Filed 10/3/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

COUNTY OF LOS ANGELES,

Plaintiff and Respondent,

v.

CIVIL SERVICE COMMISSION OF 

THE COUNTY OF LOS ANGELES,

Defendant;

MARK MONTEZ, 

 Real Party in Interest and 

 Appellant.

B282133

(Los Angeles County

Super. Ct. No. BS158562)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. James C. Chalfant, Judge. Affirmed.

The Gibbons Firm, Elizabeth J. Gibbons for Real Party in 

Interest and Appellant. 

Peterson Bradford Burkwitz, Avi Burkwitz and M. G. 

Kwon, for Plaintiff and Respondent.

______________________________
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Los Angeles County Sheriff’s Deputy Mark Montez failed to 

report and lied about the unreasonable use of force by another 

deputy against an inmate at the Men’s Central Jail in Los 

Angeles (the jail). The Sheriff’s Department discharged Montez, 

but after an administrative hearing the Los Angeles County Civil 

Service Commission (the Commission) reduced his discharge to a 

30-day suspension without back pay. The county petitioned the 

superior court for a writ vacating the Commission’s decision and 

upholding Montez’s discharge. The court, Judge James C. 

Chalfant presiding, found that the Commission’s decision was 

unsupported by its own findings. The court accordingly issued a 

writ ordering the Commission to set aside its decision and 

reconsider the matter.

We conclude that Montez’s misconduct was an inexcusable 

neglect of duty that harmed the Sheriff’s Department by 

compromising the public’s ability to trust it, and the Commission

abused its discretion by reducing Montez’s punishment. 

Therefore, we affirm the trial court’s order.

BACKGROUND

The facts as found by the Commission are undisputed for 

purposes of these proceedings.

On September 27, 2010, Dequan Ballard, an inmate in the 

jail, stole items from a commissary cart. The theft was reported 

to Deputy Omar Lopez, who informed Montez.

Lopez and Montez took Ballard to an elevator landing to 

strip search him for the stolen items. Lopez searched Ballard 

while Montez monitored the hallway to provide security against 

other inmates interfering or Ballard becoming violent. During 

the search, Lopez issued verbal commands to Ballard and struck 

him multiple times with his fist. Montez was aware of the 
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assault, but neither participated in it nor knew ahead of time 

that it would take place.

After Ballard returned to his dormitory he confronted and 

threatened the commissary employee who had reported the theft. 

Lopez thereafter took Ballard to a control booth area just 

outside the dormitory. Lopez papered over a window in the 

dormitory door to prevent inmates inside from seeing into the 

control booth, and Christina Ramirez, a civilian custody 

assistant, instructed the inmates to lie down in their bunks to 

prevent them from watching the interaction between Lopez and 

Ballard. Lopez then shoved Ballard face first into a wall, causing 

“severe bleeding from his face, nose, and mouth areas” and 

bloodying his clothes, the wall, and the floor. 

Lopez and Tianna Tipton, another civilian custody 

assistant, retrieved clean clothes for Ballard and summoned a 

trustee to clean the blood off the wall and floor. When Lopez 

escorted Ballard back to his dorm, Tipton kicked his bloody 

clothes down the hallway. 

Montez was not present during the second assault but 

arrived shortly thereafter and had a brief conversation with 

Lopez outside the control booth, and at one point stood in front of 

the bloody wall. The Sheriff’s Department concluded that he

then became aware of the blood on the wall and thus of the 

second assault. 

Montez failed to report either incident.

The Sheriff’s Internal Affairs Bureau (IAB) investigated 

the incidents. When interviewed, Montez stated he could hear 

Lopez’s commands to Ballard in the elevator landing but heard 

no indications of an assault. He denied observing any injuries to 

Ballard and denied observing blood on the control room wall, and 
4

when shown a video of himself and Lopez standing in the control 

room area, Montez stated he did not recognize Lopez. 

