Filed 2/27/15 Lemm-Harris v. City of Baldwin Park CA2/2CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

WENDY LEMM-HARRIS,

Plaintiff and Appellant,

v.

CITY OF BALDWIN PARK et al.,

Defendants and Respondents.

 B253071

 (Los Angeles County

 Super. Ct. No. BS138627)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Luis A. Lavin, Judge. Affirmed.

Silver, Hadden, Silver & Levine, Ken Yuwiler for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Pilar Morin, Danny Y. Yoo for Defendants and 

Respondents.

___________________________________________________
2

Appellant contends that the trial court erred in deciding her petition for writ of 

mandate by failing to review the entire administrative record. Appellant also contends 

that the trial court’s findings were not supported by substantial evidence. We affirm the 

judgment.

Factual and Procedural Background

Appellant Wendy Lemm-Harris began working for real party in interest the City of 

Baldwin Park1in 1989 (the City), in the department of public works. She became public 

works supervisor in 1995 and was reclassified as public works operations supervisor in 

2004. Harris received performance evaluations throughout her career. The last one, 

issued in September 2006, was positive. 

As public works operations supervisor, Harris’s duties included planning, 

organizing, and directing the activities of the street maintenance and landscape 

maintenance divisions of the public works department. She reported directly to the 

director of public works, who, beginning in November 2006, was William Galvez. 

In April 2008, following an incident at a City park involving yelling, swearing, 

and the possible use of racial slurs among public works employees, Harris knew that an 

internal investigation was likely to occur. Although Harris was not involved in the 

incident, she later became a subject of the investigation. In June 2008, the City’s human 

resources manager sent her a memorandum entitled “admonishment against retaliatory 

conduct.” The admonishment memorandum stated: “As you are aware the City has 

recently received allegations of discrimination and harassment against you. . . . [W]e 

have commenced an administrative investigation to look into the alleged discrimination 

and harassment complaints.” The memorandum ordered Harris to cooperate with the 

investigation and prohibited her from contacting any coworker or witness who she 

believed may be associated with the investigation to discuss it. Harris was warned that 

 

1 The City of Baldwin Park Personnel Commission is named as the respondent in 

this matter. At times in this opinion, both the City and the Personnel Commission are 

referred to generally to as the City.
3

any attempt to “improperly influence, intimidate, harass, or retaliate against any 

individual you believe has cooperated, or may cooperate, in the investigation” could 

result in dismissal. 

Harris was interviewed for the investigation on July 24, 2008. That same day, her 

supervisor, Galvez, issued a notice of administrative leave with pay, relieving her of all 

duties and responsibilities as the public works operations supervisor. In November 2008, 

Galvez sent to Harris a notice of intent to terminate, wherein he informed her of his 

recommendation to terminate her employment. The notice listed 10 general areas of 

misconduct allegedly committed by Harris. 

Following a Skelly2 meeting held in December 2008, Harris was terminated by the 

City in February 2009. The City’s notice of termination laid out allegations underlying 

six different bases for termination: (1) “dishonesty, inefficiency, neglect of duty, 

discourtesy to fellow employees and other acts incompatible with service to the public” 

in connection with an incident referred to as “the Carrizales grievance,” where Harris had 

her subordinate, William Floate, write up a maintenance worker, David Carrizales, for 

taking a day off; (2) “failure to address the impact of lack of punctuality, alcohol use, 

tardiness and late work assignments by senior maintenance worker Steve Couchman”; (3) 

disparate treatment of employees who arrived more than 15 minutes late to work; (4) 

“insubordination and threatening behavior,” including an incident in July 2008 where 

Harris burst into Galvez’s office and demanded information on the ongoing investigation, 

as well as allegedly making threats of retaliation against anyone who participated in the 

investigation; (5) “additional acts which are incompatible with service to the public,” 

referring to an incident where Harris allegedly gave an employee, Michael Laidlaw, 

unclear instructions to pick up signs on public property and then swore at Laidlaw after 

Harris received an irate call from a real estate developer; and (6) “further discourtesy to 

the public or fellow employees,” including swearing at employees and making other 

inappropriate comments. 

 

2 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
4

Harris thereafter appealed her termination to an “arbiter”3 chosen by the parties. 

The appeal hearing lasted 16 days and spanned several years. Fourteen witnesses 

testified.

