Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00093270- CU-WM-CTL, Steven R. Denton, Judge.
BENKE, Acting P. J.
Alexei E. Sviridov, a police officer with the San Diego Police Department (police department) and an employee of the City of San Diego (the city), was charged with child abuse based on his teenage daughter's accusation he struck her. A jury found Sviridov guilty of battery and he was placed on probation and fined. Sviridov appealed his conviction, and while his criminal appeal was pending, investigators for the police department asked Sviridov whether he had struck his daughter. Sviridov denied his daughter's accusation. The police department then terminated Sviridov's employment on the grounds he was dishonest when answering the investigators' questions. Sviridov contested his termination in an administrative proceeding.
While Sviridov's administrative appeal was pending, the appellate division of the superior court reversed Sviridov's criminal conviction. The appellate division found the jury should have been instructed with respect to a parent's right to discipline a child. On remand, the city attorney, who had prosecuted the criminal charges, decided not to retry Sviridov. Shortly thereafter, at a contested hearing under Penal Code section 531.8, Sviridov obtained an order finding he was factually innocent. The city attorney, who contested the innocence finding, did not seek review of the trial court's order.
All further statutory references are to the Penal Code unless otherwise specified.
Before Sviridov's administrative appeal could be heard on the merits, the city decided to rescind its termination of Sviridov, restore him to his position and pay him his back pay and benefits. The city also offered to destroy Sviridov's internal affairs file; he refused this aspect of the city's offer. In light of the city's decision to reinstate Sviridov, the city asked the board considering Sviridov's administrative appeal to order Sviridov's reinstatement without reaching the merits of Sviridov's contention the city had not acted properly in terminating him. Over Sviridov's objections, the board agreed with the city and ordered Sviridov's reinstatement without reaching the merits of his contentions.
By way of a petition for administrative mandamus, Sviridov challenged the board's disposition of his administrative appeal. He argued he was entitled to a determination on the merits of his claim he had not struck his daughter and had not been dishonest. He further argued that in light of the order finding he was factually innocent, the board was obligated to resolve the merits in his favor. The trial court denied his petition, and on appeal Sviridov again argues he was entitled to a favorable determination on the merits.
We affirm. Once the city agreed Sviridov was entitled to all the relief he could obtain administratively, his administrative claim was moot and there was no need to determine whether he struck his daughter or was dishonest in denying that he had done so.
FACTUAL AND PROCEDURAL BACKGROUND
1. 2006: Battery Allegations and Conviction
In 2006 Sviridov was employed by the city. On March 23, 2006, Sviridov got into an argument with his 16-year-old daughter (the girl). Later in the evening of March 23, 2006, a friend of Sviridov's daughter and the friend's mother noticed the girl's face appeared injured. The girl's friend and the friend's mother photographed the girl's injuries and reported them to child abuse investigators.
The girl told child abuse investigators her father had struck her in the face a number of times because she had received poor grades in school. The girl was removed from her home on the evening of March 23, 2006, and spent the night in the Polinsky Children's Center.
According to Sviridov's wife, the argument started when Sviridov told his daughter that because of her poor grades, her birthday party was cancelled. In Sviridov's wife's version of events, the girl responded by screaming "You can't do this" and throwing her bowl of food on the floor. According to Sviridov, he stayed calm as the girl screamed and threw her food on the floor. In the version of events the girl gave child abuse investigators, Sviridov struck her on the face and pushed her face into her bowl of food.
On May 22, 2006, Sviridov was placed on administrative leave by the chief of police. Sviridov was also charged in a criminal proceeding initiated by the city attorney with two counts of child abuse (§ 273a, subd. (b)), or in the alternative simple battery (§§ 242, 243 subd. (a)), and one count of intimidating a witness (§ 136.1 (B)(1).) Prior to trial on the criminal charges, the city attorney dismissed the witness intimidation count.
On September 15, 2006, Sviridov was convicted of one count of simple battery related to the Marsh 23, 2006 incident. On October 6, 2006, Sviridov was sentenced to three years' probation and fined $485. As a condition of probation, Sviridov was ordered not to carry a firearm for 10 years. As we have indicated, on October 16, 2006, Sviridov appealed his conviction to the appellate division of the superior court.
We have taken judicial notice of Sviridov's notice of appeal from his criminal conviction and the appellate division's opinion. (Cal. Rules of Court, rule 8.252(a)(2).) We have also taken judicial notice of the city's "Dimensions in Discipline, " which was offered in the trial court. We have denied the remainder of the city's request for judicial notice because the documents for which it seeks judicial notice were not considered by the trial court. (See Cal. Rules of Court, rule 8.252(a)(2).)