Deputy Meghan Pasos admitted she saw Lopez push 

Ballard’s face into the control room wall, but did not report the 

incident. 

After the Los Angeles City Attorney, Los Angeles County 

District Attorney, and Attorney General declined to file charges, 

the Sheriff discharged Deputy Pasos and notified Montez that he 

would be discharged for failure to conform to work standards by 

(1) failing to report his observation of a use of force by another 

deputy and (2) making false statements during the department’s 

investigation, to wit: that he was unaware of the use of force by 

Lopez; that he did not hear the confrontation between Lopez and 

Ballard; that he did not observe a trustee cleaning blood from the 

control booth wall; and that he could not recognize Lopez on a 

videotape. 

Montez appealed his discharge to the Commission, which 

held an evidentiary hearing. At the hearing, Montez testified 

that he heard nothing untoward during Lopez’s search of Ballard 

on the elevator landing, could not recall observing blood on the 

control room wall, and did not recognize Lopez in the video of the 

control room area. 

The hearing officer found that the department had shown

its allegations were true. The officer found Montez’s testimony 

that he could not hear Lopez striking Ballard in the elevator 

landing to be incredible. The officer found that Montez became 

aware of the control room incident, falsely stated to investigators 

that he could not recognize Lopez as the deputy standing with 

him in the control room area, and falsely stated he did not know 

the trustee was cleaning blood off the control room wall. 
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The hearing officer nevertheless concluded the department 

had failed to meet its burden of proving that discharge was 

appropriate because Ramirez, the civilian custody assistant, was 

similarly situated to Montez but not similarly disciplined. 

Ramirez and Montez had been employed for a similar length of 

time with no prior record of discipline, and neither reported the 

use of force against Ballard and both made false statements 

during the department’s investigation. The penalty for making a 

false statement in an investigation ranged from a 15-day 

suspension to discharge, yet Ramirez received only a five-day 

retraining discipline with pay. The hearing officer acknowledged 

that the department holds its peace officers to a higher standard 

than its civilian employees, but found no sound basis to treat 

Montez differently from Ramirez. Concluding discharge was not 

appropriate for one anomalous instance of poor judgment in light 

of Montez’s otherwise unblemished record, the officer 

recommended that the Commission reduce his discipline to a 30-

day suspension without pay. 

The Commission initially voted to affirm the hearing 

officer’s finding as to Montez’s conduct but disagreed with the 

finding that discharge would be inappropriate. However, after 

Montez objected to the Commission’s proposed decision, it 

reversed itself on the latter point, and reduced his discharge to a 

30-day suspension without pay. 

The county petitioned the superior court for a writ of 

mandate overturning the Commission’s decision insofar as it 

reduced Montez’s discipline, contending it was unsupported by 

the Commission’s own findings. Montez opposed the petition but 

expressly disavowed any challenge to the Commission’s or 

hearing officer’s factual findings. 
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The trial court agreed with the county. It found Montez’s 

false statements during the department’s investigation forfeited 

the trust of the department and the public, which could subject 

him to proceedings under Brady v. Maryland (1963) 373 U.S. 83 

[83 S.Ct. 1194, 10 L.E.2d 215] [prosecution has a duty to disclose 

material exculpatory evidence, including potential impeaching 

evidence] should he ever be called upon to testify in a criminal 

case, and discharge was the only reasonable remedy. The court 

granted the county’s petition and issued a writ directing the 

Commission to set aside its decision reducing Montez’s discipline 

and “reconsider its action in light of th[e] court’s statement of 

decision, and to take any further action specially enjoined on it by 

law.”

Montez appealed. 

DISCUSSION

A. Standard of Review 

A writ of mandate will issue “to compel the performance of 

an act which the law specifically enjoins, as a duty resulting from 

an office, trust, or station . . . .” (Code Civ. Proc., § 1085, subd. 