The six bases for termination outlined in the City’s notice of termination made up 

the six charges leveled against Harris in the appeal hearing. In March 2012, the arbiter 

issued a 46-page “arbiter’s opinion and advisory award,” finding that the City proved all 

or part of four charges: charge 1, relating to the Carrizales grievance; charge 2, failure to 

address Couchman’s tardiness issues; charge 4, insubordination and threatening behavior; 

and charge 5, acts relating to the Laidlaw incident. The arbiter found that the most 

serious of the proven charges was the fourth one, particularly Harris’s threat of legal 

action against anyone who made critical comments about her to investigators. The arbiter 

also found that the first charge constituted a serious behavioral infraction, whereas the 

fifth charge, standing alone, would warrant only a “cautionary note.” The advisory award 

issued by the arbiter concluded by stating that Harris was terminated by the City for good 

cause. 

The City’s Personnel Commission thereafter noticed a hearing to consider the 

arbiter’s award, and the parties were allowed to submit briefs and present oral argument. 

Following the hearing, the Personnel Commission voted unanimously to uphold Harris’s 

termination, adopting the arbiter’s conclusions and recommendations in full. 

Harris then filed a verified petition for writ of administrative mandate (Code Civ. 

Proc., § 1094.5) in the trial court seeking a writ of mandate ordering the City to reinstate 

Harris to her former position. The parties submitted briefing and, prior to hearing, the 

trial court issue a tentative ruling denying Harris’s writ petition. After extensive oral 

argument, the matter was submitted. On September 18, 2013, the trial court issued a 15-

 

3 “Arbiter” was the term used by the parties, the arbiter himself, and the trial court. 

As the appeal hearing was advisory and not binding, it was deemed incorrect to refer to 

the arbiter as an arbitrator. 
5

page decision denying Harris’s petition for writ of mandate. Judgment was entered on 

October 8, 2013. 

Harris timely appealed. 

DISCUSSION

The superior court reviews administrative decisions pursuant to Code of Civil 

Procedure section 1094.5.4 (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 810 

(Fukuda); Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 51 (Kazensky).) 

Subdivision (b) of section 1094.5 provides that “[t]he 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 not supported by the findings, or the 

findings are not supported by the evidence.” Subdivision (c) of section 1094.5 lays out 

two potential standards for review of the evidence: “Where it is claimed that the findings 

are not supported by the evidence, in cases in which the court is authorized by law to 

exercise its independent judgment on the evidence, abuse of discretion is established if 

the court determines that the findings are not supported by the weight of the evidence. In 

all other cases, abuse of discretion is established if the court determines that the findings 

are not supported by substantial evidence in the light of the whole record.” 

Section 1094.5, subdivision (c) does not specify when a trial court is authorized to 

exercise its independent judgment on the evidence and when it is required to act 

otherwise. Case law, however, has established that the court must exercise its 

independent judgment when the decision of the agency “substantially affects a 

fundamental vested right.” (Strumsky v. San Diego County Employees Retirement Assn. 

(1974) 11 Cal.3d 28, 32; see also Hughes v. Board of Architectural Examiners (1998) 17 

Cal.4th 763, 789.) 

 

4 All further statutory references are to the Code of Civil Procedure, unless 

otherwise noted.
6

As the trial court here recognized, this matter was subject to the independent 

judgment standard of review. This is because “‘[d]iscipline imposed on city employees 

affects their fundamental vested right in their employment.’” (Kazensky, supra, 65 

Cal.App.4th 44, 52, quoting McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 

129.) The trial court, therefore, “‘was required to exercise its independent judgment on 

the evidence and find an abuse of discretion if the [agency’s] findings of [the employee’s] 

misconduct were not supported by the weight of the evidence.’” (Kazenzky, supra, 65 

Cal.App.4th at p. 52.) This standard required the trial court to weigh the evidence and 

determine credibility of witnesses. (Barber v. Long Beach Civil Service Com. (1996) 45 

Cal.App.4th 652, 658.) 

The independent judgment standard does not apply to this Court, however. “Even 

when, as here, the trial court is required to review an administrative decision under the 

independent judgment standard of review, the standard of review on appeal of the trial 

court’s determination is the substantial evidence test.” (Fukuda, supra, 20 Cal.4th 805, 

824.) If the trial court’s factual findings and conclusions are supported by substantial 

evidence, we uphold them. (Pasadena Unified Sch. Dist. v. Commission on Professional 

Competence (1977) 20 Cal.3d 309, 314.) Nevertheless, we review questions of law 

de novo and will reverse a material error of law. (Broney v. California Com. on Teacher 

Credentialing (2010) 184 Cal.App.4th 462, 472; Thornbrough v. Western Placer Unified 

School Dist. (2013) 223 Cal.App.4th 169, 200.) 