2. 2007: Termination of Employment and Reversal of Conviction
On January 16, 2007, Sviridov was interviewed by a police department investigator. Sviridov was asked whether he struck his daughter on March 23, 2006. Sviridov denied striking his daughter. In light of its apparent belief Sviridov was not truthful in responding to the investigator's questions, the city initiated employment termination proceedings and conducted a pre-termination administrative hearing on August 17, 2007.
See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 203.
On October 17, 2007, the appellate division of the superior court reversed Sviridov's battery conviction because the trial court failed to instruct the jury sua sponte on a parent's right to discipline a child. The appellate division stated: "Appellant testified at trial that he never struck his daughter. However, based on evidence introduced by the People, the jury could have concluded that the Appellant slapped his daughter while disciplining her. Reasonable parental discipline may provide a defense to battery. [Citations.] The trial court's failure to instruct on this issue erroneously removed a material issue from the jury's consideration. In view of Appellant's acquittal on the child abuse charge for the same conduct, it cannot be said that this error was harmless."
Notwithstanding the appellate division's decision, on November 30, 2007, the chief of police formally terminated Sviridov's employment. In terminating Sviridov's employment, the chief found Sviridov was untruthful with respect to his claim he did not strike his daughter on March 23, 2006, and that Sviridov's "untruthfulness in this matter has brought discredit to you as a Police Officer. The credibility of your future testimonies as a Police Officer will be disputed. You are no longer a credible witness for the San Diego Police Department."
On December 3, 2007, Sviridov filed an appeal of his termination with the Civil Service Commission of the City of San Diego (the civil service commission). On the following day, December 4, 2007, the city attorney decided not to retry Sviridov on the pending criminal charges.
On December 17, 2007, Sviridov filed a petition under section 531.8 seeking an order determining that he was factually innocent of the charges to which he was subjected.
3. 2008: Factual Innocence Order and Reinstatement Determination
On January 16, 2008, following a contested hearing, the trial court, acting under the provisions of section 531.8, determined that Sviridov was factually innocent of the charges which were made against him and later dismissed.
On April 1, 2008, the city, acting in the pending civil service commission proceeding, filed a motion to rescind Sviridov's termination. By way of the motion, the city offered to reinstate Sviridov, with retroactive pay and benefits, and no loss of promotion opportunity or pay increases. However, the city's motion further stated: "This motion does not constitute any admission by the City of San Diego, including SDPD, of any violation of any local, State or Federal law, rule, or resolution, nor does it constitute any admission of wrongdoing."
Sviridov opposed the city's motion and argued he was entitled to a hearing before the commission and a determination by the commission that he did not lie about striking his daughter. Sviridov also filed a motion with the civil service commission in which he asked the commission to determine he was terminated without cause. The hearing officer assigned to make recommendations to the commission granted the city's motion and denied Sviridov's motion. The hearing officer found that the city's decision to rescind Sviridov's termination rendered Sviridov's administrative appeal moot and that no hearing on the merits was required.
On October 2, 2008, the civil service commission adopted the hearing officer's findings and directed that Sviridov be reinstated to his position without any loss of pay or benefits. Also on October 2, 2008, the police department ordered Sviridov to return to work the following day. In its letter directing Sviridov to return to work, the police department stated that, upon his return to service, the trial court's order finding him factually innocent would be appended to his internal affairs file. According to Sviridov, previously the police department also offered to destroy his internal affairs file. According to Sviridov, he declined the department's offer.
4. Writ of Mandate
Sviridov did not return to work as ordered and he was again terminated from his employment by the city. Rather than returning to work, Sviridov filed a petition for a writ of administrative mandamus in which he challenged the civil service commission's decision to grant the city's motion without reaching the merits of his claim that he did not lie about striking his daughter.
The trial court denied Sviridov's petition. The court found that in light of the city's decision to reinstate Sviridov, there was no need for any determination on the merits: "[T]he Commission is empowered to 'affirm, modify, or overturn the decision' terminating petitioner. The Commission's order... demonstrates that in granting the motion to rescind the termination it was, in reality, ordering the restoration of petitioner's position, with back pay. Thus, it accomplished everything within its power and there was nothing left to address such that a hearing on the merits would have been futile." Following entry of judgment, Sviridov filed a timely notice of appeal.
