Filed 1/3/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JESSE GRIEGO,

Plaintiff and Respondent,

v.

CITY OF BARSTOW,

Defendant and Appellant.

 B322638

 San Bernardino County

 Super. Ct. No. CIVDS1936454

APPEAL from a judgment of the Superior Court of San 

Bernardino County, Donald R. Alvarez, Judge. Reversed with 

directions.

Best Best & Krieger, Thomas M. O’Connell, B. Allison 

Borkenheim and Pokuaa M. Enin; Buchalter, Thomas M. 

O’Connell for Defendant and Appellant.

Rain Lucia Stern St. Phalle & Silver and Michael A. 

Morguess for Plaintiff and Respondent.

____________________
2

Jesse Griego was a captain in the Barstow Fire Protection 

District. The City of Barstow fired him for criminal and 

perjurious acts, for willful refusal to comply with official orders, 

and for setting a poor professional example for his subordinates, 

as well as for other charges no longer at issue. The trial court 

erred by remanding this case for the City to reconsider Griego’s 

discipline. There is no real doubt the City would terminate 

Griego, so there is no reason to remand the case. (See Byrd v. 

Savage (1963) 219 Cal.App.2d 396, 402–403 (Byrd).) We reverse 

the trial court and affirm the City’s decision.

I

Griego worked for the Fire District from 1997 to 2018. He 

also coached children’s sports teams, including the girls’ softball 

team at Barstow High School. 

In 2007, the Fire District issued a memorandum to its 

captains directing personnel not to attend sporting events while 

on duty. On March 23, 2017, a fire chief verbally reprimanded 

Griego for coaching on duty. Griego was defensive and 

argumentative. The fire chief told him, “[T]here is no coaching on 

duty in any capacity. Do not take the engine. Period.” Griego 

expressed no regret, and later was seen again attending a 

sporting event while on duty. On March 29, 2017, the chief 

issued a written reprimand. 

Also in early 2017, a safety officer at Barstow High School 

reported she suspected an inappropriate relationship between 

Griego and a 15-year-old student, H.S. The officer saw Griego 

bring H.S. lunch during school hours and H.S. drive Griego’s car. 

She heard students saying H.S. was wearing Griego’s shirt, the 

two had adopted a cat together, and they had visited a theme 

park together. 
3

The Barstow Police Department opened a criminal 

investigation into Griego for suspected statutory rape (Pen. Code, 

§ 261.5). The City placed Griego on paid administrative leave, 

and Barstow High School told him to end contact with the girls’ 

softball team. Nonetheless, Griego continued to attend practices 

and games and to communicate with coaches and players, 

including H.S. The investigative detectives reported they 

believed Griego had continued his inappropriate relationship 

with H.S. despite the criminal probe, but the San Bernardino 

County District Attorney’s Office ultimately did not prosecute. 

The City launched its own investigation into whether 

Griego had violated the Fire District’s Personnel Rules and 

Regulations, rule 6, section 10.3. This section gives examples of 

grounds for disciplinary action which include dishonesty, 

insubordination, violation of rules or a supervisor’s orders, or 

“[o]ther acts which are incompatible with service to the public” 

including “any conduct or behavior, either on or off duty, which 

causes discredit or would reasonably tend to cause discredit to 

fall upon the City, its officers, agents or departments.” 

The City’s investigator sustained 19 allegations against 

Griego. These allegations included, among others, that Griego 

(1) sought an “intimate dating relationship” with minor H.S.; 

(2) defied specific directions not to coach while on duty despite 

multiple warnings; (3) carried a concealed handgun outside his 

home without a permit; and (4) filed a false court document 

under penalty of perjury. 

The handgun allegation referred to November 2017, when 

Griego carried a concealed gun to investigate suspicious people 

outside his home. A police officer arrived and asked Griego if he 

had a gun; Griego said yes and showed it to him. The officer 
4

asked if he had a concealed carry permit; Griego did not. Penal 

Code section 25400 prohibits carrying a concealed gun in public 

without a permit. 

