Opinion
B326373
07-02-2024
Bush Gottlieb, Dana S. Martinez and Vanessa C. Wright, for Petitioners and Appellants. Atkinson, Andelson, Loya, Ruud &Romo, Jay G. Trinnaman, Jorge J. Luna and Mae G. Alberto, for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 21STCP04029, Mitchell L. Beckloff, Judge. Affirmed in part, and reversed in part.
Bush Gottlieb, Dana S. Martinez and Vanessa C. Wright, for Petitioners and Appellants.
Atkinson, Andelson, Loya, Ruud &Romo, Jay G. Trinnaman, Jorge J. Luna and Mae G. Alberto, for Respondent.
MARTINEZ, P. J.
INTRODUCTION
Joy Alailima-Millon, a judicial assistant for the Los Angeles County Superior Court (LASC), was suspended from work for three days without pay as a disciplinary measure after she prepared a commitment order for a criminal defendant whose pre-sentencing custody credits (calculated in days) exceeded the imposed sentence (calculated in months). The issuance of the commitment order resulted in the defendant being overdetained for six days past sentencing.
After exhausting the applicable grievance process, Alailima-Millon and her employee union proceeded to arbitration on whether LASC had cause to discipline and suspend her for three days. The hearing officer concluded Alailima-Millon's actions warranted the discipline imposed because she did not seek clarification of the custody status of the defendant before issuing any custody paperwork, and that the level of discipline was reasonable in light of the circumstances. LASC adopted the hearing officer's decision, and Alailima-Millon and her union filed a petition for writ of mandate to set aside her suspension, which the superior court denied.
Alailima-Millon and her union appeal the superior court's denial of her petition for writ of mandate. Substantial evidence supports the ruling that LASC had cause to discipline Alailima-Millon. But, as explained below, we reverse the three-day suspension penalty and remand for reconsideration of what penalty, if any, is justified under the circumstances presented. Accordingly, we affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
A. Alailima-Millon's Employment and Prior Suspension
At the time of the 2017 incident at issue in this case, Alailima-Millon had been employed by LASC since 1990 and had been a judicial assistant in the criminal court of the Inglewood courthouse since 2008. She was assigned to the courtroom of Judge Victor Wright, for whom she had served continuously for eight or nine years at the time of the incident. During her employment with LASC, Alailima-Millon generally received positive performance reviews but also incurred a one-day disciplinary suspension in 2014. This one-day suspension was for failing to recall a bench warrant that led to an individual's erroneous arrest and detention for approximately one day.
LASC and American Federation of State, County and Municipal Employees, Local 575 (Local 575 or the union), Alailima-Millon's employee union, are parties to a Memorandum of Understanding (MOU) that covers the employment of judicial assistants. Article 36 of the MOU designates the Discipline and Discharge Policy (the Policy) as the operative agreement concerning employee discipline. The Policy provides that discipline shall be "'for cause,'" defined as "'a fair and honest cause or reason, regulated by good faith,'" and classifies any suspension of five days or less as "Minor Discipline." The Policy also provides that management "will apply progressive discipline to effectuate a change in the employee's conduct and/or performance," but that management "reserves the right to skip progressive discipline steps when it determines that circumstances warrant immediately suspending or terminating an employee."
B. Judicial Assistant Responsibility for Custody Paperwork
As part of her job duties, Alailima-Millon testified she processed approximately 10 to 15 criminal sentencing orders per month. During judicial assistant training, she was trained on provisions of the Manual of Procedure for Superior Court Clerks/Judicial Assistants (Manual) regarding custody paperwork. Both before and after the events giving rise to Alailima-Millon's suspension, LASC assigned judicial assistant trainees to Alailima-Millon for training, including the proper execution of sentencing orders.
Chapter 4, Section B of the Manual provides, in relevant part, that "[w]hen the court makes an order regarding a defendant's custody status, the proper paperwork (i.e. remand/removal order, commitment, release or certified copy of the minute order) must be issued to the Sheriff to effectuate the court's order. Custody paperwork must be issued as soon as possible and in no instance later than the end of the calendar day." Further, "[t]he defendant's custody status must be reflected on all minute orders."
Chapter 4, Section B also specifically cautions: "Many errors in the preparation of court paperwork are correctable, but harm to an individual or society by a defendant who was wrongly released cannot be undone nor can days of liberty lost to wrongful incarceration be replaced. Priority must be given to these particular functions, and careful attention given to the procedures outlined in this chapter. Errors that deprive any person of liberty, jeopardize public safety, or delay the criminal justice process will subject the Judicial Assistant to disciplinary action."