(a).) Where the writ is sought for the purpose of inquiring into 

the validity of a final administrative decision made as the result 

of a proceeding in which an evidentiary hearing is required, “the 

case shall be heard by the court sitting without a jury.” (Code 

Civ. Proc., § 1094.5, subd. (a).) “The inquiry in such a case shall 

extend to the questions whether the respondent has proceeded 

without, or in excess of, jurisdiction; whether there was a fair 

trial; and whether there was any prejudicial abuse of discretion. 

Abuse of discretion is established if the respondent has not 

proceeded in the manner required by law, the order or decision is 
7

not supported by the findings, or the findings are not supported 

by the evidence.” (Id. at subd. (b).)

“ ‘[In] a mandamus proceeding to review an administrative 

order, the determination of the penalty by the administrative

body will not be disturbed unless there has been an abuse of its 

discretion.’ ” (Skelly v. State Personnel Board (1975) 15 Cal.3d 

194, 217 (Skelly).) “In considering whether such abuse occurred 

in the context of public employee discipline, . . . the overriding 

consideration . . . 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.” (Id. at p. 218.) 

When an administrative body’s findings are not in dispute, 

abuse of discretion is established where the body’s order or 

decision is unsupported by the findings. (Topanga Assn. for a 

Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 

514-515.) The court conducts a “de novo comparison of the 

findings and the penalty” to ensure that the findings are not 

“inconsistent with [the administrative body’s] action in reducing 

the penalty,” resolving all reasonable doubts in favor of the 

administrative decision. (County of Santa Cruz v. Civil Service

Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1584

(Santa Cruz); Topanga, at p. 514.) The court may not substitute 

its own judgment for that of the Commission, nor “disturb the 

agency’s choice of penalty absent ‘ “an arbitrary, capricious or 

patently abusive exercise of discretion” ’ by the administrative 

agency” (Cassidy v. California Bd. of Accountancy (2013) 220 

Cal.App.4th 620, 628), but must uphold the penalty if there is 

any reasonable basis to sustain it. (Deegan v. City of Mountain 
8

View (1999) 72 Cal.App.4th 37, 46.) Only in an exceptional case 

will an abuse of discretion be shown because reasonable minds 

cannot differ on the appropriate penalty. (Id. at p. 45; see 

Kolender v. San Diego County Civil Service Com. (2007) 149 

Cal.App.4th 464, 471 (Kolender) [the court may find an abuse of 

discretion where an agency’s decision exceeds the bounds of 

reason].)

We review a penalty determination by the Commission 

under the same abuse of discretion standard applied by the trial 

court. (Santa Cruz, supra, 171 Cal.App.4th at p. 1581.)

B. Harm to the Public Service

Here, the findings of the Commission were not in dispute. 

The hearing officer found that Montez failed to report two 

instances of inmate abuse and made multiple false statements 

during an investigation of the abuse. He falsely denied knowing 

that Deputy Lopez had assaulted Ballard during the first 

incident, denied knowing that the second incident had occurred, 

and denied recognizing Lopez standing next to him in video 

footage taken after the second incident. The only issue is 

whether in light of these findings the Commission’s decision to 

reduce Montez’s discharge to a 30-day suspension was an abuse 

of discretion. 

“In considering whether an abuse of discretion occurred in 

the discipline of a public employee, the overriding consideration 

is the extent to which the employee’s conduct resulted in, or if 

repeated is likely to result in, harm to the public service.” 

(Warren v. State Personnel Bd. (1979) 94 Cal.App.3d 95, 107-108.) 

Whether an employee’s conduct has resulted or is likely to result 

in harm to the public service if repeated requires consideration of 

the nature of the employee’s profession, because “some 
9

occupations such as law enforcement, carry responsibilities and 

limitations on personal freedom not imposed on those in other 

fields.” (Thompson v. State Personnel Bd. (1988) 201 Cal.App.3d 

423, 429.)

