Filed 7/22/21 Spence v. State Personnel Board CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KEN SPENCE,

Plaintiff and Appellant,

v.

STATE PERSONNEL BOARD,

Defendant and Respondent;

 D076853

 (Super. Ct. No. 37-2019-00012524-

 CU-WM-CTL)

DEPARTMENT OF CORRECTIONS 

AND REHABILITATION,

Real Party in Interest and 

Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, 

John S. Meyer, Judge. Affirmed.

Wayne J. Quint and Chris Uyemura for Plaintiff and Appellant.

Alvin Gittisriboongul, Chief Counsel, and Chain He, Senior Attorney, 

for Defendant and Respondent.

Michael P. Doelfs for Real Party in Interest and Respondent.
2

Plaintiff Ken Spence appeals from the denial of his petition for a writ of 

administrative mandamus under Code of Civil Procedure1 section 1094.5 

(Petition) seeking to set aside the decision of respondent State Personnel 

Board (SPB or Board)2 in K.S. v. Department of Corrections and 

Rehabilitation (case No. 17-1944; Dec. 13, 2018). SPB in this action affirmed 

in its entirety the decision of the administrative law judge (ALJ) upholding 

the penalty of dismissal of Spence from his position as a correctional officer 

(CO) at Richard J. Donovan Correctional Facility (RJD), an institution under 

the control of respondent and real party in interest Department of 

Corrections and Rehabilitation (CDCR). 

On appeal, Spence raises several issues including that (1) the decision 

of the ALJ to invoke issue preclusion during the evidentiary hearing denied 

him due process of law as he was unable to present fully his defenses; (2) SPB 

denied him due process of law because it ignored its own case law requiring 

that he be subject to “progressive discipline”; and (3) the ALJ’s findings he (i) 

asked a subordinate officer to withdraw a written complaint to the warden 

after he had failed to repay a loan and, when that officer refused, (ii) 

retaliated against the officer, is not supported by substantial evidence. We 

will affirm.

OVERVIEW

Spence began his employment with CDCR as a CO in September 1995. 

In 2001 he was promoted to correctional sergeant, and in 2006 to correctional 

lieutenant. In March 2017 Spence was demoted to CO, a position he held 

1 Unless otherwise noted, all further statutory references are to the Code 

of Civil Procedure.

2 Respondent SPB filed a one-page brief stating it stood by its decision in 

the instant case and would abide by this court’s ruling.
3

until he was dismissed by CDCR in November 2017. Spence’s 2017 demotion 

is the subject of a related SPB precedential decision in K.S. v. Department of 

Corrections and Rehabilitation (case No. 17-02; Nov. 2, 2017) (K.S.;

sometimes, Demotion Action).3

Demotion Action

While serving as a correctional lieutenant at RJD in the late 2000’s, 

Spence borrowed money from three subordinate officers, including 

correctional sergeant Steven Vasquez, who eventually filed a written 

memorandum after Spence failed to repay him. During this time period, 

Robert Hernandez was the warden at RJD. Hernandez received Vasquez’s 

memorandum sometime in 2008 or 2009 and spoke to Spence about the 

matter. (K.S., supra, SPB Precedential Dec. No. 17–02 at pp. 4-5.) 

Hernandez Instructed Spence Not to Borrow Money from Subordinate 

Officers

In the Demotion Action, the ALJ found by a preponderance of the 

evidence the following facts: “Shortly after learning of the [Vasquez] 

complaint, Warden Hernandez spoke to Appellant [i.e., Spence] about the 

matter. Warden Hernandez told Appellant that it was inappropriate for a 

supervisor to borrow money from a subordinate employee and that Appellant 

needed to pay Sgt. Vasquez back. Warden Hernandez told Appellant not to 

borrow money from subordinate employees.” (K.S., supra, SPB Precedential 

Dec. No. 17–02 at p. 4.) 

3 On this court’s own motion, we take judicial notice of the Demotion 

Action, which the parties repeatedly reference in their briefings to this court. 

(See Jones v. Whisenand (2017) 8 Cal.App.5th 543, 548, fn. 3; California 

Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 168, 

fn. 8.)
4

In making this finding, the ALJ in the Demotion Action stated there 

was a conflict in the evidence but as trier of fact, found Hernandez’s 

testimony more credible than Spence’s, explaining his reasoning in part as 

follows: “Warden Hernandez testified that after he reviewed the complaint 

by Sgt. Vasquez, he spoke to Appellant about the matter. . . . (K.S., supra,

SPB Precedential Dec. No. 17–02 at p. 9.) Spence denied that such a 

conversation took place. Resolving this conflict requires a credibility 

determination using the criteria provided by Evidence Code section 780. 

“When determining credibility, the trier of fact may consider ‘any 

matter that has any tendency in reason to prove or disprove the truthfulness 

of [the witness’s] testimony,’ including witness demeanor; character of 

testimony; extent of the witness’s ability to perceive, recollect or 

communicate any matter about which she or he testifies; the existence or 

nonexistence of bias, interest or motive; the existence or nonexistence of any 

fact testified to by the witness; and the witness’s attitude toward the action 

or testimony. (Evid. Code, § 780, subds. (a), (b), (c), (d), (f), (i) & (j).) 