As for the perjury, in 2017 Griego’s ex-wife applied for a 

domestic violence restraining order against him. A temporary 

restraining order issued in July 2017 included a direction to store 

any firearms with the police department or a licensed gun dealer. 

Yet in August 2017, Griego signed and filed a response that 

declared, “I do not own or have any guns or firearms.” Griego 

later admitted he had owned guns for about two years. 

Regarding the false court filing, he said, “I probably didn’t even 

read that and pay attention to that.” 

Following the investigative report, the fire chief issued 

Griego a notice of intent to terminate. This notice explained why 

Griego’s conduct violated the Fire District’s personnel policies 

and listed the sustained allegations, the specific rules violated, 

and prior incidents of discipline. It advised Griego of his right to 

respond pursuant to Skelly v. State Personnel Board (1975) 15 

Cal.3d 194 (Skelly). Following Griego’s Skelly hearing, the fire 

chief issued Griego a notice of termination based on 18 of the 19 

allegations. The fire chief wrote Griego’s on- and off-duty conduct 

was “disgraceful” and had brought discredit upon the Fire 

District. 

Griego appealed through nonbinding advisory arbitration. 

The parties introduced evidence and heard witness testimony 

over the course of 11 days. The arbitrator concluded there was 

sufficient evidence to sustain six of the 18 allegations against 

Griego. He found insufficient evidence supported the charge of 

an inappropriate relationship, however, as H.S. and her family 

testified nothing untoward had happened. The arbitrator noted 
5

the only witness who claimed to have seen sexual activity 

between the two—Griego’s ex-wife—was not credible. He said 

Griego had “demonstrated a certain disregard for directives and 

instructions” and “exhibited a somewhat cavalier attitude to the 

expectations of his position,” but found the penalty of termination 

no longer appropriate because the “major part” of the allegations 

was not sustained. He advised reducing the penalty to a 30-day 

suspension. 

The arbitrator sent his recommendation to the city 

manager. Pursuant to a memorandum of understanding between 

the City, the Fire District, and the union, the city manager had 

the right to amend, modify, or revoke the arbitrator’s 

recommendation. The city manager’s decision would be final and 

binding. 

The city manager disagreed with the arbitrator and 

concluded the evidence demonstrated Griego indeed had pursued 

an intimate dating relationship with H.S. The manager noted 

both Griego and the arbitrator focused on the scant evidence the 

relationship was sexual. She found the relationship was 

inappropriate for a fire captain regardless of sexual contact. She 

reversed the arbitrator’s finding on this one allegation: Griego’s 

relationship with H.S. 

The city manager affirmed the arbitrator’s findings as to 

the other allegations. She “identified a pattern of inconsistent 

statements and disregard of operational directives and orders” by 

Griego. She noted the record was “fraught with examples” of 

Griego disobeying express orders, giving conflicted explanations, 

and failing to demonstrate any remorse or understanding. His 

overall conduct, she said, was inconsistent with that expected of 

an experienced fire captain. The city manager upheld the fire 
6

chief’s decision to terminate based on the now-remaining seven 

sustained allegations. 

Griego filed a petition for writ of administrative mandate in 

the superior court. The superior court, exercising its independent 

judgment as to the City’s findings of misconduct, granted the writ 

in part and denied it in part. It found there was sufficient 

evidence to sustain only three allegations: coaching on duty, 

carrying a concealed handgun without a permit, and filing a false 

court document. The superior court held termination was not 

appropriate based on these three allegations and remanded the 

matter for reconsideration of Griego’s discipline. 

The City appealed the trial court’s decisions (1) that the 

City abused its discretion by firing Griego based on the three 

sustained allegations and (2) that the case was remanded to the 

City to redetermine Griego’s discipline. 

II

After outlining the standards of review, we reverse two 

erroneous rulings by the trial court: that the City could not fire 

Griego based on the three sustained allegations, and that remand 

was appropriate.

A

Trial courts generally review petitions for writs of 

administrative mandate to see if the respondent agency abused 

its discretion. An agency abuses discretion if it does not proceed 

as required by law, its decision is not supported by the findings, 

or its findings are not supported by the evidence. (Code Civ. 