Peace officers specifically are held to higher standards of 

conduct than civilian employees, and dishonesty by law 

enforcement personnel is considered to be highly injurious to

their employing agencies. (See, e.g., Paulino v. Civil Service 

Com. (1985) 175 Cal.App.3d 962, 972 [upholding dismissal of 

deputy sheriff who lied about sick leave usage]; Flowers v. State 

Personnel Bd. (1985) 174 Cal.App.3d 753, 761 [upholding 

dismissal of correctional officer for dishonesty, attempted theft of 

state property, and insubordination].)

In Kolender v. San Diego County Civil Service Com. (2005) 

132 Cal.App.4th 716, a Sheriff’s deputy on duty at a detention 

center lied to an investigator about another deputy abusing an 

inmate. (Id. at p. 719.) The Sheriff discharged the deputy for 

“lack of truthfulness” and “acts incompatible with and/or inimical 

to the public service,” but a civil service commission reduced the 

termination to a 90-day suspension despite finding that all the 

charges had been proven. (Id. at p. 720.) The appellate court 

reversed the commission’s decision, holding it exhibited 

“indifference to public safety and welfare” and was a manifest 

abuse of discretion. (Id. at p. 721.)

In Santa Cruz, a correctional officer complained to the 

county Sheriff that her supervisor, a Sheriff’s sergeant, had 

treated her unfairly due to her gender. During the ensuing 

investigation the sergeant made false statements, for which the 

Sheriff ordered him demoted to deputy. The sergeant appealed 

his demotion to the Civil Service Commission of Santa Cruz, 
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which found he had made false statements during the 

investigation and had been insubordinate and willfully 

disobedient. The commission nevertheless concluded that

demotion was overly harsh, and ordered the discipline reduced to 

a 30-day suspension without pay. (Santa Cruz, supra, 171 

Cal.App.4th at p. 1581.)

The Court of Appeal reversed, holding that the 

commission’s own findings that the sergeant had “made false 

statements, was insubordinate and was willfully disobedient, did 

not support a reduction of the penalty; rather, they provided a 

basis for the original demotion ordered by the Sheriff.” (Santa 

Cruz, supra, 171 Cal.App.4th at p. 1584.) “The honesty and 

integrity of a Sergeant in the Sheriff’s department is paramount 

to the public safety and trust,” the court observed, “and breach of 

that trust is cause for grave concern. . . . Dishonesty on the part 

of a Sergeant in the Sheriff’s department is a breach of public 

trust, and ultimately affects the Sheriff’s ability to effectively 

serve the public.” (Id. at p. 1583.) In addition, the sergeant’s

interference in the internal investigation of the gender bias claim 

placed the county at risk of liability, and “ ‘exposed the 

governmental entity to the prospect of litigation.’ ” (Ibid.)

In Hankla v. Long Beach Civil Service Com. (1995) 34 

Cal.App.4th 1216 (Hankla), the Court of Appeal reversed a 

decision by a civil service commission to reinstate a police officer

despite the commission’s own finding that the officer had 

unnecessarily armed himself with a gun and negligently 

discharged the weapon, wounding a civilian. (Id. at p. 1226.) 

The court held that the officer’s conduct harmed the public 

service because law enforcement officers “ ‘are the guardians of 

the peace and security of the community, and the efficiency of our 
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whole system, designed for the purpose of maintaining law and 

order, depends upon the extent to which such officers perform 

their duties and are faithful to the trust reposed in them.’ ” (Id. 

at p. 1224.) The court held that the commission’s findings did not 

support suspension rather than discharge because “[f]orcing the 

police department to retain an officer who is unable to handle 

competently either his emotions or his gun poses too great a 

threat of harm to the public service to be countenanced.” (Id. at 

p. 1226.)