“Appellant generally testified in a clear manner and candidly admitted 

conduct that did not portray him in a good light. However, Appellant 

exhibited some difficulty recalling details and appeared to be evasive at 

times. Although Warden Hernandez had difficulty recalling specific dates of 

events that occurred several years ago, he demonstrated a specific 

recollection of his discussion with Appellant. Warden Hernandez testified in 

a clear, consistent, and unexaggerated manner. Warden Hernandez’s

testimony is logical because Sgt. Vasquez filed a complaint against Appellant 

during the time period Warden Hernandez said he discussed the matter with 

Appellant. Warden Hernandez had been retired for more than eight years at 

the time of hearing, and had no apparent interest in the outcome of the 
5

matter. Also, Warden Hernandez displayed no animosity toward Appellant, 

and had no apparent motive to testify in a manner unfavorable to Appellant.

[¶] Accordingly, Warden Hernandez’s testimony is credited over Appellant’s 

testimony.” (K.S., supra, SPB Precedential Dec. No. 17–02 at p. 9.)

Prior Adverse Actions

Spence was also subject to other adverse actions, as discussed in the 

Demotion Action: “Respondent [CDCR] issued Appellant a 10-percent salary 

reduction for 13 months, effective on March 31, 2015, for borrowing money 

from CO Jeffrey Springer . . . . This [notice of adverse action (NOAA)] recited 

Warden Hernandez’s direction to Appellant not to borrow money from CO’s. 

Respondent also issued Appellant a 5-percent salary reduction for 24 months, 

effective April 30, 2015, for failing to submit his time sheets in a timely 

manner. Appellant appealed both adverse actions, and the parties entered 

into a stipulated settlement to resolve both appeals by consolidating both 

adverse actions into a single, combined official reprimand. [Footnote 2: This 

proposed decision shall refer to the combined, stipulated adverse action as 

the 2015 Consolidated Reprimand.] [¶] In March 2016, Appellant received an 

adverse action of suspension for 15 work days for collecting money from CO’s 

to purchase coupon books as part of a youth sports organization fundraiser, 

and failing to deliver the coupon books or refund the money to those CO’s.” 

(K.S., supra, SPB Precedential Dec. No. 17–02 at p. 5.) 

Lopez Loan

The Demotion Action involved two loans by subordinate officers to 

Spence. CO Richard Lopez in February 2014 loaned Spence $2,000, after 

Spence had asked to borrow $5,000 and had promised to repay the money the 

following month. Although Lopez and Spence worked in the same general 

area at RJD, they did not have a personal relationship or socialize outside of 
6

work. Spence ultimately ended up repaying Lopez only $300 of the money he 

had borrowed. (K.S., supra, SPB Precedential Dec. No. 17–02 at pp. 6-7.)

The ALJ in the Demotion Action found Government Code section 19635 

prohibited CDCR from disciplining Spence for initially borrowing the money 

from Lopez because that activity occurred more than three years before 

service of the NOAA in that action. (K.S., supra, SPB Precedential Dec. No. 

17–02 at p. 11.) However, the ALJ also ruled any conduct of Spence 

regarding the Lopez loan that occurred within three years of the NOAA in the 

Demotion Action could be considered in determining whether to discipline 

Spence. (Id. at p. 15.)

Mack Loan

The other loan in the Demotion Action involved CO Otis Mack, who 

Spence supervised at RJD. Similar to Lopez, Spence and Mack did not have 

a personal relationship and did not socialize outside of work. In late April or 

early May 2016, Spence telephoned Mack at home and asked to borrow $200. 

Mack felt sorry for Spence and agreed to make the loan. Spence promised to 

repay the money in the next pay period. 

Over the course of several months, Mack asked Spence to repay the 

loan. On each occasion Spence made an excuse why he could not do so and,

as of August 2017 when the Demotion Action went to hearing, Spence still 

had not repaid the $200 he borrowed from Mack. (K.S., supra, SPB 

Precedential Dec. No. 17–02 at p. 8.) 

Time Sheets

Similar to the 2015 Consolidated Reprimand and the instant case, the 

Demotion Action also involved Spence’s failure to timely submit completed 

and signed time sheets. CDCR in the Demotion Action alleged Spence failed 

to submit time sheets for the pay periods between September 2015 and 
7

August 2016, despite receiving monthly notices at his home address stating 

he had failed to submit a time sheet along with a duplicate time sheet with 

instructions to complete it. (K.S., supra, SPB Precedential Dec. No. 17–02 at 

p. 8.)

Legal Conclusions 

The ALJ in the Demotion Action reached the following conclusions: 

“Appellant’s conduct constitutes cause for discipline under Government Code 

section 19572, subdivisions (b) incompetency, (c) inefficiency, (d) inexcusable 

neglect of duty, (e) insubordination, (o) willful disobedience, and (t) other 

failure of good behavior. . . . [¶] Demotion from the position of Correctional 

Lieutenant to the position of CO is a just and proper penalty.” (K.S., supra, 

SPB Precedential Dec. No. 17–02 at p. 25.) 

