Filed 6/21/24 City of Kerman v. Andres CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CITY OF KERMAN,

Plaintiff and Respondent,

v.

KAREN G. ANDRES,

Defendant and Respondent;

ERIC ANTUNA,

Real Party in Interest and Appellant.

F086661

(Stanislaus Super. Ct. 

No. 22CECG01322)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Robert M. 

Whalen, Jr., Judge.

The Bennett Law Office, Ann M. Bennett, and Barry J. Bennett for Real Party in 

Interest and Appellant.

Liebert Cassidy Whitmore, Shelline K. Bennett, and Sue Ann Renfro for Plaintiff 

and Respondent.

No appearance by Defendant and Respondent.

-ooOoo-
2.

Kerman Police Chief John Golden terminated appellant Officer Eric Antuna after 

concluding he had acted dishonestly and engaged in conduct unbecoming of his position 

when he had an extramarital affair with a coworker. A hearing officer appointed to 

review the termination reduced the penalty to a 60-day suspension. The City of Kerman 

(City) petitioned the superior court for a writ of administrative mandamus. The court 

granted the petition, effectively overruling the hearing officer and reinstating Antuna’s 

termination. We conclude the hearing officer did not abuse her discretion and reverse the 

trial court’s judgment. 

FACTS

K.T. began working for the City part time in 2016 and became a full-time 

employee in January 2020. When K.T. was 19, she and Antuna began to spend time 

together outside the Explorer program. Eventually, she asked Antuna if he wanted to 

have sex. Thereafter, Antuna and K.T. had a continuous sexual relationship from that 

time until she was 21 when she left the Explorer program. The relationship ended in 

April 2020, when Antuna’s wife discovered it. Antuna’s wife asked K.T. to come to her 

home. Antuna’s wife pushed K.T. and threatened her.

K.T. later gave birth to a boy and took maternity leave from August 2020 to 

January 2021. Antuna’s wife wanted a DNA test performed on the child.1 However, K.T. 

said she did not want Antuna involved in the child’s life. K.T. told Antuna to stay away 

from her and her son.

Antuna nonetheless tried to reach out to K.T. no more than three times. K.T. 

initially said she did not respond but later said she “would always text him back.” K.T. 

told one Lieutenant Barcoma about the situation, and thereafter Antuna stopped sending 

her messages.

1 K.T. later stated that she had a DNA test performed and that Antuna was not the 

father.
3.

The City retained an independent investigator named Jeffrey Kermode. After his 

investigation, Kermode issued a report dated April 21, 2021.

Kermode concluded Antuna was “credible in part, having admitted to the sexual 

relationship with [K.T.], knowing that it was in violation of policy. However, Antuna was 

vague and said that he was unable to remember specifics about how the personal 

relationship began.”

Kermode “sustained” the following allegations:

1. That Antuna engaged in repeated text messages, e-mails, and phone calls to 

K.T. in violation of City of Kerman Practices and Policies, Section 2.3.

2. That Antuna engaged in an inappropriate relationship, including a sexual 

relationship, with K.T., then a police explorer, in violation of the Boy Scouts of 

America “Safety First Learning for Life Guidelines” as adopted by the Kerman 

Police Explorers Rules and Regulations Manual, Sections 2.6.0, 2.8.2, and 

2.8.3.

3. That Antuna engaged in criminal, dishonest, or disgraceful conduct, whether 

on- or off-duty that adversely affects the member’s relationship with the 

Department in violation of the Kerman Police Department Police Manual, 

Section 318.5.9(h). Kermode concluded that the relationship “between an 

Explorer Advisor and an Explorer, especially if that relationship resulted in a 

child, would certainly bring disgrace upon the Department if it became public 

knowledge.”

4. That Antuna engaged in on- or off-duty conduct which any member knows or 

reasonably should know is unbecoming of a member of the department, is 

contrary to good order, efficiency or morale, or tends to reflect unfavorably 

upon the department or its members in violation of the Kerman Police 

Department Police Manual, Section 318.5.9(m).
4.

Kermode concluded the allegation that Antuna engaged in unwelcome solicitation 

of a personal and/or sexual relationship while on duty or through the use of his official 

capacity was unfounded.