Chapter 4, Section F, subsections 1(a), (d), and (m) of the Manual provide that "[a]n 'Order for Release' must be prepared when the following circumstances occur:
(a) When a Defendant who is in custody is released on his or her own recognizance....
[¶]. . . [¶]
(d) When an in-custody Defendant has a total number of pre-sentence custody credits that are equal to or exceed the amount of time imposed at sentencing, i.e. 'Credit for Time Served.' . . .
[¶] . . . [¶]
(m) When the Court orders a defendant released on a particular case for any reason not stated above. If the Court does not specifically order a defendant released, it is the duty of the Judicial Assistant to determine whether a release should be issued and to confirm it with the Court."
Chapter 14, Section 11 of the Manual provides, in relevant part: "The Judicial Assistant is responsible for preparing a commitment whenever the defendant is ordered to serve time forthwith in state prison, DJJ, county jail, a mental hospital, or any other facility, or if the defendant has time remaining to be served. A release should be issued when an in-custody defendant has been sentenced to serve a period of time that is equal to or less than the amount of pre-sentence custody credits as ordered by the court. The Judicial Assistant is required to indicate on the minute order when a commitment is issued, or state the serial number of the release issued."
C. Sombrano's Erroneous Overdetention After Sentencing
On February 2, 2017 Judge Wright sentenced defendant Angelita Sombrano to 16 months in state prison, with pre-sentencing credits of 490 days. No conversion of months to days or release date was discussed at the hearing. Alailima-Millon then prepared a commitment order for "sixteen (16) months with credit for 490 days." After the commitment order issued, Sombrano was returned to custody.
The minute order prepared by Alailima-Millon states the sentence is to be served in county jail. However, the hearing transcript reflects that the court confirmed on the record "it's a state prison case" and ordered the sentence to be served in state prison. The court's sentencing memorandum and the erroneously issued commitment order likewise indicate a state prison sentence, and Judge Wright testified at the arbitration hearing that it was a state prison sentence. This error in the minute order was not addressed by the parties and does not affect our analysis.
The minute order, which was also prepared by Alailima-Millon, reflects the sentence of 16 months and credit of 490 days and states "commitment order issued," but also incorrectly states that Sombrano's custody status was "released on own recognizance." Alailima-Millon testified she could not recall indicating Sombrano's status as "released" on the minute order and did not recall whether it was her intent to do so.
The parties do not dispute that under any conversion calculation 16 months is less than 490 days, thus Sombrano should have been released on February 2.
On February 7, 2017 defense counsel called the court and stated Sombrano's pre-sentencing credits exceeded her sentence, and she should have been released on the day she was sentenced. Alailima-Millon brought the court file to Judge Wright, who confirmed 16 months of state prison "is equivalent to 480 days" and that Sombrano had sufficient credits to be released. Alailima-Millon then processed a release order for Sombrano, who was released shortly after midnight on February 8. After the release order was issued, Alailima-Millon self-reported the situation to court operations manager Gayna Squalls. Alailima-Millon and a union representative met with LASC performance investigators in May 2017, and Alailima-Millon prepared a statement about the overdetention incident dated May 19, 2017 on the understanding from management that there would be a possible suspension.
D. Administrative Proceedings and Arbitration Hearing
On April 12, 2018 LASC issued Alailima-Millon a Notice of Intent to Suspend her for three days for violation of the Manual of Procedure for Superior Court Clerks/Judicial Assistants. The Notice also alleged that Alailima-Millon violated Tenets Three and Six of the Code of Ethics for the Court Employees of California: "[A]ct[] always to promote public esteem in the court system[,]" and "Avoid any appearance of impropriety that might diminish the integrity and dignity of the Court."
After Alailima-Millon exhausted the grievance process under the MOU, including a Skelly hearing, LASC issued Alailima-Millon a final Notice of Suspension on July 20, 2018, signed by Chief Deputy of Operations Deni Butler.
A "Skelly hearing" refers to the administrative hearing required by Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly), which holds that a permanent civil service employee has a property interest in continued employment that is protected by due process.
In January 2019 Judge Wright provided written feedback to Squalls regarding Alailima-Millon's performance in which he emphasized that Alailima-Millon had been "consistently outstanding" over the past year. He also asserted Alailima-Millon "took the blame, somewhat unfairly" for the 2017 incident. Judge Wright explained he used the word "unfairly" "because the Court, defense and prosecution attorneys ALL AGREED on the correct calculation of time credits, and all agreed that the defendant in the case was likely to be released in a very short time, but not immediately," yet Alailima-Millon had to bear the brunt of the criticism and disciplinary action, even though she was "'only following the orders of the Court, as verified with both the prosecution and defense attorneys.'" He stated she "'handled the entire matter with grace and aplomb, and did not point the finger at anyone else, though she had every right to do so.'"