In Kolender, supra, 149 Cal.App.4th 464, a correctional 

supervisor twice miscalculated inmates’ early release and other 

credits, resulting in the inmates serving incorrect sentences. The 

San Diego County Sheriff demoted the supervisor for 

incompetence or performance of acts “incompatible with or 

inimical to the public service.” (Id. at p. 468.) The San Diego 

County Civil Service Commission ruled that the supervisor was 

guilty of acts incompatible with and/or inimical to the public 

service but ordered the penalty modified from a permanent to a 

temporary demotion in light of her overall rating of “fully 

competent” as a supervisor. (Id. at p. 469.) The Court of Appeal 

reversed, holding that the commission’s decision to reduce the 

level of discipline to a temporary demotion “fail[ed] to adequately 

account for the overriding goal of preventing harm to the public 

service.” (Id. at p. 474.)

Here, Montez’s failure to report two incidents of abuse of an 

inmate constituted an inexcusable neglect of his duty to 

safeguard the jail population. (See Kolender v. San Diego County 

Civil Service Com., supra, 132 Cal.App.4th at p. 722 [“The safety 

and physical integrity of inmates is one of the office’s paramount 

responsibilities”].) His lies during the subsequent investigation 
12

hindered rectification of the situation, brought discredit upon his 

position and department, and forever undermined his credibility. 

“A deputy sheriff’s job is a position of trust and the public has a 

right to the highest standard of behavior from those they invest 

with the power and authority of a law enforcement officer. 

Honesty, credibility and temperament are crucial to the proper 

performance of an officer’s duties. Dishonesty is incompatible 

with the public trust.” (Talmo v. Civil Service Com. (1991) 231 

Cal.App.3d 210, 231 [deputy abused jail inmates and lied about it 

to his superiors].)

Nothing in the record offers reason to hope Montez would 

act differently in the future should he be faced with a similar

situation.

“The public is entitled to protection from unprofessional 

employees whose conduct places people at risk of injury and the 

government at risk incurring liability.” (Hanka, supra, 34 

Cal.App.4th at p. 1223.) It is simply intolerable that dishonesty 

and a culture of silence that countenances abuse of prisoners be 

permitted within the ranks of those charged with public safety 

and welfare. (See Fout v. State Personnel Bd. (1982) 136 

Cal.App.3d 817, 821.) 

We therefore conclude reasonable minds could not differ 

with regard to the appropriate disciplinary action in Montez’s 

case. The Commission’s decision to reduce his discharge to a 30-

day suspension was unsupported by its own findings, and thus 

constituted an abuse of discretion.

C. Circumstances Surrounding the Misconduct and 

Likelihood It Will Recur

In reviewing an administrative decision concerning 

employee discipline we consider as secondary factors the 
13

“circumstances surrounding the misconduct” and the “likelihood 

of its recurrence.” (Skelly, supra, 15 Cal.3d at p. 218.)

Here, the Commission observed that Montez received 

ratings of “Very Good” in his performance evaluations, including 

after the use of force incidents. He continued to perform his 

duties at the jail for a year after the incident with no reports of 

abuse or misconduct. The Commission concluded from these 

facts that the misconduct was unlikely to recur.

We agree with the trial court that this conclusion was 

unwarranted. Montez never recanted the false statements he 

made to investigators, but instead repeated them at the 

Commission hearing. “Honesty is not considered an isolated or 

transient behavioral act; it is more of a continuing trait of 

character.” (Gee v. California State Personnel Bd. (1970) 5 

Cal.App.3d 713, 719; Ackerman v. State Personnel Bd. (1983) 145 

Cal.App.3d 395, 399.) 

As the court observed in Kolender v. San Diego County 

Civil Service Com., supra, 132 Cal.App.4th at page 722, where a 

Sheriff’s deputy was found to be complicit in covering up abuse of 

an inmate, “[n]o requirement exists that [the] . . . Sheriff’s Office 

retain officers who lie and protect deputies who harm inmates; 

rather, the Sheriff [is] entitled to discharge [such an officer] in 

the first instance.”
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DISPOSITION

The judgment granting the petition for a writ of mandate is 

affirmed. The County of Los Angeles is to recover its costs on 

appeal.

CERTIFIED FOR PUBLICATION

CHANEY, Acting P. J.

We concur:

BENDIX, J.

WEINGART, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.