In a letter delivered to Antuna on June 3, 2021, Chief Golden notified him of the 

department’s intent to terminate him. In a section entitled “Grounds for Proposed 

Disciplinary Action,” the letter listed several policies and rules:

“A. CITY OF KERMAN POLICE DEPARTMENT POLICY 

MANUAL

“Section 318.5.6: Relationships

“(a) Unwelcome solicitation of a personal or sexual relationship 

while on-duty or through the use of one’s official capacity.

“Section 318.5.9: Conduct

“(h) Criminal, dishonest, disgraceful conduct, whether on- or offduty, that adversely affects the member’s relationship with this department.

“(m) Any other on- or off-duty conduct which any member knows or 

reasonably should know is unbecoming a member of this department, is 

contrary to good order, efficiency or morale, or tends to reflect unfavorably 

upon this department or its members.

“B. CITY OF KERMAN PERSONNEL RULES & 

REGULATIONS (EMPLOYEE HANDBOOK)

“Rule 2. Fair Employment Policies and Practices

“Section 2.3: This Policy prohibits harassment, discrimination, or 

retaliation against City applicants, officers, officials, employees, unpaid 

interns and volunteers, and contractors because of (a) an individual's 

protected classification; (b) the perception that an individual is within a 

protected classification; or (c) the individual’s association with a person 

who is within or is perceived to be within a protected classification. Acts of 

harassment, discrimination, or retaliation are not within the course and 

scope of an individual’s employment and the City may refuse to provide a 

defense and indemnity for such individual.
5.

“C. KERMAN POLICE EXPLORERS RULES AND 

REGULATIONS MANUAL

“Section 2.6.0: Youth Protection Guidelines

“Post Advisors of Explorer Post 777 will practice Youth Protection 

Guidelines as directed by Learning for Life/Exploring, which includes:

“• There must be two-deep leadership on all trips outside regular meetings 

and on all activities which leave the Sequoia Chapter area; which means 

there should be at least two adults at these post events and activities.

“• There must be no one-on-one contact with Explorers. Other Explorers or 

Post Advisors must be present (exception is certified law enforcement ridealong). Respect the privacy of Explorers.

“• Provide separate accommodations for advisors and Explorers, and for 

males and females on overnight trips.

“• Ensure proper preparation for activities, especially those with safety 

risks. Secret organizations are not permitted.

“• Appropriate standards for attire should be upheld.

“• Proper training, supervision, and monitoring of officers and youth is 

necessary.

“Section 2.8.2: Sexual Harassment

“No Explorer shall engage in any form of sexual harassment.

“Sexual harassment includes unwelcome sexual advances, requests 

for sexual favors, or other verbal or physical conduct of a sexual nature 

when such conduct is unwanted and has the purpose or effect of 

unreasonably interfering with an individual's performance in the post or 

creating an intimidating, hostile, or offensive environment.

“Section 2.8.3: Supervisor Responsibility

“It is the responsibility of the Explorer Post Staff to see that all 

Explorers are permitted an environment free from discrimination. Not only 

is discrimination illegal, but it also creates a negative atmosphere that 

reduces productivity and morale. It undermines post integrity and destroys 

professionalism. Appropriate disciplinary action will be initiated against 

any Explorer or staff who violates these regulations.
6.

“• Post Explorer Staff are responsible for taking corrective action involving 

any discrimination or sexual harassment incident, when observed or 

whether the complaining party requests formal or informal action. Such 

incidents will be documented and reported to the Chief of Police for 

disposition.

“• Any member of the Explorer Staff who fails to take corrective action, can 

and will be disciplined by this department. The supervisor, as well as the 

department may be held civilly liable if corrective action is not taken.” 

(Fns. omitted)

The letter stated the proposed decision to terminate was not dependent on a 

determination that Antuna had violated all of the listed provisions, and instead that “any 

one of the violations or acts, alone, constitutes a sufficient basis.”

An informal Skelly2 conference was conducted on June 23, 2021. On July 7, 2021, 

Chief Golden informed Antuna of his formal termination via a “Final Notice of 

Termination.”