Following entry of judgment in the trial court, the city paid and Sviridov accepted his back pay and benefits. We deny the city's motion to dismiss Sviridov's appeal on the grounds that by accepting back pay and benefits Sviridov waived his right to appeal. We note the city has, in three separate forums—the civil service commission, the superior court, and this court—insisted that it does not dispute Sviridov's right to back pay and benefits and that therefore Sviridov's claims are moot. Where as here there is no dispute as to an appellant's right to the benefits of a judgment, the appellant may accept the benefits without impairing his right to appeal. (See Vela v. Glendora Unified School Dist. (1982) 129 Cal.App.3d 766, 770.)
DISCUSSION
On appeal, Sviridov contends he was entitled to a hearing and ruling on the merits under the terms of the city's civil service regulations, as a matter of due process and under the terms of a statute which protected him from punitive action by the police department. As we explain more fully below, we are not persuaded by these contentions.
I
Civil Service Provisions
As Sviridov points out, both the San Diego City Charter and the San Diego Municipal Code afford permanent employees who have been terminated "the right to be heard before the [civil service commission]." (San Diego City Charter, § 129, San Diego Mun. Code, § 23.1205(a).) Under San Diego Municipal Code section 23.1205(b), the commission may, as it did in this case, appoint one of its members to "hear the appeal and submit findings of fact and a decision to the Commission. Based on the findings of fact, the Commission may affirm, modify, or overturn the decision...." Ultimately, however, the power of the civil service commission is limited to the remedies provided by San Diego Municipal Code section 23.1205(d). Under San Diego Municipal Code section 23.1205(d): "The Commission may at its discretion: (1)... order the restoration of the employee to the position without loss of pay or with any intermediate degree of discipline during the period between the filing of the charges and a date specified in the Commission's order. (2) Order the demotion of the employee to a class for which a lower maximum rate of compensation is prescribed. (3) Order the removal of the employee from the position; provided that in case of such removal the Commission may at its discretion put the name of the employee on the eligible list for the class for certification when a vacancy occurs in some other department. The decision of the Civil Service Commission in any such case shall be final...."
As the city points out, nothing in the foregoing regulations expressly prevents the civil service commission from terminating an employee's appeal, when, as is the case here, circumstances have rendered the appeal moot. Moreover, the fact the city provides in its charter and municipal code an administrative forum and detailed administrative procedures for resolving employment disputes between city agencies and city employees does not give rise to any inference that where a dispute between a city agency and an employee no longer exists, the administrative forum, once engaged, must nonetheless act. Such an inference would be inconsistent with the well-recognized legal principle that our courts will not decide cases where circumstances arising after a case has been initiated prevent a court from providing either party meaningful relief. (See Wilson v. L. A. Civil Service Com. (1952) 112 Cal.App.2d 450, 453; 3 Witkin, Cal. Procedure (5th ed.) Actions § 32, p. 98.) In particular, we note the doctrine of mootness has consistently been recognized in cases where an administrative decision was challenged in a judicial forum by way of administrative mandamus and then became moot. (See Environmental Protection Information Center, Inc. v. State Bd. of Forestry (1993) 20 Cal.App.4th 27, 31; Save Oxnard Shores v. California Coastal Com. (1986) 179 Cal.App.3d 140, 149; Hixon v. County of L. A. (1974) 38 Cal.App.3d 370, 378.) Although our Constitution and the Code of Civil Procedure provide a far broader and more powerful forum for resolution of civil disputes than San Diego's limited civil service appeal process, the power of the judicial forum is plainly subject to the limitation implied by our courts that only existing, justiciable controversies, will be decided by our courts. Given this well-recognized, albeit nonstatutory, limitation on judicial power, we do not believe the drafters of the city's charter or municipal code intended that the quasi-judicial forum and remedies they provided would nonetheless compel administrative resolution of moot controversies.
Moreover, it is plain that in fact Sviridov's claim is moot. In Environmental Protection Information Center, Inc. v. State Bd. of Forestry, supra, 20 Cal.App.4th at pages 31-32, the court considered a case where the State Board of Forestry had approved a timber harvesting plan, the plan was challenged by way of a petition for administrative mandamus, and the board responded to the petition by advising the trial court that it planned to rescind its approval of the timber harvesting plan and did not oppose issuance of an alternative writ compelling rescission of its approval. (Id. at p. 29.) The trial court issued the alternative writ and the board rescinded its approval of the harvesting plan. (Id. at p. 30.) In finding that by complying with the alternative writ the board had effectively ended the proceeding, the court stated: "It is clear that once the Board fully complied with the alternative writ, the initial writ petition had served its purpose and was moot.... [Citations.] Given full compliance with the alternative writ, no further judicial action could be taken save dismissal: Mandamus does not lie to compel that which is being done voluntarily." (Id. at p. 32.)