Proc., § 1094.5, subd. (b).) Trial courts exercise independent 

judgment when reviewing administrative decisions affecting a 

right that is vested and fundamental. (Strumsky v. San Diego 

County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44.) 
7

Permanent employees have a vested interest in their 

employment. (Brush v. City of Los Angeles (1975) 45 Cal.App.3d 

120, 123.) When such a petitioner claims the findings are not 

supported by the evidence, there is an abuse of discretion if the 

weight of the evidence does not support the findings. (§ 1094.5, 

subd. (c).) 

Despite this independent judgment about the agency’s 

findings, trial courts must not disturb a penalty absent an abuse 

of discretion. The trial court is not free to substitute its 

discretion for that of the agency concerning the degree of 

punishment. (Nightingale v. State Personnel Bd. (1972) 7 Cal.3d 

507, 515.) Agencies have a wide latitude of discretion, and courts 

defer to their expertise unless the penalty is “arbitrary, 

capricious or patently abusive.” (Cassidy v. Cal. Bd. of 

Accountancy (2013) 220 Cal.App.4th 620, 627–628; see also id. at 

p. 633.) Put another way, trial courts may overturn a penalty 

when it “exceeds the bounds of reason.” (Kolender v. San Diego 

County Civil Service Com. (2005) 132 Cal.App.4th 716, 721.) If 

reasonable minds may differ, there is no abuse of discretion. 

(Lake v. Civil Service Com. (1975) 47 Cal.App.3d 224, 228.) 

On appeal, we also review the administrative decision—not 

the trial court’s—for abuse of discretion. (Deegan v. City of 

Mountain View (1999) 72 Cal.App.4th 37 (Deegan) [no deference 

to trial court’s determination of penalty assessed]; see also 

8 Witkin, Cal. Procedure (6th ed. 2022) Writs, § 293.) Because 

the City’s appeal is limited to whether the superior court erred in 

overturning its decision to terminate Griego, we consider only the 

findings on the sustained allegations in our review of its penalty. 
8

B

Based on the three sustained allegations, termination was 

well within the City’s broad discretion. The City did not abuse its 

discretion.

The city manager’s letter explained her decision to uphold 

Griego’s termination. About half of this letter addresses Griego’s 

inappropriate relationship with H.S.; the other half explains 

other reasons Griego “failed to conduct himself in a manner 

consistent with the expectations of a Fire Captain.” In the 

manager’s words, “Griego’s lack of credibility, inconsistent 

statements, inappropriate actions with [H.S.] and his conscious 

disregard for District policy” justified termination. 

We disregard one of these four stated reasons for 

termination—Griego’s relationship with H.S. The other three 

reasons apply to conduct described in the three sustained 

allegations, namely: refusing to follow an express directive, 

issued multiple times, not to coach softball while on duty; 

carrying a concealed handgun without a permit; and lying under 

penalty of perjury about possessing firearms. These actions 

demonstrate a lack of credibility, reliability, and trustworthiness 

and were a reasonable basis for the City’s decision to sustain 

termination.

C

The trial court erroneously remanded Griego’s case.

The law on this issue is in Miller v. Eisenhower (1980) 27 

Cal.3d 614 (Miller). We review Miller.

Dr. Donald Miller applied to join a hospital staff, but the 

hospital rejected his application because he supposedly lacked an 

“ability to work with others.” (Miller, supra, 27 Cal.3d at pp. 620-

621, 627.) The evidence was Miller was “flamboyant,” “a little 
9

impetuous,” and “a controversial person” who expressed himself 

“forcefully and vigorously.” (Id. at pp. 621, 631.) Other evidence 

was that Miller created “dissension” and that he had “relatively 

few friends in the community.” (Id. at p. 622.) The Supreme 

Court clarified the proper decisional standard and remanded the 

case to the hospital for it to determine whether Miller’s 

“characteristics of personality which other staff members or 

administrators find personally disagreeable or annoying” would 

be detrimental to patient care. (Id. at pp. 631–632.) 