Alailima-Millon requested arbitration and the matter proceeded to a two-day arbitration hearing on April 29 and 30, 2021. The parties stipulated that the issue was whether "the Los Angeles Superior Court [had] proper cause to suspend Ms. [Alailima-]Millon for three days . . . and if not, what should be the remedy[.]"
The testifying witnesses were Court Operations Manager Tia Benson, Director of Civil Operations Nancy Bullock (who served as the Skelly officer at the Skelly hearing), Chief Deputy of Operations Deni Butler, Judge Wright, Alailima-Millon, and judicial assistant Kathlyn Evans.
Benson, who served as a judicial assistant and senior judicial assistant for approximately 15 years, testified extensively about training, duties, and responsibilities of judicial assistants in criminal courtrooms. Benson testified that judicial assistants' "duties with respect to custody paperwork" are provided during judicial assistant training and in the Manual. Benson conceded no written rule required judicial assistants to perform calculations, but she testified that when a judicial assistant is provided with a specific number of pre-sentence custody credit time and the time imposed at sentencing, it is the judicial assistant's duty to perform the calculation. Benson testified that all judges have their own "personal practices" and LASC expects a judicial assistant to "adjust to the judge's practices." In Benson's experience the judge was not required to specifically state that the credits exceeded the sentence, a judicial assistant had the responsibility to obtain clarification to prepare the proper document if the judge's order was unclear, and Benson believed Alailima-Millon had all the information she needed from Judge Wright's sentencing orders to issue a commitment or release order. Benson considered an overdetention to be a significant error because it deprives a person of their freedom.
Bullock testified her role at LASC included overseeing "pretty much everything that has to do with court operations," including training, ensuring staff compliance with procedures, and serving as Skelly officer. Bullock testified overdetention of a defendant was a serious issue because the impacted person had deprivation of liberty and could not get that time back. She stated it was "the JA's responsibility to issue the correct paperwork and to ensure that he or she, the JA, understands what the Court's order is," including asking for clarification whether a release order or commitment order should issue. Bullock testified it was the JA's role to calculate the credits stating, "I believe it's the JA's responsibility to look at the credits or at least ask the question even if there's no calculation done. But my training was to calculate the credits."
After evaluating all the information offered at the Skelly hearing, Bullock concluded Alailima-Millon's conduct warranted the proposed three-day suspension and made the recommendation to Butler. Bullock considered it progressive discipline because Alailima-Millon's failure to recall a bench warrant was a prior similar incident that also resulted in a person being erroneously detained, and because "the fact that this person was over detained in this case because the correct custody paperwork wasn't issued" was "very serious-one of the most serious arguably [sic] errors that a JA can commit." Bullock explained "it's one of the most egregious errors that you make, over detaining, under detaining, issuing a bench warrant in error, not recalling a bench warrant. Anything that could deprive someone of their liberty and have them in custody when they shouldn't be or having someone who's potentially dangerous released when they shouldn't be released." She noted that incorrectly executing orders that can result in someone being overdetained or arrested "impacts public trust." Bullock also stated that by failing to take responsibility Alailima-Millon showed a lack of "understanding of the importance of executing the orders correctly and what is required of a JA in that regard."
Butler, Bullock's supervisor, testified that "exhibits and custody paperwork are two of the highest priority things that are stressed for judicial assistants." Errors in such paperwork have "really dire consequences . . . such as over detention." Butler explained she considered overdentention serious because "somebody's liberty [is] being affected erroneously." She described Alailima-Millon's prior suspension as "similar in that it involved incorrect paperwork-custody paperwork," which is "one of the things that are highly stressed with judicial assistants to do accurately." She considered a three-day suspension warranted as "progressive discipline for custody paperwork errors." Butler's understanding was that it is appropriate for a release order to be issued "[w]henever the custody credit exceeds the confinement time," and that the expectation is for the judicial assistant to ask for clarification if there was any uncertainty.
Both Judge Wright and Alailima-Millon testified that in Judge Wright's courtroom, judicial assistants only prepare release orders when expressly instructed to do so, and that if such instructions were issued, they would be reflected in the record or sometimes (according to Alailima-Millon) by the judge writing "credit time served" on the sentencing sheet where he writes directions. Judge Wright stated that, "If [he] wanted the person to be released, [he] would have said on the record, 'The person is to be released forthwith.'" His understanding and expectation was that a release order should issue "[w]henever the judge orders the release for it." Alailima-Millon testified her judicial assistant training was that the judicial officer needed to use the words "order for release" for a release order to issue.