Here, the civil service commission at most had the power to provide Sviridov with reinstatement, back pay and benefits, and no loss of the opportunity for future raises or advancement. (See San Diego Mun. Code, § 23.1205(d)(1).) Thus the city, by agreeing to provide Sviridov with everything the commission was empowered to order, rendered Sviridov's administrative appeal moot. (See Environmental Protection Information Center, Inc. v. State Bd. of Forestry, supra, 20 Cal.App.4th at pp. 31-32.) The civil service commission, like the court in a mandate proceeding, had no power to compel what was voluntarily provided by the city.
This is not a case where, because of the public importance of the issues being litigated, an exception to the doctrine of mootness might be recognized. (See Wilson v. L. A. County Civil Service Com., supra, 112 Cal.App.2d at p. 453.)
II
Due Process
Notwithstanding the city's agreement to reinstate him with back pay and benefits, Sviridov nonetheless contends he had a due process right to a hearing on the merits of his claim that he did not strike his daughter and did not lie to police investigators when he was asked about his confrontation with her. We reject this claim as well.
We begin by recognizing the well-established principle that due process does not protect a citizen's interest in his or her reputation alone. (Paul v. Davis (1976) 424 U.S. 693, 712 [96 S.Ct. 1155]; Siegert v. Gilley (1991) 500 U.S. 226, 232-233 [111 S.Ct. 1789]; Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 418; Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1218-1220 (Caloca).) In Paul v. Davis a police chief distributed a flyer listing the plaintiff as an "active shoplifter." In holding the police chief had not infringed on any interest protected by the due process clause, the court stated: "[T]he interest in reputation asserted in this case is neither 'liberty' nor 'property' guaranteed against state deprivation without due process of law." (Paul v. Davis, supra, 424 U.S. at p. 712.) In Siegert v. Gilley a psychologist who was employed by the federal government was defamed by his former supervisor, and as a result of the defamation was unable to obtain new employment. Although the court recognized the psychologist might have a tort claim against the government, relying on its earlier holding in Paul v. Davis the court held the psychologist could not assert the defamatory statements infringed on any constitutional interest: "Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation." (Siegert v. Gilley, supra, 500 U.S. at p. 233, italics added.)
In Haight v. City of San Diego the plaintiff was a former police officer who, after leaving the police department, discovered derogatory comments in his personnel file. In finding the comments would not support a due process claim, we stated: " 'A person's protected interests are not infringed merely by defamatory statements, for an interest in reputation alone is not a constitutionally protected liberty interest....' " (Haight v. City of San Diego, supra, 228 Cal.App.3d at p. 418.) We rejected a similar due process claim in Caloca v. County of San Diego, supra, 72 Cal.App.4th at pp. 1218-1220.
In Caloca a group of sheriff's deputies were subject to an investigation by a county-sanctioned Citizens Law Enforcement Review Board (CLERB). Without conducting any hearings at which the officers were permitted to challenge the evidence against them or present any defense, the CLERB made findings that the deputies had engaged in serious misconduct. However, the CLERB was solely an advisory body with no power to impose any sanction for misconduct and its findings did not result any adverse employment action against the deputies.
After the county and its civil service commission refused to provide the deputies with any liberty interest hearing or administrative appeal of the CLERB's findings, the deputies filed a petition for a writ of mandate in the superior court in which they alleged among other matters that the CLERB findings invaded their liberty interest and gave rise to the right to a hearing under the due process clauses of the state and federal Constitutions. The superior court denied their petition.
We rejected the deputies' due process claims because the deputies did not suffer the loss of any government benefit. "We have previously observed '[i]t is well established "[a] person's protected interests are not infringed merely by defamatory statements, for an interest in reputation alone is not a constitutionally protected liberty interest. [Citation.] Rather, the liberty interest is infringed only when the defamation is made in connection with the loss of a government benefit, such as... employment. [Citations.]" ' [Citation.]" (Caloca, supra, 72 Cal.App.4th at p. 1218.) Thus we concluded that because there was no evidence the deputies suffered the loss of any government benefit, they were not entitled to any liberty interest hearings. (Id. at p. 1220.)
Plainly, at the time Sviridov's civil service commission proceedings commenced, he was entitled to a hearing on the merits of the police chief's claims. At that point in time, he was terminated and was entitled to a hearing at which he could challenge his termination. However, following the commission's decision reinstating Sviridov, Sviridov was no longer subject to the loss of any government benefit. As we have noted, the commission's order restored him to his prior position without the loss of any pay or benefits, or the impairment of any opportunity for future raises or promotions. Having been fully restored to his prior position, he cannot claim further proceedings were needed to protect any constitutionally cognizable interest. (Caloca, supra, 72 Cal.App.4th at p. 1218.)