I. Failure to Read the Entire Record

Harris’s primary argument on appeal is that the trial court erred by failing to read 

the entire administrative record. At the hearing, the trial court, when discussing 

credibility issues with Harris’s counsel, stated: “To be honest—did I spend every waking 

moment reading 18 volumes? No. I read the portions that were cited by the parties in 

their briefs, and I actually read all of them—at least those two dates from Mr. Floate’s 

testimony. I looked at your client’s testimony in total to the extent I could find it to get a 

flavor for her credibility in her statements, even if you didn’t cite them. I looked for 

sections of Mr. Galvez—the supervisor’s testimony. But did I stand and go from 
7

beginning to end? No, I did not. . . . So if there are other portions that I missed, I missed 

it because the parties didn’t cite it to me, and I didn’t look for it.” The court continued: 

“It’s not my job, also, to go through thousands of pages—thousands and thousands of 

pages of administrative record hunting to make arguments for the parties if they don’t do 

that themselves, even though I will exercise and have exercised independent review of 

the record . . . .” Harris’s counsel responded to the trial court’s statement by saying, “I 

completely understand, your Honor. . . . I’m thinking, if you read from beginning to end, 

you probably get a better flavor for what is happening, but I appreciate the limitations of 

the court also.”

Despite counsel’s response in the trial court, appellant now asserts that the court’s 

failure to review the entire record was reversible error. Harris points out that certain 

opinions examining the trial court’s duties in reviewing administrative decisions have 

declared: “The substantial evidence test requires the trial court to review the entire 

record.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10; see also Wences v. City of Los 

Angeles (2009) 177 Cal.App.4th 305, 313 [“The trial court must not only examine the 

administrative record for errors of law, but must also conduct an independent review of 

the entire record to determine whether the weight of the evidence supports the 

administrative findings.”].) Harris cites to no case, however, in which the trial court’s 

failure to read each and every page of the administrative record constituted grounds for 

reversal.

Although we can contemplate situations in which the trial court’s failure to review 

the entire administrative record could constitute reversible error, this is not that sort of 

case. The trial court’s 15-page decision denying appellant’s writ petition and the court’s 

statements at oral argument showed a firm grasp of the evidence presented. The trial 

court read the testimony of the three most critical witnesses: Harris, Floate, and Galvez. 

The trial court’s decision also cited to testimony from at least six other witnesses and 

examined a range of documentary exhibits. Furthermore, the trial court made its own 

credibility determinations. In short, it is clear that the court reviewed an extensive 

portion of the 3,935-page administrative record.
8

Moreover, simply because the trial court operated under the independent judgment 

standard did not mean that Harris had no obligation to show how the administrative 

decision was incorrect. “In exercising its independent judgment, a trial court must afford 

a strong presumption of correctness concerning the administrative findings, and 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 805, 817.) The trial court considered all arguments made by Harris and reviewed 

all portions of the record cited by the parties, and independently concluded that her 

termination was proper.

Indeed, Harris does not explain how the trial court’s decision would have changed 

if it had read the entire record. “‘Error of law is not reversible unless, on an examination 

of the record, it appears to have resulted in a miscarriage of justice.’ (9 Witkin, Cal. 

Procedure (5th ed. 2008) Appeal, § 322, p. 369; see Cal. Const., art. VI, § 13.)” (Broney 

v. California Com. on Teacher Credentialing, supra, 184 Cal.App.4th 462, 472.) “We 

will not reverse for error unless it appears reasonably probable that, absent the error, the 

appellant would have obtained a more favorable result.” (Khan v. Medical Board (1993) 

12 Cal.App.4th 1834, 1841.) In the trial court and on appeal, Harris did not identify any 

part of the record that the trial court failed to review that would have had a material 

impact on its decision. 

This Court has reviewed the entire administrative record. While it appears that the 

trial court did not review certain testimony that was generally favorable to Harris—such 

as that of Victoria Valverde, an executive secretary, or Donald Rodriguez, a senior 

maintenance worker—neither witness testified regarding two of the most severe instances 

of misconduct, the insubordination involving Galvez and the Carrizales incident. In 

addition, the trial court found that Floate—whose testimony supported the most severe 

charges—was “honest and credible, even if inconsistent at times.” In contrast, the court 

found that Harris “was not a credible witness concerning certain key issues.” There is no 

basis to find that a review of the entire record would have led the trial court to find that 
9

Floate was not a credible witness or that Harris was.5 Reversing for the trial court to read 

the entire record, therefore, would be nothing more than an “idle act,” something that the 

law does not require. (Civ. Code, § 3532.)