In reaching these conclusions, the ALJ found Spence “had a known 

duty not to borrow money from subordinate employees. Warden Hernandez 

specifically directed Appellant not to borrow money from subordinate 

employees. In addition, the 2015 Consolidated Reprimand specifically 

punished Appellant for borrowing money from CO Springer. Furthermore, a 

supervisor’s solicitation of personal loans from a subordinate employee is so 

clearly improper that specific notice is not necessary. Appellant should have 

known that asking a subordinate employee to borrow money may cause that 

employee to feel pressure to loan money to his supervisor, and may create the 

appearance that Appellant’s supervisorial decisions could be affected because 

of the employee’s decision whether to loan money. Thus, even if Appellant 

had not received explicit direction, he should have known he had a duty not 

to solicit personal loans from subordinate employees. Appellant breached 

this known duty when he asked CO Mack for a loan.” (K.S., supra, SPB 

Precedential Dec. No. 17–02 at p. 17.) 
8

The ALJ also found Spence “had a known duty to turn in his monthly 

time sheets in a timely manner. Appellant was aware of the requirement 

under [CDCR’s Department Operations Manual] section 31080.7.9, as the 

2015 Consolidated Reprimand specifically punished Appellant for his earlier 

failure to submit time sheets in a timely manner. Despite his known duty to 

submit time sheets in a timely manner, Appellant repeatedly failed to do so 

for a period of one year. [¶] Appellant’s conduct therefore constitutes cause 

for discipline . . . .” (K.S., supra, SPB Precedential Dec. No. 17–02 at p. 18.) 

Instant Action4

Office of Internal Affairs Interview re: CO Springer

As noted ante, in May 2014 Spence asked CO Springer for a $500 loan, 

which loan was the subject of the 2015 Consolidated Reprimand. Springer 

felt pressured and obligated to lend Spence the money because Spence then 

was a correctional lieutenant, a second line supervisor of CO’s, and had the 

authority to give a CO such as Springer a direct order. Spence told Springer 

he would repay him in two installments beginning in July 2014. 

Springer repeatedly contacted Spence both in person and via e-mail, 

text messages, and phone calls, after Spence failed to repay him. In 

September 2014, Spence paid Springer $100. Still owed $400, in November 

2014 Springer prepared a written memorandum to the RJD warden 

regarding the loan, explaining he felt pressured to make it because Spence 

outranked him, and asking for help to recoup the money. In December 2014,

Spence repaid Springer the balance due under the loan.

On October 17, 2016, Spence was scheduled to meet with CDCR’s Office 

of Internal Affairs (OIA) in connection with allegations that he borrowed 

4 The instant action also referenced the prior adverse actions discussed 

ante. 
9

money from subordinate officers that culminated in the Demotion Action. As 

discussed in more detail post, the night before the investigatory interview 

Spence called Springer at work and asked Springer whether he had stated in 

the written memorandum that Spence had used his rank to secure a loan 

from Springer, whether he had attempted to withdraw the written 

memorandum and, if so, whether RJD administration had resisted his 

attempt to do so. Toward the end of the conversation after Springer had 

refused to withdraw the memorandum, Spence suggested Springer may “end 

up in court.” Springer felt Spence was harassing him by calling him at work 

and threatening to retaliate against him if he did not withdraw the 

memorandum.

Kennard

On or about November 26, 2015, Spence approached CO Trevion 

Kennard during a shift at RJD. After some small talk, Spence asked 

Kennard for his personal cell phone number, despite the fact Kennard had 

only been working at RJD for about a year and a half, had no prior existing 

relationship with Spence, and had only known Spence through work. Shortly 

after Spence’s shift ended, he called Kennard and disclosed he was going 

through a difficult time and asked Kennard to “spot him $200.” Spence told 

Kennard he was parked at a nearby gas station that had an ATM where 

Kennard could withdraw the money. 

Kennard felt pressure to give Spence the money because Spence then 

was a correctional lieutenant. Kennard also feared Spence would retaliate 

against him if he did not make the loan. Kennard met Spence at the gas 

station, withdrew $200, and gave it to Spence, who promised to repay 

Kennard as soon as his adverse action concluded. 
10

About three weeks later, Spence called Kennard and again asked to 

borrow money. Kennard told Spence he did not have the money to loan him. 

Spence in response said he would pay Kennard $200 for an additional $100 

loan. Although concerned Spence would use his rank to negatively affect 

Kennard’s job status at RJD, Kennard refused to loan Spence more money. 

Kennard called Spence between 10 and 15 times to collect the $200 

Spence had borrowed. Spence gave Kennard various excuses why he could 

not repay him. At the evidentiary hearing in this case, Spence admitted he 

still owed Kennard $200. 

Dunlap

Shortly after completing his suspension in April 2016 for selling 

“coupon books” to subordinate officers and failing either to deliver the books 

or refund their money, Spence asked to borrow $400 from CO John Dunlap. 

On the day Spence asked for money, he engaged Dunlap in conversation 

several times while Dunlap was assigned to the C Plaza gate at RJD. On his 

fourth time through the gate, Spence told Dunlap he had just finished serving 

a 45-day suspension allegedly for refusing to write up a CO. Spence asked for 

Dunlap’s cell phone number. 

After his shift ended, Dunlap received a telephone call from Spence 

asking to borrow $400. Dunlap was “shocked” by Spence’s request, as Dunlap 

believed it was inappropriate for a superior officer to be asking subordinate 

officers for money. Dunlap initially refused to make the loan. Spence 

persisted, however, noting he made “good money” and would be able to repay 

Dunlap during “the next pay period.” Dunlap eventually agreed to the loan 

and met Spence about 20 minutes later at an ATM. Dunlap told Spence he 

really could not afford to make the $400 loan and “needed” it returned as 

promised by Spence. Spence assured Dunlap he would repay the money 
11

during the next pay period; and instructed him not to tell anyone about the 

loan, adding he previously had gotten into trouble for “using his position for 

his own gain.”