Judge Wright explained that after he prepares a state prison sentencing sheet, he asks the attorneys if the calculations are correct and if the defense wants the defendants to be transferred to state prison forthwith, then passes it to his judicial assistant to process the order. At that point, he stated, "I've put on there the number of months for the sentence. I put on the number of days from the credits and I look for somebody else to do the more nuanced calculation to see what happens in terms of eligibility for an immediate release." He noted that although LASC creates charts for other calculations such as conversion of fines and fees to community service, no one had ever generated or given the judges or judicial assistants a chart converting months of a sentence to days served.
Judge Wright did "[n]ot really" expect the judicial assistant to review the calculations, just to carry out the order. He felt the circumstances presented a "dilemma" in that "the attorneys all agreed and the court agreed with the attorneys on the time being imposed" but having a sentence stated in months and credits stated in days makes it hard to determine an exact calculation. Judge Wright stated that "[i]t's the attorneys' responsibility to make sure the correct time is imposed," and then for "the jailer[,] [s]omeone at the jail" to get into the calculations Judge Wright reiterated that if he states, "'I hereby order this person to be released,' I expect that there will be a release order issued. But in a situation like this, where I ordered custody credits and here's the sentence, I expect custody credits to be reflected, sentence to be reflected, send the paperwork to the jailer and let them figure out what happens next."
Judge Wright conceded he was not familiar with judicial assistant "rules and regulations," or "training requirements," including the Manual, and recognized "the judicial assistant rules and regulations [may] dictate something different" than his expectation.
Alailima-Millon testified, "I don't calculate the time. I don't calculate the Court's order. When the Court issues a sentence, 16 months and credit for the days, that's the paperwork of the commitment order." She stated usually the judge would say "'That's a release order'" if a sentence in months was less than credits in days, "[o]r actually the defense counsel-it's the defense counsel's responsibility to object to whether the defendant should get released."
Alailima-Millon believed she accurately prepared the paperwork in line with the court's sentencing order. She did not believe she did anything incorrectly. She did not believe that Sombrano was over detained at the time she prepared the commitment order, but agreed Sombrano was ultimately overdetained "[a]fter reviewing the case file, after being contacted by defense counsel and then after the court reviewing the file."
Alailima-Millon called Evans, a judicial assistant in criminal court since 2001, to testify about the job duties of a judicial assistant related to the calculation of time credits and sentencing orders. Evans did not discuss the Manual in her testimony. Evans testified she had not calculated sentence credits as one of her job duties, did not "have access to a calculator at my desk," and was not aware of "any court rules, policies and procedures that instruct JAs to calculate sentencing orders." Evans testified that during judicial assistant training, "the issue that would come up frequently is, 'How do I know when I'm supposed to issue a release'? Or 'How do I know when I'm supposed to commit'? And the response was always, 'Your bench officer will advise you.'"
Evans testified she listens for certain terms from the court in the preparation of custody paperwork, and in the absence of any specific statement by the judge such as "release" or "credit time served," she would probably reach for a commitment form first. Evans agreed that if the judge stated nothing but the sentence and credits, and the "credits exceed the sentence" it would "probably, maybe, yeah" be appropriate "to issue a release order." However, Evans explained, "I may check it later and come back after, but at that time, I would definitely think that the judge is under the impression that the defendant needs to be-still has time to serve." Evans stated if she determined the credits exceed the sentence she would "bring it to someone's attention for sure. Definitely bring it to the judge's attention."
E. Arbitration Decision
On September 7, 2021 the hearing officer issued a decision affirming that LASC's "decision to impose a three-day suspension as a corrective form of progressive discipline for Ms. [Alailima-]Millon's [failure] to seek clarification from Judge Wright as to the appropriate custody paperwork" was reasonable under the circumstances.
The hearing officer found the Manual governs the proper procedures for judicial assistants to follow with regard to custody orders. The hearing officer concluded that although Alailima-Millon had no express duty under the Manual to calculate custody credits in relation to the sentence ordered by the court (and witness testimony was split with regard to such a duty), the Manual imposed on her a clear and "critical" duty, "[i]f the Court does not specifically order a defendant released, . . . to determine whether a release should be issued and to confirm it with the Court." The hearing officer found the witnesses likewise consistently testified that "a Judicial Assistant is responsible to obtain clarification from the judicial officer about whether a release or commitment order should be issued in any particular case."