As the City explains, Miller’s facts are at a considerable 

remove from this case. The City penalized Griego, not for a 

“controversial” personality, but for criminal and perjurious 

actions and for insubordination that “displayed a poor 

professional example to [his] subordinates.” It wrote to him, 

simply, “You cannot be trusted to perform your duties.” 

The trial court relied upon Miller, but the City rightly 

critiques that citation as factually inapposite. Griego does not 

defend the trial court’s reliance on Miller: his brief omits 

mention of Miller. 

Although Miller’s precise holding and its facts do not 

resemble Griego’s situation, Miller did survey precedent and 

formulate a general rule. We turn to that general rule and to its 

exception. 

The Miller opinion stated that it is “well settled, of course, 

in cases involving the imposition of a penalty by an 

administrative body, that when it appears that some of the 

charges are not sustained by the evidence, the matter will be 

returned to the body for redetermination in all cases in which 

there is a ‘real doubt’ as to whether the same action would have 
10

been taken upon a proper assessment of the evidence.” (Miller, 

supra, 27 Cal.3d at p. 635.) 

After stating this general rule, Miller cited 10 precedents to 

illustrate its source and proper application. (See Miller, supra, 

27 Cal.3d at p. 635.) Of these 10 cited cases, none is completely 

on point, but the closest is Byrd, supra, 219 Cal.App.2d 396. We 

recount Byrd, explain its pertinence, and apply this law, which 

our Supreme Court specifically has approved. (Miller, supra, 27 

Cal.3d at p. 635.)

Floyd Byrd held a “restricted real estate license.” (Byrd,

supra, 219 Cal.App.2d at p. 398.) This type of license is the “sort 

issued to one who has already violated the licensing law.” (Id. at 

p. 402.) Byrd had, “in effect, probationary status.” (Ibid.) 

California’s Real Estate Commissioner considered three 

charges against Byrd. 

One was that realtor Byrd had violated a statute providing 

for license suspension or revocation if the license holder 

committed “fraud or dishonest dealing.” (Byrd, supra, 219 

Cal.App.2d at p. 398 & fn. *.) The basis for this accusation was 

that Byrd had stated “falsely that a certain piece of property to be 

used as security for a loan was free and clear of all 

encumbrances.” (Id. at p. 398.) 

The second charge was that Byrd had failed to register as a 

“real property loan broker.” (Byrd, supra, 219 Cal.App.2d at p. 

398.) 

The third charge related to Byrd’s “pleading guilty to 

violation of a city ordinance (drunk in or about an automobile).” 

(Byrd, supra, 219 Cal.App.2d at p. 398.) 
11

The Real Estate Commissioner sustained the first and 

third counts but rejected the second—the one about registering as 

a loan broker. The Commissioner revoked Byrd’s license.

The superior court reviewed the matter, sustained the 

charge about “fraud or dishonest dealing,” dismissed the charge 

about alcohol, and affirmed the license revocation.

The Court of Appeal affirmed the trial court’s judgment. 

The pertinent section of this opinion analyzed whether Byrd’s 

case should be remanded to the Real Estate Commissioner. The 

court decided remand was unnecessary.

“As a general rule, where one of several charges of 

misconduct is reversed by the trial court, the case should be 

remanded to the administrative agency to reconsider the penalty. 

[Citation.] Here, although the trial court found insufficient 

evidence to support one of the charges, all relief was denied.” 

(Byrd, supra, 219 Cal.App.2d at p. 402.) 

The Byrd decision explained why the court was rejecting 

remand and thus was following an exception to the general rule. 

“In view of the seriousness of the charge sustained by the trial 

court, the comparatively minor character of the charge which was 

reversed, and in view of petitioner's prior record as indicated by 

his restricted license, there is no real doubt that the license 

would and should be revoked. There is no reason to remand the 

case for reconsideration of the penalty.” (Byrd, supra, 219 

Cal.App.2d at p. 403.) 