The next day, Spence called Dunlap and asked for an additional $300, 

claiming he had used the $400 he had just borrowed to pay a utility bill. 

Dunlap was reluctant to loan Spence any more money. Spence promised to 

repay all the money before the end of the month. Although Dunlap found 

Spence’s request stressful, he agreed to the additional $300 loan. 

As was the case with some of the other CO’s he borrowed money from, 

Spence failed to pay Dunlap back as promised. Dunlap on several occasions 

spoke with Spence about repayment of the two loans. Spence in June and 

again in September 2016 made partial payments to Dunlap, but did not repay 

the full amount of the loan, despite Dunlap’s myriad attempts to recoup his 

money. In January 2017, Spence stopped returning Dunlap’s messages and 

when they saw each other at work, Spence ignored Dunlap. Dunlap 

eventually filed a written complaint against Spence. In his complaint, 

Dunlap stated he felt victimized by Spence in what he described as Spence’s 

“unethical behavior and predatory tactics” in connection with the loan, and 

expressed concern Spence was engaging in similar conduct with other 

subordinate officers.

Martinez 

On or about December 12, 2016, Spence asked CO Jose Martinez for a 

$300 loan. Spence at the time was one of Martinez’s direct supervisors. 

Spence had another CO summon Martinez to Spence’s office. On arrival, 

Spence asked Martinez to close the door and then asked for his personal cell
12

phone number. Martinez was excited by these events as he believed Spence 

was about to offer him a management position. 

Shortly after his shift ended, Spence called Martinez, told him he was 

in the middle of a divorce, and asked to borrow $300, promising to repay the 

money on December 17. Spence in fact had been untruthful about why he 

needed the money, as Spence used it to gamble.5 

The following day, Spence called Martinez and asked to borrow an 

additional $300. Martinez refused, stating he could not afford to loan Spence 

any more money. Spence appeared frustrated and upset by Martinez’s 

refusal to make the additional loan. 

Spence did not repay Martinez as promised. Martinez called Spence 

about 15 to 20 times asking about repayment. Spence in response began to 

avoid Martinez at work. In March 2017, Martinez submitted a written 

memorandum to the RJD warden detailing the circumstances of the loan and 

Spence’s failure to repay the money, and asking for assistance in resolving 

the matter. In August 2017, Spence and Martinez met in a parking lot at

RJD to discuss repayment of the loan, after Martinez had encountered 

Spence in the RJD accounting office and had once again asked about 

repayment. Spence then claimed he had the money to repay Martinez but 

allegedly could not do so because of the memorandum prepared by Martinez. 

Spence promised to talk to his attorney and get back to Martinez. At the 

time of the hearing in the instant case, Spence still had not repaid Martinez. 

5 Spence in the instant action did not testify when he sought help 

through CDCR’s employee assistance program (EAP). However, the ALJ in 

the Demotion Action found Spence had contacted EAP in August 2016 and 

had begun attending Gamblers Anonymous meetings in October 2016.
13

Time Sheets 

During the relevant time period, Spence was required to submit a 

completed and signed Employee Record of Attendance (CDCR 998-A) form 

(i.e., time sheet) by the third day of each pay period. The time sheets show if 

an employee has used any accrued leave or was absent during any given 

month, and certify the time entered is correct. As of July 2017, Spence had 

not submitted times sheets for January, February, March, and April 2017. 

Each month Spence failed to submit a time sheet, as before CDCR mailed 

him a reminder that included a duplicate time sheet along with instructions 

to complete and submit it. Because Spence took leave in each of these 

months, CDCR was unable to accurately determine his pay. 

OIA Interviews

CDCR’s OIA interviewed Spence on March 7, 2017. During this 

interview, Spence denied harassing Springer or attempting to persuade him 

to withdraw his 2014 memorandum. OIA interviewed Spence a second time 

on March 14, 2017. During the March 14 interview, Spence “denied that 

anyone had ever told [him] not to borrow money from subordinates.”

Dismissal and Appeal

In November 2017, CDCR served Spence with a NOAA dismissing him 

from his position as a CO effective November 30, 2017. In the NOAA, CDCR 

alleged Spence violated Government Code section 19572, subdivisions (b) 

incompetency, (c) inefficiency, (d) inexcusable neglect of duty, (e) 

insubordination, (f) dishonesty, (m) discourteous treatment, (o) willful 

disobedience, (t) other failure of good behavior, and (x) unlawful retaliation. 

The NOAA further alleged Spence violated these various subdivisions by (1) 

wrongfully retaliating against Springer, a subordinate officer; (2) wrongfully 

borrowing money from subordinate officers Kennard, Dunlap, and Martinez; 
14

(3) failing to timely submit time sheets; and (4) being dishonest during the 

OIA interviews. Spence appealed.

Following a June 2018 hearing, the ALJ on October 19, 2018, issued his 

proposed decision sustaining the NOAA and the penalty of dismissal. In the 

proposed decision, the ALJ concluded that Spence’s conduct constituted cause 

for discipline under each of the alleged subdivisions of Government Code 

section 19572 except for (x) unlawful retaliation. On December 13, 2018, as 

noted, SPB adopted the proposed decision without modification. Spence on 

March 6, 2019, filed the Petition to set aside the December 13 decision of

SPB. 