According to the City’s Personnel Rules and Regulations (Employee Handbook), 

employees can appeal significant discipline imposed through a Final Notice of 

Disciplinary Action. The appeal is to be heard by an independent hearing officer. The 

hearing officer is given the authority to determine the relevance, weight and credibility of 

evidence. The City bears the burden of proof (i.e., preponderance of the evidence). The 

hearing officer may decide to uphold, reduce or void the discipline. The hearing officer 

decision’s is final unless challenged in court.

Antuna appealed Chief Golden’s decision, and an independent hearing officer was 

appointed. After receiving testimony and exhibits, the hearing officer issued her decision. 

The hearing officer concluded Antuna “engaged in an inappropriate relationship, 

including a sexual relationship,” in violation of the Kerman Police Explorer rules. 

Therefore, she concluded “a penalty is appropriate” but imposed a 60-day suspension 

rather than termination. She emphasized that Antuna did not initiate the relationship, that 

2 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
7.

the communication between K.T. and Antuna was mutual, and that Antuna did not lie 

about the relationship when questioned about it. The hearing officer stated,

“Reasonable minds can differ. I do not think that Chief Golden’s 

findings or the decision to terminate Appellant’s employment was an abuse 

of discretion. He rendered his decision based on the evidence available to 

him at the time. My perception of the facts and the severity of the 

transgression are somewhat different.”

The City filed a petition for writ of mandate challenging the hearing officer’s 

decision in Fresno County Superior Court. On June 12, 2023, the superior court granted 

Kerman’s petition, and ordered the hearing officer to deny Antuna’s appeal, effectively 

reinstating his termination. The court reasoned,

“This court needs to go no further than the words of the opinion 

written by the Respondent [hearing officer]. She concluded there was no 

abuse of discretion on the part of the City, yet has chosen to modify the 

decision of the City for reasons separate and apart from the factual findings 

by both the City and by her. Frankly, to this court, it appears to be a 

difference of sensibilities between the City and the Hearing Officer which 

has caused the modification by the Hearing Officer. This court makes no 

findings based on whose sensibilities are more reflective of the community

served by Mr. Antuna, but once the hearing officer found the allegations 

were true and there was no abuse of discretion on the part of the City, it is 

an abuse of discretion for the hearing officer to then impose her own values 

upon the measure of discipline instituted by the City. Instead, her focus 

should have been on the record before her and the findings which resulted 

therefrom.”

Antuna appeals the trial court’s order.

DISCUSSION

When an employer challenges an administrative decision concerning employee 

discipline via mandamus (Code Civ. Proc., § 1094.5), the trial court reviews the 

administrative findings under the substantial evidence standard. (Kolender v. San Diego 

Civil Service Com. (2007) 149 Cal.App.4th 464, 470.) On appeal, this court similarly 

reviews the administrative findings (not the trial court’s decision) under the substantial 

evidence test. (Ibid.)
8.

As to review of the penalty imposed, we apply the abuse of discretion standard. 

(County of Los Angeles v. Civil Service Com. (1995) 39 Cal.App.4th 620, 634; Lowe v. 

Civil Service Com. (1985) 164 Cal.App.3d 667, 677.) “If reasonable minds may differ 

with regard to the appropriate disciplinary action, there is no abuse of discretion.” (Lowe, 

at p. 677.)

First, appellant contends the trial court should have reviewed the hearing officer’s 

decision, not the police chief’s decision, for abuse of discretion. However, it is clear the 

trial court did in fact review the hearing officer’s decision. The trial court’s ruling framed 

the question before it as “whether a Hearing Officer can modify a decision of the City 

even though he Hearing Officer has written she, ‘[does] not think that [the Police Chief’s] 

findings or the decision to terminate [Mr. Antuna’s] employment was an abuse of 

discretion.’ ” The trial court’s decision goes on to discuss the details of the hearing 

officer’s decision.