Byrd resembles this case because it involved a serious 

employment decision. The Commissioner effectively barred Byrd 

from work as a realtor, just as the City fired Griego from his job.

But Byrd does not squarely control this case. No precedent 

does. 
12

This case differs from Byrd because the accusation that 

Griego had an inappropriate relationship with a minor was not 

“comparatively minor.” (Byrd, supra, 219 Cal.App.2d at p. 403.) 

Another difference is that Griego’s employment was not 

probationary. Rather, Griego was a fire captain with long tenure 

and supervisory responsibilities. This difference, however, is 

more aggravating rather than exonerating: an experienced but 

defiantly insubordinate supervisor sets an intolerable example by 

repeatedly flouting direct commands from his superior.

By the same token, Griego’s sustained misconduct was 

more serious than Byrd’s false statement about property. 

Griego’s mendacity constituted a pattern that included perjury; 

he was unapologetically insubordinate; and he had violated the 

Penal Code’s gun laws. Griego’s sustained misconduct “would 

reasonably tend to cause discredit to fall upon the City, its 

officers, agents or departments.” His repeated and varied 

misconduct harmed the Fire District. (See Skelly, supra, 15 

Cal.3d at p. 218 [in determining abuse of discretion, courts 

consider harm to public service, circumstances surrounding 

misconduct, and likelihood of its recurrence].)

Following Byrd, there is no real doubt the City would 

terminate Griego. There is no reason for remand. 

///
13

DISPOSITION

We reverse the judgment of the superior court with 

directions to deny Griego’s petition for writ of administrative 

mandate and to enter judgment for the City of Barstow. We 

award costs to the City. 

WILEY, J.

I concur: 

STRATTON, P. J. 
1

HARUTUNIAN, J., Concurring and Dissenting:

I concur in part and respectfully dissent in part. I fully 

agree with the majority’s conclusion that the trial court erred in 

ruling that the City could not fire Griego based on the three 

sustained allegations. I agree that the three sustained 

allegations brought termination within the City’s broad

discretion. But I cannot join the decision to overturn the trial 

court’s order to remand the case for reconsideration by the City of 

its level of punishment. The City’s decision to terminate Griego 

was based in part on the extremely serious “suspected statutory 

rape”1 allegation. The fire chief relied on that charge in deciding 

to terminate Griego. So did the city manager.

The City has not appealed the trial court’s ruling that 

termination must be justified by the three sustained allegations, 

not including the “unsustained” statutory rape allegation. The 

majority concludes that if we were to remand the case, the City is 

sure to conclude termination is warranted. Perhaps. But how 

can we conclude that when there have already been two decisions 

that termination is not warranted when “statutory rape” is not 

considered? The first is when the arbitrator found that 

“statutory rape” was not established, and that the penalty 

justified by Griego’s other conduct was a 30-day suspension, not 

termination. The second is when the trial court reviewed the city 

manager’s termination decision, found insufficient evidence to 

sustain the “statutory rape” allegation, and concluded 

termination was not warranted based on the sustained 

allegations. The City was never faced with deciding whether to 

1 References to “statutory rape” are simply a short-hand for 

the “intimate dating relationship with a minor” allegation.
2

terminate Griego when “statutory rape” cannot be factored into 

the decision in any way. He should be allowed to present his 

arguments with the limitations that now exist. The city manager 

decided to terminate based on seven sustained allegations, 

including “statutory rape.” The decision now would be based on 

only three sustained allegations that are arguably far less serious 

than the sexual misconduct charge.

I express no opinion about whether Griego should be 

terminated. I simply feel he is entitled to “make his case” to the 

City based only on the permissible charges. As the majority 

recognizes, this is the “well settled” general rule. (Miller v. 

Eisenhower Medical Center (1980) 27 Cal.3d 614, 635.) The 

distinctions in the case relied on by the majority, Byrd v. Savage 

(1963) 219 Cal.App.2d 396, (comparatively minor accusation, and 

probationary licensee) render it inapplicable in my view.

We should remand the case to the City to reconsider the 

penalty, considering only the three sustained allegations.

HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the 

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

Constitution.