On August 16, 2019, the trial court denied Spence’s Petition. It found 

that the ALJ’s application of issue preclusion/collateral estoppel was “not 

prejudicial”; that substantial evidence supported the dishonesty charges; and 

that there “was no procedural unfairness or lack of due process” based on 

Spence’s argument he was treated unfairly because he was not given 

“progressive discipline.” The August 16 order was incorporated into an 

August 29, 2019 judgment denying Spence’s Petition.

DISCUSSION

A. Guiding Principles

On a petition for administrative mandamus, we determine whether the 

agency has proceeded without, or in excess of, jurisdiction; whether there was 

a fair trial; and whether there was any prejudicial abuse of discretion by the 

agency. (§ 1094.5, subd. (b); City of Hesperia v. Lake Arrowhead Community 

Services Dist. (2019) 37 Cal.App.5th 734, 748.) Abuse of discretion “is 

established if the respondent [agency] 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.” (§ 1094.5, subd. (b).)
15

SPB is an agency of constitutional authority vested with quasi-judicial 

powers. (Coleman v. Department of Personnel Administration (1991) 52 

Cal.3d 1102, 1125 (Coleman); Telish v. State Personnel Bd. (2015) 234 

Cal.App.4th 1479, 1487 (Telish).) As such, its decisions are reviewed only to 

determine whether substantial evidence supports its findings. (Coleman, at 

p. 1125; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742.)

The role of an appellate court in reviewing an SPB decision on a 

petition for writ of administrative mandamus is the same as of the trial court

decision. (Department of Corrections & Rehabilitation v. State Personnel 

Bd. (2016) 247 Cal.App.4th 700, 707.) We apply the substantial evidence 

rule, examining “all relevant evidence in the entire record, considering both 

the evidence that supports the Board’s decision and the evidence against it, 

in order to determine whether that decision is supported by substantial 

evidence.” (Telish, supra, 234 Cal.App.4th at p. 1487.) “This does not mean, 

however, that a court is to reweigh the evidence; rather, all presumptions are 

indulged and conflicts resolved in favor of the Board’s decision.” (Ibid.) 

To the extent the appeal presents questions of law, our review is de 

novo. (Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 13; Pollak v. 

State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404.)

B. Issue Preclusion

1. Additional Background

The ALJ in the instant case found the Demotion Action “involved 

certain of the same issues present in this matter,” adding: “The hearing in 

[the Demotion Action] was held in August, 2017. Appellant and Respondent 

were the same, and only, parties to the both actions. The same counsel 

appeared on behalf of their respective clients at both hearings. Under his 

authority under California Code of Regulations, title 2, section 56.1, to 
16

control the proceedings, and under principles of collateral estoppel, the 

undersigned informed the parties at the beginning of the proceedings they 

would not be able to re-litigate the matters decided in [the Demotion Action].

“Among other things, the issue of whether Warden Hernandez had a 

meeting with Appellant in which he directed Appellant not to borrow money 

from subordinates was litigated in [the Demotion Action]. There, the ALJ 

reviewed the evidence presented by both parties about the nature and 

content of the meeting between Warden Hernandez and Appellant in the 

2008 to 2009 time period and made factual determinations about it. The ALJ 

found that Warden Hernandez received Sgt. Vasquez’s complaint about 

Appellant borrowing money from subordinates, that Warden Hernandez 

called Appellant to his office to discuss the complaint, that Warden 

Hernandez told Appellant to pay Sgt. Vasquez back, and that Warden 

Hernandez told Appellant not to borrow money from subordinates again. The 

undersigned informed the parties in the present action that the issue of the 

meeting between Warden Hernandez and Appellant, having been previously 

litigated and the ALJ’s determination relied upon by the Board in reaching 

its decision in [the Demotion Action] would stand for the present case.” (Fn. 

omitted.) 

In so doing, the ALJ was clear that, while this issue had been 

previously litigated, whether Spence had been dishonest during his March 

2017 OIA interview was still to be decided. The ALJ in the present action 

thus noted CDCR was “allowed to present Warden Hernandez to testify about 

the meeting for the sole purpose of [assessing] the current dishonesty 

charge.” 
17

2. Guiding Principles and Analysis

The term “ ‘res judicata’ ” is often used “as an umbrella term 

encompassing both claim preclusion and issue preclusion, which [is] 

described as two separate ‘aspects’ of an overarching doctrine. [Citations.] 

Claim preclusion, the ‘ “ ‘primary aspect’ ” ’ of res judicata, acts to bar claims 

that were, or should have been, advanced in a previous suit involving the 

same parties. [Citation.] Issue preclusion, the ‘ “ ‘secondary aspect’ ” ’ 

historically called collateral estoppel, describes the bar on 

relitigating issues that were argued and decided in the first suit.” (DKN 

Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) 

“ ‘ “The prerequisite elements for applying the doctrine to either an 

entire cause of action or one or more issues are the same: (1) A claim or issue 

raised in the present action is identical to a claim or issue litigated in a prior 

proceeding; (2) the prior proceeding resulted in a final judgment on the 

merits; and (3) the party against whom the doctrine is being asserted was a 

party or in privity with a party to the prior proceeding.” ’ ” (Boeken v. Philip 

Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken).)

We independently conclude that the ALJ did not err in applying issue 

preclusion in this case. (See Noble v. Draper (2008) 160 Cal.App.4th 1, 10 

[application of the doctrine of issue preclusion is a question of law subject to 

de novo review]; Groves v. Peterson (2002) 100 Cal.App.4th 659, 667 [same].) 