Were we to resolve this question in Sviridov's favor, we would, as a practical matter, be holding that once civil service proceedings commence, they cannot be terminated without a determination on the merits. As we noted in discussing the commission's power to dismiss moot cases, there is nothing in the city's civil service regulations which requires such an inflexible and impractical application of civil service procedures. Suffice it to say we have found no constitutional principle which requires a hearing even after a litigant's constitutional interests have been fully vindicated.
III
Statutory Rights
As Sviridov notes, although in Caloca we found the deputies were not entitled to a due process liberty interest hearing, we did find the Public Safety Officers Procedural Bill of Rights, Government Code section 3300 et seq. (Police Officer's Bill of Rights), required the county provide an administrative appeal of the unchallenged CLERB findings.
In addition to the procedural protection the Constitution affords police officers when their employment status or benefits are directly threatened by their employer, the Police Officer's Bill of Rights provides police officers with procedural protection when their employer merely takes action "which may lead" to such an adverse employment consequence. (Gov. Code, § 3303.) In Caloca we agreed with the deputies that because the CLERB findings might have a negative impact on the deputies' careers, the findings were within the broader scope of the Police Officer's Bill of Rights and required the county provide the deputies with some administrative redress from the CLERB findings. (Caloca, supra, 72 Cal.App.4th at pp. 1221-1222.) We stated: "[A] CLERB report sustaining a finding of misconduct against an officer cannot be viewed as analogous to a negative job performance review placed in an officer's personnel file, a circumstance our court previously found insufficient to constitute punitive action entitling the subject officer to an administrative appeal. [Citations.] Unlike an internal performance evaluation, known only to a select number of colleagues, a CLERB report must be sent to the board of supervisors and the sheriff (CLERB Rules and Regs. § 16.8), thus placing it in the public arena and expanding its impact." (Caloca, supra, 72 Cal.App.4th at p. 1222.) Accordingly, we found the officers were entitled to an administrative appeal from the CLERB finding.
On this record neither the Police Officer's Bill of Rights nor Caloca provides Sviridov any remedy. First, we note that unlike the officers in Caloca, who were given no procedural redress by the CLERB, here following his notice of termination Sviridov was afforded an opportunity to challenge that action by way of the civil service proceeding he in fact initiated and in which he prevailed. Thus the only question here is whether, following the civil service commission order, there was some action by the police department which was not addressed by the civil service commission order and which may have led to further adverse employment consequences. (Gov. Code, § 3300.)
Our review of the record shows that the civil service commission order in fact addressed all the action which the police department took against him: it restored him to his position with back pay and no loss of benefits. In addition the record also shows the city also agreed to attach the trial court's finding of factual innocence to his internal affairs file. Thus in short, Sviridov's employment record shows that while serious charges were made against him, those charges were dropped, and the city offered to restore him to his prior position without loss of pay or benefits and recognize that in a collateral proceeding he was found innocent. According to Sviridov himself, the city offered to go further and destroy his internal affairs file. Given this undisputed record, following the civil service commission's order, there was no outstanding action by the police department which may have reasonably led to any adverse employment consequence.
In this regard it is important to recognize that in Caloca we did not hold that damage to an officer's reputation by itself will give rise to any procedural rights under the Police Officer's Bill of Rights. Rather, we, like the statute itself, limited administrative redress to particular actions taken by a law enforcement agency. In Caloca the action in dispute and subject to redress was the CLERB report; here, the action was Sviridov's termination. Plainly, even when an agency's punitive action has been successfully challenged on the merits in an administrative proceeding, an officer's reputation may never be entirely restored. Caloca did not and could not provide administrative remedy for any such residual harm to an officer's reputation. Rather, any harm to an officer's reputation must be remedied by way of a civil defamation action, if it is otherwise available. (See Siegert v. Gilley, supra, 500 U.S. at p. 233.)
IV
Because neither the city's civil service regulations, due process, nor the Police Officer's Bill of Rights, required any hearing on the merits of Sviridov's claims, we need not and do not consider Sviridov's further claim that had the commission reached the merits it would have been bound under principles of collateral estoppel by the trial court's factual innocence order. We note however that the protection an innocence finding under section 531.8 affords a successful criminal defendant is markedly different than a determination as to whether an agency acted properly based on the information available to it at the time it made an employment decision and that application of collateral estoppel to innocence findings has been denied in similar contexts. (See Tennison v. California Victim Comp. & Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1181.)
Judgment affirmed. Respondents to recover their costs of appeal.
WE CONCUR: NARES, J., IRION, J.