However, while we conclude the trial court did review the hearing officer’s 

decision, we conclude it erred in how it conducted that review. The trial court concluded 

that “it appears to be a difference of sensibilities between the City and the Hearing 

Officer which has caused the modification by the Hearing Officer.” The court concluded 

this was insufficient grounds for the hearing officer to modify the penalty, essentially 

concluding that such a modification could only occur if the police chief had abused his 

discretion. The City similarly argues that the police chief’s decision should only be 

disturbed upon an abuse of discretion. But we see no basis for such a restriction on the 

hearing officer. The Employee Handbook provides that the hearing officer can uphold, 

reduce, or void the discipline imposed.3 While the Employee Handbook requires the 

3 The parties dispute whether provisions of the Kerman Municipal Code, 

specifically section 1.28.080 apply here. We need not resolve that dispute because we do 

not think the differences between the Employee Handbook and the municipal code are 

decisive of the issue presented. Even the municipal code provides that “[t]he hearing 

officer shall sit as the trier of fact and shall rule on questions of law and admissibility of 

evidence. The hearing officer may affirm, reverse, modify, or set aside the ... decision ... 
9.

hearing officer to state the grounds upon which the decision is made, there is no 

substantive restriction as to the grounds on which a decision to reduce discipline must or 

must not be based.4In other words, there is nothing in the Employee Handbook that 

limits the hearing officer’s power to reduce discipline to only those cases where the City

has “abused its discretion.” The process does not envision the hearing officer deferring to 

the police chief’s decision.5

In contrast, once the hearing officer made her ruling, it was that decision that was 

entitled to deference from the trial court. When an employer challenges an administrative 

decision concerning employee discipline via mandamus (Code Civ. Proc., § 1094.5), the 

trial court reviews the administrative findings under the substantial evidence standard. 

(Kolender v. San Diego Civil Service Com., supra, 149 Cal.App.4th at p. 470.) Judicial 

review of the penalty is conducted under the abuse of discretion standard. (County of Los 

Angeles v. Civil Service Com., supra, 39 Cal.App.4th at p. 634; Lowe v. Civil Service 

Com., supra, 164 Cal.App.3d at p. 677.) “If reasonable minds may differ with regard to 

the appropriate disciplinary action, there is no abuse of discretion.” (Lowe, at p. 677.)

Here, in stark contrast from the department’s initial decision to seek termination, 

the hearing officer decided that a 60-day suspension fit Antuna’s misconduct. In all 

candor, we likely would have issued a stricter penalty in the first instance, which, as the 

hearing officer acknowledges, would have been within the realm of sound discretion. 

However, we cannot say the hearing officer’s more lenient decision was an abuse of 

discretion. Antuna engaged in a sexual relationship with a colleague against pertinent 

rules and guidelines. Therefore, his conduct warranted a penalty, which the hearing 

appealed from or may delete or impose conditions as the facts and law warrant.”

(Kerman Mun. Code, § 1.28.080(D.).)

4 Except, of course, that the hearing officer must address only the issues submitted 

by the parties.

5 For example, with respect to factual issues, the City bore the burden of proof 

before the hearing officer – the opposite of deference.
10.

officer acknowledged. She concluded that a 60-day suspension fit Antuna’s actions. He 

did not initiate the relationship. And though the hearing officer found Antuna did not 

voluntarily report his relationship to his employer, he also did not lie about it when asked. 

Antuna did continue to communicate with K.T., but the communication was mutual. 

Given these factors, we cannot say the hearing officer’s conclusion was outside the 

bounds of reason.

This is not to deny that termination would have also been a reasonable option. An 

affair is a significant moral failing and is unbecoming for an officer of the law who 

should be trustworthy in personal and public life.6 The hearing officer would have been 

well within her discretion to uphold the termination. But that is not the choice she made. 

And the fact that “reasonable minds may differ with regard to the appropriate disciplinary 

action” does not establish an abuse of discretion. In other words, because a 60-day 

suspension and termination are both reasonable disciplinary actions, we find no abuse of 

discretion in the hearing officer selecting the former over the latter.

DISPOSITION

The judgment is reversed. The trial court is directed to deny Kerman’s petition for 

writ of administrative mandamus. Appellant shall recover costs on appeal.

POOCHIGIAN, Acting P. J.

WE CONCUR:

SMITH, J.

DE SANTOS, J.

6

In this respect, we do part ways from the hearing officer’s conclusion that an 

affair – particularly in these circumstances – is not “disgraceful.”