The issue litigated in the Demotion Action (and in the 2015 Consolidated 

Reprimand) was identical to the issue Spence sought to litigate in the instant 

action, namely whether Hernandez during a 2008/2009 meeting instructed 

Spence to refrain from borrowing money from subordinate officers, after 

Vasquez had filed a written memorandum that came to Hernandez’s 

attention as a result of Spence’s failure to repay a loan made by Vasquez. 
18

Moreover, as the ALJ noted the parties in the instant case are the same 

as in the Demotion Action (and the 2015 Consolidated Reprimand); and 

SPB’s decision in the Demotion Action is final and deemed precedential, as 

Spence did not appeal that decision. As such, we conclude the ALJ properly 

invoked issue preclusion to prevent Spence from relitigating the issue of 

whether he was instructed by Hernandez not to borrow money from 

subordinate officers. (See Boeken, supra, 48 Cal.4th at p. 797.) 

In light of our conclusion, we reject Spence’s related argument that he 

was denied a “fair” administrative hearing under section 1094.5, subdivision 

(b) because he allegedly was denied the opportunity to fully present his 

defense that no such meeting between him and Hernandez ever took place.6

3. Harmless Error

Assuming the ALJ erred by applying issue preclusion, we conclude that 

error was harmless. Indeed, the ALJ separately found that even if 

Hernandez in 2008/2009 had not instructed Spence to stop borrowing money 

from subordinate officers, Spence nonetheless should have known from the 

Demotion Action and the 2015 Consolidated Reprimand—where he was 

punished for borrowing money from subordinate officers—and from the 

6 As a result of our decision on this issue, we reject Spence’s contention 

that Hernandez’s testimony was insufficient to support the ALJ’s separate 

legal conclusion that Spence was dishonest during the March 13, 2017 OIA 

interview when he stated he was never told by Hernandez to stop borrowing

money from other CO’s. 
19

obvious impropriety of seeking loans from coworkers, that such behavior 

constituted serious misconduct supporting his dismissal from CDCR.7 

C. Progressive Discipline

Spence next contends his dismissal violated due process of law because 

CDCR did not follow the tenets of progressive discipline set forth in the 

precedential SPB decision In re R.N. (1992) SPB Dec. No. 92-07 (R.N.). 

CDCR argues Spence offered no legal authority (other than the R.N. decision 

itself) or record citation to support this contention. (See People v. 

Stanley (1995) 10 Cal.4th 764, 793 [failure to cite legal authority forfeits 

appellate review of issue].) In any event, CDCR argues R.N. is inapplicable. 

We agree with CDCR on this latter point.

Here, as noted ante the record shows Hernandez instructed Spence in 

2008/2009 not to borrow money from subordinate officers, after Vasquez 

complained when Spence failed to repay him. Spence was disciplined in 2015 

for again borrowing money from a subordinate officer and not repaying the 

loan, as noted in the 2015 Consolidated Reprimand, and again in 2017 in the 

Demotion Action, as also summarized ante. In addition, the ALJ in the 

Demotion Action found a supervisor’s solicitation of personal loans from 

subordinate employees was “so clearly improper” that Spence should have 

7 Spence also contends that the ALJ erred in applying issue preclusion 

because counsel for CDCR allegedly withdrew this affirmative defense during 

an unreported discussion between counsel and the ALJ. We note the ALJ 

referenced this discussion after a lunch break, stating CDCR counsel wished 

to withdraw her request that certain “facts” be established by issue 

preclusion/collateral estoppel, but neither the ALJ nor counsel identified 

those “facts” on the record. In any event, as a result of our conclusion that 

application of issue preclusion in this case was harmless error, we reject this 

contention even assuming arguendo CDCR withdrew this defense in 

connection with the 2008/2009 meeting between Hernandez and Spence.
20

known not to solicit personal loans from his coworkers even if Hernandez had 

not given him this explicit instruction. 

The current case, involving repeated willful and serious misconduct by 

Spence over the course of many years, is readily distinguishable from R.N., 

which involved a correctional officer who, over a 14-month period, fell asleep 

three times while on duty. In R.N., SPB modified R.N.’s dismissal to a sixmonth suspension, finding that, in cases of poor work performance, CDCR 

should follow a sequence of warnings or lesser disciplinary actions before 

imposing the ultimate penalty of dismissal. (R.N., supra, SPB Dec. No. 92-07 

at p. 6.) 

SPB in R.N. noted the purpose of progressive discipline “is to provide 

the employee with the opportunity to learn from prior mistakes and to take 

steps to improve his or her performance on the job.”8 (R.N., supra, SPB Dec. 

No. 92-07 at p. 6.) SPB determined in R.N. that CDCR did not discipline the 

plaintiff in a timely fashion, thus allowing her performance problems to 

accumulate and go undisciplined before progressive discipline was initiated; 

and that her dismissal did not take into account her improvement after she 

was transferred to another post. (Id., at p. 7.)