II. Substantial Evidence Supports the Trial Court’s Findings

Harris’s remaining arguments largely focus on the trial court’s assessment of 

various witnesses’ credibility. These arguments provide no ground for reversal.

A. Charge 1

On January 1, 2008, Harris was on vacation and Floate was acting as the 

supervisor in charge of the “yard,” the term generally used for the department of public 

works location where Harris worked. Carrizales called Floate and asked to take 

January 2, 2008, off as an “‘emergency’ vacation day,” even though employees were 

previously informed that the ability to take time off around the holiday season was 

limited due to staffing needs. Floate granted Carrizales’s request. When Harris returned 

from vacation, she instructed Floate to “write up” Carrizales for taking an unauthorized 

day off. Carrizales was given a disciplinary memorandum and was denied pay for 

January 2. Carrizales thereafter filed a grievance and, after reviewing the facts, Galvez 

reversed Harris’s decision and reinstated Carrizales’s compensation for January 2. 

The City, in its notice of termination to Harris, wrote: “After you returned from 

vacation, you wrote a memo which misrepresented the facts and had Mr. Floate sign the 

memo which reversed the vacation day and instructed payroll to deduct one day of salary 

(nine hours of vacation from Mr. Carrizales’ leave bank). Despite repeated protests from 

Mr. Floate, you caused a reduction in Mr. Carrizales’ pay for the pre-approved day off 

from work on January 2, 2008. . . . [¶] . . . Even though you knew that Mr. Floate had 

authorized the day off, you took action to reverse Mr. Floate’s authorization which 

 

5 Harris’s July 28, 2014 request for judicial notice, in which she asks us to take 

notice of a 2014 criminal conviction concerning a subject matter with no connection to 

this case, is denied as irrelevant. (Hughes Electronics Corp. v. Citibank Delaware (2004) 

120 Cal.App.4th 251, 266, fn. 13 [“As a general matter, judicial notice is not taken of 

matters irrelevant to the dispositive points on appeal.”].) 
10

undermined Mr. Floate’s authority as the Supervisor-in-Charge. . . . [¶] This incident 

demonstrates your disregard of the City’s personnel rules, policies and procedures.” 

Both the arbiter and the trial court found that Harris directed Floate to write up 

Carrizales for taking an unauthorized day off even though she knew that Floate had given 

his authorization. Substantial evidence supported this determination.

Harris argues that Floate could not have authorized the day off because he initialed 

the disciplinary memorandum stating that Carrizales’s failure to report to work was 

“unauthorized and unexcused.” In testimony, Floate replied “Correct” to the question, 

“You would not have put your initials on the document if the document did not state 

truthful information, correct?” But Floate qualified this answer by stating, “I initialed it 

to just go through with the procedure.” Furthermore, Floate testified that he told Harris 

that he gave Carrizales the time off and did not want to write him up. He also testified 

that he only wrote 20-40 percent of the disciplinary memorandum and that Harris wrote 

the remainder, including the language stating that the day off was unauthorized and 

unexcused. 

Again, the trial court found Floate’s testimony to be “honest and credible, even if 

inconsistent at times.” This conclusion is supported by the record, as is the finding that 

the City met its burden in proving the first charge.

B. Charge 2

Substantial evidence also supported the trial court’s finding on the second charge. 

The notice of termination stated that Harris was “aware that Senior Maintenance Worker 

Steve Couchman has had significant issues concerning his punctuality and ability to 

arrive to work in a timely manner. Mr. Couchman is responsible for the daily work 

assignment of his crew, including the proper set-up of tools and equipment to ensure 

timely departure from the Maintenance Yard to their respective work sites. Thus, Mr. 

Couchman’s late arrival to work has a significant impact on the coordination and dispatch 

of the ‘Street’ crew for which he is responsible. . . . Nonetheless, you failed to properly 

address Mr. Couchman’s significant pattern of late arrival to work.” 
11

In finding that the weight of the evidence supported the arbiter’s findings that the 

punctuality related issues of charge 2 were true, the trial court wrote, “the issue here is 

not when exactly Couchman was late to work and how late he was, but whether [Harris], 

as a supervisor, should have been documenting his lateness to ensure proper time-keeping 

and payroll, and counseling Couchman in an effort to address the problem, particularly 

given its impact on his crew and the time lost as they waited for him to show up so they 

could begin work.”

