premeditation. Opp made a copy of his estranged wife’s key without her
knowledge or consent. (That was another point she retracted later, saying she
had “probably” discussed Opp’s getting a key before the attack.) He used that
key to enter into the house late at night, obviously suspicious of his
separated wife’s activities. That is the sort of behavior that usually goes, in
the present vernacular, under the rubric “control-freak.”
Notice: Not to be published in Official Reports California Rules of Court, Rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by Rule 977(b). This opinion has not been certified for publication or ordered published for purposes of Rule 977.