In addition, the record shows that unlike the plaintiff in R.N., Spence 

in the instant case was subject to progressive discipline. Indeed, as we have 

repeatedly noted, Hernandez warned Spence in 2008/2009 not to borrow 

money from subordinate officers. Despite this warning, and the fact 

borrowing money from subordinate officers—including some directly 

supervised by Spence—was clearly inappropriate even if Hernandez had not 

8 SPB also noted, however, that while progressive discipline is wellsuited to treating problems of poor work performance, “serious willful 

misconduct on the part of an employee may well warrant dismissal in the 

first instance.” (R.N., supra, SPB Dec. No. 92-07 at p. 6, fn. 3.)
21

previously so instructed Spence, the record shows Spence in 2014 obtained a 

loan from Springer, who felt pressured and obligated to make the loan 

because Spence was his superior officer. Ultimately Spence was subject to an 

adverse action—a 10 percent salary reduction for 13 months—effective on 

March 31, 2015, for borrowing money from Springer. Despite being punished 

in the 2015 Consolidated Reprimand, Spence again borrowed money from 

Lopez and Mack, which loans were the subject of the Demotion Action.9 We 

note the Mack loan took place in May 2016, after Spence had been subject to 

adverse action in the 2015 Consolidated Reprimand. 

In the instant case, Spence again borrowed money from subordinate 

officers, all of which again occurred after he had been subject to adverse 

action in the 2015 Consolidated Reprimand for the same misconduct. Spence 

borrowed money from Kennard in November 2015, from Dunlap in April 

2016, and from Martinez in December 2016. In each instance he failed to 

repay all the money. In connection with the loan from Dunlap, Spence went 

so far as to instruct this CO not to tell anyone about the loan, noting he 

previously had been in trouble for “ ‘using his position for his own gain.’ ” 

Thus, unlike the plaintiff in R.N., the record shows Spence in the instant case 

received progressive discipline before he was dismissed by CDCR. For this 

separate reason, we find the R.N. decision inapplicable in the instant case.

We also reject Spence’s argument he was improperly dismissed because 

he already had been demoted from Lieutenant CO to CO in connection with 

the Demotion Action. As summarized ante, the NOAA in the Demotion 

9 As noted ante, the ALJ found Spence could not be disciplined for 

borrowing money from Lopez because that incident occurred more than three 

years before CDCR filed its NOAA in the Demotion Action. As also noted, 

however, the ALJ found any conduct occurring within three years of the 

NOAA regarding the Lopez loan could be cause for discipline. 
22

Action only involved the Lopez and Mack loans, and Spence’s failure to timely 

submit time sheets between September 2015 and August 2016. However, the 

NOAA in the instant case involved three additional loans, as noted; Spence’s 

failure to timely submit time sheets for a different time period (i.e., January 

through April 2017); and his conduct in connection with the March 2017 OIA 

interviews. That the ALJ found demotion was the appropriate penalty in the 

Demotion Action in no way prevented the ALJ in a separate administrative 

proceeding—subject to a separate NOAA—from recommending dismissal, as 

adopted by SPB. 

Furthermore, we reject Spence’s due process challenge to his dismissal 

as the record shows that he fully participated in the multiday hearing before 

the ALJ, including calling and cross-examining witnesses, and offering his 

own testimony; and that he was dismissed as a CO only after the ALJ found 

Spence had (1) engaged in serious willful misconduct, including, as Spence

admitted, borrowing money from subordinate officers “under false pretenses, 

and then failing to repay them”; and (2) been dishonest during his March 

2017 interviews with OIA when he denied (i) trying to persuade Springer to 

withdraw his November 2014 memorandum complaining that Spence had 

borrowed money and failed to repay it, and (ii) receiving instruction from 

Hernandez to stop borrowing money from subordinate officers.

D. Sufficiency of the Evidence

Spence argues the evidence is insufficient to support the finding that 

during the October 16, 2016 telephone call with Springer he attempted to 

persuade Springer to withdraw his November 2014 memorandum. 

Specifically, Spence argues the ALJ recognized that Springer “appeared to be 

exaggerating as he testified about the number and content of the calls” from 

Spence after Springer wrote the memorandum; and that Springer only 
23

memorialized the one call on October 16, despite claiming there had been 

several threatening calls made by Spence between November 2014 and 

October 2016. Spence thus contends the ALJ’s decision to credit the October 

16 call by Spence but not the others show the former finding is not supported 

by substantial evidence. We disagree.

1. The October 16 Telephone Call 

The record shows at the time of the administrative hearing, Springer 

had been a CO at RJD for 11 years. Prior to his employment with CDCR, 

Springer had been in the Marine Corps for more than eight years, from which 

he was honorably discharged. 

Springer testified that shortly after his shift began at 10:00 p.m. on 

October 16, 2016, he received a telephone call on an RJD landline. Because 

he was busy with his assignment, Springer picked up the call on 

speakerphone. Initially, Springer could not determine the identity of the 

caller. After some small talk, the caller asked Springer to take him off 

speakerphone. After Springer complied, the caller identified himself as 

Spence and in a “friendly” manner asked Springer how he was doing. 

Springer was unsure whether he should be speaking with Spence, as OIA had 

given Springer a directive to refrain from communicating with Spence during 

its investigation. Because Spence had repaid the loan and was otherwise 

friendly on the phone, Springer decided to have a short conversation with 

Spence, as Springer was otherwise busy at work and his supervisor was 

present.

Once off speakerphone, Springer testified that Spence’s demeanor 

“changed a little bit.” Spence began to question Springer about the 

November 2014 memorandum, leading Springer to believe that Spence was 

still “pretty pissed off” at him for writing it. Springer explained he wrote the 
24

memorandum because he had loaned Spence $500, had then only been repaid 

$100, and had wanted to let the warden know about the loan because he felt 

“played” by Spence.