Harris argues that she documented Couchman’s tardiness by requiring him to 

complete “transaction forms,” and that, after she counseled him, his attendance improved. 

It appears from the record, however, that Couchman was frequently tardy and that it 

negatively impacted his crew. Mario Medina, a maintenance worker, testified that 

Couchman was late to work two to three times a week. Rafael Pena, another 

maintenance worker, testified that Couchman was tardy three to five times a week. Tim 

Kinman testified that Couchman would sometimes be half an hour to an hour late to 

work. Gus Martinez, who worked on Couchman’s crew, testified that when Couchman 

was late, he and the rest of the crew would sit in the back of the yard, waiting for 

instructions.

Further, the record shows that Harris did not adequately document Couchman’s 

tardiness. When asked whether she documented accommodating Couchman for being 

late, Harris replied, “It was not documented in writing.” Further, when asked how she 

documented Couchman’s reasons for requesting accommodation, Harris stated, “Just in 

the back of my mind, I guess.” This was clearly inadequate documentation. The trial 

court’s finding on the second charge, therefore, was supported by substantial evidence.

C. Charge 4

The final charge that the trial court considered was charge 4, relating to 

insubordination and threatening behavior on the part of Harris. 

The first part of this charge pertained to Harris’s act of bursting into Galvez’s 

office and questioning him about the investigation. The June 2008 admonishment 

memorandum given to Harris ordered her to cooperate with the investigation and 
12

prohibited her from contacting any coworkers who she believed may be associated with 

the investigation to discuss it. In spite of this admonishment, on July 23, 2008, one day 

before she was scheduled to be interviewed, Harris entered Galvez’s office and 

demanded that he talk to her about the investigation. She asked him about the status of

the investigation, whether he was a part of the investigation, what he knew about it, and 

whether the investigation was coming “from above.” This came after she called him on 

the telephone that morning five to 10 times seeking information about the investigation. 

Galvez noted that, when Harris entered his office, “[h]er demeanor . . . was one of 

intimidation.” 

This behavior clearly constituted a violation of the City’s admonishment 

memorandum, and, as found by both the arbiter and the trial court, it was an act of 

insubordination. On appeal, Harris argues “that there was virtually no evidence 

introduced that Appellant believed Mr. Galvez was ‘associated with the investigation.’” 

This is a specious argument. Galvez was Harris’s supervisor, the person to whom she 

directly reported, so it could safely be assumed that he was associated with the 

investigation. Furthermore, if Harris had no belief that Galvez was involved in the 

investigation, there appears to be little reason that she would be adamant to speak with 

him the day before her investigatory interview. Harris also avers that, since Galvez 

refused to answer her questions, she did not “discuss” the matter with him. But the 

admonishment memorandum prohibited her from “contacting” those involved with the 

investigation to discuss it. Harris certainly contacted Galvez.

Harris next contends that the admonishment memorandum was impermissibly 

overbroad. The opinion relied on by Harris for this assertion, Los Angeles Police 

Protective League v. Gates (C.D.Cal. 1984) 579 F. Supp. 36, does not support her 

position. In Gates, the plaintiffs challenged an order prohibiting a police officer from 

discussing an investigation with other officers involved in the investigation. (Id. at p. 

40.) The court found that the plaintiffs’ “overbreadth challenge” was “without merit.” 

(Ibid.) In addition, as noted by the trial court here, a similar investigation-related 

restriction—which prohibited a school custodian from speaking to other employees about 
13

an ongoing investigation—was found to pass constitutional muster in Farhat v. Jopke

(6th Cir. 2004) 370 F.3d 580, 598.

Finally, Harris argues that the record does not support the trial court’s finding on 

the second component of charge 4—that Harris told Floate she would take legal action 

against anyone who made disparaging comments about her to the investigator and that 

this threat affected Floate’s willingness to participate in the investigation. Harris is 

incorrect. Floate testified that he feared participating in the June 2008 investigation 

because Harris told him “If anybody said any derogatory—or anybody had any 

derogatory statements against her, that she would take legal action.” Floate further stated 

that this fear affected how he responded to the investigator. Thus, the trial court’s finding 

was supported by substantial evidence. 

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.