Because Alailima-Millon did not clarify the appropriate order with Judge Wright before issuing the commitment order, the hearing officer found Alailima-Millon's action warranted discipline because she "did not give Judge Wright the opportunity to clarify the custody status of the defendant before she filled out any form of custody paperwork."
The hearing officer further concluded the level of discipline was reasonable given Alialima-Millon's failure to acknowledge any responsibility for the error, the severity of the offense resulting in deprivation of liberty, and the Manual's notice that errors that deprive any person of liberty "will subject the Judicial Assistant to disciplinary action." The hearing officer also found the penalty was appropriate as progressive discipline for a second instance of an error affecting an individual's liberty, considering her prior one-day suspension for failure to recall a bench warrant that resulted in an erroneous arrest and detention.
On September 9, 2021 the LASC adopted the arbitration decision.
Under the MOU, the arbitrator's decision is advisory and nonbinding on the parties until adopted by LASC.
F. Petition for Writ of Mandate
Alailima-Millon and Local 575 filed a petition for writ of administrative mandamus in the superior court seeking an order for LASC to set aside Alailima-Millon's suspension. (Code Civ. Proc., § 1094.5.) The petition alleged the hearing officer's decision was not supported by substantial evidence, and LASC's decision to suspend Alailima-Millon for three days was an abuse of discretion.
On December 5, 2022 the superior court denied the petition for writ of mandate. Exercising independent judgment review, the superior court found there were no facts in dispute and the resolution of the issue turned on whether Alailima-Millon's undisputed conduct provided cause under the Manual for LASC to discipline her. It determined that Benson's testimony was more authoritative and persuasive than Judge Wright's on the subject of a judicial assistant's duties and responsibilities. And the court further determined that the Manual imposes a clear duty on a judicial assistant: if the sentencing judge "'does not specifically order a defendant released,'" it is the judicial assistant's duty "'to determine whether a release should be issued,'" and this duty necessarily requires the judicial assistant to consider whether "the total number of pre-sentence custody credits are equal to or exceed the amount of time imposed at sentencing.'" The court ruled that Alailima-Millon made no attempt "'to determine whether a release should be issued and [then] confirm it with the court,'" as required under the Manual.
The superior court concluded that "the weight of the evidence supports LASC's decision Petitioner committed a serious breach of her duties established by the Manual when she failed to determine whether a release should issue after the court sentenced Defendant and provided Defendant's pre-custody credits. The serious breach of duty constituted just cause for discipline. Petitioner's error resulted in [Sombrano's] deprivation of liberty for six days."
Further, the superior court determined the penalty of a three-day suspension was not a manifest abuse of discretion given the serious nature of Alailima-Millon's error, which deprived Sombrano of her liberty for six days. The superior court recognized that Alailima-Millon consistently received positive performance evaluations, but noted that her previous suspension also involved incorrect custody paperwork-failure to recall a bench warrant-that led to an individual's erroneous arrest and detention for one day. The court acknowledged LASC's progressive discipline policy but determined the penalty was consistent with the Discipline and Discharge Policy due to the seriousness of the error-"arguably 'the most serious' error 'that a JA can commit'"-noting that LASC's policies are clear that the progressive discipline process may be skipped when management determines that circumstances warrant immediate suspension.
Alailima-Millon and Local 575 appealed the superior court's December 5, 2022 order on January 31, 2023. On March 7, 2023 the superior court entered judgment. We treat the notice of appeal as being filed immediately after judgment. (See Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1113 ["a trial court's complete denial of a petition for administrative mandamus is a final judgment that may be appealed by the petitioner"]; Id. at p. 1117, fn. 3 [whether labeled "order" or "judgment," "'"[i]t is not the form of the decree but the substance and effect of the adjudication which is determinative"'"]; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 700 [notice of appeal from order denying administrative mandamus "'may . . . be treated as a premature but valid appeal from the judgment'"]; Cal. Rules of Court, rule 8.104(d)(2).)
DISCUSSION
A. Standard of Review
On review of administrative mandamus, "[t]he applicable standards of review at the superior court and appellate court levels differ depending upon which issues are under review. With respect to culpability, i.e., whether [the public employee] in fact committed the misconduct alleged, the superior court has extensive powers of review.... [¶] . . . [¶] With respect to the question of penalty, the superior court's powers of review are quite limited, and are exercised only with great deference to the administrative agency's findings." (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45 (Deegan); see Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda).)