As they continued to talk on the telephone, Spence raised his voice at 

Springer and, while “breathing hard,” asked Springer, “hey, what’s up with 

the fucking memo, man? . . . You said you’re going—you’re going to pull it. 

What’s up?” Springer explained to the ALJ that he was concerned by 

Spence’s call, particularly because he was on duty when it came in, and 

because he believed the matter had been resolved as Spence had since repaid 

the loan. As they spoke on the telephone, Spence began talking over 

Springer, telling him, “hey, look, if you were trying to withdraw that memo, 

they cannot hold you or tell you not to withdraw it [¶] . . . [¶]—and basically 

just telling me they can’t do that. If you want to withdraw something, you 

should be able to do that.” As noted ante, near the end of the call Spence 

said: “hey, look, man, you might end up in court but just in a different 

way[.]” Springer interpreted this statement to mean that Spence might sue 

him for writing the memorandum and refusing to withdraw it. 

2. The ALJ’s Findings and Conclusions of Law

As noted, the ALJ found CDCR proved by a preponderance of the 

evidence that during the October 16 call Spence first attempted to persuade 

Springer to withdraw his November 2014 memorandum and, when he did not 

do so and explained he also had not tried to do so, Spence next threatened to 

retaliate against him. These findings supported the ALJ’s legal conclusions

that Spence’s conduct on October 16 constituted (1) inexcusable neglect of 

duty; (2) dishonesty; (3) discourteous treatment of another employee; (4) 

willful disobedience; and (5) other failure of good behavior. 
25

3. Substantial Evidence Supports the ALJ’s Findings Regarding the 

October 16 Telephone Call

We conclude the record evidence is more than sufficient to support the 

ALJ’s finding that on October 16 Spence called Springer at work in an 

attempt to convince Springer to withdraw the November 2014 memorandum; 

and that, when Springer refused, Spence threatened retaliation. (See Do v. 

Regents of University of California (2013) 216 Cal.App.4th 1474, 1490 [noting 

that “[o]nly if no reasonable person could reach the conclusion reached by the 

administrative agency, based on the entire record before it, will a court 

conclude that the agency’s findings are not supported by substantial 

evidence”].) 

That the ALJ credited certain testimony by Springer and not his other 

testimony does not change our decision, as the ALJ as trier of fact was 

entitled to believe all, some, or none of Springer’s testimony. (See Evid. Code, 

§ 780.) As a court of review, we neither reweigh the evidence nor reevaluate 

a witness’s credibility; rather, we examine “all relevant evidence in the entire 

record, considering both the evidence that supports the Board’s decision and 

the evidence against it, in order to determine whether that decision is 

supported by substantial evidence.” (Telish, supra, 234 Cal.App.4th at p. 

1487.) Based on this record, we find substantial evidence supports the ALJ’s 

findings regarding the October 16 telephone call in which Spence threatened 

retaliation against Springer unless he withdrew the memorandum. 

4. Harmless Error

Assuming there is insufficient evidence to support the ALJ’s finding 

that Spence, on the eve of his OIA interview, threatened to retaliate against 

Springer if he did not withdraw the November 2014 memorandum, we 

nonetheless conclude that error is harmless. Indeed, separate and apart from
26

the findings in connection with the October 16 call, there were other factual 

findings made by the ALJ, based on evidence that Spence has not challenged 

on appeal, which support various legal conclusions by the ALJ on which 

Spence’s dismissal is separately based. 

As noted ante, the ALJ found Spence’s conduct constituted inexcusable 

neglect of duty as he had been “ordered . . . not to borrow money from 

subordinate officers,” which “direction” was then well-known to Spence and 

which direction he chose to ignore when he again borrowed money from 

subordinate officers Kennard, Dunlap, and Martinez. The ALJ also found 

Spence’s failure to timely submit signed time sheets separately constituted 

inexcusable neglect of duty. Thus, even assuming arguendo the ALJ erred in 

considering Springer’s testimony regarding the October 16 telephone call, the 

other evidence and findings not challenged by Spence on appeal fully support 

the ALJ’s conclusion that Spence’s conduct constituted inexcusable neglect of 

duty.

Similarly, the ALJ found evidence other than the October 16 telephone 

call supported the conclusion that Spence was willfully disobedient in that he 

knowingly and intentionally violated a direct command, prohibition, or 

policy, noting: “[D]espite CDCR’s prohibition against a superior officer 

borrowing money from a subordinate, and prior action against him, Appellant 

continued to borrow money from subordinates. So too with the time sheets, 

despite CDCR’s policy requiring the timely submission of signed time sheets, 

and prior action against him, Appellant continued to fail to turn in his time 

sheets in a timely manner.” 

Moreover, the ALJ found this same misconduct by Spence also 

constituted other failure of good behavior, as this misconduct was rationally 

related to his employment with CDCR. Thus, even if the ALJ abused its 
27

discretion and erred in crediting Springer’s testimony regarding the October 

16 telephone call, any such error was harmless in light of the other evidence 

that supported the penalty of dismissal.

DISPOSITION

The judgment affirming the denial of Spence’s Petition under section 

1094.5 is affirmed. Respondent and real party in interest CDCR shall 

recover its costs on appeal, as shall respondent SPB to the extent it incurred 

any such costs.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.