"[W]hen the trial court reviews an administrative decision that substantially affects a fundamental vested right, the trial court '. . . exercises its independent judgment upon the evidence.'" (Sarka v. Regents of University of California (2006) 146 Cal.App.4th 261, 270 (Sarka), quoting Bixby v. Pierno (1971) 4 Cal.3d 130, 143; see Code Civ. Proc., § 1094.5, subd. (c).) "'[D]iscipline imposed on [public] employees affects their fundamental vested right in their employment,'" thus the superior court is "required to exercise its independent judgment on the evidence and find an abuse of discretion if the [] findings of [] misconduct were not supported by the weight of the evidence." (Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560, 572-573; see Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314.)
Under the independent-judgment standard, "the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda, supra, 20 Cal.4th at p. 817.) "The trial court begins its review with the presumption that the administrative findings are correct, and then, after according the respect due these findings, the court exercises independent judgment in making its own findings." (Sarka, supra, 146 Cal.App.4th at p. 270; see Fukada, at p. 819.) "The trial court resolves evidentiary conflicts and is required to assess witnesses' credibility and to arrive at its own independent findings of fact." (Deegan, supra, 72 Cal.App.4th at p. 45.) Our review of the superior court's ruling under the independent-judgment standard is for substantial evidence. (See Fukuda, at p. 824; Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 321 ["[a]n appellate court must sustain the superior court's findings if substantial evidence supports them"].)
As to the penalty imposed, the standard of review is different. In the superior court, "[d]espite this independent judgment about the agency's findings, trial courts must not disturb a penalty absent an abuse of discretion." (Griego v. City of Barstow (2023) 87 Cal.App.5th 133, 138-139 (Griego); see Deegan, supra, 72 Cal.App.4th at p. 45].) Public "[a]gencies have a wide latitude of discretion, and courts defer to their expertise unless the penalty is '"'arbitrary, capricious or patently abusive.'"'" (Griego, at p. 139.) "The trial court is not free to substitute its discretion for that of the agency concerning the degree of punishment." (Id. at pp. 138-139; see Nightingale v. State Personnel Board (1972) 7 Cal.3d 507, 515 ["in reviewing the penalty imposed by an administrative body, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter"].)
We independently review the agency's determination of penalty, without deference to the superior court's ruling, and examine whether the agency abused its discretion. (See Griego, supra, 87 Cal.App.5th at p. 139 ["On appeal, we also review the administrative decision-not the trial court's-for abuse of discretion."]; see also Deegan, supra, 72 Cal.App.4th at p. 46 ["if reasonable minds can differ with regard to the propriety of the disciplinary action, [there is] no abuse of discretion"].) "In considering whether such abuse [of discretion] occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, '[h]arm to the public service.' [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence." (Skelly, supra, 15 Cal.3d at p. 218.)
Alailima-Millon's reply brief appears to argue for the first time that a de novo review standard applies to the discipline and penalty imposed, but the argument is forfeited. (See Vines v. O'Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 190 [argument asserted for first time in reply brief is forfeited; collecting cases].) In all events, her argument is unpersuasive in light of the standards outlined above.
B. Substantial Evidence Supports the Superior Court's Finding that Alailima-Millon Was Disciplined for Cause
Alailima-Millon contends LASC failed to prove she engaged in any wrongdoing or any conduct that violated LASC's rules, and LASC did not provide her with adequate notice of the rules she allegedly violated or the consequences of violating them. We conclude the record contains substantial evidence to support the superior court's conclusion that the weight of the evidence supported the hearing officer's finding that LASC had cause to discipline Alailima-Millon.
The superior court found, and substantial evidence supports, that Alailima-Millon had a duty to prepare the proper commitment orders and to inquire of the court if there is any uncertainty. The Manual directs that "'[t]he Judicial Assistant is responsible for preparing a commitment whenever the defendant is ordered to serve time . . ., or if the defendant has time remaining to be served. A release should be issued when an in-custody defendant has been sentenced to serve a period of time that is equal to or less than the amount of pre-sentence custody credits as ordered by the Court." Benson testified that judicial assistants' "obligations with respect to custody paperwork" are memorialized in the Manual. Alailima-Millon was provided with a copy of the Manual when she was a judicial assistant trainee and testified she was familiar with it.
The Manual requires a judicial assistant to prepare a release order where, as here, "'an in-custody defendant has a total number of pre-sentence custody credits that are equal to or exceed the amount of time imposed at sentencing, i.e., 'Credit for Time Served.'" Benson testified that where a judicial assistant is provided with specific figures for pre-sentence custody credit time and for the time imposed at sentencing, it is the judicial assistant's duty to perform the necessary calculation to determine whether to prepare a commitment or release order. Butler also testified that her training was to "calculate the credits," and that she believed "it's the JA's responsibility to look at the credits or at least ask the question even if there's no calculation done." Butler further testified that a release order should issue "[w]henever the custody credit exceeds the confinement time," and that the expectation is for the judicial assistant to ask for clarification from the sentencing judge if there was any uncertainty.
Additionally, the Manual provides that "[i]f the Court does not specifically order a defendant released, it is the duty of the Judicial Assistant to determine whether a release should be issued and to confirm it with the Court." Benson testified the judge is not required to say "order release" or any specific release language for the judicial assistant to have sufficient information to process the custody paperwork properly, and that it is the judicial assistant's responsibility to clarify any ambiguity or confusion in order to prepare the proper document. Bullock also testified it was "the JA's responsibility to issue the correct paperwork and to ensure that he or she, the JA, understands what the Court's order is," including asking for clarification whether a release order or commitment order should issue. In sum, there is substantial evidence supporting the superior court's ruling.
Alailima-Millon relies heavily on favorable testimony from Judge Wright that she did nothing wrong, and she further argues that Judge Wright did not expressly order Sombrano's release. But as LASC argues, "Judge Wright admitted he did not know the responsibilities and requirements of a Judicial Assistant, what they are trained on, or what the Manual states." Indeed, this testimony does not justify Alailima-Millon's nonperformance of her independent duty to confirm with the judge whether a release should be prepared and issued. That Judge Wright was "very meticulous" and had a practice to specify when a release order was required does not mean that the superior court's ruling here was unsupported by substantial evidence, particularly given the other evidence of a judicial assistant duties outlined in the Manual and testimony of Benson and Bullock. (See Deegan, supra, 72 Cal.App.4th at p. 46 [on a petition for writ of administrative mandate, where the superior court has reviewed evidence and made findings, "we resolve all conflicts in favor of the party prevailing in the superior court and give that party the benefit of every reasonable inference"].)
Proper calculation of sentencing is the responsibility of judges. But that does not obviate or dilute the substantial evidence before the superior court that a judicial assistant also bears independent responsibility under the circumstances here. As it was required to do, the superior court weighed the evidence and assessed the witnesses' statements in its independent review of all the evidence (see Deegan, supra, 72 Cal.App.4th at p. 45), and it expressly found Benson, a Court Operations Manager, was more authoritative and persuasive than Judge Wright with regard to judicial assistants' duties. "'[T]he testimony of a witness whom the trier of fact believes, whether contradicted or uncontradicted, is substantial evidence, and we must defer to the trial court's determination that these witnesses were credible.'" (Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services (2012) 209 Cal.App.4th 445, 458 (Lone Star).)
In addition to the testimony of Benson and Bullock outlining judicial assistants' duties and training, the Manual put Alailima-Millon on notice that: "Errors that deprive any person of liberty, jeopardize public safety, or delay the criminal justice process will subject the Judicial Assistant to disciplinary action." Further, Bullock testified that overdetention of a defendant due to incorrect custody paperwork is "one of the most serious arguably errors that a JA can commit," "one of the most egregious errors that you make." Butler testified that "exhibits and custody paperwork are two of the highest priority things that are stressed for judicial assistants" due to the liberty interests affected. Evans's testimony, introduced by Alailima-Millon, was largely consistent with this point.
In sum, the Manual and witness statements constitute substantial evidence supporting the superior court's finding that the weight of the evidence showed LASC had cause to discipline Alailima-Millon. (See Yazdi v. Dental Bd. of California (2020) 57 Cal.App.5th 25, 39-45 (Yazdi) [opinion testimony on dental practice standard of care and published disciplinary guidelines constituted substantial evidence in support of superior court's finding that the weight of the evidence supported Dental Board's findings of failure to meet standards of care, improper fee charges, and excessive care]; Lone Star, supra, 209 Cal.App.4th at p. 458 ["documentary evidence and testimony found credible by the ALJ" constituted substantial evidence supporting trial court's findings that alarm company licensees made untrue or misleading statements and committed dishonest or fraudulent acts in violation of license requirements].)
That LASC took more than a year to discipline her does not undercut this conclusion, as Alailima-Millon does not persuasively demonstrate how the delay by LASC in imposing discipline deprived her of a fair hearing or prejudiced her. (Cf. Doe v. Occidental College (2019) 37 Cal.App.5th 1003, 1016 [delay in college student disciplinary hearing not prejudicial where student failed to indicate how he was prejudiced by any delay, or any witness who could not testify due to the delay].)
Alailima-Millon also argues LASC lacked cause to discipline her because she was subject to an unfair and inadequate investigation, and her discipline was "disparate in nature." We do not consider these arguments because she did not raise them in arbitration, and thus has not exhausted her administrative remedies. "Under California law, exhaustion of administrative remedies is not a matter of judicial discretion but is a jurisdictional rule of procedure that forecloses judicial review until it is satisfied." (Public Employee's Retirement System v. Santa Clara Valley Transportation Authority (2018) 23 Cal.App.5th 1040, 1046; see California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.)
C. Alailima-Millon's Three-day Suspension Was an Abuse of Discretion
We independently review the agency's determination of penalty, without deference to the superior court's ruling, and examine whether the agency abused its discretion. (See Griego, supra, 87 Cal.App.5th at p. 139.) Our authority to review LASC's penalty for Alailima-Millon's misconduct is "quite limited" and "exercised . . . with great deference to the administrative agency's findings." (Deegan, supra, 72 Cal.App.4th at p. 45; see County of Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 634 ["An appellate court is not free to substitute its discretion for that of the administrative agency."].)
Even applying this deferential standard, we conclude that a three-day suspension was an abuse of discretion as a penalty for Alailima-Millon's error. There is no doubt this error was serious. It resulted in the deprivation of Sombrano's freedom for six days, a significant infringement of liberty. Overdetention and sentencing errors impact public trust in the court system, as Bullock testified. But that is not the end of our analysis.
We reject Alailima-Millon's argument that LASC's almost two-year delay in imposing punishment somehow belies the seriousness of the error.
The arbitrator justified the penalty imposed based on LASC's argument that Alailima-Millon "fail[ed] to acknowledge any responsibility for the error" and that this was "a second custody paperwork error." Neither justification withstands scrutiny. The first conflates Alailima-Millon's exercise of her right to challenge the discipline and penalty imposed through the grievance, arbitration, and litigation process with abnegation of responsibility. LASC's respondent's brief at page 29, for example, argues that "during the arbitration hearing, Alailima-Millon tried to deflect all blame and refused to take any responsibility" and that "Alailima-Millon continues to deflect blame in this appeal."
But the evidence before the arbitrator demonstrated that after defense counsel notified her of the error, she brought the court file to Judge Wright, processed a release order for Sombrano, and then self-reported the situation to LASC management. Her decision to exercise her right to challenge the discipline and penalty does not support the arbitrator's determination that she did not take responsibility for the error, nor does the fact she raised concerns with the arbitrator's decision dilute the fact that she raised the issue with the judge and self-reported as soon as she was aware of the error, thereby taking responsibility. The concerns Alailima-Millon raised, including that three legal professionals (the prosecutor, the defense attorney, and the judge) failed to identify that Sombrano should have been released at the hearing and that Judge Wright did not require her to calculate sentence credits as part of her job duties, were reasonable.
In addition, there was no substantial evidence suggesting a likelihood of recurrence. The arbitrator conflated the error in this case with one where Alailima-Millon previously failed to recall a bench warrant in 2014. That resulted in an individual's erroneous arrest and detention, and she was disciplined with a one-day suspension. (See Skelly, supra, 15 Cal.3d at p. 218 [in determining abuse of discretion in penalty, courts consider harm to public service, circumstances surrounding misconduct, and likelihood of its recurrence]; Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 230 ["The 'overriding consideration' in cases of public employee discipline 'is the extent to which the employee's conduct resulted in, or if repeated is likely to result in, "[h]arm to the public service."'"].) Both events were serious and had similar effects on an individual's liberty and potential court exposure to liability. But the notice of suspension from the 2014 incident reflected that, "The Court ordered that the bench warrants . . . be recalled and quashed. [Citation.] You failed to recall the bench warrants as ordered by the Court." That failure to follow a clear instruction to recall a bench warrant is fundamentally different than what the arbitrator herself recognized as "the ambiguous circumstances that arose in this case."
In reviewing a penalty imposed by an administrative body, "'"[n]either a trial court nor an appellate court is free to substitute its own discretion as to the matter; nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court's own evaluation of the circumstances the penalty appears to be too harsh."'" (Yazdi, supra, 57 Cal.App.5th at p. 46; accord, Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 107; see Nightingale v. State Personnel Board, supra, 7 Cal.3d at p. 515 ["it is well settled that in reviewing the penalty imposed by an administrative body, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter"].) But that does not mean the three-day suspension penalty imposed on Alailima-Millon was justified by the evidence before the arbitrator.
DISPOSITION
The judgment of the superior court is affirmed in part and reversed in part. We affirm the determination that Alailima-Millon was disciplined for cause. We reverse the three-day suspension penalty and direct the superior court to remand to LASC to reconsider what penalty, if any, is justified under the circumstances presented. The parties are to bear their own costs on appeal.
We concur: SEGAL, J., FEUER, J.